Introduction
The Ontario Court of Appeal in Jones v Tsgie[1] adopted the tort of Intrusion Upon Seclusion (see my previous blog post for more detail). In adopting Intrusion Upon Seclusion into the Canadian common law, academics, lawyers, law students, and legal eagles of all sorts have been wondering if this opened the Pandora’s box to adopting the two remaining privacy torts: Public Disclosure of Embarrassing Private Facts about the Plaintiff and Publicity Which Places the Plaintiff in a False Light in the Public Eye.[2]
The following is my canvassing of the adoption of Public Disclosure of Embarrassing Private Facts in Action Auto Leasing and Gallery Inc v Gray[3] by the Ontario small claims court. The rise of the tort in the Ontario superior court in Jane Doe 46544 v ND[4] which fleshed out the analysis. The continued interpretation and application of the tort, based on Doe, in the Ontario Small Claims Halley v Mccann.[5] The subsequent setting aside of Jane Doe 46544 v ND and issues around the precedential value of Jane Doe 46544 v ND and Halley v Mccann. Then I look at the interpretation of the threshold of “publicity” by the Federal Court of Appeal in R v John Doe, 2016 FCA 191 which will severely limit the applicability of the tort and stands in direct contrast to the interpretation of “publicity” as defined in Halley v Mccann and as applied in Action Auto Leasing and Gallery Inc v Gray but seems to align with the interpretation in Jane Doe 46544 v ND. In conclusion, I provide my opinion on the how “publicity” should be interpreted, whether the tort actually exists as well as potential future interpretation issues of the tort.
Action Auto Leasing and Gallery Inc v Gray
The Ontario small claims court in a curt statement, on March 1, 2016, in Action Auto Leasing and Gallery Inc v Gray[6] (Gray) held that the Ontario Court of Appeal in Jones v Tsgie adopted Public Disclosure of Embarrassing Private Facts or in the alternative it was doing so “on the same reason which supported the court’s acceptance of intrusion upon seclusion as a cause of action”.[7] In this case the Plaintiff was the lessors of a vehicle that disclosed information about the lessee being in arrears to his mother.[8] The court set out the damages for the public disclosure of embarrassing facts as $100 as set off against the award of lease arrears to the plaintiff.[9] And with that, from my canvassing of the law, a new tort was adopted in the common law and more or less pronounced upon with no analysis.
Jane Doe 46544 v ND
Although Gray seems to be the first case to adopt and find damages on the basis of public disclosure of embarrassing private’s facts, Jane Doe 46544 v ND[10] (Doe), unsurprisingly, stole the show with its compelling facts, detailed analysis, and high damages. Unfortunately, this has all come crashing down as Doe was a default judgement that subsequently was set aside on January 9, 2017.[11] Therefore, its precedential value is somewhat nullified. Regardless the analysis in Doe is worth covering as it could, and was before being set aside as seen below, easily be picked up by other courts or revived upon the new trial, if there is one, of Doe.
In January 2016, the Ontario Supreme Court in Doe 46533 v ND adopted another strand of Dean Prosser’s four pronged privacy tort: public disclosure of embarrassing private facts.[12] In this case the plaintiff, after much coaxing and promises of secrecy by her ex-boyfriend, the defendant, made a sexual video. The defendant posted the video to a pornography website.[13] The defendant also showed the video to some of their mutual friends.[14]
The plaintiff became physically and mentally distraught to the point of collapsing, which impacted her socially and academically. The plaintiff attended the hospital on one occasion and started seeing a counsellor.[15] The video cannot be controlled because it is on the internet. The judge noted the potential future impacts on the plaintiff, her social relations, and her job prospects.[16]
The court went on to canvass Jones v Tsgie and took note of its adoption of Intrusion upon Seclusion mostly as set out on the Restatement of Torts, 2nd edition.[17] The court then examined the basis for public disclosure of embarrassing private facts as follows:
[41] While the facts of this case bear some of the hallmarks of the tort of “intrusion upon seclusion”, they more closely fall within Prosser’s second category: “Public disclosure of embarrassing private facts about the plaintiff.” That category is described by the [Restatement (Second) of Torts (2010) at 652D as follows: “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”
[42] The comment section of the Restatement elaborates on this proposition as follows:
Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man’s life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.
