“Advertisement That Misleads the Plaintiff” is the latest data breach in Ontario
Labor, Employment and Human Rights Bulletin | HR room
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A couple married in 2000 and had two children, ages nine and twelve. In 2016, the couple separated and the mother left Canada with her children for the UK. This departure sparked years of litigation for the couple, including the Hague Proceedings for the Children’s Return to Canada and a family law dispute in Ontario. During this time, the father waged a long-term campaign against the mother that lasted until the last day of this family law process. The father’s cyberbullying included posting on websites, YouTube videos, online petitions, and emails listing personal, private information and allegations of abuse against the mother, her children, and his in-laws. He also filmed judicial access visits with his children, which he then edited and posted online with abusive comments. The couple’s daughter, who has a neurological disorder and is on the autism spectrum, was also often the center of the father’s posts. The father accused the mother and her family of kidnapping and drugging the daughter and made frequent comments on her development in his online public posts.
The father’s cyberbullying continued despite an Ontario court order prohibiting him from filming or recording his children. Instead, the father created another online campaign to “disempower” the nameless justice of the Ontario Supreme Court (the “Court”) based on their decisions on the case.
During the family law trial, the mother filed a civil lawsuit against the father demanding $ 150,000 for intrusion, deliberate psychological distress, invasion of privacy, and $ 300,000 for punitive damages.
What did the Tribunal say?
The Court reviewed the current law and outlined the previously recognized privacy intrusions1 and the disclosure of embarrassing private facts to the public.2 In particular, the Court has re-examined the “catalog of the four torts” described in a landmark privacy article by an American professor that was adopted by the American Law Society. That catalog contained the tort of “advertising that misleads plaintiff in public,” which was the only remaining tort not yet recognized by Ontario law.
The Court ruled that this remaining tort of “advertising that puts the plaintiff in the wrong light” should be recognized in this case and would be found in the following circumstances if:
- The false light in which a party has been placed would be most offensive to a sane person. and
- The actor was aware of the falseness of the matter published and the false light in which the party would be placed, or acted in reckless disregard.
The Court distinguished this new tort from libel. We made it clear that while the advertisements giving rise to the cause of the lawsuit are often defamatory, defamation is not required as the test only requires a reasonable person to find it extremely offensive to be so misrepresented in public become as it was. Furthermore, the actor may be held liable whether the advertisement in this new tort is true or false.
The court eventually ruled that the father’s conduct in this case complied with the requirements of the nature of the invasion of privacy (including this new tort) and the deliberate infliction of psychological distress. In assessing the appropriate compensation for breach of this new data breach, the Court used the following four-factor test in libel cases:
- the nature of the false advertising and the circumstances in which it was made;
- the nature and position of the victim of false advertising;
- the potential impact of the false announcement on the plaintiff’s life; and
- the actions and motivations of the accused.
The court found the father’s conduct was particularly egregious and granted the mother $ 100,000 for the tort of privacy invasion, in addition to the $ 50,000 and $ 150,000 she made for the deliberate infliction received from psychological suffering or punitive damages.
Take away for employers
While this new tort was recognized in the context of a family law dispute, it is important to employers as it provides legal action for both employees and employers who have been the subject of false public statements.
1-Jones versus Tsige, 2012 ONCA 32 (Ont Ca).
2-Jane Doe 72511 v Morgan, 2018 ONSC 6607.
The content of this article is intended to provide general guidance on the subject. A professional should be consulted about your particular circumstances.