In late 2019, the Ontario Superior Court recognized the tort of placing a person in a false light for the first time. This landmark decision completes the set of four privacy torts, which are now all recognized in Ontario, and has implications for businesses.
For background on the three other privacy torts, intrusion upon seclusion was recognized by the Ontario Court of Appeal in Jones v Tsige in 2012. Following this landmark ruling, in 2016 and again in 2018, the Ontario Superior Court recognized the tort of public disclosure of private facts.[1] Misappropriation of personality has been recognized in Ontario since the 1970s.[2]
As detailed below, given this new tort’s (i) flexible test that requires consideration for the “reasonable” person’s view of what is offensive, (ii) potential imposition of liability based on “reckless” conduct, and (iii) unclear adoption of affirmative defences, businesses must be attuned to the potential application of this tort. While the tort in this case was applied to egregious facts, this new tort may be applied to impose a positive obligation on businesses to ensure the accuracy of information that may be distributed, whether lawfully or through a data breach.
Background
In Yenovkian v Gulian, 2019 ONSC 7279, the court disposed of a couple’s family law trial with the wife’s tort claims against her (now ex-) husband. Justice Kirstjanson found that the husband, Mr. Yenovkian, engaged in a litany of misconduct including a cyberbullying campaign abusing his wife, Ms. Gulian, and her parents. The court also awarded $150,000 in punitive damages and $50,000 in compensatory damages from the intentional infliction of mental suffering.
After granting, amongst other things, a permanent restraining order against Mr. Yenovkian and sole custody of the children to Ms. Gulian, the court turned to Mr. Yenovkian’s liability for his “outrageous and egregious” conduct.
As it relates to this new privacy tort, Mr. Yenovkian falsely said that Ms. Gulian is a kidnapper, abuses the children, drugs the children, forges documents, and defrauds governments. Mr. Yenovkian also publicized private true facts about Ms. Gulian’s living situation with the children and her parents (including videos of their home) and details of access visits with their children. The court found that this was tortious and awarded damages of $100,000 for the tort of invasion of privacy, combining false light and public disclosure of private facts.
The tort of false light
The court described the tort of false light as follows: it is tortious for a person to place another person before the public in a false light if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) 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 other would be placed.
The court found that while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not worse than they are but as other than they are.
Damages cap does not apply
The court found the false publicity egregious in that it involved alleged criminal acts including by Ms. Gulian against her children. The publications were widely disseminated online and through targeted friends and colleague of the claimant. These publications had adverse effects on Ms. Gulian’s health and welfare. Despite court orders, Mr. Yenovkian did not retract these statements. These factors led the court to awarding a higher quantum of damages. Notably, the $20,000 cap on damages applied in the tort of intrusion upon seclusion was found to not apply to the tort of false light and disclosure of private facts.
In assessing the quantum of damages, the court was guided by the factors in the seminal defamation case Hill v Church of Scientology and adapted them to the tort of false light:
- The nature of the false publicity and the circumstances in which it was made,
- The nature and position of the victim of the false publicity,
- The possible effects of publicity statement on the life of the plaintiff, and
- The actions and motivations of the defendant.
Unanswered questions
While the decision provides useful guidance as to the variety of torts available to plaintiffs, it also raises several questions for defendants. Since false light aims to respect a person’s privacy right to control the way they present themselves to the world, it remains to be seen how this tort will accord with defamation[3] and the affirmative defences available to defendants in such proceedings.[4] Since no-one appeared on behalf of Mr. Yenovkian, these questions were not canvassed with the court.
Another difference between this tort and defamation is that, pursuant to section 38 of the Trustee Act, it appears a deceased person’s estate can sue for a privacy tort but not defamation.[5]
Looking to the US for guidance, we expect that some parallel and modified defamation defences may apply to these privacy torts. In California, for example, the court has recognized the availability of certain analogous parallel defences such as privilege and matters of public interest.[6] The hopes for the application of such defences in Ontario must be tempered by the fact that this US caselaw is shaped significantly by freedom of expression, which does not have the same application between private actors in Ontario.
Businesses may also be exposed to additional privacy tort claims post-breach. Where sensitive personal information is obtained from an organization by a rogue employee, who then publishes the information, it is conceivable that the employer could face direct or vicarious liability claims related to this new tort. However, this issue was not canvassed in the case.
[1] The reasons in Jane Doe 464533 v D.N, 2016 ONSC 4920 stems from a motion for default judgment that was ultimately set aside. In Jane Doe 72511 v Morgan, 2018 ONSC 660 the tort was recognized anew.
[2] See Krouse v Chrysler Can. Ltd. [1972] 2 OR 133 and Athans v Canadian Adventure Camps Ltd. [1977] 2 A.C.W.S. 1065 (Ont HCJ).
[3] In a defamation case, the plaintiff must establish:
- The impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
- The words in fact refer to the plaintiff; and
- The words were published, (i.e., that they were communicated to at least one person other than the plaintiff).
[4] If defamation is established, a defendant may rely on one of its affirmative defences including justification, fair comment, responsible communication or privilege. A defendant may also move early to dismiss a proceeding for being a strategic lawsuit against public participation (i.e. it can bring an anti-SLAPP motion).
[5] Trustee Act, s. 38 (1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased….
[6] See e.g. White v State, 17 Cal App 3d 621 (1971) and Maheu v CBS, Inc, 201 Cal App 3d 662.
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