Included in Discovery: Atlantic Education & the Law – Issue 08

Nancy Rubin, QC and Jennifer Taylor

More than ever, many of our meetings, classes, presentations and personal communications are happening virtually. With this increased use of the internet comes a greater risk of online misbehaviour. Canadian courts have responded by developing new torts that may offer increased civil law protection for victims of online misconduct, but may also have unintended consequences for freedom of expression.

This article will review two recent decisions from Canadian courts: Caplan v Atas, 2021 ONSC 670 (“Caplan”), where the Ontario Superior Court of Justice created a new tort of internet harassment, and Racki v Racki, 2021 NSSC 46 (“Racki”), which found that the tort of public disclosure of private facts exists in Nova Scotia.¹ The conclusion will address the potential impact of these decisions on post-secondary institutions.

Caplan v Atas

This matter, which involved four related proceedings, had a messy and complicated backstory.

The defendant, often anonymously or using pseudonyms, made thousands of online communications through various forums attacking and spreading falsehoods about as many as 150 people against whom she held longstanding grievances. Some of these grievances arose from mortgage enforcement proceedings, and others from the defendant being terminated from previous employment. The defendant made extreme and profane allegations against her victims, alleging they had committed fraud or sexual offences, and often posting their photos alongside her comments.²

This misconduct persisted for over 15 years, despite various court orders and interlocutory injunctions enjoining the defendant to stop; an assignment into bankruptcy; a declaration that she was a vexatious litigant; and 74 days’ incarceration for contempt of court. The defendant had also been “prohibited from publishing anything at all on the internet (other than trying to sell items on sites like Kijiji)” since April 2019.

In short, as described by the Ontario Superior Court of Justice, the defendant had “engaged in a vile campaign of cyber-stalking.” The Court then had to determine the applicable law, and appropriate remedy, for this misconduct.

Justice Corbett had no trouble finding that the defendant had posted defamatory content online, and there was no defence to defamation available. However, defamation did not fully capture the scope of the defendant’s wrongdoing, and the torts of intentional infliction of mental suffering and intrusion upon seclusion (also known as invasion of privacy) were either inadequate or inapplicable on the facts.

Justice Corbett noted that Nova Scotia has a statute that could apply in this kind of scenario, the Intimate Images and Cyber-protection Act, but Ontario does not have comparable legislation.

i) Recognition and elements of new tort

In response to the egregious facts of the case, the Court decided to recognize a new common law tort of internet harassment.

Interestingly, harassment had been specifically pleaded in two of the underlying matters, on the basis of a trial decision — which was subsequently overturned by the Ontario Court of Appeal, in Merrifield v Canada (Attorney  General), 2019 ONCA 205 (“Merrifield”). Nevertheless, Justice Corbett in Caplan found that Merrifield did not prevent him from establishing the tort of harassment.

As framed in Caplan, this tort would require proof of the following elements (which are notably not limited to internet harassment):

• 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;
• the defendant had the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
• the plaintiff suffered such harm.

This is meant to be a “stringent test.” As Justice Corbett stated: “It is only the most serious and persistent of harassing conduct that rises to a level where the law should respond to it.”

ii) Findings of the Court

Unsurprisingly, the defendant’s conduct met this test. The more difficult issue was how best to provide a remedy.

Justice Corbett acknowledged that the legal remedies provided thus far had failed to address the defendant’s misconduct. Further, although exemplary damages or punitive damages would normally be used to express the law’s condemnation of such conduct, the defendant’s financial situation meant she was “judgment-proof.” The Court also did not order an apology, remarking that the defendant was not a public person whose word carried credibility or weight.

Justice Corbett ultimately imposed a permanent injunction against the defendant, preventing her from posting about the parties, along with their friends, families and associates. He declined to order that the defendant remove the posts, as she had previously demonstrated her unwillingness to follow court orders. Rather, Justice Corbett made an order “vesting title” in the postings with the plaintiffs, to help them get offensive posts taken down.

iii) Comments on Caplan

Justice Corbett was clearly responding to the extraordinary circumstances of Caplan in recognizing the tort of harassment. His requirements were meant to distinguish conduct that is merely annoying from serious and persistent harassment that requires legal intervention.

It remains to be seen if, or how, this tort will be applied in less drastic fact scenarios, and whether it will also be extended to harassment that takes place offline. The strict test that the Court developed will likely make it difficult for many future claimants to prove they experienced harassment that went “beyond all possible bounds of decency and tolerance.”

Additionally, the Caplan approach may influence how Nova Scotia courts define “harassment” in cyber-bullying claims under the Intimate Images and Cyber-protection Act.

The Judge in Caplan was creative in vesting title to the postings in the plaintiffs, with additional orders that enabled them to take steps to have the postings removed themselves. Presumably, this will require internet service providers and hosting services to allow access to the accounts from which postings were made and/or to disable the offensive posts.

Racki v Racki

This Nova Scotia case arose in the context of an acrimonious divorce and custody dispute. The Respondent self-published a book in 2018 called Free Trials (and Tribulations): How to Build a Business While Getting Punched in the Mouth, about how he overcame hardship to become a successful entrepreneur. The book was widely promoted on his various social media platforms and was available for download. The Respondent sold several hundred copies.

