In the spring of 2021, we wrote an article about the Caplan versus Top, Decision 2021 ONSC 670 which dealt with the new tort of Internet harassment. This article can be found here. In Kaplan, Justice Corbett of the Ontario Superior Court recognized the new common law tort of Internet harassment.
Next Kaplan, one of the questions we raised was how this new offense would be handled in other provinces, such as Manitoba. In the recent MS c. TV, 2022 MBKB 211, we have now had the opportunity to get some (albeit limited) insight into the perspective of the Manitoba judiciary on this new tort.
The TV The decision involved a motion for an interlocutory injunction restraining Defendant Television from, among other things, publishing defamatory or derogatory statements about Plaintiff and harassing Plaintiff, his friends, family and associates.
TV and the plaintiff were previously romantically involved. After the relationship ended, TV sent several distressing text messages to the plaintiff and his mother. The nature and content of the SMS will not be reproduced in this article. Suffice to say that the messages were vulgar and disturbing. Television also made statements on social media platforms suggesting the complainant was sexually, emotionally and physically abusive towards her.
As a result of these statements, the plaintiff brought an action for defamation, intentional interference in economic relations and the new tort of harassment on the Internet. Plaintiff and Defendant then made cross-motions, Plaintiff seeking the aforementioned injunction, as well as an order that two additional affidavits be admitted into evidence; an order compelling the defendant to answer an examination; and an order sanctioning the defendant for breach of an undertaking made during a previous court appearance. The defendant, for its part, sought an order quashing the action as a whole (or, alternatively, portions thereof) and, in the alternative, seeking particulars regarding the claims of the claim.
The Court’s consideration of the new tort arose in the context of both the defendant’s motion for an injunction and the plaintiff’s motion to strike out the action. With respect to the latter, the defendant argued, among other things, that the statement did not disclose a reasonable cause of action. In this regard, the defendant argued that the tort of Internet harassment should not be recognized in Manitoba.
Associate Chief Justice Perlmutter disagreed, stating (at paragraph 47):
The tort of online harassment is a growing area of law, at least in Ontario. As the plaintiff’s allegations here show, in light of modern realities, there may be good reason to recognize and remedy online harassment. In the present circumstances, the novelty of this cause of action is not a reason to strike the related allegations in the statement of claim.
Associate Chief Justice Perlmutter then addressed the injunction request. He concluded that there was a serious issue to be tried, finding that in the current climate it would be difficult to imagine comments that could be more derogatory and that, given the conflicting evidence given by the parties, there was a serious question to judge.
He also agreed that irreparable harm would result if the injunction was not granted, concluding that the harm suffered by the plaintiff could not be quantified in monetary terms and that if the defendant was not retained, there was a high likelihood that the defendant will return to post content in the near future with a view to further harming the plaintiff’s reputation and career.
Finally, he concluded that the balance of convenience favored the granting of the interlocutory injunction. Accordingly, the Court granted the plaintiff’s motion for an interlocutory injunction.
The TV The decision demonstrates that the crime of harassment on the Internet is alive and well. Although the Court did not go so far as to expressly recognize tort in Manitoba, its comments alluded to policy considerations that would seem to justify the continued acceptance and development of tort in Manitoba (and across the country) . We will be watching this proceeding closely as a trial in the action could provide the province with a first thorough review of this new tort.
Other provinces have also taken into account the Caplan decision. In British Columbia, for example, the Supreme Court of British Columbia has gone so far as to conclude that the Caplan The decision could potentially serve as a springboard for establishing the general tort of “harassment.” In Skutnik v. British Columbia (Attorney General)2021 BCSC 2408, the Court held:
I acknowledge that there was 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 the adoption of a new common law tort of harassment. It would also mark an even more significant development in the field of law. This is somewhat surprising given that, as we mentioned in our previous article, Merrifield strongly warned against rapid and dramatic developments in the common law. That said, the comment on cottage cheese may turn out to be no more than a fleeting observation. It remains to be seen whether the Court’s observation will lead to any significant development in this area of the law.
In Ontario, the courts appear to have continued to adopt the new tort, as set out in Caplan. The general tenor of the Ontario decisions appears to support the acceptance of Internet harassment as a legitimate actionable offense in Canada.
#tort #Internet #harassment #Manitoba #MBKB