Case reference: Doe 464533 v. D. (N.), 2016 ONSC 541
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
The plaintiff and the defendant had a close personal and romantic relationship of some duration. After the 18-year-old plaintiff went away to university, the defendant pressured her to provide him with an intimate video of herself, assuring her that only he would see it. She reluctantly did so. The same day he received it, the defendant posted the video on a pornographic website without her knowledge or consent. He also viewed it with some of his friends, who were acquaintances of the plaintiff. The existence of the video became known to some of the plaintiff’s friends. It was removed after about three weeks, but there was no way to know how many times it was viewed or downloaded or whether it was copied. The plaintiff was devastated and humiliated. She experienced serious depression. She worried about the possibility that the video might resurface and have an adverse impact on her employment or future relationships. She sued the defendant for damages.
Held, the action should be allowed.
The plaintiff had made out a cause of action for breach of confidence. The elements of that tort are that the information must have the necessary quality of confidence about it; that the information must have been imparted in circumstances importing an obligation of confidence; and that there must be unauthorized use of that information to the detriment of the party communicating it. All three elements were present here.
The plaintiff had also made out a cause of action for intentional infliction of mental distress. The defendant’s conduct was flagrant and outrageous, it was calculated to produce harm, and it resulted in a visible and provable injury. A malicious purpose is not required in order to establish this tort (although on the facts it could be inferred that the defendant was motivated by malice).
A cause of action for invasion of privacy — in particular, public disclosure of embarrassing private facts about the plaintiff — was also made out. One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of 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. The defendant posted on the Internet a privately shared and highly personal intimate video of the plaintiff. In doing so, he made public an aspect of the plaintiff’s private life. A reasonable person would find such activity to be highly offensive. It was readily apparent that there was no legitimate public concern in the defendant doing so.
As the action was commenced under the simplified procedure, the damage claim was limited to $100,000. The plaintiff was awarded general damages of $50,000, aggravated damages of $25,000 and punitive damages of $25,000.
[21] In Grant v. Winnipeg Regional Health Authority, [2015] M.J. No. 116, 2015 MBCA 44, the Manitoba Court of Appeal summarized the law in relation to claims for breach of confidence as follows (at paras. 118-19):
Tort law has recognized that a breach of confidence in certain circumstances may create a cause of action (see Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; and Cadbury Schweppes Inc. v. FBI Foods Ltd., [1999] 1 S.C.R. 142). Courts have recognized that the unauthorized use of confidential information to the detriment of the party communicating it, and from which damages ensue, may lead to a cause of action. The elements required to make out the tort of breach of confidence are:
a) that the information must have the necessary quality of confidence about it;
b) that the information must have been imparted in circumstances importing an obligation of confidence; and
c) that there must be unauthorized use of that information to the detriment of the party communicating it (see H.R.G. v. M.S.L., 2007 BCSC 930, 75 B.C.L.R. (4th) 141; Canada (Attorney General) v. Rundle (c.o.b. NEC Plus Ultra), 2013 ONSC 2747, 16 B.L.R. (5th) 269 (QL); and Sabre Inc. et al. v. International Air Transport Association et al., 2011 ONCA 747 at para. 14, 286 O.A.C. 246).
22] In my view, the video created by the plaintiff meets the first test, being confidential information. It had (to use the words of Lord Greene in Saltman Engineering Co. v. Campbell Engineering Co. (1948), 65 R.P.C. 203, [1963] 3 All E.R. 413 (Eng. C.A.), as quoted in Lac Minerals) “the necessary quality of confidence about it”. It was private and personal to the plaintiff and was not (until it was shared on the Internet and otherwise by the defendant) publicly available.
[23] The circumstances that led to the creation and communication of the video clearly demonstrate that it was communicated to the defendant on the express basis that he would treat it as confidential. Thus, the second element is met.
[24] The third element of the tort, use of the information to the detriment of the party communicating it, is ordinarily considered in commercial circumstances, where the recipient has misused the confidential information for commercial advantage, at the expense or to the detriment of the other party. An essential element in any tort is harm to the plaintiff. I see no rational basis to distinguish between economic harm and psychological, emotional and physical harm, such as was experienced by the plaintiff in the present case. In any event, the possible future adverse impact on the plaintiff’s career and employment prospects arising from the possibility that the video may someday resurface also demonstrates actionable harm.
