In a strong and purposefully worded decision, the Ontario
Superior Court of Justice recognized a new cause of action referred
to as "public disclosure of private facts."
The Ontario Superior Court of Justice, speaking through Justice
Stinson, recognized that one person will be liable to another for
invasion of the other's privacy rights 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
The courts concluded that without this cause of action, a gap in
the common law would exist for facts that ought reasonably be
grounds to hold a person civilly responsible.
"To permit someone who has been confidentially
entrusted with such details – and in particular intimate
images – to intentionally reveal them to the world via the
Internet, without legal recourse, would be to leave a gap in our
system of remedies."
The facts, as determined by the court, were ones that are
becoming far too common. Two young adults, male and female in this
case, were involved in a prolonged intimate relationship starting
in high school. They formally broke up when the woman went off to
university, but continued to date while she was in town. The male
allegedly sent sexually explicit images of himself to the woman and
continuously pressured her to reciprocate. After repeated refusal,
she agreed based on promises of confidentiality. She sent him an
explicit sexual video. The male immediately posted the video to a
porn site. The woman's family, friends and several people in
the woman's community saw the video. The woman was traumatized,
and went through extensive counselling to deal with the aftermath
The man was effectively not represented, but the court found
that, through his actions subsequent to posting the video, he
showed little remorse for what happened. The court recognized that
the damage done to the woman was significant.
The recognition of the tort of public disclosure of private
facts was anticipated as a parallel branch of the common law
privacy tort of "intrusion on seclusion" recently
recognized by Ontario courts. The recognition of this new tort is,
nonetheless, a significant development for protection of privacy
rights. The actions forming the basis for this claim are becoming
increasingly prevalent and the damages resulting from these actions
are often extensive and long term. As we have seen in too many
examples, the action of disclosing intimate images to the world in
what is understood to be a relationship of confidence often leads
to significant physical and mental harm to the victims and, in some
cases, suicide. The significance of the courts recognizing the
extent of the damages done to people in these situations and
providing a specific legal remedy to empower those people is
Of interest is that the court also concluded that the facts
supported a finding of other existing causes of action, including
breach of confidence and intentional infliction of mental
The ability to bring a successful claim tort of public
disclosure of private facts is qualified by whether or not the
activity in question is of legitimate concern to the public. The
impact of this decision on many valued activities, such as
journalism and freedom of speech, are yet to be seen. For instance,
journalism has historically secured a privileged status and
afforded great deference from the courts in what disclosures will
be protected from civil liability. However, journalism is evolving
to include blogging, tweeting and other more informal and less
vetted ways of communicating information to the public increasingly
involving personal information of subjects of the stories.
Determining the appropriate threshold for what is a legitimate
concern to the public will be a challenge for the courts to weigh
in an ever evolving notion of what is in the public interest.
The action was brought under Simplified Procedure rules, and as
such, the damages were limited to $100,000. The judge awarded the
maximum possible damages, plus legal fees and interest. Damages for
breach of privacy have historically been quite low in Canada. An
award of this amount is notable for this court's recognition of
the severity of damages that can be suffered in situations such as
these. It would have been interesting to see whether the damages
would have been higher had the constraints imposed by the
Simplified Procedure not been relevant.
It remains to be seen whether this decision will be appealed. If
not this case, it is inevitable that other cases and similar facts
will lead to a review of the decision and factors that lead to the
assessment of damage awards within and outside of the rules of
Simplified Procedure. We look forward to seeing how the courts'
recognition of this tort develops.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).