Yenovkian v. Gulian, 2019 ONSC 7279 is a recent family law decision that is significant beyond the family law context, including in the employment law context.  In this decision, Justice Kristjanson of the Ontario Superior Court of Justice recognized a new invasion of privacy tort: “publicity which places the plaintiff in a false light in the public eye.”  This decision is the first time this privacy tort has been recognized in Canada. 

Background

There were numerous matters raised in this action (e.g., restraining order, parenting issues, custody and access, children’s country of residence, child and spousal support, etc.), including whether the court should award the wife damages for intentional infliction of mental suffering, invasion of privacy, and punitive damages, as requested in her cross-claim.  Apart from the damages questions, all of the issues settled at the outset of the trial.    

The case involved a man who relentlessly cyberbullied his wife, her family, her witnesses, her lawyer, and a judge of the Superior Court of Justice.  He created two websites with links to videos involving the children, and posted images and videos of his wife and her parents on his YouTube channel, his Facebook page, and a Go Fund Me page.  The images and videos contained written and oral commentary accusing them of various illegal acts including kidnapping, child abuse, stealing money from the UK government, multiple felonies against the UK, U.S. and Canadian governments, assault, drugging the children, slapping the children, death threats, breaking many laws, forging documents, fraud, and abusing the children.

Decision

The court accepted evidence denying the husband’s allegations.  Upon considering whether she should award the wife damages for invasion of privacy, Justice Kristjanson referred to the following four torts adopted by the American Law Society in the Restatement (Second) of Torts (2010):

1. Intrusion upon the plaintiff's seclusion or solitude, or into [their] 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.

The court noted that all but the third tort—publicity which places the plaintiff in a false light in the public eye—had already been recognized in Ontario law.   Justice Kristjanson decided to recognize the third tort, given the facts of Yenovkian v. Gulian, and adopted the following statement of the elements of the tort:

Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of . . . privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor 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.

The court went on to clarify that:

• Although the publicity giving rise to this cause of action will often be defamatory, defamation is not required;

• The plaintiff need only show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been;

• False or misleading claims must be involved;

• The defendant must know or be reckless to the falsity of the information; and

• It is likely that in the course of creating publicity placing a person in a false light, the wrongdoer will happen to include true, but private, facts about the person whose privacy is invaded.

Justice Kristjanson stated:

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. (para. 172)

The court decided that the wife successfully proved her husband’s tortious conduct as to the tort of invasion of privacy (both public disclosure of private facts, and publicity placing a person before the public in a false light).  In determining damages, the court noted that a modest sum in the range of $20,000, as recommended by the Court of Appeal in another matter for intrusion upon seclusion cases, would not do justice to the significant harm the wife suffered in this case.  Justice Kristjanson awarded damages of $100,000, considering the husband’s “outrageous and egregious conduct at the extreme of reprehensibility,” and the increased potential for harm because the publicity was disseminated on the Internet.  The court also awarded damages of $50,000 for intentional infliction of mental suffering and $150,000 in punitive damages. 

Bottom Line for Employers

The court’s recognition of the new “false light” privacy tort in Yenovkian v. Gulian is significant to employers.  The decision puts them on notice that before they disseminate information about people to the public, including on the Internet, they must ensure that it will not portray the person in a false light (i.e., as other than they are).  Accordingly, employers should be attentive to the language used in in their statements about individuals both to their own employees and to the general public, including when an employee or company officer is under investigation, or has left the company, whether voluntarily or otherwise.  In all cases, these statements should be carefully reviewed to ensure they do not make claims that are false or misleading.  Employers that do not conduct such a review may find themselves liable for significant damages for this new invasion of privacy tort, especially if the harm of the publicity is significant and their conduct is outrageous and egregious. 

We will be following how the courts approach “false light” privacy tort claims in the employment context, and will report on any significant developments as they arise.