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Ontario Family Law Case Established New “False Light” Privacy Tort

Written by Russell Alexander / (905) 655-6335

Ontario Family Law Case Established New “False Light” Privacy Tort

A recent family law case, namely Yenovkian v. Gulian, 2019 ONSC 7279, has recognized a new invasion of privacy tort that can be summarized as “publicity which places the plaintiff in a false light in the public eye”. In its decision, the court made reference 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.

In Ontario, the courts have historically recognized all of these torts excluding the third. In this case however the court decided to recognize the third tort and stated the following elements of it:

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.

Justice Kristjanson went on stating:

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 decision rests on the facts of the case that included one spouse posting on the internet false claims relating to the other spouses conduct. In determining the damages the court found that the precedent for intrusion upon seclusion cases, namely a modest $20,000, was not sufficient. The court then proceeded to award $100,000 for the egregious and extreme claims and public suffering, $50,000 for intentional infliction of mental suffering, and $150,000 in punitive damages.

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.