Tag Archives: defamation

You Make Me Want to Make a New Tort Up

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When I last blogged about a new tort in Ontario, I predicted that the next time we would see the creation of a new tort would “not be for some time”.  That prediction has already been proved wrong.  We now have yet another new cause of action to contend with in Ontario law. 

Yenovkian v Gulian

Recently, the Ontario Superior Court of Justice had to deal with a case which involved a deeply unhinged person writing hurtful and defamatory things on the Internet.  In that case, the Judge did not believe that the existing legal tools provided a sufficient remedy for the wronged party.  In her view, to do justice it was necessary to create a new legal tort to address this type of Internet-based harassment.  The Court “discovered” the new tort of “publicity placing a person in a false light” and awarded judgment on the basis of this new tort.

Caplan v Atas

The more recent case of Caplan v Atas dealt with the same problem: an obviously unhinged person who was writing hurtful and defamatory things on the Internet.  In Yenovkian v Gulian, the ex-husband used the Internet to, among other things, allege that his wife had kidnapped and drugged their children.  In Caplan v Atas, Ms. Atas made postings on the Internet against her perceived enemies and their family members in which she made all sorts of vile accusations.  Her defamatory statements ran the gamut, but she usually fell back on accusing them of being paedophiles. 

The judge who decided the Atas case found that the statements were defamatory.  He also took the view that a judgment for defamation was not sufficient to do justice for the defamed parties.  To fully do justice in this case, the presiding judge decided to “discover” yet another new tort.  The Court created the new tort of “harassment in internet communications” and awarded the plaintiffs additional remedies on the basis of this new tort. 

Don’t Like What Someone has Written on the Internet? Make up a New Tort!

Because the two cases are so similar, it is very interesting that the judge in the Atas case did not even consider the Yenovkian case.  It appears the lawyers did not bring the Yenovkian case to his attention: perhaps they were unaware of it themselves. 

This is a shame, because it gives the impression that the Superior Court’s left hand did not know what its right hand was doing.  By handing down a decision about Internet-based harassment without discussing or even referring to the last notable decision about Internet-based harassment, the development of the law is impoverished.  It would have been very useful for the bar to hear Justice Corbett’s reasoning on how his new tort of harassment in internet communications differs, if at all, from Justice Kristjanson’s tort of publicity placing someone in a false light. 

We also don’t know if Justice Corbett’s decision would have been different if he had been made aware of the Yenovkian decision.  Had he been made aware of it, he might have decided that the situation in the case before him was captured by the test for publicity placing a person in a false light.  Had he been aware of the “false light” tort, he might have declined to create the tort of harassment in internet communications in the first place.  Or, maybe not.  The difficulty is, we just do not know. 

In both these cases, it appears that the respective judges let their hearts run ahead of their heads a little bit.  To be sure, the things that Mr. Yenovkian wrote and the things that Ms. Atas wrote were outrageous.  They were highly offensive and outright shocking.  The Court was, in both cases, understandably shocked and offended.  However, it seems that, probably because of how offensive these Internet postings were, the Court set aside its dispassionate demeanour to some extent so that it could throw the book at these Internet harassers.  It looks like the Court was so shocked by this appalling behaviour that they decided to do whatever they had to do to serve justice – even if they had to change the law to do it. 

Publicity Placing Person in False Light

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To successfully sue someone, you need to have a legally-recognised basis for suing them.  These legally-recognised bases for suing someone are called “causes of action”.  Many of them are obvious and well known: where the evidence justifies it, you can sue someone for breach of contract, wrongful dismissal, or defamation.  Other causes of action are less well known, but nevertheless well-established, such as certiorari or mandamus.

Notably, the list of legally-recognised causes of action is not a closed list.  Where the right conditions are met, new causes of action can be “discovered” by the courts. 

False Light

Late last year, the Ontario Superior Court of Justice “discovered” another new cause of action in the family law case of Yenovkian v Gulian. 

There was a trial to determine the issues of custody, access, and spousal support.  At the trial, the wife put forward evidence of websites written and published by the husband which alleged that the wife and her parents were involved in kidnapping, child abuse, assault, and making death threats (among other things). 

The husband’s websites (which are still up, in violation of court orders to take them down) are written by someone who is clearly unhinged, and the allegations they contains against his ex-wife are outrageous.  The judge decided to give Ms. Gulian a remedy for the injury she suffered in having these things written about her on the Internet. 

Rather than give the wife a judgment which was based on an already-recognised cause of action, the judge decided to base the ruling on a cause of action which had never previously been recognised in Ontario law.  The Judge held that the cause of action by which Ms. Gulian was entitled to a remedy was “publicity placing a person in a false light”, and she awarded Ms. Gulian $100,000.00.

This ruling creates a situation of significant uncertainty in Ontario law.  First, it is not at all clear from this ruling how “publicity placing a person in a false light” is different from good old-fashioned defamation.  I don’t see how accusing your ex-wife of kidnapping and child abuse could possibly be anything other than defamatory so, in my personal view, the judge did not need to recognise a new cause of action in order to give Ms. Gulian a remedy: she could have simply awarded Ms. Gulian damages based on defamation. 

Second, because this case was decided by the Superior Court and not by the Court of Appeal, it is not binding on other courts in Ontario.  My own suggestion would be that the job of introducing new causes of action into Ontario law should be left to the Court of Appeal, whose decisions are binding on all the courts in the province.  The last time a new cause of action was discovered in Ontario (“intrusion upon seclusion”), it was done by the Court of Appeal.  The last time the Superior Court attempted to discover a new cause of action (the “tort of harassment”), the ruling was overturned by the Court of Appeal.

The Court of Appeal did not have the opportunity, in this case, to weigh in on the “false light” cause of action because the husband did not appeal.  One judge of the Superior Court was convinced that the cause of action of “publicity placing a person in a false light” exists in Ontario; another judge hearing a similar case may not be similarly convinced.  This creates the possibility of inconsistent legal rulings in the Ontario courts, which in turn could potentially erode public confidence in the justice system. Until the Court of Appeal rules on the “false light” cause of action, it will remain a big question mark in Ontario law. 

When will we next see a new cause of action recognised in Ontario?  I suspect it will not be for some time.  A new cause of action is supposed to fill a gap in the existing law, and where it is not immediately obvious that there is a gap in the law which needs to be filled, it will be less likely that any potential new cause of action will be recognised.