The New Tort of Internet Harassment The value of freedom of speech, and the need for some limits on that freedom, have long been recognised as central to a vibrant and healthy democracy and, frankly, a decent society.The internet has cast that balance in disarray.[1] In a ground-breaking decision, the Superior Court of Justice has just recognized the tort of internet harassment as a response to a defendant’s “campaigns of malicious harassment and defamation carried out unchecked for many years”.[2]The facts are astonishing. The defendant, who had at one point worked for a real estate agency, waged an unrestrained campaign against individuals whom she perceived had wronged her, their relatives and associates.[3] The court’s decision says that, among other things, she did the following:· posted altered newspaper articles and other content to the internet describing the brother of one of the lawyers in the case, a respected cardiologist living outside Ontario, as a pedophile and child pornographer;[4]· initiated a campaign against two sons-in-law of the same lawyer;[5]· attacked family members of another lawyer, going so far as to send defamatory email message to employees at the bank at which one her daughters worked;[6]· started posting defamatory statements about an employer who had fired her in the 1990s,[7] by first accusing him of fraud and theft, then moving to claims that he was a pedophile;[8] · sent an email message, which was falsified to make it appear that it came from someone who turns out to be a judge in West Virginia, to members of a club to which the employer and his sons belonged, accusing them of being pedophiles;[9]· attacked lawyers who had acted in mortgage proceedings against her, claiming that they were guilty of mortgage fraud;[10]· launched attacks which moved “from professional misconduct to allegations of sexual criminality, most frequently pedophilia or sexual predation”;[11] · *provoked more than 40 in addition to a number of administrative proceedings;[12]· sought to have 26 judges removed from hearing matters involving her;[13]· engaged the “litigation process to prolong conflict through endless procedural techniques”;[14]· appears to have had someone in northern Ontario post material,[15] presumably to throw investigators off the scent;· spent 74 days in custody for contempt of court;[16] and· found to be a vexatious litigant.[17]The court found that the defendant had defamed the plaintiffs and described her conduct in the following terms:. . . [her] online conduct and publications seek not so much to defame the victims but to harass them. Put another way, the intent is to go beyond character assassination; it is intended to harass, harry and molest by repeated and serial publications of defamatory material not only of primary victims, but to cause those victims further distress by targeting person they care about, so as cause fear, anxiety and misery. Observing that the “prevalence of online harassment is shocking”,[18] the law had failed effectively to respond to the defendant’s actions,[19] there are “few practical remedies available for the victims”,[20] and that courts in the United States had recognized the tort of harassment,[21] the court arrived at the conclusion that the tort of internet harassment should exist in the law of Ontario and that it should apply to the case before it. The relevant test for it, which is described as “stringent”,[22] is set out as follows:· 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 harm. The decision raises a number of questions: How are damages to be quantified? Will the new tort of internet harassment withstand appellate scrutiny, particularly in light of the Court of Appeal’s recent rejection of an award of damages for the tort of harassment?[23] What does the first branch of the test – which would appear to require malicious, outrageous and extreme conduct – really mean? Cyber-harassment can ruin businesses, reputations and lives. Social media platforms, courts and legislatures need to develop policies and tools to stop it and to protect innocent victims. The new tort of internet harassment, as it develops, might be one tool, hopefully of many, to help bring the harassment to an end. [1] Caplan v. Atas, 2021 ONSC 670 [hereinafter Caplan] at paras 4-5. The decision can be found here. [2] Ibid., at para.1 [3] Ibid. at paras. 1 – 3. [4] Ibid. at para. 36. [5] Ibid. at para. 37. [6] Ibid. at 38. [7] As well as other parties: Ibid. at para. 62. [8] Ibid. at para. 62. [9] Ibid. at para. 63. [10] Ibid. at para. 32. [11] Ibid. at para. 34. [12] Peoples Trust Company v. Atas, 2018 ONSC 58 [hereinafter Peoples Trust] at para. 21. [13] Ibid. at para. 23. [14] Caplan, supra note 1 at para. 86. [15] Ibid. at paras 131 and following. [16] Ibid. at para. 93. [17] Peoples Trust, supra note 12; Caplan, supra note 1 at para 45 and following. [18] Caplan, supra note 1 at par. 163. [19] Ibid., at para. 93. [20] Ibid., at para. 99. [21] Ibid., at para. 166. [22] Ibid. at para. 171. [23] Merrifield v. Canada (Attorney General), 2019 ONCA 205. By Fauzan SiddiquiBlog, LitigationFebruary 3, 2021February 12, 2024