Although written in somewhat antiquated language, the concepts described are entirely apposite to this case. Among the illustrations offered by the Restatement is the following: “A publishes, without B’s consent, a picture of B nursing her child. This is an invasion of B’s privacy.”
[43] Prosser listed the features of this tort as follows:
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the disclosure of the private facts must be a public disclosure, and not a private one;
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the facts disclosed to the public must be private facts, and not public ones; and
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the matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.
[44] Plainly, writing in 1960, Prosser was discussing events that might occur in a pre-Internet world, where the concepts of pornographic websites and cyberbullying could never have been imagined. Nevertheless, the essence of the cause of action he described is the unauthorized public disclosure of private facts relating to the plaintiff that would be considered objectionable by a reasonable person. In the electronic and Internet age in which we all now function, private information, private facts and private activities may be more and more rare, but they are no less worthy of protection. Personal and private communications and the private sharing of intimate details of persons’ lives remain essential activities of human existence and day to day living.
I pause here, to draw attention to the fact that the court does not spend any deep analysis into the issue of defining “publicity”, as this threshold is obviously met in this case. Although it does quote Prosser as noting above that publicizing a private fact to a non-public audience such as family does not meet the definition of giving “publicity” to something. This threshold or definition as set out here was in Gray and as will be seen below in Halley v Mcann is already, and rightly so in my opinion, being challenged.
The court then went on to adopt The Restatement’s articulation with modification:
[46] I would essentially adopt as the elements of the cause of action for public disclosure of private facts the Restatement (Second) of Torts (2010) formulation, with one minor modification: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. [modification shown by underlining]
My reading of the courts tort framework is then as follows:
- The defendant publicized a private life matter.
- The matter publicized, or the act of publication, is highly offensive to the reasonable person.
- There private matter is of no legitimate public concern.[18]
The damages in this case are somewhat problematic and unique. The court held the case could be made out on breach of confidence, intentional infliction of mental distress, and/or public disclosure of embarrassing private facts.[19] The court seems to mix the torts when discussing damages. However, the court, in noting the privacy context distinguishes this case from Jones by stating: “I am alert to the relatively modest ($10,000) award in Jones v. Tsige… this case involves much more than an invasion of a right to informational privacy; as I have observed, in many ways it is analogous to a sexual assault.”[20] The factors when assessing damages in this case are based on sexual battery cases.[21] Additionally, the factors are infused with language from the torts of breach of confidence and intentional infliction mental distress. Therefore, the factors below are unlikely to be fully transferable to non-sexual cases that utilize this tort:
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The circumstances of the victim at the time of the events, including factors such as age and vulnerability.
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The circumstance of the assault [publication] including their number, frequency, and how violent, invasive and degrading they were.
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The circumstances of the defendant, including age and whether he or she was in a position of trust.
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The consequences for the victim of the wrongful behaviour including ongoing psychological injures.[22]
The damages in this case were likely lower than the judge would have set but the action was started under the simplified procedure (a cap of $100,000).[23] The judge awarded $50,000 in general damages, $25,000 in aggravated damages (seemingly based more on the breach of confidentiality and the intimate nature between the plaintiff and defendant), and $25,000 in punitive damages.[24] Therefore, because of the non-existent cap on damages, the uniqueness of this case, and the cogent evidence, this case does not provide a yard stick to measure damages of this tort for the future. However, it does stand in defiant contrast to the $20,000 cap in Jones.
Halley v Mccann
The Ontario small claims court on August 15, 2016 released its decision in Halley v Mccann[25], which picked up the analysis of Doe. With Doe being set aside in January 2017 the precedential value, and the fact that it is a small claims case, is suspect. Regardless, as with Doe, this case sets out analysis that easily could be picked up by another superior court. Further it touches on a potential future issue in regards to this tort: what is the definition of “publicity”.
In Halley, the plaintiff had checked herself into a mental health crisis facility. Unbeknownst to her, her half-sister, the defendant, worked at the crisis centre as an intake administrator. The sisters had an acrimonious relationship to put it mildly. The defendant disclosed to three individuals (her daughter, husband, and brother) of the plaintiff’s admission. The brother later told another individual who disclosed to the plaintiff in front of others that she knew she had been admitted to the crisis center. The plaintiff had only told a few people she was admitting herself and had strove to keep her admission private.