The book disclosed that the Applicant, who was the Respondent’s former spouse, had experienced addiction and suicide attempts. These statements were true so she could not claim defamation, and the Charter protection for privacy does not apply to common law disputes between individuals. Instead, the Applicant commenced an action for damages on the basis of “public disclosure of private facts.”

This tort has been recognized in the United States and a few cases in the United Kingdom and New Zealand. It was mentioned in the landmark decision of Jones v Tsige, 2012 ONCA 32, but had not been applied in Nova Scotia (or, apparently, elsewhere in Canada) until Racki.

i) Recognition and elements of the tort

Justice Coughlan accepted that a tort exists in Nova Scotia for the public disclosure of private facts, with the following elements:

• the facts have been communicated to the public at large, such that they have become a matter of public knowledge;
• there is a reasonable expectation of privacy in the facts; and
• the publicity given to the private facts would be “highly offensive to a reasonable person causing distress, humiliation or anguish.”

ii) Findings of the Court

All three elements were met in Racki: the Respondent “intentionally communicated” the facts about his former spouse to the public at large, through the book and its promotion; the Applicant had a reasonable expectation of privacy in the facts about her health; and the publicity would be highly offensive to a reasonable person.

Acknowledging that the right to privacy must be weighed against other interests such as freedom of expression, Justice Coughlan commented:

The right to privacy is not absolute. It has to be weighed against competing rights including freedom of expression. In this case Mr. Racki has the right to publish a book to encourage entrepreneurship and overcome hardship. But the issue in considering the Book as a whole, is whether the publication of the private facts of Ms. Racki’s addiction and suicide attempts is in the public interest.

Justice Coughlan referred to Grant v Torstar Corp, 2009 SCC 61 (“Grant”), where the public interest was considered as part of the “fair comment” defence to defamation. According to Grant, topics of public interest could include those that:

• invite public attention;
• affect the “welfare of citizens”;
• have attracted “considerable public notoriety or controversy”; and/or
• relate to a prominent person, as long as the disclosure goes beyond “mere curiosity or prurient interest.”

Justice Coughlan found it was not in the public interest for the Respondent to publish the personal facts about the Applicant, noting that the Respondent could have written about their relationship “falling apart” without disclosing these details. In the circumstances, the Respondent’s freedom of expression did not outweigh the Applicant’s privacy.

The Court in Racki ordered that the offending portions of the book be removed, and awarded the Applicant $18,000 in general damages and $10,000 in aggravated damages, as the publication was found to be motivated by actual malice. The Court rejected her claim for punitive damages.

iii) Comments on Racki

The increasing importance placed on privacy online, and the sad facts of this case, surely demanded a remedy. However, the case raises “slippery slope” concerns. It is not difficult to imagine the reverse situation to Racki, with this new tort being used to silence abuse survivors (as we see when defamation threats are made against accusers).

The decision also has implications for freedom of expression, particularly freedom of the press. The news media often report stories that involve the public disclosure of private facts, and this new tort risks stifling their (Charter-protected) work. While malice was present on the facts of Racki, malice was not included as an element of the tort and may not be required in every case.

As well, the judicial invitation to weigh the purpose of the expression against the public interest in the subject-matter bears watching to see how far this tort will be extended, and in what fact scenarios it will apply. Unlike Caplan, which crafted a relatively narrow tort, the Racki tort could apply in a much broader range of cases.

Impact of Caplan and Racki in the university setting

There are myriad ways these new torts could impact post­secondary institutions. Could a university be liable if one student harasses another on social media, using university-related platforms or accounts? Or a professor publishes an academic paper or book disclosing private facts about someone involved in a case study or research project? What about an administrative staff member who posts or discusses confidential student information online or in electronic communications?

Conversely, do universities now have a new tool to silence their cyber-critics? These are just some of the scenarios and issues that come to mind.

Possible defences arise, too. For example, will academic freedom or research mandates afford a defence to professors alleged to have made “public disclosure of private facts”? Will it make a difference if harassing social media posts are sent from a student’s home computer while classes are virtual, rather than on campus?

Until such questions are resolved in the case law, it helps to revisit first principles.

Historically, students could not successfully sue their universities for purely academic claims, but cases like Lam v University of  Western Ontario, 2019 ONCA 82 seem to be moving away from that categorical approach. For this reason, it is a real possibility that universities may be held liable in tort to students (and others). Common tort claims in the university setting include negligence and misfeasance in public office. These torts could also be raised in cases of internet misbehaviour, depending on the circumstances.

Having robust internal policies and procedures related to privacy protection and acceptable internet use — and proving they were followed in a given situation — will help university officials fend off tort claims related to online misconduct. Some jurisdictions (including Newfoundland and Labrador and Prince Edward Island) may also have statutory protections from liability for certain university officials.

We would be pleased to offer more specific advice on how the Caplan and Racki decisions might impact your institution.

¹ This article is based in part on Stewart McKelvey Thought Leadership publications by Nancy Rubin, QC and Chad Sullivan and Kathleen Nash, with thanks to Chad and Kathleen.
² We note that the decision contains some potentially stigmatizing language about the mental health of the defendant.