Damages for Cyber-bullying

In the recent case of Candelora v Feser, [1] Justice Arnold held that given that the Intimate Images and Cyber-Protection Act [2](“the Act”) creates a civil remedy, cyber-bullying is to be treated as a tort. Accordingly, damages awarded pursuant to the Act are to be informed by related torts. Following a review of the caselaw, Justice Arnold held that the principles for assessing damages in defamation cases as laid out by the Supreme Court of Canada in Hill v Church of Scientology [3] of Canada are to be applied in cases of cyber-bullying. In brief, these factors include the conduct of both parties up to and including at trial, whether any apology has been made, the context and nature of the libel, and the nature and extent of the publication. Many of these factors are echoed in the enumerated factors to be considered under s. 6(7) of the Act.  In this case, the Applicant brought a claim for general, aggravated, and punitive damages against the Respondents, her ex-husband and his current wife, for cyber-bullying contrary to the Act. The Respondents engaged in a campaign described by Justice Arnold as “a long series of venomous Facebook posts,” aimed to intimidate the Applicant to drop the legal proceeding. Guided by the Hill principles, the unique circumstances of the case, and the enumerated factors in Section 6(7) of the Act, Justice Arnold highlighted the following factors as particularly significant in this case:

1. The prolific and repeated nature of the cyber-bullying through public Facebook posts
2. The posts contained sensitive personal information related to the Applicant’s tax returns among other things, were offensive, and were intended to humiliate and intimidate her.
3. The Respondents refused to stop posting once notified by the Applicant’s counsel
4. Intimidation to alter the course of the child support and custody proceedings amounted to maliciously attempting to cause harm to the Applicant’s health and well-being (or being reckless as to the risk of such harm)
5. The Respondent’s disregard for the authority of the law through their demonstrated indifference to previous rulings, assertions that they would escape consequences and assertions that they would continue the defamatory posts until litigation ceased.

The Applicant was not a particularly vulnerable woman, but the stress of the cyber-bullying did affect her mental and physical well-being. Based on these factors, and the applicable caselaw, Justice Arnold awarded the Applicant $50,000 in general damages. In assessing aggravated damages, it was noted that in addition to the conduct of the defendant, the fact that the publication was on the internet, which has a far-reach and everlasting effect, may also be an aggravating factor. The persistent and deliberate nature of the Respondents’ conduct, their intent to harass and intimidate the Applicant, and their lack of remorse and continued postings up to and throughout the trial, resulted in an award of $20,000 in aggravated damages. An additional $15,000 in punitive damages were also awarded to occasion respect for the justice system and to denounce the actions of the Respondents.