The court in Halley took note that Doe had recognized a new privacy tort of public disclosure of embarrassing private facts.[26] The courts then set out a framework, which I have consolidated as the following:
- Publicity of a private matter of another; and
- Publicizing of a private matter would be highly offensive to reasonable person; or
- The act of publication of a private matter would be highly offensive to reasonable person; and
- The private matter is of no legitimate concern to the public or there is no lawful justification
Notably the court following the analysis in Jones v Tsige added ‘no lawful justification’ to the fourth step. Also, the court set out that “act of publication is a simple as telling someone who is not entitled to know”, and mass or bulk publications are not a required but are factor that goes to quantum.[27] Further, no actual proof or harm or proof harm or pecuniary or economics damages is necessary.[28]
Step 1: Publicity of a private life matter of another
In regards to “publicity” the court noted that the defendant did not argue the disclosures were not acts of publication. Further the court noted, mentioned above, it accepted publication to include the “telling someone who is not entitled to know”. [29]
In regards to it being a private matter, the court noted the information was private health information as it was associated to care at a health facility, the health facility related to mental health, the plaintiff purposely did not tell anyone in her family to keep the matter private. The defendant had statutory and confidentiality duties and undertaking to keep the information private.
Step 2/3: Publicizing or the act of publication would be highly offensive to a reasonable person
The court held in the circumstances that publication to family members is more offensive than it would be to unknown strangers.[30] The court took judicial note of the fact that mental health information is more sensitive than others forms of health information and that mental health issues are still treated with stigma in our society.
Step 4: private matter is no concern to the public or lawful justification
The court noted the plaintiff intentionally made the disclosure. Further, that there was no lawful justification of disclosure and in fact the disclosure was against the policies of the crisis center and the consents signed by patients of the crisis center.
In regards to disclosure on the basis of legitimate public concern. The court noted this assessed on an objective standard.[31] The court held the disclosure to estranged family members was no grounded in a legitimate family/public concern.
The court went on to note that disclosure was done maliciously and was out of animosity between the plaintiffs and defendants. Further the court noted that the defendant had not apologized to the plaintiff for the disclosure. It appears to me this discussed to eviscerate the defendant’s claim that she was protected from wrongful disclosure of the basis of, the defamation defense of, qualified-privilege that she disclosed to family members to help her sister.[32]
Assessment of Damages
The court noted that “General damages for physiological harm, embarrassment and humiliation are appropriate in this case”[33]. The court took note that plaintiff has pre-existing psychological ailments However, the defendant knew the plaintiff had pre-existing psychological issues and it was reasonable foreseeable that disclosure of these issues could worsen those injuries.[34] It went on to note that there is objective medical evidence that shows her injuries had worsened.
The court held that this was not a case for nominal damages and awarded $7,500 for general damages. The court then went onto assess aggravated damages. The court noted the fact that this disclosure was not made to a wide audience. However, the plaintiff was a patient and the defendant was a mental health worker and thus the disclosure was an affront to this relationship. The court also took noted of the malice in the disclosure and the lack of apology. In conclusion the cut award punitive damages of $1,500.
Mitigation
The defendant argued that the plaintiff had failed to mitigate her injuries as she has not treatment at other facilities. The court noted that the plaintiff had sought treatment family doctor and out-patient care and her aversion to clinical care is perfectly reasonable have in the wrongful disclosure that occurred at the crisis center.
R v John Doe
The Federal Court of Appeal in R v John Doe, dealt with a claim that the government via the Marijuana Medical Access Program sent 40,000 participants via the mail oversized envelopes marked “Marijuana Medical Access Program”. Specifically the case dealt with an appeal by the crown on class action certification on the basis by the participants that this identification of them by mail was breach of contract and warranty, negligence, breach of confidence, intrusion upon seclusion, publicity given to private life, and breach to the right of privacy under section 7 and 8 of the Canadian Charter of Rights and Freedoms.
I will only cover the Federal Court of Appeals’ analysis of Publication of Embarrassing Private Facts (or as referred in this case “publicity given to private life”).
