By Dan Fuller
Just as Bob Dylan wrote “The Times They Are A-Changin’” to capture and transcend the political preoccupations of his era, Canadian Courts have recognized a new civil tort of harassment in internet communications, responding to social and technological developments that have, similarly, transcended geographical borders.
Canadian common law has been grappling with how best to address Internet-based wrongs for some time (see Google Inc. v. Equustek Solutions Inc., Douez v. Facebook, Inc., and Uber Technologies Inc. v. Heller). Among these are cyber-defamation and cyber-abuse, wrongs that can attain international scope in a viral instant.
In 2021, Justice David Corbett of the Ontario Superior Court of Justice made a significant contribution to the evolution of cyber-remedies by being the first court to recognize the tort of harassment in internet communications in Caplan v Atas, 2021 ONSC 670.
The facts of the case are, in many respects, noteworthy, and were subject to a lengthy New York Times article. However, the focus of this article is on the broader implications of this decision, as well as subsequent decisions, relating to the tort of harassment in our increasingly hyperconnected world.
The decision in Caplan v Atas concerns four lawsuits against Ms. Atas for defamation, harassment, and other related claims. It is clear from the outset of the decision that each lawsuit was grounded in an extreme set of facts with the first several paragraphs describing how the defendant carried out “extraordinary campaigns of malicious harassment and defamation” and how, using the Internet, she was able to “disseminate vile messages globally, across multiple unpoliced platforms, forcing her victims to litigate in multiple jurisdictions to amass evidence to implicate her, driving their costs up and delaying the process of justice”.
Facts:
Ms. Atas was on the losing end of a mortgage enforcement proceeding. In its aftermath, she embarked on a years-long, systematic campaign designed to cause emotional and psychological harm to those against whom she bore grievances. The list of targets was extensive: adverse litigants, former employers, her family members, her own lawyers, and even a New York Times journalist.
The campaigns were vicious. They included hate mail and online postings alleging professional misconduct, pedophilia, sexual criminality, and even abuse of a recently deceased family member. Justice Corbett described cyberstalking as Ms. Atas’ “perfect pastime.” She appeared to take satisfaction in the legal process and the unending conflict, relishing the misery and expense inflicted upon her opponents. As the Court observed, “her lack of empathy is sociopathic.” Her weapon of choice was the Internet.
Observations:
Justice Corbett observed that Ms. Atas’ conduct occupied a grey-zone intersection between civil and criminal law, one to which existing legal frameworks had failed to respond adequately. The Court emphasized the need for a remedy that would both (a) reprimand Ms. Atas; and (b) deter similar conduct.
While compensation is typically the primary objective of the civil justice system, that goal was of limited utility here given Ms. Atas’ insolvency. Instead, the Court focused on deterrence and prevention, addressing the underlying motives for such misconduct and creating practical impediments to its continuation.
Ontario Recognizing the Tort:
Justice Corbett described the prevalence of online harassment as “shocking,” noting that approximately 31% of Canadian social media users reported experiencing harassment in 2016. Further, online harassment poses a double threat: it violates the legal rights of its victims and has a significant impact on mental health.
While the need to address the phenomena was clear, Justice Corbett identified a potential obstacle: the Ontario Court of Appeal’s 2019 decision in Merrifield v Canada (Attorney General), where the Court declined to recognize a standalone tort of harassment, finding that the tort of intentional infliction of mental suffering was sufficient.
However, the Court of Appeal did leave an opening:
“while we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, we conclude that Merrifield has presented no compelling reason to recognize a new tort of harassment in this case.”
Justice Corbett seized that opening and, on the facts before him, found such a compelling reason.
In Alberta
The legal framework in Alberta has evolved differently. In Boychuk v Boychuk, 2017 ABQB 428 (“Boychuk”), the Court did not formally recognize a tort of harassment, but implicitly acknowledged the underlying right in granting injunctive relief.
After reviewing the jurisprudence addressing harassing, intimidating, threatening, and violent conduct, Justice Viet focused specifically on harassment. At paragraph 37, Justice Viet stated:
“a superior court must stay within the ambit of the legislation and, in Alberta, that legislation is based on the existence of violence [speaking of Protection Against Family Violence Act in Alberta]. However, a superior court has inherent jurisdiction and is not limited to any statutory standard; it is entitled, and indeed expected, to administer equity, i.e. to do what is fair as between litigants. The rights of citizens include not only the right to live in safety but also the right to be free from vexatious or harassing conduct.” [clarification added]
Justice Viet answered the question, “Do citizens have the right to be free from vexatious conduct by another?”, in the affirmative. She relied, in part, on A.T.C. v N.S. 2014 ABQB 132, where the Court emphasized that its jurisdiction must extend beyond traditional limits to address reputational and relational harm, not merely physical safety or property damage:
“Accordingly, while I accept that the law is generally that restraining orders and EPO’s are only granted in cases of fear for personal physical safety or fear of property damage, this Court’s jurisdiction today must be more encompassing than its common law historical development, and as well it must go beyond its present statutory limits. As such, in circumstances such as the present one, it is only necessary for the Court to determine that the parties genuinely do not get along and are a threat to each other, not necessarily in terms of their personal safety or property damage, but also in terms of the damage that can be done to their reputations and lives.”
