N.S. Supreme Court denies application for cyberbully ruling after construction site conflict

The Nova Scotia Supreme Court has denied a cyberbullying complaint because of insufficient evidence. 

On Jan. 4, Adam Fraser and Ellen Crossman were heard by Justice John Keith, after Fraser accused Crossman of cyberbullying on Facebook. Justice Keith issued his written decision on Jan. 11.

Fraser was employed as a construction site foreman for Elm Construction, building a new high-rise apartment complex in Dartmouth. Crossman lived in the area.

Crossman says she was harassed and catcalled by construction workers at the site.

Crossman complained to the company’s management, concerned for her safety. Management sent an email to all workers on the site, ordering the harassment to stop. 

The harassment continued. 

Fraser and Crossman met on Sept. 3, 2020, when a worker was taking a video of Crossman as she found her car barricaded in the parking lot. 

Because she had been taking videos of the construction site, the worker thought it was appropriate to do the same to her. Fraser says the worker was acting in defence, and that Crossman was parked outside the designated area. 

Crossman took a photo of the worker and asked for his name. That is when Fraser intervened, and things escalated. 

They exchanged insults, Crossman telling Fraser she is “10 times smarter than him,” calling him “stupid,” and Fraser using profanity directed at Crossman. 

Crossman felt her concerns were ignored and decided to share them in a Facebook post. 

Later that day, she posted her story, asking her friends if anyone had experience with Elm Construction or Adam Fraser. Fraser was the only employee mentioned in the post by full name. 

Crossman’s post referenced catcalling and verbal harassment, but she gave no specific examples of what was said.

Fraser faced questions at work after the post was shared around Facebook. 

Crossman deleted the posts in April 2021, and Fraser filed his application to the court on Oct. 8, under the Intimate Images and Cyber-protection Act. 

Fraser said in the hearing that the wording of Crossman’s post, and the use of his full name, suggested he was directly involved in the harassment. Crossman doesn’t understand how someone could be confused by her message. She said her post made it clear that Fraser was not directly involved, but Fraser and Justice John Keith disagreed. 

Keith determined there was no malicious intent from Fraser or Crossman, which means the Intimate Images and Cyber-protection Act does not apply. 

Keith wrote in his decision that, to meet cyberbullying criteria, “the person who created the electronic communication must either ‘maliciously intend’ to cause harm to the health or well-being of another individual or be ‘reckless’ with regard to the risk of harm.”

Keith determined Crossman’s post was exaggerated and open to misinterpretation, but out of concern for her own safety, not ill will. 

“… Ms. Crossman’s actions could be considered careless or uncaring, particularly in the way she structured and worded her Facebook posts. However, based on the evidence before me … I am unable to conclude on the balance of probabilities that she maliciously intended to harm Mr. Fraser’s health or well-being; or was reckless in regard to that risk,” Keith wrote.

In the hearing, Fraser could not specifically describe what was damaging to his well-being, and because he is responsible for proving he was cyberbullied, his argument did not meet the requirement.

Keith wrote that Fraser and Crossman were unable to come to an understanding and lacked empathy for each other’s concerns.