The Federal Court of Appeal took note of Jones and its adoption note of the privacy tort of Intrusion upon Seclusion. Further it took note that the other privacy torts mentioned in Jones that were not adopted Jones, however, “reasoning would appear to apply equally to other privacy-related wrongs.” [35] The court noted that it would not dismiss the pleading of Publication of Embarrassing Private Facts on the basis it does not provide the basis for a claim. However, the Federal Court of Appeal went on the hold it should be struck from the Notice of Action as it is not supported by material facts.[36]
The courts basis for striking the claim was that “publicity” was not given to the private life matter. In coming to this conclusion the court referred to American Restatement of Torts, 2nd edition which was referred to and drawn from in Jones and Doe:
54 According to the American Restatement, the tort of publicity given to private life requires the following elements:
§ 652D Publicity Given to Private Life
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
a) would be highly offensive to a reasonable person, and
b) is not of legitimate concern to the public.55 According to the same treatise published by the American Law Institute, the concept of “publicity” means that “the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge” (Restatement, at §652D). It goes on to add that communicating a fact concerning a plaintiff’s private life to a single person or even to a small group of persons is not an invasion of the right of privacy.
56 In the case at bar, there is nothing on the facts as pleaded that might satisfy such criteria. The only material facts pleaded to support the disclosure of the plaintiffs’ personal information is to Canada Post, whose employees have confidentiality obligations, and to other persons who would have no obligation of confidentiality including family members, spouses, roommates, persons who sort mail in multi-resident facilities, and persons to whom the mail was misdirected. I agree with the appellant that this is far from sufficient to establish that the private information was communicated to the public at large. The examples provided in the treatise as to what would be sufficient to give publicity within the meaning of the term as it is used in this type of tort – a publication in a newspaper or a magazine, or in a handbill distributed to a large number of persons, or any broadcast over the radio, or statement made in an address to a large audience – suffice to understand that the publicity required would have to be of a much broader scale than what took place here. Accordingly, the motions judge erred in failing to turn his mind to this requirement and to the absence of sufficient material facts to support this claim
The courts analysis ends there with no mention of the fact that the letters may have been left in mailboxes for neighbours or the general public to see, which may be closer to the definition of publicity as set out above, although it would still seem to fall short of the definition articulated by the court. Regardless, R v Jones leaves us with its pronouncement on the tort, that in its opinion may or may not exist, that “publicity” is to be given a high threshold of communication to large mass of the public.
The Second Stumbling Block of Publication of Embarrassing Private Facts: The Definition of “Publicity”
You may be asking yourself what is the first stumbling block. Well, the first stumbling block is does this Tort exist yet? As Doe has been set aside, and Halley based its analysis on Doe, it seems likely that avenue for stating the tort exists is a dead end, at least for now. Then of course there is Gray, which is a one line sentence, from a small claims court, which as precedential value represents a minuscule foot hold. However, my opinion is that the courts such as R v Jones are starting look past its existence to the analysis suggests we are all just waiting for a strong well analysed decision to resurrect the tort’s existence in Canadian common law.
Now on to the second stumbling block: defining “publicity”. If we were to utilize the definition set out by R v Jones the holdings in Gray and Halley would never occurred. In Gray the arrears of the car lease was only disclosed to one person, the defendant’s mother. In Halley the disclosure was only made to four people most of whom were family members. If the R v Jones analysis is adopted this would severely limit this tort. Additionally, as the court in Halley noted disclosure to a small group of individuals may be more damaging than if it was just to strangers:
That is a person who has suffered from depression and been admitted to a crisis facility, a person who took steps to ensure that treatment would remain a secret from her family. In this context, disclosure to her family is more offensive than to unknown strangers.[37]
I do not see any principled reason why telling a few people cannot be just as damaging as telling a wide unknown audience. This seems to be a case where the form of the tort as espoused in R v Jones is restricting restitution of wrong this tort could solve.
Publication in the Defamation Context
The defamation context also raises questions of liability for all those who may be involved in the disclosure. For example could the plaintiff in Halley have brought an action against the friend of her brother who disclosed the fact she had entered into a health crisis facility and her sister as opposed to just her sister?
Tort, Privacy & Damages 
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