Ultimately, Justice Viet granted injunctive relief pursuant to section 8 of the Judicature Act, which empowers the Court to grant any remedy it considers just.
The decision in Caplan v Atas laid the foundation for the recognition of the tort of harassment, which was subsequently relied upon in Boychuk. Together, these cases signaled a growing judicial willingness to address harassing conduct in a more structured and principled way. Building on that foundation, the law in Alberta has evolved, initially in an incremental and remedial fashion, before ultimately crystallizing into the formal recognition of the tort.
In Ford v Jivraj, 2023 ABKB 92, the Court dealt with a breakdown of a personal relationship that evolved into allegations of harassment and reputational harm, including online communications and the indirect dissemination of damaging material. The litigation arose in the context of competing applications for restraining orders, followed by allegations of contempt arising from breaches of those orders.
The Court upheld and enforced broad restraining provisions designed to prevent further contact, communication, and dissemination of harmful content. While the Court did not formally ground its analysis in a standalone tort of harassment, and instead relied on its equitable jurisdiction to restrain abusive conduct and enforce compliance through contempt, Justice Graesser nonetheless made clear that the law was moving in that direction:
“I feel compelled to say that I am surprised by the pushback on the development of this potential tort. I fail to see what competing interests or rights need to triumph over an individual’s privacy interests, as opposed to their being a reasonable balance.”
And later:
“In my view, it is time for the civil law to catch up to the Criminal law and recognize harassment as a tort.”
That progression culminated in Alberta Health Services v Johnston, 2023 ABKB 209, where the Court was directly confronted with whether a tort of harassment exists in Alberta. The defendant had engaged in a sustained and highly public campaign of online attacks, threats, and intimidation directed at public officials, including statements described as malicious, abusive, and conspiratorial in nature.
In addressing that issue, Justice Feasby considered the state of the law in Ontario, particularly the Court of Appeal’s decision in Merrifield v Canada (Attorney General), which declined to recognize a tort of harassment, and its uneasy coexistence with the lower court’s recognition of a tort of internet harassment in Caplan v. Atas.
Justice Feasby observed, similar to Justice Graesser in Ford v Jivraj, that these authorities are difficult to reconcile. If a general tort of harassment does not exist, it is conceptually problematic to recognize a narrower, technology-specific variant of that same tort.
Justice Feasby explained:
“The idea that there is no general tort of harassment but there is a narrower tort of internet harassment makes no sense. If there is a tort of internet harassment but not a general tort of harassment, that means that the mode of harassment – using the internet – determines whether harassment is actionable. While internet harassment is a problem, so too is old-fashioned low-tech harassment.”
Against that backdrop, Justice Feasby went further. He formally recognized the tort of harassment in Alberta, providing a clear doctrinal framework. To establish liability, a plaintiff must prove that the defendant:
- engaged in repeated communications, threats, insults, stalking, or other harassing behaviour, whether in person or by other means;
- knew or ought to have known that such conduct was unwelcome;
- engaged in conduct that would impugn the plaintiff’s dignity, cause a reasonable person to fear for their safety or that of their loved ones, or foreseeably cause emotional distress; and
- caused harm.
In recognizing the tort, Justice Feasby emphasized that it was not creating indeterminate liability or opening the floodgates. Rather, it was giving doctrinal structure to what Alberta courts had already been doing for years through restraining orders and equitable remedies, which he stated:
“Taking this step does not create indeterminate liability nor does it open floodgates; to the contrary, it defines the tort of harassment in a measured way that will guide courts in the future.”
Conclusion
Much like Bob Dylan’s observation that the times “Are A-Changin” the law has proven itself capable of adapting to the evolving nature of harm in a hyperconnected world.
What began as a response to emerging technologies, most notably the internet, and the ways in which individuals used that medium to carry out wrongdoing exposed gaps within the existing legal framework, prompting courts to respond to ensure that victims have a viable cause of action against those who harm them. In essence, if misconduct has changed, so too must the law.
What began as incremental, remedy-driven intervention has matured into the formal recognition of the tort of harassment in Alberta. The Courts are no longer confined to indirect or piecemeal responses, they now have a defined cause of action that reflects the realities of both modern and traditional forms of harassment.
