Canada: Cyberbullying And The Implications For Insurers

There can be no doubt that cyberbullying is a new and disturbing development that significantly impacts society these days. In a 2009 General Social Survey, Statistics Canada reported that 7% of adult internet users were cyberbullied.1 It has resulted in various high profile suicides involving teens and has contributed to some of the most horrific events of recent years. 2 A troubling variation of the commonly understood scope of cyberbullying is the sharing online of private and highly intimate videos of a sexual nature that were never intended to be shared publicly, colloquially referred to as 'revenge porn'. Not surprisingly, this new form of bullying raises new societal issues, including new potential exposure for insurers.

Doe 464533 v. N.D3 and the new tort of Public Disclosure of Private Facts

On January 21, 2016, the Ontario Superior Court released the decision in Doe 464533 v. N.D. representing the first Canadian decision recognizing the new cause of action of "public disclosure of private facts", an invasion of privacy tort.

In this case, the defendant posted an intimate video of the plaintiff on a pornographic website without her knowledge or consent. The plaintiff had sent the video to the defendant, who was her on-again-off-again boyfriend, on the understanding that it was private. When confronted by the plaintiff, the defendant admitted to posting the video and subsequently removed it from the website. Despite the removal, the plaintiff claimed to have suffered mental injuries as a result of the defendant's actions and sought compensation for same.

Justice Stinson found that the defendant's actions caused significant psychological and emotional harm to the plaintiff and awarded her compensatory general damages, aggravated damages and punitive damages totaling $100,000. 4 Although the video was removed, Justice Stinson recognized that there was no way to know how many times it was viewed or downloaded or copied elsewhere. In making his decision, Justice Stinson recognized the current role of technology in perpetuating the invasion of privacy.

The Honourable Justice Stinson cited American legal scholar William L. Prosser, who described the tort of public disclosure of private facts in his article "Privacy". 5 Justice Stinson essentially adopted the elements of the cause of action enumerated by Professor Prosser, namely: 1) the disclosure of the private facts must be a public disclosure, not a private one; 2) the facts disclosed to be public must be private facts and not public ones; and 3) the matter publicized or the act of the publication would be a) highly offensive to a reasonable person, and b) is not of legitimate concern to the public. 6

Potential Impact of Decision for Insurer's

With this decision, the court took a step towards responding to the increased awareness regarding the rise of social media and cyberbullying. At the same time, the recognition of this new privacy tort as a cause of action impacts certain insurers and gives rise to a new potential area of exposure. As demonstrated, victims of cyberbullying may now file civil actions against the perpetrator alleging the public disclosure of private facts where private facts, videos, pictures or other private information are shared. If the perpetrator is a child or dependent, then the plaintiff may also commence a claim against the parents of the cyberbully for negligent supervision when there is a failure to control their child or dependent and fails to prevent the harm caused by the child or dependent. Such a negligence claim against the parents has been held to be a distinct claim from the intentional tort claim against the child7 and not derivative from the child's intentional acts in certain circumstances. 8

If the parents are named in the action, then their homeowners or tenant insurance policy insurer may have to respond. As a homeowner's insurance policies generally includes both property coverages and liability coverages, including personal liability coverage for the insured's personal activities worldwide, insurers could have a separate duty to defend. 9 As the duty to defend is triggered by the true nature of claims alleged in the pleadings, 10 it is not relevant, at the initial stage of the inquiry, whether the parents will be proven to be negligent.

It is true that the personal liability coverage from a homeowners' policy may very likely contain an exclusion clause against providing coverage for an insured's intentional or criminal acts, thereby excluding coverage for the child's intentional cyberbullying, or cyber public disclosure of private acts. However, the exclusion clause may not necessarily exclude coverage for claims of negligence or claims of failure to act or supervise, as against the parents.

For example, in Durham District, a negligence claim was advanced against the parents for failing to properly supervise and discipline their son, who had set fire to the contents of his high school's plastic recycling bin. In this case, the Ontario Court of Appeal interpreted the exclusionary clause in the homeowner's insurance policy narrowly and construed the ambiguity against the insurer-drafter to hold that negligence claims were not excluded by the clause. Therefore, the insurer had a duty to defend the parents against the negligent supervision claim against them, while the claim against the child's intentional act was excluded from coverage.

This contrasts with the decision in Unifund Assurance Co. v. E.(D.),11 a recent decision from the Court of Appeal that involved a negligence claim against the parents of a minor for their failure to investigate and take reasonable care to prevent the bullying that their daughter participated in against another minor at their school. As the parents' homeowner's policy specifically and unambiguously excluded the "failure of any person insured to take steps to prevent... psychological or emotional abuse" 12, the Court of Appeal held that the negligent supervision claim against the parents was separately and specifically excluded from coverage.

Therefore, absent a specific exclusion clause, a homeowner's insurance policy may have to respond to negligent supervision claims against the parents where there is a cause of action against their child for the public disclosure of private acts. In Doe 464533, had the plaintiff instituted proceedings against the defendant's parents for their failure to exercise reasonable supervision at the time of the posting of the video, then their homeowner's policy insurer may very well have had to defend the parents' claims even if the child's intentional acts were excluded from coverage. In light of this, it may be prudent for insurers to reexamine the exclusions clauses in their homeowner's policy to address the potential for these claims against the parents given the realities of the world that we currently live in and the potential for an increase in the number of claims that insurers could be asked to respond to.


1.Perreault, S, Statistics Canada, Self-reported Internet Victimization in Canada, 2009, (15 September 15, 2011) online:

2.See e.g. CBC News, "B.C. girl's suicide foreshadowed by video", (11 October 2012) online: CBC News ; and "Cyber-bullying-linked suicides rising, study says", (20 October 2012) online: CBC News.

3.Doe 464533 v. N.D, 2016 ONSC 541.

4.Note that this was the amount claimed by the Plaintiff.

5.William L. Prosser, "Privacy", 48 Cal. L. Rev. (1960).

6.For further details on the decision, see previous McCague Borlack article "New Privacy Tort Recognized in Ontario: Jane Doe 464533 v. X" published in February 2016

7.Durham District School Board v Grodesky, 2012 ONCA 270 at para 14; and Godonoaga (Litigation Guardian of) v Khatambakhsh (Guardian of) (2000), 49 OR (3d) 22 (Ont. C.A.) at para 20.

8.See Durham District, supra note 5.

9.See Godonoaga, supra note 4.

10. Non-Marine Underwriters, Lloyd's of London v Scalera, [2000] 1 SCR 551.

11. 2015 ONCA 423.

12. Ibid. at para 24.

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

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.