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)