Nova Scotia court skirts novel privacy claim

The Supreme Court of Nova Scotia issued judgement in an internet disparagement case on August 7th that has made the media for resulting in the largest damages award for defamation in Nova Scotia history. Notably, the Court also entertained but did not decide upon a novel claim for breach of privacy.

The self-represented plaintiffs obtained default judgement last December and moved for an assessment of damages. The motion was unopposed by the defendant, a resident of Mississippi.

The plaintiffs’ privacy claim seemingly overlapped significantly with their defamation claim, though the Court described the privacy claim as resting at least partly on the publication of private facts. It noted, for example, that the defendant published a home address and a location one of the plaintiffs visited in Europe.

The Court began by stating, “I am satisfied that in an appropriate case in Nova Scotia there can be an award for invasion of privacy or as the Ontario Court of Appeal [in Jones v Tsige] called it, “the intrusion upon seclusion.” This is a significant finding.

The Court questioned, however, whether the facts deemed to be admitted in the case before it fit the elements of the intrusion privacy tort, which is about the gaining of access to private facts and not publication. It also questioned the effect of the overlapping defamation claim. In the end, the Court decided to “leave the issue of a cause of action for intrusion upon section for another day in another proceeding” based on the lack of argument and the overlapping defamation claim. Had the plaintiffs had not been so successful otherwise , they might take issue with this skirting of their privacy claim.

This is not to suggest the plaintiffs’ privacy claim was a good one. It does seem mainly embodied by their defamation claim, with some independent elements about the publication of facts that are too innocuous to warrant a damages award. The Court might have dealt with the claim in the same manner as the Ontario Superior Court of Justice in Warman v Grosvenor, in which the Court held that the damages for breach of privacy only flow from harm that is not subsumed by the torts of defamation (which addresses harm to reputation) and assault (which the Court said addresses the interest in freedom from fear of being physically interfered with).

Trout Point Lodge Ltd v Handshoe, 2012 NSSC 245 (CanLII).

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