Canadian Underwriter

How home insurers could be on the hook for cyber bullying

June 4, 2018   by Greg Meckbach

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Cyber bullying, which can result in liability claims under home insurance policies, will soon be grounds for lawsuits in Nova Scotia.

The Nova Scotia government is now “on the verge” of bringing Bill 27 into force, law student Brayden McDonald wrote Friday on the CanLII Connects blog site.

Bill 27, An Act Respecting the Unauthorized Distribution of Intimate Images and Protection Against Cyber-bullying, replaces the Cyber-safety Act, which was ruled unconstitutional in 2015 by the Nova Scotia Supreme Court in the Crouch v. Snell ruling.

Laws allowing cyber bullying victims to sue were top of mind earlier this year at the 51st annual joint conference of the Ontario chapter of the Canadian Insurance Claims Managers Association and the Ontario chapter of the Canadian Independent Adjusters’ Association.

Parents of alleged bullies are often named as defendants in lawsuits by victims of cyberbullying, Miller Thomson lawyer Patricia Forte told insurance professionals Feb. 6 at the CICMA/CIAA Ontario joint conference. This can happen when plaintiffs allege that the parents failed to prevent their kids from bullying others.

Miller said at the joint conference that some home insurance policies specifically cover cyber bullying while others have exclusions for intentional act, criminal acts and failure to act.

What’s new about Nova Scotia’s Bill 27 is it requires plaintiff to “demonstrate malice or recklessness” on the part of a cyber bully, noted McDonald, a law student at Robson Hall Faculty of Law at the University of Manitoba in Winnipeg.

To win a lawsuit against a cyber bully, a plaintiff would have to prove:

  • the defendant intended to cause harm
  • the defendant acted recklessly as to whether their conduct harmed
  • the defendant was likely to harm.

Tabled by Nova Scotia Justice Minister Mark Furey, Bill 27 was passed into law in October 2017. “After we pass this legislation, I believe other jurisdictions will be encouraged to do the same,” Furey told the Nova Scotia legislature this past October.

In the law that was struck down in 2015, cyber bullying included “any electronic communication through the use of technology … 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.”

The court ruled that the Cyber Safety Act was overly broad and that it infringed upon Canadians’ constitutional right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

Under the new law, cyber bullying is electronic communication “that causes or is likely to cause harm to another individual’s health or well-being where the person responsible for the communication maliciously intended to cause harm to another individual’s health or well-being, or was reckless with regard to the risk of harm to another individual’s health or well-being.”

In Crouch v Snell, Giles Crouch alleged that former business partner Robert (Bruce) Snell engaged in a smear campaign against Snell over social media.

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