Privacy In The Spotlight: Ontario Superior Court Of Justice Confirms New Tort For Public Disclosure Of Private Facts

Overview

The Ontario Superior Court of Justice recently released a significant decision that both expands occupiers' liability for violence on their premises, and affirms a new privacy tort that censures the publication of an individual's private life without consent. In Jane Doe 72511 v. Morgan1, Jane Doe 72511 ("Jane") successfully brought claims against her ex-boyfriend for assault and battery, and his parents for negligence as the occupiers of the home in which the abuse took place. This decision establishes a novel cause of action for claims arising from the distribution of an individual's private information - in this case, a sexually explicit video of the plaintiff - without her knowledge or consent. Following Jones v. Tsige2, the seminal Ontario Court of Appeal decision that established the tort for breach of privacy in Ontario, the court in Morgan continues to expand the protection of privacy rights in Canada, by recognizing a new common law cause of action for invasion of privacy.

Facts

Jane met Nicholas Morgan ("Nicholas") while they were both in high school. Soon after they began dating, Jane learned she was pregnant, and their relationship became volatile and abusive. Jane stayed with Nicholas and his parents, Alan and Florence Morgan (the "Morgans"), and in her seventh month of pregnancy, Jane experienced her first serious incident of violence by Nicholas. The couple reconciled, however, the abuse and threats continued after the birth of their son. The Morgans frequently witnessed Nicholas' violent and degrading conduct against Jane but took no steps to intervene, except for occasionally warning Nicholas to "get off that girl." In March 2014, after another violent attack, Jane called the police, and Nicholas was charged and convicted of assault. In June 2016, a friend informed Jane that a sexually explicit video of her was posted on an internet pornography website. When Jane confronted Nicholas, he admitted he uploaded the video as revenge for her having him arrested. Jane eventually persuaded the website's administrators to remove the video, but not before it had already been viewed over 60,000 times, and shared on 10 different websites.

Analysis

An Occupier's Duty to Mitigate the Risk of Violence

Duty of Care Jane claimed the Morgans owed her a duty of care under the Occupiers' Liability Act3 ("OLA") because the assault took place in their home and with their full knowledge. An occupier is defined under section 1 of the OLA...