Cannabis And Cars – Highs And Lows Of Defending A Driver That Consumed Cannabis In Tort Litigation Like alcohol-impaired driving, drug-impaired driving is a criminal offence. Cannabis-impaired driving can result in injury or death for the driver, passengers or others on the road including pedestrians and other drivers. Cannabis: impairs judgment impairs the ability to react increases the chances of being in a crash[i]. The combination of alcohol and cannabis can further exacerbate the impairment. In 2018, the Criminal Code of Canada was changed to allow possession of marijuana for recreational use but Bill C-46 created new criminal offences for driving while impaired by tetrahydrocannabinol (THC), the active ingredient in marijuana. These new offences are based on the level of THC in a person’s blood within two hours of driving. Alcohol The prohibited blood-alcohol concentration (BAC) is 80 milligrams (mg) or more of alcohol per 100 millilitres (ml) of blood. Cannabis (THC) There are two prohibited levels for THC, the primary psychoactive component of cannabis: it is a less serious offence to have between 2 nanograms (ng) and 5 ng of THC per ml of blood. It is a more serious offence to have 5 ng of THC or more per ml of blood. Combination of alcohol and cannabis The prohibited levels of alcohol and cannabis, when found in combination, is 50mg or more of alcohol per 100ml of blood and 2.5 ng or more of THC per ml of blood. Other drugs Having any detectable amount of LSD, psilocybin, psilocin (“magic mushrooms”), ketamine, PCP, cocaine, methamphetamine or 6-mam (a metabolite of heroin) in your system within two hours of driving is also prohibited. The prohibited level for GHB is 5mg or more per litre of blood since the body can naturally produce low levels of this drug. A challenge however, is that THC can sometimes be detected in a person’s blood even 30 days after they consumed cannabis. Impaired Driving Has Tort Implications While charges are not admissible evidence in tort litigation, criminal convictions are admissible evidence of wrongdoing. Accordingly, any criminal conviction is problematic to the defendant driver. Where there were no convictions, then the usual rules of negligence will dictate exposure. An area to consider when mounting a defence is to determine in what format was the cannabis consumed? For example, was it inhaled? Was it in the form of a baked good? A gummy? Was any alcohol consumed? What prescription medication was the driver taking? Different formats have different effects on different timeframes. When was it was consumed? During the car ride? 2 hours before the car ride? The night before? THC, the psychoactive ingredient, takes time to leave the system and its metabolized carboxyTHC takes even longer – some say it can even take up to a month. Accordingly, any test that is positive for carboxyTHC is arguably only evidence that cannabis had been consumed and not that the driver was impaired by cannabis. Assessing the impact of cannabis is far more complicated than assessing the impact of alcohol. While, alcohol levels are correlated to impairment, the same is not true of cannabis. Another area to consider once cannabis consumption has been raised is to determine the level of the driver’s impairment. What was the driver’s condition? Were the driver’s eyes bloodshot? Glassy? Pupils dilated? Did the driver have balance issues? Slurred speech? Confusion? Inappropriate responses? Delayed responses? Was the driver tired, sleepy? A final area to consider is whether the accident was caused by marijuana impairment or by some other factor. For example, was there poor lighting, was there black ice, did another driver do something that triggered the accident, did an animal jump out of the road unexpectedly etcetera. It may be there were other causes to the accident that had nothing to do with impairment. In order to defend a driver about the effect of the cannabis consumed, witness statements from everyone that had contact with the driver at the scene will be useful to determine whether or not the driver exhibited any evidence of impairment. A toxicologist expert will also be necessary to determine the levels of cannabis and the anticipated effects or lack thereof in the particular circumstances. An accident reconstruction may be considered as well. This area is developing. There have been criminal trials dealing with impairment, there have been labour decisions, human rights decisions and union arbitrations that are starting to consider and challenge the consumption versus impairment issues. I expect court decisions in the tort context will follow but the litigation process is longer and has been slowed down due to COVID. [i] Cannabis impairment – Canada.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, COVID-19, Insurance DefenceDecember 17, 2020March 13, 2024
