Caplan v Atas and the New Tort of Harassment

Omar Ha-Redeye was interviewed by National Magazine in New tort, new remedy, discussing the new tort of harassment created in Caplan v. Atas,

Omar Ha-Redeye of Fleet Street Law in Toronto also acknowledges that the new tort is a response to the failure of existing statutes to provide adequate protection for these sorts of harms. But he has reservations about the judgment, starting with the judge’s supposition that the defendant suffers from an undiagnosed mental illness.

“I don’t think it’s necessary to comment on her mental health, and take this in a direction that it didn’t need to go into,” says Ha-Redeye. “That being said, the conduct here is over the top, but it’s conduct and behaviour that comes out of the fact that this person has herself been engaged in extensive litigation over numerous years and is targeting lawyers.”

The way the justice system has treated the defendant over the years and contributed to her mental health situation could be a factor, Ha-Redeye adds. He doubts that the tort will have the desired deterrent effect.

“This tort emerging in this particular context isn’t really focusing on where we see the greatest vulnerabilities in society, and the greatest harms as it relates to internet harassment,” says Ha-Redeye.

Ha-Redeye also questions whether the court really couldn’t apply existing tools, under defamation law for instance, to the case. He also believes that the new tort will face scrutiny under anti-SLAPP motions, which may constrain it.