B. Intentional infliction of mental distress
[26] In Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474, [2002] O.J. No. 2712 (C.A.), Weiler J.A. adopted the test for intentional infliction of mental distress, as set out by McLachlin J. in Rahemtulla v. Vanfed Credit Union, [1984] B.C.J. No. 2790, 51 B.C.L.R. 200 (S.C.). This test requires
(i) conduct that is flagrant and outrageous;
(ii) calculated to produce harm; and
(iii) resulting in a visible and provable injury.
[27] A malicious purpose is not required in order to establish this tort (see Prinzo, supra, at para. 44), although on the facts of this case I am prepared to infer that the defendant was motivated by malice, especially in light of the fact that he posted the video on the same day it was sent to him and further in light of his subsequent conduct.
[30] This requirement is established where it is clearly foreseeable that the actions of the tortfeasor would cause harm to the victim: see Prinzo, supra, at para. 45, adopting the reasons in Rahemtulla. The Court of Appeal for Ontario stressed in Piresferreira v. Ayotte, [2010] O.J. No. 2224, 2010 ONCA 384, at paras. 78-79, that although the extent of the harm need not be anticipated, the kind of harm must have been intended or known to be substantially certain to follow. Thus, the defendant must have either desired to produce the mental distress suffered by the plaintiff, or known that this type of harm was substantially certain to follow.
C. Invasion of privacy
[34] In Jones v. Tsige (2012), 108 O.R. (3d) 241, [2012] O.J. No. 148, 2012 ONCA 32, the Court of Appeal for Ontario recognized the existence of the tort of invasion of privacy in the context of intrusion upon seclusion. In that case, the court found that the defendant had committed the tort of intrusion upon seclusion when she used her position as bank employee to repeatedly examine private banking records of her spouse’s ex-wife. While that case dealt with a significantly different fact situation, many of the court’s comments are germane to this case, and I will therefore refer extensively to that decision.
[35] To begin with, the court noted (at para. 15) that “[t]he question of whether the common law should recognize a cause of action in tort for invasion of privacy has been debated for the past one hundred and twenty years. Aspects of privacy have long been protected by causes of action such as breach of confidence, defamation, breach of copyright, nuisance and various property rights. Although the individual’s privacy interest is a fundamental value underlying such claims, the recognition of a distinct right of action for breach of privacy remains uncertain.”
[36] The court went on to recognize as authoritative a seminal American legal article on the subject by William L.
Prosser, “Privacy” (1960), 48 Cal. L. Rev. 383, noting that
Prosser argued that what had emerged from the hundreds of cases he canvassed was not one tort, but four, tied together by a common theme and name, but comprising different elements and protecting different interests. Prosser delineated a four-tort catalogue, summarized as follows, at p. 389:
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. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
[37] The court also noted (at para. 19) that “[t]he tort that is most relevant to this case, the tort of ‘intrusion upon seclusion’, is described by the Restatement [Restatement (Second) of Torts (2010)], at 652B as: ‘One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.’”
[38] The court went on to note (at para. 20) that “[t]he comment section of the Restatement elaborates this proposition and explains that the tort includes physical intrusions into private places as well as listening or looking, with or without mechanical aids, into the plaintiff’s private affairs. Of particular relevance to this appeal is the observation that other non-physical forms of investigation or examination into private concerns may be actionable. These include opening private and personal mail or examining a private bank account, ‘even though there is no publication or other use of any kind’ of the information obtained.” The court commented that if the plaintiff in Jones had a right of action, it fell into the first category of intrusion upon seclusion, described by Prosser as comprised of the following elements:
— there must be something in the nature of prying or intrusion;
— the intrusion must be something which would be offensive or objectionable to a reasonable person;
— the thing into which there is prying or intrusion must be, and be entitled to be, private; and
— the interest protected by this branch of the tort is primarily a mental one. It has been useful chiefly to fill in the gaps left by trespass, nuisance, the intentional infliction of mental distress, and whatever remedies there may be for the invasion of constitutional rights.
*source: Ontario Reports
