Internet Safety in Manitoba v. MS TV, 2022 MBKB 211

In the spring of 2021, we wrote an article about it Kaplan and Atash, ONSC Resolution 670 of 2021 discussed the new crime of cyber harassment. That article can be found here. In Kaplan, Ontario Superior Court Justice Corbett recognized the new common law offense of internet harassment.

Follows Kaplan, one of the questions we raised was how this new tort would be treated in other provinces, such as Manitoba. Recently vs. MS TV, With the 2022 MBKB 211 decision, we now have an opportunity (albeit a limited one) to gain some insight into the Manitoba court system’s treatment of this new crime.

The television The decision included a motion for an interlocutory injunction restraining Defendant TV, among other things, from publishing defamatory or offensive statements about Plaintiff and from harassing Plaintiff, her friends, family, and co-workers.

Television and Plaintiff have previously been in a romantic relationship. After the relationship ended, TV sent Plaintiff and her mother numerous distressing text messages. The nature and content of the text messages will not be repeated in this article. Suffice to say, the messages are vulgar and disturbing. The television station also made statements on social media platforms suggesting that the Plaintiff sexually, emotionally and physically abused her.

As a result of these statements, the Plaintiff filed a claim for defamation, intentional interference with economic relations, and new internet harassment. Plaintiff and Defendant then filed cross-motions, Plaintiff sought to vacate the aforementioned judgment and also ordered two additional motions to be admitted into evidence; the decision to require the respondent to answer the questioning; and a decision to sanction the Defendant for breaching the undertaking given at the previous court hearing. The defendant, in turn, sought an order to dismiss the suit in its entirety (or, alternatively, parts thereof) and, in the alternative, to examine the particulars of the allegations in the suit.

The court’s consideration of the new tort arose in the context of both the Defendant’s motion to dismiss and the plaintiff’s motion to dismiss. With regard to the latter, the Defendant contended that reasonable cause was not shown in the statement of claim. In this regard, the Respondent argued that internet harassment should not be recognized in Manitoba.

Associate Chief Justice Perlmutter dissented (at para. 47):

The crime of online harassment is a developing area of ​​the law, at least in Ontario. Plaintiff’s allegations here suggest that, in light of contemporary realities, there may be good cause for recognition and recovery related to online harassment. In the present circumstances, the novelty of this cause of action is not a basis for striking out the related claims in the statement of claim.

Associate Chief Justice Perlmutter then addressed the negligent discharge claim. He found that there was a serious issue to be tried, in today’s climate it would be difficult to imagine comments that could be more derogatory and given the conflicting evidence adduced by the parties.

He also held that the plaintiff’s damages could not be measured in monetary terms and that the defendant was likely to suffer further damage if not restrained by the defendant, agreeing that irreparable harm would occur if the injunction was not granted. Publish content immediately to further damage the claimant’s reputation and career.

Ultimately, he found that the balance of convenience favored the granting of an interim injunction. Consequently, the Court granted the plaintiff’s motion for interim injunction.

The television The decision shows that the crime of internet stalking is alive and well. Although the Court did not go so far as to expressly recognize the tort in Manitoba, the Court’s comments pointed to general policy considerations that justify the continued acceptance and development of tort in Manitoba (and across the country). We will be watching this process closely, as the trial may provide the province with its first full review of this new tort.

Other provinces have also paid some attention to it Kaplan decision. In British Columbia, for example, the Supreme Court of British Columbia went so far as to Kaplan the decision could potentially be used as a springboard to define the general offense of “rape”. In Skutnik v. British Columbia (Attorney General)2021 BCSC 2408, the Court held:

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

This is remarkable considering Merrifield v Canada It was a recent case in which the Ontario Court of Appeal declined to adopt a new common law tort. It would also mark an even more significant development in the field of law. It is somewhat surprising that, as we discussed in our previous article, Merrifield was gravely warned of the rapid and dramatic development of the common law. It is said in the comment Skutnik can be no more than a passing observation. It remains to be seen whether the Court’s observation will result in any significant developments in this area of ​​the law.

In Ontario, the courts appear to have continued to recognize the new tort, as shown below Kaplan. The general tenor of the Ontario decisions supports making cyberbullying a legal, actionable offense in Canada.

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