Intentional Infliction of Mental Distress (Tort)
Doe 464533 v N.D., 2016 ONSC 541 (CanLII)
[26] In Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (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), 1984 CanLII 689 (BC SC), 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.
- (i) Flagrant and outrageous conduct
[28] The first question to ask is whether the defendant’s conduct was flagrant and outrageous. The following facts are relevant to this issue. To begin with, the defendant knew that the plaintiff had been reluctant to make the video. He also knew that the plaintiff was hesitant to share with him such intimate and private images of herself. He persuaded her to do so on the basis of his express assurance that he alone would view the video. On the very day she forwarded it to him, the defendant posted the video online, in violation of the terms upon which he had received it. He also shared the video with his friends. This was not a mere act of inadvertence on his part, but rather a clear violation of the promise he made to the plaintiff and as well as a breach of the trust in him that motivated her to prepare and provide the video.
[29] On the basis of the foregoing facts, I am satisfied that the defendant’s conduct was flagrant and outrageous The first element of the test is easily met on the facts of this case.
- (ii) Calculated to produce harm
[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 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.
[31] In my view, it is entirely foreseeable that posting an intimate video of a young woman – who had provided it in the expectation that it would remain confidential – on a public website, and sharing the video with peers, would cause the person whose trust had been betrayed in this fashion extreme emotional upset and understandable psychological distress. I find this element of the tort is made out in this case.
- (iii) Visible and provable injury
[32] The final element of the test is visible and provable injury. Except for the occasions when she has found herself unable to cope – including at least one time when, upon seeing the defendant, she collapsed to the ground – the defendant’s conduct did not cause actual physical harm to the plaintiff. It is evident, however, that his conduct has caused significant psychological harm. She was taken to a crisis centre due to the extent of her mental upset in the immediate aftermath. She suffered from depression. She underwent extensive counselling to help her cope with her situation. She remains emotionally fragile and vulnerable and is apprehensive about her future.
[33] I conclude that the defendant’s actions caused in the plaintiff a visible and provable illness. It follows that the plaintiff has made out a claim for intentional infliction of mental distress.
