Birth announcement: Ontario court is reluctant parent of new tort of 'internet harassment'

UNESCO image CC BY-SA 4.0

The tort world is abuzz with a court decision in Ontario that has birthed a new common law cause of action for online harassment.

The facts that gave rise to the case were extreme.  The defendant was the subject of a New York Times story (subscription) on January 30 about the difficulty of remediating online reputational harm.  The perpetrator of the harassment targeted some 150 victims, including children, spat accusations ranging from fraud to pedophilia, and was adjudged a vexatious litigant and jailed for contempt of court.  Floundering in a dearth of effective enforcement mechanisms, the Ontario Superior Court of Justice (para. 171) recognized a "tort of harassment in internet communications" that means to be narrow:

where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.

The case is Caplan v. Atas, 2021 ONSC 670 (Ont. Super. Ct. Jan. 28, 2021).  Jennifer McKenzie and Amanda Branch at Bereskin & Parr have commentary.  Hat tip to Dan Greenberg for bringing the New York Times story to my attention.

Horrors at Oak Ridge Psychiatric amounted to assault, battery, but lacked intent for IIED, Ontario court rules

From 1963 to 1988, patients involuntarily committed to the maximum-security Oak Ridge Mental Health Centre at Penetanguishene, Ontario, were subject to barbaric experimentation.  (From CBC (2016), above.) Treatments included LSD, other mind-altering drugs, and corporeal maltreatment, such as "the Capsule":

a soundproof, windowless, and constantly lit 8’ x 10’ room, with no furniture and an exposed toilet, where groups of patients, had their interactions monitored through closed-circuit television and a one-way mirror by patient observers outside....

Patients ... were frequently restrained or strapped to each other, and were most often injected with DDT drugs to lower their inhibitions. They were often paired so that patients diagnosed with schizophrenia experiencing a chaotic range of emotions where placed together with patients with antisocial personality disorders....

So egregious were the methods employed at Oak Ridge that 28 former patients now suing the Crown could have made out a fair case for medical negligence.  But the Ontario court was willing to find intentional torts, assault and battery, instead.  Notwithstanding lawful involuntary commitment and seeming express consent to treatment procured from patients, the extreme nature of the medical experimentation rendered the patients' informed consent impossible, the Ontario Superior Court ruled in June.

At the same time, the patients could not prove intentional infliction of emotional distress, for want of "double-duty intent" (my words); that is, although medical staff inflicted emotional distress intentionally in the short term, and notwithstanding the lasting psychological trauma that resulted, the defendants, however misguided, acted with the greater goal, or intent, of making the patients well.

Hat tip to Private Law Theory, which reported an examination of the case against an historical analysis of battery in Canadian common law by Omar Ha-Redeye, executive director of the Durham Community Legal Clinic in Oshawa, Ontario.

The case is Barker v. Barker, 2020 ONSC 3746 (CanLII) (Ont. Super. Ct. June 25, 2020) (Canada).

Watch and read more about Oak Ridge with Canadian Broadcasting (2016) (above) and in other sources.