On December 12th of last year, Justice Fragomeni of the Ontario Superior Court of Justice ordered a man to pay $15,000 in damages to his estranged spouse for surreptitiously installing a camera in a bathroom (prior to separation) to take photos “for a couple of days.” There’s little analysis about liability. Here are the damages factors listed by the Court:
1. the nature of the intrusion. It took place in a bedroom and bathroom, places which are very private. The privacy interests of Sheth were significant.
2. the intrusion takes place within a domestic relationship
3. although Sheth was embarrassed and shocked at the intrusion no medical information was filed to support and establish an evidentiary basis to find any significant effect on Sheth’s health or welfare
4. the conduct of Patel in lying about the intrusion at his Discovery and even attempting to blame Sheth herself for the camera being installed is extremely aggravating and demonstrates a lack of any insight into what he did as being wrong.
Note also that the photos recovered and tendered in evidence by the plaintiff did not show anything explicit.
Patel v Seth, 2016 ONSC 6964 (CanLII).
On May 3rd, the Supreme Court of British Columbia ordered $85,000 in damages to be paid to a young woman whose stepfather surreptitiously recorded her while she was undressed in her bathroom and bedroom.
The damages finding was driven significantly by the “thoroughly undignified and humiliating actions” of the defendant, the age of the defendant and proof that the defendant’s actions caused a significant psychological disorder that the plaintiff was still recovering from at the time of trial (which was four years after discovering the defendant’s wrong). The plaintiff was recovering, the judge also noted, as well as noting that the defendant conducted his defence with “appropriate restraint.”
The judge did not consider evidence that the plaintiff was herself provocative in his damages assessment:
The evidence establishes that the plaintiff was a confident and happy young woman. She had a strong sense of self-esteem and probably was proud of her body. She was perfectly entitled to choose what she showed of her body — and to whom, how, and when.
The Court also ordered damages to be paid for past loss of earning capacity, the cost of medication taken and health care received and the cost of future care.
T.K.L. v. T.M.P., 2016 BCSC 789 (CanLII).
On June 15th, Arbitrator Michel Picher awarded damages to three employees for the indiscretions of a substance abuse counsellor retained by an employer to provide treatment as part of its substance abuse program. Arbitrator Picher:
- awarded $5,000 to an employee because the counsellor disclosed his cancer diagnosis to the employer without justification and because the counsellor had counselling sessions with the employee in various public places (including Tim Hortons and Home Depot);
- awarded $2,500 to an employee because the counsellor answered a telephone call and engaged in a discussion about “sensitive matters” while sitting with another employee (also a client); and
- awarded $1,500 to the employee who overheard the telephone call because it “would undermine [his] expectation of privacy and confidentiality in communications with [the counsellor].”
The employer argued it hired a reputable provider and was unaware the serious allegations made agains the counsellor until after the union filed a grievance. Arbitrator Picher’s response reflects the approach taken in finding employers liable for workplace harassment (see Robichaud). He said, “The employer cannot disavow or escape responsibility for the actions of its chosen agent and must bear liability for any violation, in the course of his duties, of the rights of the employees in the bargaining unit for which he was responsible.”
Halifax Employers Assn. and ILA269 (2014-L-39), Re, 2015 CarswellOnt 10497.
On February 24th the Grievance Settlement Board (Ontario) held that an employer should provide a grievor with three days’ paid vacation as a remedy for the consequences of an (admitted) security breach. The breach apparently allowed other employees to read incident reports involving the grievor, who alleged this caused him psychological distress. The GSB made its finding after conducting an informal med-arb process.
Ontario Public Service Employees Union (Grievor) v Ontario (Liquor Control Board of Ontario), 2015 CanLII 14198 (ON GSB).
On October 31st, the Ontario Superior Court of Justice ordered general damages for breach of privacy under our new tort.
This is another love triangle case involving an improper access to personal information. The defendant worked at Legal Aid Ontario. The plaintiff was her boyfriend’s ex. The defendant accessed the plaintiff’s legal aid file without authorization, learned she had dealings with Children’s Aid and threatened to call Children’s Aid to have the plaintiff’s children taken from her. The plaintiff gave evidence that Children’s Aid investigated, but failed to prove this was because of the plaintiff’s disclosure. The plaintiff also unsuccessfully alleged that she lost a job because of the breach or – to be more precise – the anxiety caused by the breach.
Legal Aid Ontario settled and the defendant did not defend the action.
The Court dismissed all special damages claims and said that the evidence showed “irritation rather than devastation.” On a $100,000 claim, it awarded a modest amount for general damages. The judgement unfortunately records the damages award at both $7,500 and $10,000. The Court also awarded $6,500 in partial indemnity costs.
McIntosh v Legal Aid Ontario, 2014 ONSC 6136.