June 2020
Many Nova Scotians will remember the heart wrenching case of 17-year-old Rehtaeh Parsons, who died by suicide in 2013 after being bullied online for years in relation to intimate images taken of her during a sexual assault. Her case spawned a campaign for cyberbullying legislation and led to Canada’s first legislation aimed at protecting victims from online harassment, Nova Scotia’s Cyber Safety Act. The Cyber Safety Act was struck down as unconstitutional in 2015 and replaced with the Intimate Images and Cyber-protection Act in 2018. On June 5, 2020, the Nova Scotia Supreme Court awarded damages for the first time under this Act, in a decision that sends a strong message to those thinking about posting malicious messages online.
The parties in Candelora v Feser, 2020 NSSC 177 were involved in a dispute over custody, access and child support. During the course of the family law proceedings, the husband and his new partner launched a social media campaign in an effort to intimidate the wife into dropping the proceedings. Ms. Candelora brought a claim under the Act for an order requiring her former husband, Mr. Feser, and his partner, Ms. Dadas, to cease the cyberbullying, take down the posts, and to be prohibited from contacting her. She also claimed damages. In December 2019, Justice Arnold found that Mr. Feser and Ms. Dadas had engaged in a campaign of venomous Facebook postings in a malicious attempt to cause harm to Ms. Candelora’s health or well-being, so as to pressure her into reversing her legal position in the family law matter. Justice Arnold prohibited them from having any further communication with Ms. Candelora, from making any further cyberbullying posts, and ordered them to take down all previous posts or disable access if they could not be taken down.
The issue of damages was held over to be decided after further submissions, which were received in February 2020, with the decision now released on June 5, 2020. The damages awarded are not insignificant and send a strong message to others thinking of posting harassing messages online. In addition to $50,000 in general damages, Justice Arnold awarded $20,000 in aggravated damages and $15,000 in punitive damages for a total of $85,000. Aggravated damages are only awarded where the defendant’s conduct has been particularly high-handed or oppressive to account for the increased harm to the plaintiff’s feelings. The defendant must be motivated by actual malice. Punitive damages are meant to punish, deter and denounce the defendant’s behaviour. For the court to award punitive damages, the defendant’s behaviour must be so malicious, oppressive and high-handed it offends the court’s sense of decency.
Nova Scotia’s Act allows for damages without proof of harm. Once a court is satisfied a person has engaged in cyberbullying, the court may award damages without anything further. However, the specific facts of the case will inform the amount and type of damages. While this is the first case decided under Nova Scotia’s new legislation, it is not the first case involving internet harassment. Justice Arnold took guidance from defamation cases, in particular, other internet and cyberbullying defamation cases across Canada, many of which occurred in the context of divorce/separation. He noted the increased harm when the defamation occurs online because it is so instantaneous, widespread, and anonymous.
Damages awarded in Candelora, supra, were not at the high end of the range for cyberbullying, because Ms. Candelora was an adult who was not unusually vulnerable to cyberbullying, there were no intimate images involved, and Mr. Feser and Ms. Dadas did not live in physical proximity to her. Justice Arnold found the following facts to be particularly significant to the issue of damages and the awards of aggravated and punitive damages:
- The duration and extent of the cyber-bullying, which Justice Arnold described as “prolific and repeated”. The public posts were akin to publication.
- The offensive and intimidating nature of the posts, which included disclosure of personal information such as tax returns. The posts were intended to intimate her from pursuing family law proceedings and to embarrass and humiliate her.
- Their refusal to stop posting even after hearing from Ms. Candelora’s counsel.
- Their disregard for authority of the court as demonstrated during the family proceedings and repeated assertions the posts would continue until legal proceedings ceased.
If you have any questions regarding online harassment or cyberbullying you have experienced, please reach out to our Personal Injury team to a free consult. Contact us at 902.422.5881 or info@mdwlaw.ca.