Canada: Privacy In The Spotlight: Ontario Superior Court Of Justice Confirms New Tort For Public Disclosure Of Private Facts

Last Updated: February 26 2019
Article by Amer Pasalic

Overview

The Ontario Superior Court of Justice recently released a significant decision that both expands occupiers' liability for violence on their premises, and affirms a new privacy tort that censures the publication of an individual's private life without consent. In Jane Doe 72511 v. Morgan1, Jane Doe 72511 ("Jane") successfully brought claims against her ex-boyfriend for assault and battery, and his parents for negligence as the occupiers of the home in which the abuse took place. This decision establishes a novel cause of action for claims arising from the distribution of an individual's private information – in this case, a sexually explicit video of the plaintiff – without her knowledge or consent. Following Jones v. Tsige2, the seminal Ontario Court of Appeal decision that established the tort for breach of privacy in Ontario, the court in Morgan continues to expand the protection of privacy rights in Canada, by recognizing a new common law cause of action for invasion of privacy.

Facts

Jane met Nicholas Morgan ("Nicholas") while they were both in high school. Soon after they began dating, Jane learned she was pregnant, and their relationship became volatile and abusive. Jane stayed with Nicholas and his parents, Alan and Florence Morgan (the "Morgans"), and in her seventh month of pregnancy, Jane experienced her first serious incident of violence by Nicholas.  The couple reconciled, however, the abuse and threats continued after the birth of their son. The Morgans frequently witnessed Nicholas' violent and degrading conduct against Jane but took no steps to intervene, except for occasionally warning Nicholas to "get off that girl." In March 2014, after another violent attack, Jane called the police, and Nicholas was charged and convicted of assault. In June 2016, a friend informed Jane that a sexually explicit video of her was posted on an internet pornography website. When Jane confronted Nicholas, he admitted he uploaded the video as revenge for her having him arrested. Jane eventually persuaded the website's administrators to remove the video, but not before it had already been viewed over 60,000 times, and shared on 10 different websites.

Analysis

An Occupier's Duty to Mitigate the Risk of Violence

  • Duty of Care

Jane claimed the Morgans owed her a duty of care under the Occupiers' Liability Act3 ("OLA") because the assault took place in their home and with their full knowledge. An occupier is defined under section 1 of the OLA as "a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises." Section 3 of the OLA states that an occupier "owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises."  Section 4(1) of the OLA establishes an exception to an occupier's duty where an individual willingly assumes the risks associated with entering on the premises.

Gomery J. held that the Morgans' duty as occupiers was not vitiated under s. 4(1) of the OLA on the basis that a person cannot consent to the intentional application of force causing serious or non-trivial bodily harm, as established in R. v. Jobidon4. The court found that, as a matter of public policy, if a person cannot consent to battery or threats of bodily harm in the course of an activity that could give rise to a criminal charge, the same should apply where the activity may attract civil liability.

  • Standard of Care

Upon finding that the Morgans owed Jane a duty of care as occupiers of the home, the court set out to determine the applicable standard of care, and whether that standard was met. Under the OLA, an occupier is liable for failing to prevent foreseeable harm by someone on the premises. Gomery J. held that the physical violence by Nicholas against Jane was foreseeable by the Morgans, as they regularly witnessed his abuse and saw her injuries. The court found that the Morgans were negligent and breached their duties as occupiers under the OLA by failing to take reasonable steps to intervene, and were therefore jointly liable, with Nicholas, for Jane's damages as a result of Nicholas' assault and battery.

Despite using his mother's computer to post the explicit video of Jane, Gomery J. did not find the Morgans liable for Nicholas posting the video of Jane, as there was no evidence indicating that they knew about the video or could have reasonably foreseen he would have published it on a pornographic website.

