Ontario’s Newest Claim for Breach of Privacy

Individuals in Ontario have a new way to claim damages for false and highly offensive statements that are publicized online. In the recent Ontario Superior Court of Justice decision of Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII), Justice Kristjanson recognized a new privacy-related claim to the province of Ontario: publicly placing a person in a false light. While the majority of the decision dealt with the father’s conduct in the context of a family law matter, Her Honour also dealt with the cross-claim by the mother in which she sought damages for nuisance, harassment, intentional infliction of mental suffering, and invasion of privacy, all arising from the father’s conduct. The father’s conduct, in this case, was found to be extreme and outrageous: he waged a cyberbullying campaign against the mother in which, contrary to court orders, he published photos and videos of the couple’s two children to allege the mother was a child abuser and criminal. Her Honour determined that this case was the one in which the “”tort”” of publicly placing a person in false light would be recognized in Ontario.

In order to be entitled to damages, an individual must
show both elements of the claim:

The false light in which the other
person was placed would be highly offensive
to a reasonable person; and

b)      The person making the statements had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

Her Honour noted that, while defamatory statements
could be part of the conduct, defamation is not required to establish this
cause of action. At paragraph 171 of the decision, Her Honour stated that
“It is enough for the plaintiff to show that a reasonable person would
find it highly offensive to be publicly misrepresented as they have been. The
wrong is in publicly representing someone, not as worse than they are, but as
other than they are. The value at stake is respect for a person’s privacy right
to control the way they present themselves to the world.”

As a result of the father’s conduct, Her Honour
awarded $100,000 in damages to the mother for being publicly placed in a false
light, as well as $50,000 for intentional infliction of mental suffering. Her
Honour also awarded $150,000 in punitive damages against the father, for a
total of $300,000.

Lessons for the multi-residential
housing industry:
While this case dealt with a family law dispute, the elements of the
“tort” could easily be applied to other kinds of private disputes
between unit owners, board members/condominium corporations; or between
landlords and tenants; or occupants and co-op boards, etc. Frequently these
disputes involve public and negative statements made by one party in a dispute
against the other.

Individuals and organizations in the multi-residential
housing industry should keep this new “tort” in mind before making or
responding to public statements about those with whom they are having
disputes.  Unlike the claim of defamation, which often requires proof of
damages, the “tort” of publicly placing a person in a false light
does not require proof of damages and may give housing providers another tool
or avenue to seek compensation for highly offensive comments made online about
them or their employees.

The Court’s decision can be found here:  Vem Miller Yenovkian v. Sonia Helen Gulian- 2019 ONSC 7279 If you have questions about this bulletin, you can contact Joe Hoffer (hoffer@cohenhighley.com), Laura Glithero (glithero@cohenhighley.com), or Stephanie Sutherland (ssutherland@cohenhighley.com).

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