Settlement Judgement May Not Be The End of Legal Battles for Clarinetist In a shocking decision, rising star clarinetist Eric Abramovitz was awarded $375,000 in a default judgment against his ex-girlfriend Jennifer Lee. Mr. Abramovitz was offered a full scholarship to study under world-renowned clarinet pedagogue Yehuda Gilad. Unbeknownst to Mr. Abramovitz, his girlfriend at the time Ms. Lee had deleted the acceptance email, impersonated him and declined the offer. As a result, Mr. Abramovitz lost a significant educational and career advancing opportunity. Not to mention the hurt and betrayal he endured as a result. Though this appears to be a significant victory for Mr. Abramovitz, there is a good chance he may never see the money he was awarded if Ms. Lee cannot be found. Many people think that after a judge’s decision or default judgment, the “winner” will automatically get paid, however, this is not the case. An order from the court is not a guarantee of payment. The process to obtain the monies can get complicated and expensive. Typically, the first step to recover judgment money is to write a letter to the debtor requesting payment and working out a payment plan in order to avoid going back to court. If the debtor, however, is unresponsive and/or uncooperative there are a number of mechanisms that can be used to enforce judgment. The creditor must first determine if the debtor has money, assets that can be seized or sold, or a debt owing to the debtor by a third party such as employment income that can be garnished. The debtor can request this information through an examination in aid of execution in order to determine the creditor’s place of employment, income, bank account information, available property, other debts owed etc. After the examination, the primary routes for obtaining the monies are: Garnishment – If the creditor is able to determine the debtor’s place of employment, they can obtain a garnishment order. The debtor’s employer would be obligated to provide wages to the court, which would then be given to the creditor. A notice of garnishment remains in force for six years and can be renewed if the debt is not paid in full. Writ of Seizure or Sale – A creditor can file a writ of seizure and sale which would be enforced by a sheriff. There is a writ for personal property which are all belongings besides real property and money. And a writ for the seizure and sale of land which is for real property. Essentially, the sheriff would obtain the debtor’s belongings, have them sold, and proceeds would go to the creditor. The writ of seizure and sale of land can be particularly effective since it encumbers the land and prevents the debtor from being able to buy or sell land until the debt has been paid off. To conclude, obtaining a paper judgment is only step one in what can be a lengthy, expensive and complicated process to obtain the money owed. If the debtor is unemployed and has no assets, it may not even be worth the trouble and cost of litigation to obtain a judgment against them. This is something to consider and should be canvassed with a lawyer prior to commencing a legal action. Devry Smith Frank LLP is a full-service law firm located in Don Mills. If you require assistance with a litigation matter or need a litigation lawyer, please contact Devry Smith Frank LLP today. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlogJuly 20, 2018June 16, 2020
Third Party Litigation Funding: Where is it in Canada? Third-party litigation financing presently plays a role in class actions and personal injury cases in Canada. After the event (ATE) insurance is increasingly common for plaintiffs to obtain in pursuing a personal injury case. Such insurance covers the expense that unsuccessful party has to pay towards the successful party’s legal fees. This is invaluable for access to justice for personal injury complainants who may be at risk of losing their homes if they are unsuccessful and ordered to pay the successful party’s legal fees. Such funding also seems appropriate in the class action setting where individually the plaintiffs would not see legal action as a viable means to remedying their claims. Used properly such third party financing and insurance lessens the consequences that an individual plaintiff may face if they decide to pursue their rights in the legal arena, thereby supporting access to justice. This type of funding does not affect the court’s ability to act in its rightful role in weeding out trivial or unmeritorious claims. Costs consequences are appropriate considerations in settlement negotiations, but they should not go so far as to prevent the individual