SO THE ZOOM YOU ATTENDED WAS RECORDED.
How Co-op members meet to conduct the business of a Co-op has changed due to Covid as has the manner of meetings of all sorts of organizations. Virtual meetings bring about challenges and they are certainly not a perfect replacement for live face to face meetings. A recurring issue, in Co-op's and all other forums in which "virtual" is replacing in person is the ability of persons to participate. Not everyone has the technology nor the ability to navigate the virtual processes.
A question that has arisen in many contexts is about the digital recordings of the virtual proceedings. Can those be shared? Do members of a Co-op have the right to see them? Does it all depend on the purpose for which the recordings were created? Can you use the recordings to further the business of the Co-op by sharing them more widely to get input from other members who are not able to participate remotely?
I'm not sure that there is a wholly satisfactory answer but here at least is a start to an analysis and answer for your consideration.
ISSUE
An Ontario Non-Profit Housing Co-operative will digitally record members meetings including those parts of members meetings conducted on ZOOM etc.. After the meetings the Co-op will make the recordings available to the Co-op membership. Is this lawful and are there any privacy right concerns respecting the distribution of the recordings of the meetings? Nothing is recorded secretly.
The Government of Ontario enacted temporary replacement provisions of the Co-operative Corporations Act during the COVID-19 pandemic, including: meeting of electronic means, suspension of in person voting, voting by electronic means, election of directors by electronic means, and electronic meetings for Boards and Executive committees. (Co-operative Corporations Act; O Reg 543/20)
Principle 3 of Schedule 1 of Personal Information Protection and Electronic Documents Act provides that the knowledge and consent of an individual are required for the collection, use, or disclosure of personal information, except where inappropriate. (Personal Information Protection and Electronic Documents Act)
Ontario does not have any privacy legislation that is applicable to the private sector. However, the federal Personal Information Protection and Electronic Documents Act applies to private sector organizations that are not federally regulated, as well as federally-regulated organizations, in respect of personal information that the organization collects, uses or discloses in the course of commercial activities. "Personal information" is defined as information about an identifiable individual. (Personal Information Protection and Electronic Documents Act; Summary of privacy laws in Canada)
No cases were identified where the courts commented on whether virtual meetings under the Co-operative Corporations Act engaged any privacy rights.
There are four recognized common law privacy torts in Canada:
1. Intrusion upon seclusion (Jones v. Tsige).
2. Public disclosure of private facts (Doe v N.D., Jane Doe 72511 v. N.M.)
3. Publicity Placing Person in False Light (Yenovkian v. Gulian).
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. (Jones v. Tsige)
Intrusion Upon Seclusion
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for intrusion upon seclusion, if the invasion would be highly offensive to a reasonable person. The tort is applicable to intrusions, both physical and non-physical, into the plaintiff's private affairs, and does not require publication or dissemination of information learned through the intrusion. The tort of intrusion upon seclusion consists of three elements:
1. The defendant's conduct must be intentional, which would include reckless conduct
2. The defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and
3. That a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish (Jones v. Tsige)
Proof of harm to a recognized economic interest is not an element of the cause of action. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one's financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive. (Jones v. Tsige)
Public Disclosure of Private Facts
Public disclosure of private facts deals with the situation in which one gives publicity to a matter concerning the private life of another, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. (Doe v N.D.; Jane Doe 72511 v. N.M.)
To establish liability, the plaintiff must therefore prove that:
(a) the defendant publicized an aspect of the plaintiff's private life;
(b) the plaintiff did not consent to the publication;
(c) The matter publicized or its publication would be highly offensive to a reasonable person; and
(d) The publication was not of legitimate concern to the public. (Jane Doe 72511 v. N.M.)
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 his 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. (Yenovkian v. Gulian)
Appropriation, for the defendant's advantage, of the plaintiff's name or likeness
The tort of misappropriation of personality is now well recognized in Canada, but is relatively undeveloped given the few cases in which it has been raised. It was first recognized and applied in three cases in the 1970s and 1980s. (Jones v. Tsige)
An Ontario Non-Profit Housing Co-operative has members who are unable to participate in member meetings on internet platforms. Some members lack the technology, some are wary of computers, some don't trust the digital tools; yet these members do want to participate in their Co-op and in some cases the Co-op By-Laws require participation in the business of the Co-op. The members are unable to participate in person because of pandemic meeting restrictions. In the past, members met in the Co-op's common room for meetings. The Co-op operates under the Co-operative Corporations Act. The Co-op's Board of directors has adopted a complex meeting structure with partial participation virtually and partially on paper with members in their homes through sharing the virtual meeting through transcripts of the meeting, DVD of the meeting, and online links to the meeting. The meeting occurs over several days, the agenda, documents, comments, are distributed to all who indicate that they wish to participate and the home based members write their responses for distribution back to the secretary. Votes are by secret paper ballot and not during the virtual part of the meeting. This complex process is adopted because virtual meetings have reduced participation to 20% of normal participation. This is barely a quorum and unhealthy. Is sharing recordings of the virtual meetings lawful? All participants in the virtual meeting are informed that the meeting is recorded and will be shared. Virtual participants do not have to have their camera's on and do not have to speak. Platform chat features are activated to allow virtual participants to participate in writing. The Co-op Board is concerned that an exclusively virtual process is disenfranchising Members and hence the need to mix virtual with paper and documents delivered to members' homes. Members at home send in replies, make comments, and their comments are shared with all members including virtual participants.
