ONSC applies false light privacy tort, awards $300,000 in damages

Justice Kristjanson of the Ontario Superior Court of Justice has applied the tort of publicly placing a person in a false light in ordering an abusive husband to pay $300,000 in damages to his estranged spouse.

The defendant waged a campaign against the plaintiff in which, contrary to court orders, he published photos and videos of the couple’s two children to allege the plaintiff was a child abuser and criminal. He also targeted the plaintiff by e-mailing community members links to his content and directing various real-world publications via pamphleting and postering in the UK, where the plaintiff had sought shelter. The campaign was extreme, causing the plaintiff to become ill and fear for her safety.

Justice Kristjanson awarded $150,000 in punitive damages, $50,000 for intentional infliction of mental suffering and $100,000 for breach of privacy. The breach of privacy damages were based jointly on the public disclosure of embarrassing private facts tort and the tort that applies to publicity that places one in a false light. On the false light tort, Justice Kristjanson explained:

170      With these three torts all recognized in Ontario law, the remaining item in the “four-tort catalogue” of causes of action for invasion of privacy is the third, that is, publicity placing the plaintiff in a false light. I hold that this is the case in which this cause of action should be recognized. It is described in § 652E of the Restatement as follows:
Publicity Placing Person in False Light
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
171      I adopt this statement of the elements of the tort. I also note the clarification in the Restatement‘s commentary on this passage to the effect that, while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.
172      It also bears noting this cause of action has much in common with the tort of public disclosure of private facts. They share the common elements of 1) publicity, which is 2) highly offensive to a reasonable person. The principal difference between the two is that public disclosure of private facts involves true statements, while “false light” publicity involves false or misleading claims. (Two further elements also distinguish the two causes of action: “false light” invasion of privacy requires that the defendant know or be reckless to the falsity of the information, while public disclosure of private facts involves a requirement that there be no legitimate public concern justifying the disclosure.)
173      It follows that one who subjects another to highly offensive publicity can be held responsible whether the publicity is true or false. This indeed, is precisely why the tort of publicity placing a person a false light should be recognized. It would be absurd if a defendant could escape liability for invasion of privacy simply because the statements they have made about another person are false.
174      Moreover, it is likely that in the course of creating publicity placing a person in a false light, the wrongdoer will happen to include true, but private, facts about the person whose privacy is invaded. In this case, for instance, the defendant has publicized falsehoods about the plaintiff, but he has also publicly aired private facts about her present living situation with the children and her parents (including videos of their home) and details of access visits which is a true, but private matter.

This is the first time the false light tort has been recognized in Canada. Justice Kristjanson said the $20,000 cap on damages recognized in Jones v Tsige “may not apply” to it, though also suggested a larger award was warranted on the facts.

Justice Kristjanson also issued a 33 paragraph order that provided for broad-ranging permanent injunctive relief and made the defendant’s right of access to his children dependent on compliance. (The trial of the plaintiff’s action proceeded together with a family law trial.)

Yenovkian v Gulian, 2019 CarswellOnt 21614, 2019 ONSC 7279.

Case Report – NSCA makes privacy-protective orders in youth’s Facebook case

On June 25th, Oland J. of the Nova Scotia Court of Appeal made two privacy-protective orders in an appeal of a decision to deny use of the same measures in an application. The application has been brought by a 15-year-old girl who is has taken issue with an unknown individual who created a fake and allegedly defamatory Facebook profile in her name.

In late May, the applicant succeeded in arguing for production of the identity of the individual associated with the fake profile before LeBlanc J. of the Nova Scotia Supreme Court. At the same time, LeBlanc J. denied the applicant an order permitting the use of a pseudonym (initials) and denied her a publication ban.

The Court of Appeal granted orders allowing the use of the two privacy protective measures in the appeal of LeBlanc J.’s decision, with the publication ban limited to restricting publication of the words of the Facebook profile. In making these orders, Oland J. held that the order was necessary to protect the applicant’s mental and emotional health, that the orders would be effective in protecting the applicant, that the orders would have a relatively limited impact and that a failure to make the orders would render the appeal moot.

The appeal is currently set down for hearing on December 7th, 2010. Beyond Borders, a children’s rights organization, intends to intervene. The Halifax Herald Limited and Global Television are respondents on the appeal.

A.B. v. Bragg Communications Inc., 2010 NSCA 57 (CanLII).

CAISJA presentation on student appeals and related higher education student affairs issues

I had a great time this morning at pre-conference workshop for the annual Canadian Association of College and University Student Services conference. The workshop was organized by the new CACUSS academic integrity and student judicial affairs division – CAISJA. I love addressing professionals working in the higher education sector because attendees are always very knowledgeable and engaged. Today was no exception!

Here is a copy of my slides, which were just to put a little structured content into three hours of discussion moderated by my CAISJA hosts.

As promised to attendees, here is the Hicks Morley paper (written in 2005) on student appeals and here are some citations to recent and relevant case law.

  • Cotton v. College of Nurses of Ontario – On administrative fairness and mandatory medical assessments. See here for my case summary.
  • Zeliony v. Red River College – On hearing transcripts and the requirement to give reasons. The College’s reliance on unsworn witness statements (in part because witnesses said they were afraid to testify) is an important issue that is not addressed head-on in this award.
  • Lerew v. St. Lawrence College – On hearing transcripts and the requirement to give reasons.
  • F.H. v. McDougall – The Supreme Court of Canada on the existence of only one standard of proof in civil cases – the balance of probabilities standard.

Though it is technically neither an academic integrity nor a student judicial affairs issue, we did get into discussion on threat assessments, student privacy and non-disciplinary suspensions. Some materials on this topic are posted here (my CAUBO March 2008 presentation), here (comments made after the Kajouji case) and here (link to good podcast).

Thanks again to my CAISJA hosts. I hope this material is helpful and, for those who attended, look forward to keeping in touch!