Building a condominium development is a massive financial undertaking. Any sudden fluctuations in the developer's liquidity may adversely impact any number of parties with a stake in the development project. In an attempt to improve liquidity and fund the ongoing construction, some developers resort to asking purchasers to pay some or all of the purchase funds to the developer directly. Ordinarily, such funds would be paid by the purchaser into a trust account set up for the benefit of secured creditors, such as first mortgagees.

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On May 18, 2021, Health Canada approved the use of the Pfizer-BioNTech COVID-19 vaccine for children 12 years of age and older. In the months following the announcement, courts across the country have begun ruling on a new range of disputes between parents who disagree about whether their child should receive the vaccine.

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In a recent Ontario decision, Caplan v Atas, 2021 ONSC 670, the court recognized a new tort of harassment to address ongoing vexatious and harassing behaviours online. The court said “enough is enough” to internet harassment campaigns, providing the legal system with a new tool to fight these cyber attacks.

Background

In this case, the defendant, Ms. Atas, had gone on a vicious campaign of online harassment and cyber-stalking for decades. Ms. Atas' main targets were lawyers involved in various legal proceedings against her as well as a former employer who terminated her employment in the 1990s. However, as time went on, Ms. Atas also started attacking the relatives and business associates of her initial targets.

At the time of the hearing, there were more than 150 victims and thousands of posts online. In these posts, Ms. Atas made baseless and dishonest accusations of incompetence, negligence, professional misconduct, fraud, and sexual criminality. It is believed that she also contracted with other persons to publish such statements for her. Despite her best efforts to remain anonymous, Ms. Atas was not successful at remaining unknown.

Throughout the proceedings, Ms. Atas – who was self-represented – continuously failed to comply with the court’s orders and directions and took steps to actively cause delay and complications.

Nothing deterred Ms. Atas. Despite being prohibited from publishing nearly anything at all on the internet, and even spending 74 days in jail for failing to comply with court orders, Ms. Atas continued publishing defamatory and abusive statements about the plaintiffs.

New Tort of Internet Harassment

While Ms. Atas' conduct was defamatory, it went far beyond defamation by causing “fear, anxiety and misery.”

The conduct in this case was not caught by the tort of “intentional infliction of mental suffering” because there was no evidence of “visible and provable illness” arising out of the conduct. However, the conduct was clearly harmful and not permissible. The court created a new tort to address this type of behaviour: the tort of internet harassment.

To show someone has committed internet harassment, the plaintiff must establish that:

1. the defendant maliciously or recklessly engaged in conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;

2. the defendant had the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and

3. the plaintiff suffered such harm.

Relief Granted

Having consideration for Ms. Atas' financial situation and her lack of credibility, the court found that orders for monetary compensation and apologies would be meaningless. Instead, the court granted a broad and permanent ban on any online communications. The court also ordered for a transfer of title of the publications, meaning that the plaintiffs can now show they are the owners of the online posts and have them removed from the internet.

Takeaways for Condominiums

The main takeaway from this case is that the court recognized online harassment as a growing and serious issue, and there are now tools for protection which have broader and more practical outcomes.

This change will likely be helpful to condominium directors and managers facing harassment from unit owners or occupants over social media and websites.

This case sets a high standard for this new tort and its boundaries have not yet been challenged on appeal. Presently, the law will not protect against one or two negative statements published online. The protection is limited to the most serious and persistent harassment that goes beyond character assassination.

Nonetheless, this case is an additional and valuable tool in the legal toolkit, filling the gap where protection is needed for the most severe of online harassing conduct.