False Light (Tort - Privacy)

Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII)

[164] The test for intentional infliction of mental suffering as set out by the Court of Appeal in Piresferreira v. Ayotte, 2010 ONCA 384, para. 27 is:

(a) flagrant or outrageous conduct;

(b) calculated to produce harm; and

(c) resulting in a visible and provable illness.

[165] I find that Mr. Yenovkian’s conduct was calculated to produce the kind of harm suffered by Ms. Gulian, or he knew that it was substantially certain to follow: Piresferreira v Ayotte, 2010 ONCA 384 at para 78.

[166] The Ontario Court of Appeal recognized one aspect of tortious invasion of privacy in the form of intrusion upon seclusion in Jones v. Tsige, 2012 ONCA 32 (CanLII), 108 O.R. (3d) 241. Sharpe, J.A. also referred to other forms of invasion of privacy described in the seminal article of William L. Prosser, “Privacy” (1960), 48 Cal. L. Rev. 383, and adopted by the American Law Society in the Restatement (Second) of Torts (2010). Prosser’s “four-tort catalogue”, as Sharpe, J.A. called it, is as follows:

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. (Jones v. Tsige at para. 18)

[168] Since Jones v. Tsige, this Court has recognized the second form of invasion of privacy, that is, public disclosure of private facts. The two principal cases that have dealt with this are Jane Doe Doe 464533 v. N.D. (“Jane Doe 2016”) and Jane Doe 72511 v. N.M., 2018 ONSC 6607, [2018] O.J. No. 5741 (“Jane Doe 2018”). (In both instances, there was default judgment for the plaintiff; because the default judgment was set aside in Jane Doe 2016, the cause of action was recognized anew in Jane Doe 2018.) In each of these cases, the defendant had published intimate videos of his partner on internet pornography sites. The elements of the cause of action, as set out in Jane Doe 2018, at para. 99, are as follows:

(a) the defendant publicized an aspect of the plaintiff's private life;

(b) the plaintiff did not consent to the publication;

(c) the matter publicized or its publication would be highly offensive to a reasonable person; and

(d) the publication was not of legitimate concern to the public.