claimant from considering litigating their claims. Where third party litigation financing finds merit in permitting individuals to participate in litigation when otherwise the financial risks of losing would prevent them, what is the rationale for such funding in commercial litigation? Does the policy rationale of promoting access to justice apply in the commercial realm? Outside funding can play a role in two ways for commercial litigation matters: it can fund the legal dispute itself, and it can insure against the litigation risk exposure. One interesting consideration is the relationship between third party litigation funding, litigation risk, and contingency fee arrangements. Contingency fee arrangements are common in personal injury, but much less so in commercial litigation. But, if third party funding develops in the commercial litigation field, will contingency fee arrangements begin to increase? While presently not widely used, contingency fees, unavailable in criminal, quasi-criminal and family law matters, are not prohibited in commercial disputes. The concerns regarding third party litigation financing can be mitigated through the use of competent and ethical lawyering. A commitment to solicitor-client privilege, appreciation for the merits of settlement, and discussing the risks of litigation beyond the financial consequences, such as the time demands, effect on reputation, and precedential effects of judgments. Further, the courts have developed guidelines for external funding arrangements in the class action context, where judicial approval is required, that can be used to shape arrangements that keep the focus of the litigation on dispute resolution and not profit. Moving forward, where third party funding arrangements can be agreed to which keep the financier a non-party to the dispute, there will likely be an increasing role for them in commercial litigation. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, LitigationNovember 29, 2017June 17, 2020
Internet and a Breakdown of Privacy: The New Era of Sexting and The Courts’ Response Technology undoubtedly has great power when a superpower nation’s diplomacy can be built on 15-second tweets. A one-second decision to share, send, or post can irreversibly release data within the rest of the world’s reach. That same one second can also change a person’s life forever in a terrifying and nightmarish way. In Jane Doe v N.D., a couple who formerly dated in high school and had broken up continued to communicate regularly by Internet, texting, and telephone, and continued to meet up occasionally. The defendant asked the plaintiff, who were both 18 at the time, repeatedly to make a sexually explicit video of herself to send to him. She refused, but he continued to probe and send her intimate pictures and videos of himself, pressuring her to do the same. Eventually, after the defendant promised that no one else would see the video, she relented and sent him an intimate video. Later that same day, the defendant posted the video on an internet pornography website and had shown it to mutual colleagues. The plaintiff sued under the tort of intentional infliction of mental distress, among other causes of action. There are three elements of the tort of intentional infliction of mental distress, as set out in Prinzo v Baycrest Centre for Geriatric Care: (i) conduct that is flagrant and outrageous, (ii) conduct that is calculated to produce harm, and (iii) conduct that results in a visible and provable injury. Under flagrant and outrageous conduct, the court considers whether the defendant’s act constituted reckless disregard by examining whether or not mental distress or suffering would ensue from the defendant’s conduct. The court in Jane Doe v N.D. found that core examples of “flagrant or outrageous” behaviour include clear violation of promises made, and a breach of trust – a malicious purpose to cause harm or a motive of spite is not required for a finding of flagrant and outrageous conduct. The requirement that the conduct is calculated to produce harm is satisfied if the court finds it was clearly foreseeable that the conduct in question would cause the plaintiff profound distress. This test is met when the consequences or kind of harm are known to be substantially certain to follow. Finally, the third element of visible and provable injury includes both actual physical harm and also significant psychological harm, which does not require a medical expert if the court can be convinced of the plaintiff’s harm otherwise. In the Jane Doe v N.D. case, Justice Stinson of the Superior Court found that among others, the tort of intentional infliction of mental distress was made out. As a result, the plaintiff was awarded more than $140,000 in damages. However, the case did not just end there. Upon Justice Stinson’s decision, the defendant, who previously had not