The issue of online harassment has grown exponentially in Canada. Almost five years ago, 31 per cent of Canadian social media users reported they were being harassed online. That number is assuredly worse today. A Plan International Canada global survey last October of 14,000 girls aged 15–25 in 22 countries including Canada, showed that 58 per cent had been harassed or abused online. In Canada, the results stood even higher at 62 per cent.

Despite being a problem for years, legal protections against online harassment remain virtually non-existent.

Only the U.S. has recognized a lawsuit for internet harassment. Provinces such as Manitoba and Nova Scotia has legislation that lightly broaches the subject, but a stronger stance has been sorely needed.

That changed when on January 28, 2021, the Ontario Superior Court recognized just such a tort of “harassment in internet communications” in Justice David Corbett’s decision in Caplan v. Atas.

As the court noted, perpetrators of internet harassment have been “unchecked for years” which “shows a lack of effective regulation that imperils order.”

Prior to this decision, some legal remedies could be achieved through respective provincial human rights legislations in the employment sphere or civilly by way of the tort of defamation. But those were limited in scope, with human rights only capturing discrimination on the few basis itemized in that legislation i.e. race and gender, etc. Additionally, defamation is similarly limited and expensive to pursue. Internet harassment cannot be significantly captured by these two avenues.

The defendant in the case, Nadire Atas, initiated what was described as “systematic campaigns of malicious falsehood to cause emotional and psychological harm” to an “ever-widening circle of victims,” including her former employer, Guy Babcock, and his employees. There were as many as 150 victims of Atas’ strategically targeted harassment.

Atas’ actions began when she was terminated from her employment in the 1990s and continued 20 years later into 2016, when she began posting defamatory statements on the internet about her ex-employer and those related to him.

The internet, being a platform of free-flowing speech, has allowed harassment to disseminate quickly. As Justice Corbett explained, it has cast the balance of freedom of speech and what the law of defamation seeks to achieve into disarray.

The tests for this new tort, that aims to address internet harassment, are:

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

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

3. Has the plaintiff suffered harm.

The requirement that conduct go “beyond all possible bounds of decency and tolerance” will need to be further defined in cases to come, but it appears to be a high bar. Company policies can reflect a lesser standard that still embodies the intent of the new tort: the deterrence of harassing online behaviour by employees to others.

As the court explained, “the law should respond to this conduct to… express the law’s disgust and firm rejection of the conduct, to punish for wrongful conduct, (and) to deter.”

Employers should be concerned about the damage to reputation that can occur if one of their employees engages in internet harassment. In some circumstances, employers can be vicariously liable for their employees harassment of others. Past employees should be similarly concerned at the manner in which they choose to seek retribution in any public forum. As for all employees, as the court noted, “those with any eye to the future” should be concerned about obtaining future employment, should the harassment be publicly revealed in a court of law.

Off-duty conduct that rises to the level of online harassment can also lead to just cause for dismissal.

Employers should have internal policies on what communications are permitted to be sent online, especially in light of most employment being done virtually. They also should be prepared to sue in any situation such as the above case, as a lesson that public attacks by former angry employees will not be tolerated. Employers’ conduct policies should be amended to include the definition of internet harassment and warn their employees that engaging in online abuse is an automatic ground for summary dismissal. Employers should also conduct internal training on online harassment to ensure it’s embedded in employee’s code of conduct policies.

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

To Access the full article click here