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Bulletin | The HR Space

“Publicity Placing the Plaintiff in a False Light” is the Newest Privacy Tort in Ontario

Fasken
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Overview

Labour, Employment & Human Rights Bulletin | HR Space

What Happened?

A couple married in 2000 and had two children, aged nine and twelve. In 2016, the couple separated, and the mother left Canada for the United Kingdom with their children. This departure triggered years of litigation for the couple, including Hague proceedings for the children's return to Canada and a family law dispute in Ontario. During this time, the father engaged in a campaign of cyberbullying against the mother lasting for years, up to the last day of this family law trial. The father's cyberbullying included posting on websites, YouTube videos, online petitions and emails that detailed personal, private information and allegations of abuse against the mother, their children and his in-laws. He also filmed court-ordered access visits with his children, which he then edited and posted online with offensive commentary. The couple's daughter, who has a neurological disorder and is on the autism spectrum, was often the centre of the father's posts as well. The father accused the mother and her family of kidnapping and drugging the daughter, often commenting about her development in his public online posts.

The father's cyberbullying continued despite a court order in Ontario prohibiting him from filming or recording his children. Instead, the father created another online campaign to "unseat" the unnamed justice of the Ontario Superior Court of Justice (the "Court") as a result of her rulings in the case.

During the family law proceedings, the mother brought a civil claim against the father seeking $150,000 for intrusion on seclusion, intentional infliction of mental suffering, invasion of privacy and $300,000 in punitive damages.

What Did the Court Say?

The Court reviewed the current law and outlined the previously recognized privacy-related torts of intrusion upon seclusion[1] and public disclosure of embarrassing private facts.[2] Notably, the Court revisited the "four-tort catalogue" outlined in a seminal privacy article by an American professor that was adopted by the American Law Society. This catalogue included the tort of "publicity which places the plaintiff in a false light in the public eye", which was the only remaining tort not yet recognized in Ontario law.

The Court held that this remaining tort of "publicity placing the plaintiff in a false light" should be recognized in this case, and would be established in circumstances where:

  • the false light in which a party was placed would be highly offensive to a reasonable person; and
  • the actor had knowledge of, or acted in reckless disregard as to, the falsity of the publicized matter and the false light in which the party would be placed.

The Court distinguished this new tort from defamation. The Court clarified that although the publicity giving rise to the cause of action will often be defamatory,  defamation is not necessary since the test only requires that a reasonable person find it highly offensive to be publicly misrepresented as they have been. Further, the actor may be liable whether the publicity is true or false in this new tort.

The Court ultimately held that the father's behaviour in this case met the requirements of the torts of invasion of privacy (including this new tort) and intentional infliction of mental suffering. In assessing the appropriate damage award for breach of this new privacy tort, the Court adopted the following four-factor test used in defamation cases:

  1. the nature of the false publicity and the circumstances in which it was made;
  2. the nature and position of the victim of the false publicity;
  3. the possible effects of the false publicity statement upon the life of the plaintiff; and
  4. the actions and motivations of the defendant.

Noting that the father's behaviour was particularly egregious, the Court awarded the mother $100,000 for the tort of invasion of privacy, in addition to the $50,000 and $150,000 she received for intentional infliction of mental suffering and punitive damages respectively.

Take Away for Employers

Although recognized amidst the backdrop of a family law dispute, this new privacy tort is of significance to employers as it provides a legal action for both employees and employers who have been the subject of false public statements.

 



[1] Jones v Tsige, 2012 ONCA 32 (Ont Ca).

[2] Jane Doe 72511 v Morgan, 2018 ONSC 6607. 

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