retained counsel, decided to retain counsel to set aside the judgment for a “do-over”. The defendant alleges that he could not afford a lawyer and that the denial of a second chance at re-litigating the case would equate to a denial of access to justice and cause serious prejudice towards him. Justice Dow of the Superior Court set aside the damages ordered by Justice Stinson in a ruling that has still not been released to the public. The plaintiff is now appealing this decision; if she is unsuccessful, she would be back at square one to re-litigate the same matters. For more information or any other questions regarding the tort of intentional infliction of mental distress, please contact our lawyers at https://devrylaw.ca/civil-litigation/. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, LitigationMarch 27, 2017June 18, 2020
Is Ontario Really the Litigation Capital of Canada? It is a commonly held belief that Ontario is the litigation capital of Canada. With more lawyers than any other province, a greater population and far larger economy, this idea is intuitive and easy to believe. However, the question remains; are individuals and corporations located in Ontario more likely to litigate than those located elsewhere? With no immediate answer at hand aside from anecdotes and conjectures, I decided to investigate. In order to analyze how much litigation is taking place in Canada, I looked at the number of Court decisions there are from Canlii for each province from January 1st, 2014 to December 31, 2016. I chose those years to standardize the input as some jurisdictions do not have data from prior to 2014, while others have not entered decisions for 2017 yet. The data is imperfect as it includes some Court decisions for matters such as cost motions and other non-trial decisions, but for the most part, it provides an accurate picture of the amount of litigation taking place in Canada. This number includes both civil and criminal court cases. Province Court decisions GDP Population Ontario 19,249 763,276,000,000 13,983,000 British Columbia 8,954 249,981,000,000 4,751,600 Alberta 4,349 326,433,000,000 4,252,900 Saskatchewan 2,235 79,415,000,000 1,150,600 Nova Scotia 1,879 40,225,000,000 949,500 Newfoundland 1,106 30,100,000,000 530,100 Manitoba 1,080 65,862,000,000 1,318,100 New Brunswick 819 33,052,000,000 756,800 Yukon 388 2,710,000,000 37,500 Northwest Territories 270 4,828,000,000 44,500 Prince Edward Island 169 6,186,000,000 148,600 Nunavut 114 2,447,000,000 37,100 The numbers are hardly surprising here, the more populous and wealthy a Province is, the more court decisions there are. This is supported by the data indicating that 98.6% of the variation in court decisions per province can be explained by population differences alone. However, after adjusting for population size, the density of a province still provides some information on how litigious the province is. Adjusted for population size, 78% of the variation in court cases across Canada is explained by a province’s population density. The smaller provinces have slightly more court decisions per capita than larger Provinces do. Province Court decisions per 10,000 people Manitoba 8.19 Alberta 10.23 New Brunswick 10.82 Prince Edward Island 11.37 Ontario 13.77 British Columbia 18.84 Saskatchewan 19.42 Nova Scotia 19.79 Newfoundland 20.86 Nunavut 30.73 Northwest Territories 60.67 Yukon 103.47 I then looked to see what other factors might influence the amount of litigation taking place in a province. Aside from population size, both crime and economic activity seem to be good indicators of litigation. The more economic activity there is in a Province, the more money there is to litigate over. Similarly, the higher the crime rate in a province, the more criminal trials there should be. To try and discern how these variables interacted with each other, I ran a multivariate regression on the number of court decisions per province, using population size, economic data, and crime rates as the variables. Together, these factors explain 61% of the variation in the number of court decisions per province. Ontario and Nova Scotia have more court decisions than the model predicts, while Alberta, Manitoba and Saskatchewan have far less. This means that Ontario and Nova Scotia are slightly more litigations than their population size, economic activity and crime rates suggest, while Alberta, Manitoba and Saskatchewan have less legal activity. After investigating the data, it seems as if Ontario has slightly more litigation than the rest of Canada. However, the effect is minor, and the level of litigation remains similar throughout the country. If you are in need of any legal services or advice, please contact Devry Smith Frank LLP at 416-449-1400, or visit our website today. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, LitigationFebruary 13, 2017June 18, 2020
