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.