The Crime of Internet Harassment in Manitoba – MS v. TV, 2022 MBKB 211

In the spring of 2021, we wrote an article about Caplan versus Top, ONSC Decision 670 of 2021 which discussed the new tort of Internet harassment. That article can be found here. In Caplan, Judge Corbett of the Ontario Superior Court upheld the new tort of Internet harassment.

Following Caplan, one of the questions we raised was how this new wrongdoing would be treated in other provinces, such as Manitoba. In the recent MS versus TV, 2022 MBKB 211 decision, we have now had the opportunity to obtain some information (albeit limited) on the Manitoba judiciary’s view on this new wrongdoing.

The TV the decision involved a motion for an interim injunction barring the TV Defendant from, among other things, posting defamatory or disparaging statements about Plaintiff and harassing Plaintiff, his friends, family and business associates.

TV and the plaintiff were previously in a romantic relationship. After the relationship ended, TV sent numerous distressing text messages to the plaintiff and her mother. The nature and content of text messages will not be reproduced in this article. Suffice it to say that the messages were vulgar and disturbing. TV also released statements on social media platforms suggesting that the plaintiff was sexually, emotionally and physically abusive towards her.

As a result of these allegations, the Plaintiff filed an action for defamation, intentional interference in economic relations and for the new offense of harassment on the Internet. The Plaintiff and the Defendant then proposed opposing motions, asking the Plaintiff for the aforementioned injunction, as well as ordering the admission as proof of two further notoriety deeds; an order obliging the defendant to answer an interrogation; and an order sanctioning the defendant for breach of an undertaking made in a previous appearance. The defendant, for its part, requested the annulment of the appeal as a whole (or, alternatively, of parts of it) and, in a further alternative, the request for clarifications in relation to the objections contained in the request.

The Court’s examination of the new tort arose in the context of both the defendant’s application for injunctive relief and the plaintiff’s application to set aside the action. In relation to the latter, the defendant argued, inter alia, that the writ of summons did not disclose a reasonable cause for action. In this regard, the defendant argued that the crime of Internet harassment should not be recognized in Manitoba.

Associate Chief Justice Perlmutter disagreed, holding (in paragraph 47):

The crime of online harassment is a burgeoning area of ​​the law, at least in Ontario. As evident from the plaintiff’s allegations herein, in light of modern realities, there may be good reason to acknowledge and provide redress related to online harassment. In the circumstances under consideration, the novelty of that appeal case is not a reason to strike out the related allegations in the defence.

Associate Chief Justice Perlmutter then addressed the request for injunctive relief. He felt that there was a serious matter to try, opining that in today’s climate it would be difficult to imagine comments that could be more disparaging and that, given the conflicting evidence presented by the parties, there was a serious matter to try.

He further agreed that irreparable harm would result if the injunction were not granted, holding that the damage suffered by the Plaintiff could not be quantified in monetary terms and that if the Defendant were not detained, there was a high probability that the Defendant would soon publish content again with the aim of further damaging the reputation and career of the Plaintiff.

Finally, he noted that the balance of convenience favored the granting of the interim injunction. Consequently, the Court upheld the plaintiff’s motion for the loss.

The TV decision demonstrates that the crime of Internet harassment is alive and well. While the Court did not go so far as to expressly recognize the tort in Manitoba, the Court’s comments alluded to the general political considerations that would appear to justify the continued acceptance and development of the tort in Manitoba (and throughout the country). We will be following this proceeding closely as a trial in the action could provide the province with the first comprehensive consideration of this new wrongdoing.

Other provinces have also taken into consideration the Caplan decision. In British Columbia, for example, the Supreme Court of British Columbia has gone so far as to hold that the Caplan decision could potentially be used as a stepping stone to establishing the general wrongdoing of “harassment.” In Skutnik v. British Columbia (Attorney General)2021 BCSC 2408, the Court stated:

I acknowledge that there has been some recognition of harassment as a potential new cause of action in Ontario in Caplan v. Atas, 2021 ONSC 670…

This is remarkable given that Merrifield v Canada was a recent case in which the Ontario Court of Appeals rejected the adoption of a new common law tort of harassment. It would also mark an even more significant development in the field of law. This is somewhat surprising given that, as we discussed in our previous article, Merrifield strongly warned against rapid and dramatic developments in the common law. That said, the comment on Cottage cheese it may turn out to be nothing more than a passing observation. Whether the Court’s remark will translate into any kind of significant development in that area of ​​law remains to be seen.

In Ontario, the courts appear to have continued to adopt the new tort, as ruled in Caplan. The general tenor of the decisions in Ontario appears to support the acceptance of Internet harassment as a legitimate and actionable offense in Canada.