On January 21, 2016, Justice Stinson of the Ontario Superior Court of Justice released his decision in Doe 464533 v N D, 2016 ONSC 541, finding the defendant liable in tort for posting an intimate video of the plaintiff to a pornography website and showing the video to acquaintances without the plaintiff’s knowledge or consent.  This decision marks the first recognition by a Canadian court of liability in tort for breach of privacy by “public disclosure of private facts”.

Since the 2012 decision in Jones v. Tsige, 2012 ONCA 32 (Jones), Ontario courts have recognized liability in tort for breach of privacy in the form of “intrusion upon seclusion” (for prior reporting on the Jones case, click here).  Justice Stinson recognized that the “intrusion upon seclusion” framework did not apply as well to the facts before him as did a second category of privacy tort identified in the literature (including the Restatement (Second) of Torts (2010)): “public disclosure of embarrassing private facts”.

Justice Stinson described this privacy tort 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 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.

Justice Stinson found the defendant liable on an application of this test to the facts before him.  He also found the defendant liable for breach of confidence and intentional infliction of mental distress, awarding $100,000 in damages (the maximum available procedurally) plus interest and costs on a full indemnity basis.


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