How to Get It Right on Wrongs

Ontario’s Superior Court has created a new tort. But should it have, in the circumstances?

In Doe 464533, 2016 ONSC 541, a delivered a couple of weeks ago, Ontario’s Superior Court of Justice awarded substantial damages to a person whose ex-boyfriend posted an intimate video of her online, in addition to showing it to some mutual acquaintances. He had previously coaxed her into making the video, promising that he would be the only one to see it. The promise was a lie, since he shared the video as soon as she had sent it to him. Justice Stinson finds the defendant liable for breach of confidence, intentional infliction of emotional distress, and public disclosure of private facts. The latter ground of liability had never before been recognized in Canadian common law, prompting David Fraser, at the Canadian Privacy Law Blog, to write that “[t]his is a huge deal.” It may indeed, as Mr. Fraser implies, be a hugely positive development. Certainly in Doe the Court was able to give the plaintiff redress for a blatant and vicious injustice that the defendant had done to her. Nevertheless, I want to ask whether, in the circumstances, recognizing or creating this new cause of action was the right thing to do. I hasten to add that, in asking the question, I do not mean to suggest that it must be answered in the negative ― only that it is worth thinking about.

One reason why I wonder whether Justice Stinson was right to develop the common law of privacy in this case is that, as David Canton has pointed out over at Slaw,

[t]he defendant did not file a statement of defence, and this decision was based on a motion for default judgment. So while the decision is well reasoned, there was no contrary position presented. 

Courts are normally dependent on hearing arguments from both sides of a case. Indeed, Jeremy Waldron has argued compellingly that the clash of competing arguments is an essential component of what law is, at a conceptual level. Needless to say, if one the parties chooses to forego his or her right to make an argument, as the defendant did here, this should not stop a court from ruling and, where appropriate, making an order against that party. But I wonder whether the absence of one of the parties from the litigation is not a reason, a very good reason even, for a court to be reluctant to make its ruling a precedent-setting one.

Now, this concern should probably be heavily discounted if not ignored if the question on which a precedent may be set is unavoidable on the path to a decision on the facts of the case. However, this is not the case in Doe. As I note above, Justice Stinson found the defendant liable for three different torts arising out of the same set of facts. The first two are familiar, although I take it that they had not previously been applied to similar circumstances. Had Justice Stinson “only” concluded that the defendant had committed a breach of confidence and deliberately inflicted emotional distress on the defendant, he could and surely would have awarded the same damages against him. So there was no pressing need for the judge to address the question of whether public disclosure of private facts should be a distinct ground of liability. Of course, we can imagine circumstances where the other causes of action would not be made out, and the new tort would be the only conceivable ground of liability. It is arguable that Justice Stinson’s thoughtful analysis is a service to future litigants. But again, the value of that analysis is lessened by the fact that it does not rest on a full, contradictory argument by the parties.

And then, quite apart from the unusual circumstances of this case, there is the perennial question of the relative roles of courts and legislatures in developing the law and creating new causes of action. Justice Stinson notes, early on in his reasons, that Parliament has criminalized the “publication of an intimate image without consent,” and that one province, Manitoba, has passed legislation to make it tortious. Should the law of other provinces move in the same direction by way of common law development, or should the courts wait for the legislatures ― which presumably are well aware of the problem ― to act? There are certainly good reasons for the courts not to wait. At least so long as any new causes of action are carefully circumscribed, there is probably something approaching a social consensus in favour of granting the victims of cruelty such as that suffered by the plaintiff in Doe a civil remedy. The issues involved are not ideologically controversial, and do not concern complex policy questions on which courts might lack expertise. Indeed, one could go so far as to say that, seeing how clumsy and pernicious legislative attempts to deal with online miscreants can be, courts would do well to act first, so as to remove the temptation to act that legislators would otherwise feel. All the same, it might have been useful for the court to address the question. Justice Stinson’s reasons do not.

To repeat, all that is not to say that Justice Stinson was wrong to develop the law in the way he did, or that his reasoning on the substantive issue of whether to create a tort of public disclosure of private facts could or should not be endorsed by a court considering the matter in a subsequent case. My point is only that we should take his decision as an occasion for a reflection on the courts’ when faced with novel legal issues.

3 thoughts on “How to Get It Right on Wrongs

  1. “But I wonder whether the absence of one of the parties from the litigation is not a reason, a very good reason even, for a court to be reluctant to make its ruling a precedent-setting one.”

    If that be so then “precedent setting rulings” would lie in the hands of an opposing party and that just cannot be. Further, civil justice cannot be dependent on the province in which a litigant lives so if it happens in one province it goes for any of the others except where there is extraordinary reason and that is hardly likely

    • The opposing party has a pretty big incentive to defend, and no particular reason, in most cases, to worry about the creation of precedents. So don’t think it makes much sense to speak of this as giving defendants a veto power of precedent-setting.

      And I’m afraid subs. 92(13) of the Constitution Act, 1867 gives the competence over civil law. Provinces need not follow each other when they legislate in the matter, and courts in one province are not bound by those of the others. So that particular ship has sailed 150 years ago.

      • Under these circumstances, many a ship that already sailed have had to return to port to get new direction in order to sail again.to proper destination (for instance right to die). While provinces need not follow each other there is nothing that says they cannot or should not (not even the Constitution Act). What is more, there is the valid case and possibly a Charter claim to boot, that no citizen in a country should be disadvantaged simply because of their location in that country so the claim would be just and I am aware there is precedent for such thinking ( a personal injury case in BC I think).

        I should also say if the party is a self-represented litigant (SRL), he /she had better “worry about the creation of precedents” for that is well known regular occurrence throughout courts in this country and you may check this claim with the National Self-represented Litigants Project (NSRLP)

        All of the above said, bottom line is :if the absence of one of the parties from the litigation is not a reason, a very good reason even, for a court to be reluctant to make its ruling a precedent-setting one.” then it is obviously giving the absent party “a veto power of precedent-setting.” after all the argument is in the absence of such a party the court should not set precedent. Obviously all the party has to do is be absent to make the setting of precedent ill advised and in essence a valid ground of appeal for instance

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