Canada: Tort of Unauthorized Public Disclosure of Private Facts in State of Flux Following Overturn of Default Judgment

Last Updated: February 23 2017
Article by Deirdre L. Wade, QC

We have recently learned that the Ontario Superior Court of Justice will be re-visiting the January 2016 decision granting default judgment in the case of Jane Doe 464533 v. ND.1 The Jane Doe case was significant because it established the tort of unauthorized public disclosure of private facts.

In Jane Doe, the defendant, the plaintiff's ex-boyfriend, posted an intimate video of her on a pornographic website without her knowledge or consent. The defendant had repeatedly asked the plaintiff to make a sexually explicit video of herself to send to him. For some time, she refused to do so but eventually did after he assured her that no one else would see the video. Despite the plaintiff's misgivings and due to the pressure from the defendant, she relented and sent the video to him. On the same day that she sent the video to him, the defendant posted the video on an internet pornographic website under the "user submissions" section. The video was available online for approximately three weeks before it was removed. There was no way to know how many times it had been viewed or downloaded or if and how many times it may have been copied to other media storage devices and/or recirculated. Both the plaintiff and the defendant were 18 years of age.

The plaintiff was devastated, humiliated and distraught to discover what the defendant had done. The plaintiff became depressed and required counselling for a year and a half to deal with the emotional fallout from the posting of the video. After the posting of the video, whenever she encountered the defendant she would react in a manner similar to a panic attack. The plaintiff was eventually able to complete her undergraduate studies and at the time of the trial, was attending a graduate program. She remained concerned that the defendant's actions would put her future career plans in jeopardy should news of these events ever surface.

The tort was described at paragraph 46 of the decision of Justice Stinson as:

"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."

Given these circumstances, the Court held that the elements of the new tort had been established and awarded the plaintiff general damages of $50,000, aggravated damages of $25,000 and punitive damages of $25,000.

The defendant in Jane Doe had been noted in default and had not appeared at the hearing of the motion for judgment. It was as a result of this motion for default judgment that the new tort was established and the defendant was ordered to pay the substantial damages that were assessed.

Upon learning of the default judgment, the defendant brought a motion to set aside the liability findings and the assessment of damages portions of the judgment. He did not challenge the order requiring him to destroy any existing copies of the video or prohibiting him from publishing, posting, sharing or otherwise further disclosing in any fashion any intimate images or recordings of the plaintiff. In a decision dated September 16, 2016,2 Justice Dow set aside the findings of liability and the assessment of damages made by Justice Stinson on the condition that the defendant pay the costs of the motion to set aside the default judgment of $10,000.

The setting aside of the default judgment was not published and therefore was not known within the legal community because on September 20, 2016 Justice Dow issued an addendum to his decision delaying the release and publication of the decision as the plaintiff intended to seek leave to appeal.

The plaintiff, Jane Doe, then brought a motion pursuant to Rule 62.02(4)(b) of the Rules of Civil Procedure for leave to appeal from the decision setting aside the default judgment.

In a decision dated January 9, 20173, Justice Kiteley of the Ontario Superior Court of Justice dismissed Jane Doe's motion for leave to appeal. Justice Kiteley stated at paragraph 57:

"... Indeed, it is a matter of general importance that the facts in this case be the subject of a hearing on its merits so that the significant legal conclusions deriving therefrom will have more weight in future cases as opposed to findings made as a result of a hearing where only one side participated, albeit through the fault of the other side. The uniqueness of the case and the prospect for a decision on the merits making a contribution to the development of the torts in an important area of the law is a compelling reason to conclude that it is a question of general importance that the defendant have the opportunity to participate in a trial."

Thus, the law is in a state of flux at the moment as we wait to see if Jane Doe 464533 v. ND proceeds to a full trial on its merits where there will be another opportunity for the Court to address the establishment of the tort of unauthorized public disclosure of private facts and the criteria for damages. It is also noteworthy that there was some suggestion in Justice Dow's decision that the defendant was primarily interested in challenging the damages assessment.

Until such time as this occurs, the precedential value of Jane Doe 464533 v. ND remains uncertain. As it currently stands, the default judgment has been overturned and we have only the possibility that a new judge will recognize the tort of unauthorized public disclosure of private facts as a mean of compensating a victim of such a humiliating invasion of privacy.

Although we cannot say with any degree of certainty what the likely outcome of any re-trial or re-hearing in Jane Doe 464533 v. ND will be, it is our view that given the willingness of the Ontario courts to recognize privacy torts as the Court of Appeal did in Jones v. Tsige4and then, shortly thereafter the Superior Court, in the initial Jane Doe case, the chances are fairly good that the tort will be recognized in the near future whether as a result of the retrial of Jane Doe 464533 v. ND or in another case.


1.2016 ONSC 541

2.2016 ONSC 4920 released January 26, 2017

3.2017 ONSC 127

4.108 OR (3d) 241, 2012 ONCA 32

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
Related Video
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.