CyberBullying – New Tort in Nova Scotia – Ontario Lagging behind? – Not Really.
The Nova Scotia government has introduced legislation (Cyber-Safety Act) to create Canada’s first cyberbullying investigative unit with very aggressive legislation seeking to protect victims of bullying online.
Among other things, the legislation will allow victims and their families to obtain protection orders from a court if they are being harassed / bullied online. The proposed legislation called the Cyber-Safety Act will allow the bullying unit to, amongst other things, investigate complaints and issue prevention orders forbidding someone from communicating online. Families can also seek court protection, commence court actions seeking damages and obtain injunctive relief such as obtaining orders confiscating computers and cell phones. Under the act, a person can be fined $5000 or jailed six months if they are found guilty of an offense under the act.
Interestingly, under the proposed act, parents of children who cyberbully could also be liable for the monetary damages. In addition to civil remedies, persons who cyberbully can also be charged criminally. There are sufficient provisions in the criminal code of Canada to charge anyone who bullies another.
The proposed new legislation in Nova Scotia is a step in the right direction. Other provinces are sure to follow and will be looking closely at the consequences of this new legislation if it passes.
Importantly, the statute would allow school officials authority to deal with acts of bullying which occur on and off school grounds including online bullying. This aspect of the legislation is novel and certainly needed.
This new proposed legislation addresses a number of important aspects of bullying. It is important to note that the act applies to all persons and protects both children and adults equally. Any victim of cyberbullying can avail themselves of the protection of the statute.
In the Bill, cyberbullying is defined as:”cyberbullying” means any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.
Interestingly, the proposed legislation also deems some parents to be cyberbullies themselves if they don’t take steps to prevent their minor children from engaging in cyberbullying. The proposed Act states that for the purpose of this Act, where a person who is a minor engages in an activity that is cyberbullying and a parent of the person (a) knows of the activity; (b) knows or ought reasonably to expect the activity to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation; and (c) fails to take steps to prevent the activity from continuing, the parent engages in cyberbullying.
The Act also provides that a protection order may include any of the following provisions that the justice considers necessary or advisable for the protection of the subject: (a) a provision prohibiting the respondent from engaging in cyberbullying; (b) a provision restricting or prohibiting the respondent from, directly or indirectly, communicating with or contacting the subject or a specified person; (c) a provision restricting or prohibiting the respondent from, directly or indirectly, communicating about the subject or a specified person; (d) a provision prohibiting or restricting the respondent from using a specified or any means of electronic communication; (e) an order confiscating, for a specified period or permanently, any electronic device capable of connecting to an Internet Protocol address associated with the respondent or used by the respondent for cyberbullying; (f) an order requiring the respondent to discontinue receiving service from an Internet service provider; (g) any other provision that the justice considers necessary or advisable for the protection of the subject.
A tort is a wrongful act committed by one person towards another. The proposed legislation would create a new tort of “cyberbullying”, the first time as far as I know in Canada that cyberbullying will be considered an independent tort. Any victim of cyberbullying will have the right to commence court actions seeking monetary damages from the perpetrator. The proposed legislation states in part that a person who subjects another person to cyberbullying commits a tort against that person and the Court may (a) award damages to the plaintiff, including general, special, aggravated and punitive damages; (b) issue an injunction on such terms and with such conditions as the Court determines appropriate in the circumstances; and (c) make any other order that the Court considers just and reasonable in the circumstances. In awarding damages in an action for cyberbullying, the Court shall have regard to all of the circumstances of the case, including (a) any particular vulnerabilities of the plaintiff; (b) all aspects of the conduct of the defendant; and (c) the nature of any existing relationship between the plaintiff and the defendant.
The legislation proposed in Nova Scotia is definitely a positive move forward. Cyberbullying and any other form of bullying is a very complicated issue. For now, there is sufficient protection and law to address the rights of victims of bullying. In Ontario, victims of bullying can commence court action seeking compensation. In addition, the Canadian Criminal Code of Canada offers protection in that bullies can be charged criminally. However, in my experience the Criminal Code of Canada is not often used in bullying cases.
If you or someone you care about has been the victim of a bully, you have options. To learn more about your rights and interests as a victim of bullying in Ottawa or anywhere else in Ontario, contact one of our lawyers free of charge at 613-315-4878.
This brief case summary is provided for information purposes only and is not legal advice.
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Marc-Nicholas Quinn
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