Can you sue for online harassment in Ontario? In short, yes.

A few years ago, I acted for a client who was being harassed and intimidated in connection with joining a union. At the time, there was a budding case called Merrifield v. Canada (Attorney General) 2017 ONSC 1333 (CanLII), which recognized harassment as a new tort and I was able to utilize this case in a cease and desist letter. However, Merrifield was overturned by the Ontario Court of Appeal in 2019, which refused to recognize a freestanding tort of harassment. It is important to note that except for the US and more recent jurisprudence in Canada in 2021, no other common law court had recognized the tort of harassment.

Since the Court of Appeal's decision, Merrifield has received treatment in over 63 cases. In other words, there is a beehive of litigation to reflect the realities of online harassment and where the law is moving and has now moved. In particular, Caplan v. Atlas (2021) ONSC 670 (CanLII) distinguished Merrifield on its facts and created a new civil cause of action for online harassment: "In my view, the tort of internet harassment should be recognized in these cases ...[where conduct]...seek[s] not so much to defame victims but to harass them. In 385277 Ontario Ltd. v. Gold, 2021 ONSC 4717 (CanLII), the court further recognized that the current law was not adequate to deal with internet harassment. Harassment is different than other torts: "Its goal is to vex, to bother, to upset, to hurt feelings, and to intimidate" including engaging in a course of vexatious comment or conduct that is known or ought reasonably be known to be unwelcome.

Indeed, in Caplan v. Atlas, Justice Corbett stated at para. 163:

"online harassment differs from other forms of harassment because it is an unstoppable intrusion. Perpetrators of online harassment do not allow their victims to escape their harmful action by entering their home or private domain. A 2014 study found that forty percent of victims of online abuse suffered damage to their self-esteem...In conclusion, online harassment is an epidemic."

If you or your child has been or is being harassed on social media, the courts have recognized the tort of online harassment. I note, often harassment will go hand-in-hand with defamation, and in this case it is important that "notice of defamation" is served within 6 weeks of discovering the defamatory content, failing which one can lose one's ability to bring a defamation claim under the Libel and Slander Act, R.S.O. 1990, c. L.12.

Finally, while the bullying child may not have assets, the parents often will, and can be held vicariously liable for the wrongdoing of their child. Indeed, Unifund Assurance Company v. D.E., 2015 ONCA 423, the court found it beyond dispute that bullying fell within the realm of parental liability for negligence when a parent fails to prevent the harm from the bullying. Importantly, (and this might be relevant if your child is the one doing the bullying), the Court of Appeal clarified that under the policy in question the insurer did not have a duty to defend parents under their homeowners' insurance policy, and such insurer could rely on an exclusion where the tort occurred from a failure to take steps to prevent the harm.

This blog has outlined some of the aspects of the tort of online harassment but does not constitute legal advice and is not intended to be a summary of law relating to harassment or online harassment. If you are seeking advice, it is best to contact a litigator. For a telephone consultation please contact: colin@cuttresslaw.com