March 9, 2020
In Yenovkian v Gulian (“Gulian’), the court recognized for the first time in Ontario, the privacy tort of publicly placing a person in false light.
The civil claim was brought as a cross-claim in an action that proceeded together with a family law trial. The defendant mother sought damages against her ex-husband of $150,000.00 for nuisance, harassment, intentional infliction of mental suffering and invasion of privacy, and $300,000.00 for punitive damages.
The court recognized the father as someone who had engaged in years of cyberbullying of the mother and her parents. He carried out his attack on them through websites, YouTube, online petitions and emails. He recorded access visits and posted them online causing embarrassment to the children and making accusations about the mother’s parenting. He posted images of the mother and her parents with oral commentary accusing them of all sorts of illegal acts including: “kidnapping, child abuse, stealing money from the UK government, multiple “felonies” against the UK, U.S. and Canadian governments, assault, drugging the children, slapping the children, death threats, “breaking countless laws,” forging documents, fraud and abusing the children”.
In reaching its findings, the court looked to the Ontario Court of Appeal’s decision in Jones v. Tsige, which referred to four forms of invasion of privacy as described by William L. Prosser and adopted by the American Law Society:
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.
After considering the history of these torts in Canada, the court in Gulian noted that all but the tort of publicly placing a person in false light had been recognized in Ontario. The court set out at paragraph 170 the relevant test as follows:
Publicity Placing Person in False Light
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, 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 added at paragraph 171 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 as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.”
It was also noted that this cause of action is similar to the tort of public disclosure of private facts in that they both must show publicity that the reasonable person would find highly offensive; the difference being that this tort requires false or misleading claims rather than true statements.
With respect to damages, the court found that the cap of $20,000.00 imposed in Jones v. Tsige did not apply because intrusion upon seclusion does not involve publicity to the outside world and the damages are meant to punish the intrusion on privacy and not the separate and significant harm occasioned by publicity.
In assessing damages, the court looked to the factors adopted by the court in Jane Doe Doe 464533 v. N.D. (“Jane Doe”), a case about the invasion of privacy that is the public disclosure of private facts. Those factors are:
a) the nature of the false publicity and the circumstances in which it was made,
b) the nature and position of the victim of the false publicity,
c) the possible effects of the false publicity statement upon the life of the plaintiff, and
d) the actions and motivations of the defendant.
Applying these factors and considering the facts and relevant case law, the court awarded the mother in this case on the tort of invasion of privacy (false light and public disclosure of private facts), damages of $100,000.00. She was also awarded $50,000.00 for intentional infliction of mental suffering and $150.000.00 as punitive damages.
Although the tort of publicly placing a person in false light was established in the family law context, it is likely to have far reaching implications in areas such as employment, commercial law, and various forms of civil disputes.
The implications of this decision and any possible defenses will likely be fleshed out in decisions to come, but until then prudence should be the guiding post when considering the use of public statements, be they on the worldwide internet, corporate publications or the like.
For example, how are you dealing with announcements regarding employee departures, discipline and investigatory procedures? What policies do you have in place for handling what employees can and cannot say publicly about other employees?
Should you have questions or concerns about the implications of this decision on the operation of your business or personally, please contact us.
Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII)
*Philip Graham practices Employment Law, Litigation and Privacy and Compliance, subscribe to the Privacy Law blog here.