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Condovoice Condovoice is published four times per year – Spring, Summer, Fall and Winter, by Association Concepts on behalf of the Canadian Condominium Institute Toronto & Area Chapter. EDITOR: Brian Horlick ADVERTISING: Nina Simatos ART DIRECTION & DESIGN:
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Editor’s Message
Ontario Recognizes Online Harassment On January 28, 2021, the Ontario Superior Court of Justice released the decision, Caplan v. Atas, which I believe will have significant implications for condominium communities. Ontario Courts previously declined to recognize a common law tort (or civil wrong) of harassment, but left open the possibility that such a tort could conceivably be recognized in the appropriate context. In Caplan, the Court finally recognized this modern tort in light of the egregious nature of the online harassment at issue. Briefly, Caplan was the result of a decades-long campaign of 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 and agents, a former employer, and the former employer’s successor, managers, and employees. Drawing on American case law, the Court held that the tort of online harassment was made out where 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, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.” Finding that the facts of the case fit the tort of online harassment, the Court ordered a permanent injunction restrain-
ing Ms. Atas from any and all internet communications regarding her victims. Furthermore, the Court vested title in all harassing online postings to the plaintiffs, and ordered that such postings be removed. In my experience, Caplan will prove relevant to condominium stakeholders facing the scourge of online harassment in their communities. Indeed, so-called “concerned owners” groups can and do use the internet to stir up negative sentiment and cause reputational damage to board members, residents and management alike by sending harmful, even vile, messages across unpoliced online platforms. Condominium communities looking for solutions to the problem of online harassment have to reach a tricky balance between two competing issues. On the one hand, residents have a right to express themselves freely and the right to engage in open public discourse, including the right to comment on matters of interest to themselves and their neighbours (such as condominium governance issues). On the other hand, people have a right not to be defamed and harassed. Depending on the facts at issue, it could even be said that where a member of a condominium corporation’s personnel is the subject of the abusive online comments, the corporation arguably has a duty under Ontario’s occupational health and safety legislation to prevent workplace harassment.
Determining what type of online com mentary is fair comment versus harassment is a value judgment that condo – continued on page 9 CONDOVOICE SUMMER 2021
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