In January 2016, the Ontario Superior Court of Justice issued a decision further expanding the scope of privacy-related common-law torts. In Jane Doe 464533 v. D. (Jane Doe)1, Justice Stinson considered the plaintiff’s claims for breach of confidence, intentional infliction of mental distress and invasion of privacy after the defendant posted an intimate video of her online and showed it to members of their social circle.
The New Tort
In assessing the claim for invasion of privacy, Justice Stinson returned to the 2012 Ontario Court of Appeal decision in Jones v. Tsige2, and in particular the Court of Appeal’s reliance on the four privacy torts set out in the American Restatement (Second) of Torts. In Jones, the Court found that the tort of intrusion upon seclusion was most relevant to the case before it. In Jane Doe, Justice Stinson found instead that another of the American torts—"public disclosure of embarrassing private facts about the plaintiff"—more closely matched the facts at hand.
As adapted by the Court, the test for the new tort requires that:
- the defendant gave publicity to a matter concerning the private life of the plaintiff;
- the matter publicized, or the act of publication itself, would be highly offensive to a reasonable person; and
- the matter publicized, or the act of publication, is not of legitimate concern to the public.
The Court found that the tort had been made out in this case and awarded the plaintiff a total of $50,000 in general damages (based on evidence of severe emotional and psychological harm), as well as $25,000 in punitive and $25,000 in aggravated damages. This $100,000 award was a conscious departure from the informal $10,000 cap established by the Court of Appeal in Jones.
Notably, the Court did not assess damages under the same framework of moral or nominal damages for humiliation and distress that was used in Jones and which has been consistently applied in Federal Court decisions for violations of the Personal Information Protection and Electronic Documents Act (PIPEDA). Instead, Justice Stinson applied the longstanding framework used to assess damages for psychological harm arising from sexual battery.
Much like Jones, this expansion of the common law of privacy arose from the intentional conduct of one individual toward another in the context of a romantic relationship. Although several cases, including class actions, attempting to apply these precedents to privacy breaches arising in the context of commercial relationships are pending before courts across Canada, none of them have been decided on their merits. Similarly, in the public sector, the Federal Court has certified a class action3 against the Government of Canada alleging the same tort recognized in Jane Doe, using the name "publicity given to private life," but that case is far from any decision on the merits. Accordingly, we expect that the scope of this tort will be tested in various novel contexts. One obvious area of potential concern will be intra-company romantic relationships and the scope of vicarious liability, particularly if corporate hardware (including mobile devices) is involved.
This decision also raises questions about potential conflicts between privacy and freedom of expression. It is likely that these conflicts will be resolved on the basis of what the courts conclude constitutes a "legitimate concern to the public." As a result, we can expect them to draw from existing jurisprudence in the areas such as copyright infringement or defamation (among others). Certainly this tort adds a dimension of uncertainty to the notion that any true fact may be published with impunity.
1 2016 ONSC 541
2 2012 ONCA 32
3 John Doe v. Canada, 2015 FC 916
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