Author: Ryan Alkenbrack

“Tort Law” is a broad category of law that includes the majority of civil lawsuits in Ontario. Types of cases that fall into this category include intentional torts such as assault, battery, or false imprisonment, and negligence-based torts, such as personal injury that results unintentionally in a motor vehicle collision, a slip and fall on an icy sidewalk, or a dog attack. This area of law is concerned with compensating victims of wrongdoing and is distinct from other areas of law you may be familiar with, such as criminal law, wills and estates, real estate, family law or contract law.

A tort lawsuit allows the victim of a wrong to seek a remedy from the person who caused them harm. The courts, over time, have recognized an expanding category of torts, with several new areas being recognized in the past few years.

Internet Harassment

In the 2019 case Merrifield v Canada (Attorney General), the Ontario Court of Appeal found that the lower court had erred in recognizing the tort of harassment. The Court of Appeal stated that that particular case was not one “whose facts cried out for the creation of a novel legal remedy.” The court further stated that there were other legal remedies that the victim could rely on, such as seeking compensation for the tort of intentional infliction of mental suffering. With the plaintiff having other remedies available to them, the court ultimately decided that establishing a new tort of harassment was not necessary.

As of 2021, however, the Ontario courts have now recognized the new tort of internet harassment. The case of Caplan v Atlas, according to Justice Corbett, highlighted some of the inadequacies in Ontario’s legal responses to internet defamation and harassment. Justice Corbett wrote that the cases were unique in that they concerned “extraordinary campaigns of malicious harassment and defamation for many years”. The court recognized in its decision that the legal system in Ontario continues to work to address the balance of freedom of speech with the law of defamation, to allow open public discourse and advancing the search for truth, while also protecting personal reputations and enforcing personal responsibility for statements made about others. The difficulty in this era, however, according to Justice Corbett is that “the internet has cast that balance into disarray.”

The court ultimately decided that the tort of internet harassment should become law in Ontario and created a three-part test, based on an emerging line of case law in the U.S., which states that a defendant will be liable for the tort of internet harassment if:

1. The defendant maliciously or recklessly engages 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. With the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
3. Where the plaintiff suffers such harm.

Family Violence

The Ontario courts have recognized another new tort this year in the case Ahluwalia v Ahluwalia. In Ahluwalia the parties were involved in divorce proceedings following a violent marriage, where the mother’s claim for damages included claims for property equalization, child support, spousal support and, notably, a claim for damages in relation to the father’s alleged abuse during their marriage.

Justice Mandhane writes in her decision in Ahluwalia that the existing torts did not fully capture the harm associated with family violence cases, which goes beyond assault or battery and includes psychological and financial elements. In the decision, Justice Mandhane writes that “while the tort of family violence will overlap with existing torts, there are unique elements that justify the recognition of a unique cause of action. I agree with the Mother that the existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases.”

The test, established in Ahluwalia, states that a defendant may be liable for damages related to family violence where the conduct of a family member towards a victim:

1. Is violent or threatening, or
2. Constitutes a pattern of coercive and controlling behavior, or
3. Causes the plaintiff to fear for their own safety or that of another person.

Justice Mandhane further explained that in order to establish “family violence”, the plaintiff needs to prove that a family member engaged in a pattern of conduct that included more than one incident of physical abuse, forcible confinement, sexual abuse, threats, harassment, stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, or killing or harming an animal or property and that it would be insufficient to point to an unhappy or dysfunctional relationship as a basis for liability in tort.

Conclusion

These cases highlight the court’s willingness to adapt to novel societal issues, and to recognize harms and legal duties in new areas. Although these cases are rare, they demonstrate it may be possible, in the right circumstances, for victims to receive compensation for a type of harm that doesn’t yet fit into an established category.