November 9, 2021 Published by Toronto and Area Chapter - By Alexander Etkin

When the Enemy will not Wage War in the Flesh

From the Fall 2021 issue of CCI Toronto Condovoice Magazine, Volume 26, Issue Number 1

The Tort of Online Harassment Provides Needed Legal Recourse for Condominium Communities in Ontario

Online harassment is a very serious problem that is arising in condominium communities with increasing regularity due to the omnipresence of the internet and social media platforms.

For anyone who has been the target of online harassment and defamation, they know that communication via the internet is instantaneous, far-reaching, and potentially permanent. Further, internet speech is distinguished from in-person speech in terms of its potential to damage the reputation of individuals and corporations, its potential for being taken at face value, and its worldwide accessibility.

Fortunately, on January 28, 2021, the Ontario Superior Court of Justice released the decision, Caplan v. Atas, which I believe may provide recourse to condominium residents, directors, managers, personnel, and others dealing with the problem of online harassment.

Caplan was the result of a decades-long campaign of vicious online harassment, including allegations of pedophilia and professional negligence, that was perpetrated by the defendant, Nadire Atas, against a range of victims including adverse litigants and their relatives, her own lawyers, a former employer, and the former employer's successor, managers, and employees.

Finding that pre-existing legal remedies were insufficient to address the nature of Ms. Atas' conduct, the court recognized a new common law tort of online harassment which requires that a plaintiff satisfy the court that:

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

2. the communications conduct was done with the intent to cause fear, anxiety, emotional upset, or to impugn the dignity of the plaintiff; and

3. the plaintiff suffered such harm, as intended by the defendant."

The Legal Landscape Before Ontario Recognized the Tort of Internet Harassment

Prior to Caplan, individuals who were targeted by online harassment had to avail themselves of law that did not adequately address the realities of this problem.

For example, a plaintiff could file a claim in defamation, but there are shortcoming to this approach. By definition, a defamatory comment in many cases must be false for it to be actionable. However, the type of speech which may be used in an online harassment campaign does not always allege a fact, and thus may not lend itself to being proven true or false. For example, as pointed out in Caplan, repeatedly calling someone a "twit" or "stupid" conveys a dislike or disapproval of the target individual, but cannot be shown to be true or false. As a result, this type of speech, while no doubt harmful, is not necessarily defamatory at law.

In addition, prior to Ontario recognizing the tort or civil wrong of online harassment, plaintiffs might claim the tort of intentional infliction of mental suffering. However, this tort generally did not provide adequate relief to victims of online harassment for various reasons. Among these, a plaintiff must satisfy the court that he/she has suffered a "visible and provable illness", but the plaintiff might not have sufficient evidence to prove such an illness. Furthermore, one would hope that the law would bring an end to a defendant's harassment before it results in the plaintiff being diagnosed with an illness.

Implications for Condominium Communities

Condominium directors, owners, managers, and others may unfortunately be familiar with so-called "concerned owners" groups, essentially a collection of residents uniting together under a shared grievance, legitimate or otherwise. Problems arise when these groups, instead of engaging in tactful and democratic debate at an owners' meeting, decide to vent their collective anger by trashing the reputation of a fellow resident, director, manager, or contractor through an online attack.

This all begs the question – do condominiums have a duty to address this type of behaviour?

I would argue that condominiums have a duty to prevent the occurrence of both online and in-person harassment. The reason is that section 117 of the Condominium Act, 1998 confers on condominiums an obligation to take all steps necessary to prevent conduct within the premises that is likely to cause "injury" to an individual, which Ontario courts have affirmed includes both physical and psychological harm.

With the recognition of this new tort, I believe that condominium corporations' obligations toward their board members, managers, residents, and employees suffering from online harassment will become most apparent in at least three situations.

First, in a situation where an aggrieved resident is targeting a member of a condominium's board, management, or other personnel, the virtual forum in which the harassment is taking place may be found to constitute part of the workplace, thus bringing into play the "workplace harassment" provisions from Ontario's Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (OHSA) and/or the condominium's governing documents, as the case may be.

By way of example, there is caselaw which stands for the proposition that in certain circumstances, a social media page operated by an individual's employer can be regarded as forming part of the workplace. Accordingly, where an employee is being harassed via social media and the employer does not take sufficient steps to prevent further harassment, liability could conceivably arise for the employer.

As a result, given that condominiums may have their own website or Facebook page where residents can exchange messages, condominium corporations need to be aware of any abusive comments directed at their employees, board members, or management. Where online harassment does arise, condominiums should take proactive steps to remedy the harm that has occurred and prevent the continuation of further harm. Such steps may include publicly condemning the harassment, demanding that the offending individual post a public retraction, or banning the offending individual from the online forum altogether. Failing to take such steps could result in the corporation running afoul of the OHSA and/or the governing documents.

Second, a corporation's by-laws may provide that the directors of the corporation are indemnified by the corporation against costs and expenses that they incur in respect of the affairs of the corporation. Further, a corporation may carry insurance for the benefit of directors against any such costs and expenses.

Where a campaign of online harassment is directed at a member of a corporation's board of directors and the harassment relates to the director's duties of his/her office (as opposed to the director's private affairs), the corporation may be in a position where it is obligated under its by-laws to pay for such director's legal costs and expenses should he/she commence proceedings against the perpetrator of the harassment.

Third, the internet allows people to be anonymous, meaning that an individual perpetrating the harassment may be known by an alias and nothing more. Without knowing the identity of the defendant, a plaintiff may not be able to make an informed decision to start a lawsuit. Fortunately, the law allows a plaintiff in these circumstances to submit a court application for a Norwich order against an innocent third-party that knows or has information that could lead to uncovering the defendant's identity. For example, where the harassment is happening over e-mail, the third-party could be Yahoo, Google or a similar web service provider (see, for example, Carleton Condominium Corp. No. 282 v. Yahoo! Inc., 2017 ONSC 4385}, where the court ordered Yahoo to disclose the identity of a resident who was defaming other members of the condo community.

In spite of the above, I believe that condominium communities need to exercise a measure of discretion when determining what speech is and is not acceptable. There is a fine line between the two, and corporations should not discourage or prevent residents from freely expressing themselves. If a corporation overzealously pursues residents for speech that may be unwelcome or critical of management or the board of directors, this could create a "chilling" effect within the community and stifle the right of residents to speak candidly on issues that matter to them and their neighbours.

All told, while I hope that your condominium will not find itself in a position where it needs to seek recourse against residents or others who use the internet to harm others, I am relieved that the law is developing in such a way that those who are experiencing a crisis of this nature which can affect their physical, mental, and economic wellbeing will now have a potentially more powerful tool at their disposal. While the law in Ontario may never develop in stride with the rapidly changing internet, it is a welcome sign that it has come one step closer to catching up.


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