In the spring of 2021, we wrote an article about the Caplan v Atas, 2021 ONSC 670 decision which discussed the novel tort of internet harassment. That article can be found here. In Caplan, Justice Corbett of the Ontario Superior Court recognized the new common law tort of internet harassment.
Following Caplan, one of the questions that we raised was how this new tort would be treated in other provinces, such as Manitoba. In the recent M.S. v. T.V., 2022 MBKB 211 decision, we have now had the opportunity to get some insight (albeit limited) as to the Manitoba judiciary’s view on this novel tort.
The T.V. decision involved a motion for an interlocutory injunction restraining the Defendant T.V. from, among other things, publishing defamatory or disparaging statements about the Plaintiff and harassing the Plaintiff, his friends, family and business associates.
T.V. and the Plaintiff were previously in a romantic relationship. After the relationship ended, T.V. sent multiple distressing text messages to the Plaintiff and his mother. The nature and content of the text messages will not be reproduced in this article. Suffice it to say that the messages were vulgar and disturbing. T.V. also made statements on social media platforms which suggested that the Plaintiff was sexually, emotionally and physically abusive towards her.
As a consequence of these statements, the Plaintiff brought an action in defamation, intentional interference with economic relations and the novel tort of internet harassment. The Plaintiff and the Defendant then brought cross-motions, the Plaintiff seeking the aforementioned injunctive relief, as well as an order that two additional affidavits be admitted into evidence; an order that the Defendant is required to answer an interrogatory; and an order sanctioning the Defendant for violation of an undertaking given at a previous court appearance. The Defendant, for her part, sought an order striking out the action as a whole (or alternatively, parts thereof), and in the further alternative, seeking particulars in relation to the allegations in the claim.
The Court’s consideration of the novel tort arose in the context of both the Defendant’s motion for injunctive relief and the Plaintiff’s motion to strike the action. In relation to the latter, the Defendant argued, among other things, that the Statement of Claim did not disclose a reasonable cause of action. In that respect, the Defendant argued that the tort of internet harassment should not be recognized in Manitoba.
Associate Chief Justice Perlmutter disagreed, holding (in paragraph 47):
The tort of online harassment is a burgeoning area of the law, at least in Ontario. As is apparent by the plaintiff’s allegations here, in light of modern realities, there may be a good reason to recognize and provide redress relating to harassment online. In the circumstances at hand, the novelty of this cause of action is not a reason to strike out the related allegations in the statement of claim.
Associate Chief Justice Perlmutter then addressed the claim for injunctive relief. He found that there was a serious issue to be tried, holding that in today’s climate, it would be hard to imagine comments that could be more disparaging and that given the conflicting evidence adduced by the parties, there was a serious issue to be tried.
He also agreed that irreparable harm would result if the injunction were not granted, finding that the harm being suffered by the Plaintiff could not be quantified in monetary terms and that if the Defendant were not restrained, there was a high probability that the Defendant would again soon publish content with a view to further harming the Plaintiff’s reputation and career.
Finally, he found that the balance of convenience favoured the granting of the interlocutory injunction. As a consequence, the Court granted the Plaintiff’s motion for an interlocutory injunction.
The T.V. decision demonstrates that the tort of internet harassment is alive and well. Although the Court did not go so far as expressly recognizing the tort in Manitoba, the Court’s comments alluded to the overarching policy considerations that would seem to justify the continued acceptance and development of the tort in Manitoba (and across the country). We will be following this proceeding closely as a trial in the action could provide the province with the first fulsome consideration of this novel tort.
Other provinces have also given some consideration to the Caplan decision. In British Columbia, for example, the British Columbia Supreme Court went so far as to hold that the Caplan decision could potentially be used as a springboard to establish the general tort of “harassment”. In Skutnik v. British Columbia (Attorney General), 2021 BCSC 2408, the Court held:
I acknowledge that there has been some recognition of harassment as a potential new cause of action in Ontario in Caplan v. Atas, 2021 ONSC 670…
This is notable given that Merrifield v Canada was a recent case in which the Ontario Court of Appeal rejected adopting a new common law tort of harassment. It would also mark an even more significant development in the area of the law. This is somewhat surprising given that, as we discussed in our previous article, Merrifield strongly cautioned against quick and dramatic developments of the common law. That said, the commentary on Skutnik may prove to be nothing more than a fleeting observation. It remains to be seen whether the Court’s observation will result in any sort of significant development in that area of the law.
In Ontario, it seems the courts have continued to adopt the new tort, as set out in Caplan. The general tenor of the decisions in Ontario appears to support the acceptance of internet harassment as a legitimate, actionable tort in Canada.
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