Public Disclosure of Private Fact

Most notably, the court established the novel tort of public disclosure of private fact, which had only been previously considered by an Ontario court in Jane Doe 464533 v. D. (N.).5 In that case, Stinson J. issued a default judgement against the defendant after finding him liable for this new cause of action for posting intimate images of the plaintiff without her consent. However, the defendant successfully moved to have the decision set aside on the ground that it was in the interests of justice for him to present a full defence.

As part of her analysis, Gomery J. considered Jones, which recognized a new tort for breach of privacy based on the defendant's unauthorized monitoring of the plaintiff's banking records. In the absence of any common law or statutory cause of action for invasion of privacy, the Court of Appeal for Ontario recognized a new tort referred to as "intrusion upon seclusion".  This tort was one of four breach of privacy torts identified by William Prosser, a leading American academic in the area of tort law, in his seminal 1960 article on privacy law:

  1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
  2. Public disclosure of embarrassing private facts about the plaintiff.
  3. Publicity which places the plaintiff in a false light in the public eye.
  4. Appropriate, for the defendant's advantage, of the plaintiff's name or likeness.

In Jones, Sharpe J.A. did not consider any other breach of privacy torts identified by Prosser, but left the door open to new causes of action for invasions of privacy.

In this case, the court effectively adopted the second of Prosser's breach of privacy torts, setting out the elements of the tort of public disclosure of a private fact as follows:

[o]ne 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 publication (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.

Gomery J. applied the requisite elements of the tort, and found that Jane successfully proved each element for the court to find Nicholas liable for public disclosure of the explicit video:

  1. The defendant publicized an aspect of the plaintiff's private life;
  2. The plaintiff did not consent to the publication;
  3. The matter publicized or its publication would be highly offensive to the reasonable person; and
  4. The publication was not of legitimate concern to the public.

Damages

Finding that the breach of a plaintiff's privacy rights in a case of "revenge porn" are more serious than in an action of intrusion upon seclusion. Gomery J. awarded general damages in the amount of $50,000, far exceeding the $20,000 limit set in Jones. The court considered the factors that justified a higher damages award including:

  • Jane was in a highly vulnerable position because of her age and socio-economic background.
  • The act of posting a sexually explicit video of an individual without consent is degrading and invasive. In this case, the video was posted for a long duration of time, and viewed over 60,000 times.
  • Jane suffered serious effects on her psychological and emotional well-being because of the violation of trust she experienced. She is also fearful of the implications the video could have on future relationships.

The court awarded an additional amount of $25,000 for aggravated damages based on Nicholas' malicious intent to humiliate and threaten Jane. Finally, finding that the compensatory damages were not sufficient to address Nicholas' actions, and recognizing that "revenge porn is an assault to the victim's personal agency and sense of self-worth", the court awarded $25,000 in punitive damages to emphasize the seriousness of his conduct, and to deter others from engaging in such behaviour.  

Comment

At a time of exponentially accelerated technological advancement, this decision confirms that Ontario courts are willing to adapt common law principles to reflect the modern reality in which privacy interests operate. 

Individuals and organizations ought to be cognizant of the potential implications of Morgan vis-à-vis their use and publication of others' personal information. Although the Personal Information Protection and Electronic Documents Act6 only applies to certain organizations in the course of commercial activities, this novel tort has broader implications, which may directly affect individuals and organizations not governed by legislation. While this decision may not be the final word on this new tort, especially given that it arose in the context of default judgment, it demonstrates a strong willingness by the courts to recognize new torts that address the injury or harm arising from an invasion of privacy.

Additionally, Morgan serves as an important warning to occupiers who turn a blind eye to violence on their premises. This decision establishes a real risk that occupiers can expect to be found liable for the actions of violent individuals in their homes or businesses where the occupier had some knowledge of the violence, and did not take reasonable steps to prevent it.

Footnote

1 2018 ONSC 6607 [Morgan].

2 2012 ONCA 32 [Jones].

3 RSO 1990, c O.2.

4 [1991] 2 SCR 714.

5 2016 ONSC 541.

6 SC 2000, c 5.

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