February 17, 2021

This blog was written by Tyler Lin, Student-At-Law

Ontario tort law has come a long way from its common law heritage days of the snail in a ginger beer. As modern society continues to evolve concurrently with the internet, the law has been striving to keep up. Any tool can be used for good or for bad. The internet, arguably our greatest tool, is no exception.

Caplan v. Atas, 2021 ONSC 670 (CanLII) has gained significant notice since its release two weeks ago. The facts of this case, and of its affirmation of a new tort, is an example of the common law’s response to this tool’s abuse.

I – The Super-Slanderer

Corbett J. has identified four distinct threads of grievances in this tapestry of harassment and revenge which spanned more than one decade and continent.

Thread One

On September 2018, in the English village of Beckley, Guy Babcock received an alarming call from his 88-year-old father. Members of his senior social club had alerted him that an anonymous person or group had written terrible things about Guy. When Guy got off the phone, he ran an internet search which confirmed his worst fears: photos of him had been taken from his LinkedIn and Facebook pages and plastered with the word “pedophile” in red type.

Guy ran similar internet searches of the names of his brother, wife, sister, his teenage nephew, cousin, aunt, and brother-in-law. The results were the same: all male family members were branded as child molesters and pedophiles, while the women were branded as thieves and scammers.

Thread Two

Across the Atlantic, Christina Wallis, a Canadian lawyer, had been struggling with the same targeted attack – her photo had been branded online with derogatory labels. Christina had been contacting the internet sites which the attacker used and pursuing relief in the courts for years, without success.

The attacks caused real harm to Christina. In 2019, she spent months applying for jobs without response. However, when she began using her maiden name on the applications, she quickly received three interviews and two offers.

Threads Three and Four

The third and fourth threads consisted of multiple persons involved in mortgage enforcement proceedings commenced a decade ago, including the lawyers who acted for the institutions seeking to enforce the mortgages.

The Source of the Attacks Revealed

The court found that all four threads connected back to Ms. Atas, an individual with a history of harbouring grudges for decades and waging targeted attacks on anyone she believed had wronged her. Guy and his family were the owners of a realtor firm which had fired Ms. Atas in the 1990’s. Christina was a lawyer who acted for a trust company which sought to enforcing a mortgage against a property owned by Ms. Atas. The other victims of Ms. Atlas’ online attached included other lawyers for the trust company, members of the law firms, their family members, and Christina’s own counsel.

In all, the online attacks had affected more than 150 people, many of whom had never met with or interacted with Ms. Atas directly. However, they all were connected, by family, friends, or co-workers, to a person who was at one point involved in Ms. Atas’ life. While each set of victims had commenced their own legal proceeding, their claims were joined and heard together.

II – The Decision of Caplan v. Atas

Slander has long existed before the advent of the internet. What makes internet harassment especially damaging? Quoting Mark Twain, Christina wrote: A lie can travel halfway around the world while the truth is still putting on its shoes.

Enforcement is another challenge in the internet age. Most of the websites used by Ms. Atlas were not based in Canada (many were US-based). Section 230 of the American Federal Communications Decency Act states that online publishing platforms cannot be held liable for what their users publish, even if the website hosts moderate their content. Therefore, it is difficult, if not impossible, for a Canadian court to force US-based websites to remove libelous content. The result: decades of commentary from Ms. Atas was preserved on the internet.

In reviewing tens of thousands of pages of evidence, Corbett J. found that the test for defamation was made out. However, while the law of defamation provides some recourse, he found that the usual remedies were insufficient in this case to end or control the behaviour of a particularly egregious wrongdoer such as Ms. Atas.

Accordingly, he adopted the Tort of Internet Harassment, which had first emerged in US case law. The three-part test of this tort includes:

(1) where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond the possible bound of decency and tolerance,

(2) the conduct was intended to cause fear, anxiety and emotional upset or to impugn the dignity of the plaintiff, and

(3) the plaintiff suffers such harm.

The Court of Appeal of Ontario in Merrifield recently cautioned that judges should refrain from playing junior legislator. However, Corbett J. found that it was appropriate in this case to adopt the new tort. Among other reasons, the facts of this case were similar to Jones v. Tsige, in which Sharp J.A. stated: “we are presented in this case with facts that cry out for a remedy.”

Corbett J. held that the current legislative and common law response to this type of internet conduct was insufficient to provide any relief to the victims. Traditional remedies such as a non-harassment orders or damages would likely not discourage a defendant who had already been jailed for contempt of court, was labeled a vexatious litigant, breached past court orders, and was destitute.

In order to provide the plaintiffs with relief, Corbett J. instituted a permanent injunction against Ms. Atas and against all persons, even those who are non-parties to the current proceeding. The specially crafted order enabled the removal of offending content from the internet by vesting title in the postings with plaintiffs. However, the plaintiffs would have to seek removal of the posts by going to the various internet platforms themselves, as the defendant was penniless, refused to cooperate, and could not be expected to remember the tens of thousands of posts she has made over the last decade.

III – Uncertain Future & Estate Litigation

Corbett J.’s decision has caused a stir in the legal community. Some have welcomed this development, praising this ruling as a positive example of how the common law can gradually and prudently evolve to keep pace with changes in society. Others have raised questions about whether the introduction of a new tort into Ontario law was necessary, suggesting that the same relief could have been ordered on a finding of defamation. Still others have wondered whether the three-part test of the new tort sets too a high bar, one that is not likely to be met in the future. The facts of this case are likely to be unique: Caplan v. Atas was the culmination of nearly two decades of online harassment and failed litigation. It is unclear whether future plaintiffs will have to show a similar pattern of sustained and egregious conduct to meet the test of “beyond all reasonable bounds of decency and tolerance.” Finally, it has yet to be seen whether the introduction of a new tort will have any deterrence effect.

However, this new tort develops, estates litigators would do well to keep an eye on it. As we well know, family dynamics can be fraught and mudslinging is commonplace. Will this new tort have a future role in estates law? Only time will tell.