In Doe 464533 v N.D., 2016 ONSC 541 (CanLII) the Ontario Superior Court of Justice dealt with the torts of breach of confidence (in a non-commercial context) and invasion of privacy. [Note: in BC (and some other provinces) privacy actions are based on statute, such as the Privacy Act (T.K.L. v. T.M.P., 2016 BCSC 789 (CanLII)].
Both the Plaintiff and the Defendant were young. The Plaintiff sent a nude video of herself to the Defendant, her ex-boyfriend. He assured her no one else would see the video. However, motivated by malice, he posted the video on a porn website, where it was available for a few weeks, causing her to be “devastated, distraught and humiliated.” She suffered serious depression and panic attacks. Four years later she remained emotionally fragile. The Court noted: “Despite these challenges, and to her credit, she has now finished her undergraduate studies and is attending a graduate program that will enable her to become a health care professional when she graduates.”[NOTE: The Defendant failed to serve a statement of defence and was in default. The plaintiff brought a motion for default judgment, seeking compensatory and punitive damages, as well as a permanent injunction.]
Breach of Confidence
The Court cited the case of Grant v. Winnipeg Regional Health Authority [2015] M.J. No. 116 (C.A.), where the Manitoba Court of Appeal summarized the law in relation to claims for breach of confidence as follows (at paras. 118-119):
Tort law has recognized that a breach of confidence in certain circumstances may create a cause of action (see Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574; and Cadbury Schweppes Inc. v. FBI Foods Ltd., 1999 CanLII 705 (SCC), [1999] 1 S.C.R. 142). Courts have recognized that the unauthorized use of confidential information to the detriment of the party communicating it, and from which damages ensue, may lead to a cause of action. The elements required to make out the tort of breach of confidence are:
- that the information must have the necessary quality of confidence about it;
- that the information must have been imparted in circumstances importing an obligation of confidence; and
- that there must be unauthorized use of that information to the detriment of the party communicating it (see R.G. v. M.S.L., 2007 BCSC 930 (CanLII), 75 B.C.L.R. (4th) 141; Canada (Attorney General) v. Rundle (c.o.b. NEC Plus Ultra), 2013 ONSC 2747 (CanLII), 16 B.L.R. (5th) 269 (QL); and Sabre Inc. et al. v. International Air Transport Association et al., 2011 ONCA 747 (CanLII) at para. 14, 286 O.A.C. 246). [Para. 21]
The Court concluded that facts satisfied the test and, therefore, Plaintiff had made out the case for breach of confidence.
Invasion of Privacy
The Court started the analysis with reference to the decision of the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32 (CanLII), where it recognized the tort “intrusion upon seclusion.”
The Court (in Doe 464533) noted: while the facts resembled the tort of “intrusion upon seclusion,” they more closely fall within a tort described as “public disclosure of embarrassing private facts about the plaintiff.” The Court summarized the elements of this tort as follows: “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” [Para. 46]
The Court concluded:
“[47] In the present case the defendant posted on the Internet a privately-shared and highly personal intimate video recording of the plaintiff. I find that in doing so he made public an aspect of the plaintiff’s private life. I further find that a reasonable person would find such activity, involving unauthorized public disclosure of such a video, to be highly offensive. It is readily apparent that there was no legitimate public concern in him doing so.”
Damages
The Court noted: “no reported cases have been found in which a Canadian court has been asked to award damages on facts such as these.” The Court turned to guidance and assistance in sexual assault cases, including B.M.G. v. Nova Scotia (Attorney General), 2007 NSCA 120 (CanLII), where the Court discussed a number of relevant factors: (1) “the circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were; “ (2) “the circumstances of the defendant, including age and whether he or she was in a position of trust;” and (3) “the consequences for the victim of the wrongful behaviour including ongoing psychological injuries.”
The Court awarded $50,000 general damages. The Court distinguished Jones v. Tsige, where the award was a modest $10,000, on the basis that “the privacy right offended and the consequences to the plaintiff there were vastly less serious and offensive than the present case.” As well, because the Defendant’s conduct involved a breach of trust, the Court added $25,000 aggravated damages.
Punitive damages was warranted [Para. 60]: “[The Defendant] gave no consideration to the inevitable impact of his actions on the plaintiff. He has not apologized; indeed, according to the plaintiff, despite being aware of the harm he has caused, when they have encountered one another since the event, he has had an insolent look on his face, and has shown no remorse. No apology has been forthcoming.” Considering proportionality, blameworthiness, vulnerability of the victim, malice on the part of the Defendant, the need for deterrence, the Court awarded $25,000 in punitive damages.
Cost was granted on “full indemnity basis at the all-inclusive sum of $36,208.73.” The Court also granted the permanent injunction requested. Including interest, the award came to $141.708.03.