The Uncertain Future of Public Disclosure of Private Facts

Almost exactly one year ago, I shared a decision by the Ontario Superior Court of Justice which created a new privacy tort (the second after Jones v. Tsige) for public disclosure of private facts.

One of the inherent limitations of the decision is that it was decided on summary judgment. The defendant failed to file a defence, and failed to appear on the motion, sending an email to the plaintiff stating, “… nor am I filing a defence so you can do what you need to.”

Here was yet another privacy tort, and one with the promise to provide parties who have been degraded or humiliated in a sexual manner some form of compensation. More importantly, this tort provided the promise of a deterrent against such untoward conduct.

The decision has already been cited in several decisions in multiple jurisdictions. See, for example, T.K.L. v. T.M.P., [2016] B.C.J. No. 899 at para 51 and Halley v. McCann, [2016] O.J. No. 4672 (Small Claims Ct). Conceptually, this could have been quite a promising area of emerging torts, carefully tailored to the challenges and issues of modern life.

Unfortunately, that was not the end of the story.

The defendant did eventually appear, presumably after learning of the award of $100,000 against him, and attempted to set aside the default judgment.

Justice Dow set aside the findings of liability, including the applicability of the new tort, ordering costs against the defendant of $10,000, thereby allowing him to proceed in the defence. The test used by the parties was from Mountain View Farms Ltd. v. McQueen:

1. whether the motion was brought promptly after the defendant learned of the default judgment;
2.  whether there was a plausible excuse or explanation for the defendant’s default in complying with the Rules;
3. whether the facts establish that the defendant has an arguable defence on the merits;
4. the potential prejudice to the moving party should the motion be dismissed and the potential prejudice to the responding party should the motion be allowed; and
5.  the effect of any order the court might make on the overall integrity of the administration of justice.

The defendant failed to provide any plausible excuse or explanation, and Justice Dow agreed that the defendant’s flippant email demonstrated an unacceptable disregard for the Court.

However, the remainder of the factors still favoured the defendant, including that the defendant had an arguable defence. Unfortunately, the defendant did not produce a proposed Statement of Defence for the court to review.

The plaintiff attempted to appeal this motion decision, but the recent decision by Justice Kiteley refused leave to appeal at the Divisional Court in Jane Doe 464533 v N.D. 

The Plaintiff attempted to rely on the Divisional Court decision in Toronto Dominion Bank v. 718699 Ontario Inc., (c.o.b. Mr. C’s Donuts and More), [1993] O.J. No. 260 and the Court of Appeal case in Schill & Beninger Plumbing & Heating Ltd. v. Gallagher Estate for setting aside default judgments. They claimed that an intentional refusal to defend should be a permanent bar, but the court disagreed.

Instead, the court relied on Luciano v Spadafora, Sunlife Assurance and Ball v. Bradon to illustrate that the Mountain View factors should be examined in their totality. Justice Kiteley cited the following passages from Mountain View,

47. The court’s ultimate task on a motion to set aside a default judgment is to determine whether the interests of justice favour granting the order. The approach to be taken to this determination has been considered numerous times by this court. The following draws heavily on the summary of the principles in those cases by Perell J. in Watkins v. Sosnowski at paras. 19-20 and 23-24…

50. These factors are not to be treated as rigid rules; the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant from the consequences of his or her default.

51. For instance, the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part. In showing a defence on the merits, the defendant need not show that the defence will inevitably succeed. The defendant must show that his or her defence has an air of reality.

[emphasis added]

The relief in these circumstances is to provide the defendant an opportunity to serve and file a statement of defence, and Justice Kiteley ordered this to be completed with 20 days.

This may provide some hope that this tort would be more fully explored and rigorously defended, to test the limits of where it may go. Justice Kiteley herself indicated in her conclusion,

[57] …I do not see the dismissal of this motion for leave to appeal as a discouragement of victims. Indeed, it is a matter of general importance that the facts in this case be the subject of a hearing on its merits so that the significant legal conclusions deriving therefrom will have more weight in future cases as opposed to findings made as a result of a hearing where only one side participated, albeit through the fault of the other side. The uniqueness of the case and the prospect for a decision on the merits making a contribution to the development of torts in an important area of the law is a compelling reason to conclude that it is a question of general importance that the defendant have the opportunity to participate in a trial.

[emphasis added]

Assuming the matter does proceed to trial, it means that any celebrations of a new tort of invasion of privacy in Ontario is yet premature.