The title to this Toronto Injury Lawyer Blog post may strike you as a bit odd; but it’s one of the top questions I’ve been receiving since the horrific terrorist attacks of October 7, 2023.
What makes Canada a great country is that we have all sorts of freedoms. But, these wonderful freedoms are not absolute.
In a multicultural society, and in a more homogeneous society, not everyone is going to agree on the same issues, statements or views. It’s a fact of life.
When people don’t agree, or hear things that they don’t like, they can get mad or upset. This may cause them to yell, or even to say grossly offensive, or racist statements. Things might get so heated that it results in damage to property, or physical violence.
So, when someone is shouting racist, homophobic, vile or antisemitic comments at you or at at group, does this make grounds for a viable civil lawsuit against that person, or group of people?
Great question!
There is a difference between a civil lawsuit, and a criminal lawsuit.
Let’s start with a criminal lawsuit. Criminal charges would need to be initiated by the police, or by a Justice of the Peace. The prosecuting party is “the Province or the Country or as you might hear The State“. The defending party is the accused. The victim of the crime is just that. They are the victim of the crime and do not form part of the lawsuit itself. The victim of the crime can certainly provide testimony at trial, but they are not a formal party to the lawsuit. The victim of the crime does not steer the direction of the lawsuit, and plays no part whatsoever in the strategy in prosecuting the lawsuit. That’s entirely up to the Crown Prosecutor.
The sad truth is that in most cases, the victim of the crime is an after thought. The accused, if convicted, may have to pay some sort of money (restitution) for the damage caused, but it’s not compensation for the victim’s pain and suffering. The Judge in a criminal case cannot award damages to the victim of the crime. The lawsuit is never about money because money will not change hands. Rather, it’s about determining whether or not the accused is guilty or not of the alleged crime. If the police or the Crown’s office do not wish to press charges or prosecute the case, then there is no much which can be done by the victim of the crime itself, except for pursuing a civil action against that person.
A civil action is a lawsuit commenced by a Plaintiff against a Defendant, or group of Defendants. In Canada, you are free to sue anyone….for anything! But, that does not mean that you will have a meritorious lawsuit. If the lawsuit is frivolous or without merit, a Judge will kick it out of the Court and order that the Plaintiff who commenced the lawsuit pay the legal costs of the Defendant in having to defend the claim. So, it’s risky business suing a Defendant for the hell of it.
You can certainly sue for hate. Words have meaning. Words are communicated for a specific reason to communicate a specific message. If that’s a message of hate and death, that will certainly cause a significant impact to the party on the other end of that messaging. Hate creates fear, intimidation, and a pile of other issues which are not good for your health, sanity or performance, particularly in a work or school environment.
Can a Judge award you damages for being on the other end of that hate messaging? If a Plaintiff can establish damages, and a direct causal link between the harmful messaging and those injuries sustained, then most certainly.
But, here’s where we run into a problem. And it takes us down again of a path which we have discussed on any many occasions in the Toronto Injury Lawyer Blog.
Imagine yourself returning from a beautiful dinner downtown with your partner. Then, all of the sudden, you and your partner are viscously attacked by a stranger for no reason at all. The stranger breaks both of your arms, and runs off with your valuables.
Police are able to track down the stranger, and press changes against him. The stranger is convicted of multiple criminal charges and has to go to jail.
You and your partner decide to pursue a civil action against the stranger for the injuries which you both sustained. The civil action (personal injury claim) is successful and the Judge awards you both $150,000. This sounds like great news until you go to try to collect on the Judgment.
Your personal injury lawyer writes to the stranger and it turns out that he has no assets. He does not own any property. Before the attack he worked for cash and is in tremendous debt.
Your personal injury lawyer does some other searches and it turns out there are many other debt collectors seeking money from this person as well.
There is no insurance to indemnify a Defendant for their criminal actions, or for actions of hate, homophobia, antisemitism and the list goes on. Being an ignorant, rude, abusive, insensitive ______ is not covered by any sort of insurance policy.
You can sue.
You can win the case as well.
But collecting real damages from the lawsuit is remote, unless the offending party isn’t judgment proof.
The funny thing is that most students are judgment proof. Most don’t own any real estate. Most still have mounds of student debt. Most don’t have meaningful jobs (because they are students). Would it be devastating or financially crippling for a student fresh out of school to have their wages garnished? Sure. But would it be a costly case to pursue to trial? Yes. It may very well be a situation whereby $50,000 worth of hours of legal work is spent to recover $5,000-$10,000 in damages which may never be recoverable at all.
A Plaintiff cannot garnish ODSP or Ontario Works. Defendants who have real assets also manage to find away to shelter those assets so that a Plaintiff claim upon them. The exercise from a lawsuit predicated on hate then becomes an exercise in collections which often goes without bearing any fruit.