The Government of Ontario made temporary changes to the provisions of the Co-operative Corporations Act, RSO 1990, c C.35 that permitted co-operative corporations governed under the statute to call and hold meetings virtually, as applicable, notwithstanding certain restrictions or requirements:
Meeting by Electronic Means, Members’ Meetings
1 The operation of subsections 74 (3) to (5) of the Act is temporarily suspended and the following replacement provisions are in effect during the temporary suspension period only:
Meeting by electronic means
(3) Whether or not the articles or by-laws of a co-operative so provide, a meeting of the members of a co-operative, including a meeting of the members of a non-profit housing co-operative, may be held by telephonic or electronic means by which all members participating in the meeting can hear each other, and a member who, through those means, votes at the meeting or establishes a communications link to the meeting is deemed for the purposes of this Act to be present at the meeting.
Same
(4) A meeting held under subsection (3) is deemed to be held at the place where the head office of the co-operative is located.
Definition of “telephonic or electronic means”
(5) For the purposes of this section and sections 75, 76 and 90,
“telephonic or electronic means” means telephone calls or messages, facsimile messages, electronic mail, transmission of data or information through automated touch-tone telephone systems, transmission of data or information through computer networks, any other similar means or any other prescribed means.
2 The operation of subsection 75 (3) of the Act is temporarily suspended and the following replacement provisions are in effect during the temporary suspension period only:
Poll
(3) If a poll is demanded, it shall be taken in such manner as the by-laws prescribe, and, if the by-laws make no provision therefor, then as the chair directs.
Changes re meeting after notice given
(4) If a notice of meeting of members or shareholders has been given in respect of a meeting to be held on a day that falls within the period of the declared emergency and, after the notice is given, the date, time or place of the meeting is changed in order to hold the meeting by telephonic or electronic means, another notice of meeting is not required to be given but members, shareholders and any other person entitled to receive the notice must be informed of the change in a manner and within a time that is reasonable in the circumstances.
Suspension of In-Person Voting
3 The operation of subsection 76 (4) of the Act is temporarily suspended.
Voting by Electronic Means
4 The operation of subsection 76 (5) of the Act is temporarily suspended and the following replacement provision is in effect during the temporary suspension period only:
Voting by other means
(5) Whether or not the articles or by-laws of a co-operative, including a non-profit housing co-operative, so provide, voting may take place by mail or by telephonic or electronic means.
Time Extension for Annual Meetings
5 The operation of section 77 of the Act is temporarily suspended and the following replacement provisions are in effect during the temporary suspension period only:
Annual meetings
77 (1) A co-operative shall hold an annual meeting of its members not later than eighteen months after its incorporation and subsequently not more than fifteen months after the holding of the last preceding annual meeting and at such meeting any member shall have an opportunity to raise any matter relevant to the affairs and business of the co-operative.
Annual meetings, time extension
(2) Despite subsection (1), if the last day on which a meeting is required to be held under subsection (1) is a day that falls within the period of the declared emergency, the last day on which the meeting is instead required to be held is no later than the 90th day after the day the emergency is terminated.
Same
(3) Despite subsection (1), if the last day on which a meeting is required to be held under subsection (1) is a day that falls within the 30-day period that begins on the day after the day the emergency is terminated, the last day on which the meeting is instead required to be held is no later than the 120th day after the day the emergency is terminated.
Election of Directors by Electronic Means
6 The operation of subsection 90 (1) of the Act is temporarily suspended and the following replacement provisions are in effect during the temporary suspension period only:
Election of directors
(1) The directors shall be elected by the members in general meeting, and the election shall be by ballot in the manner prescribed by section 91.
Method of voting or election
(1.1) Where a general meeting of members referred to in subsection (1) is held by telephonic or electronic means in accordance with subsection 74 (3), the chair shall conduct a vote or election by ballot in the manner prescribed by section 91, otherwise the chair may direct the vote or election by alternate means.
Meeting by Telephone, Board and Executive meetings
7 The operation of subsection 94 (3) of the Act is temporarily suspended and the following replacement provision is in effect during the temporary suspension period only:
Meetings by telephone
(3) Whether or not the by-laws or articles of a co-operative provide otherwise, any director may participate in a meeting of the board of directors or of the executive committee by means of conference, telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and a director participating in a meeting pursuant to this subsection shall be deemed for the purposes of this Act to be present in person at that meeting.
Information to be Laid Before Annual Meeting
8 The operation of subsection 128 (1) of the Act is temporarily suspended and the following replacement provision is in effect during the temporary suspension period only:
Information to be laid before annual meeting
(1) For an annual meeting of the members held on a day that is in the period that begins March 17, 2020 and ends on the 120th day after the day the declared emergency is terminated, the directors shall lay before the meeting,
(a) a comparative financial statement relating separately to,
(i) the period that commenced on the date of incorporation and ended before the annual meeting or, if the co-operative has completed a financial year, that commenced immediately after the end of the last completed financial year and ended before such annual meeting, as the case may be, and
(ii) the period covered by the financial year next preceding such latest completed financial year, if any,
made up of,
(iii) a statement of profit and loss for each period,
(iv) a statement of surplus for each period,
(v) a statement of patronage returns allocated to members during the year,
(vi) a statement of source and application of funds for each period, and
(vii) a balance sheet as at the end of each period;
(b) the report of the auditor to the members; and
(c) such further information respecting the financial position of the co-operative as the articles or by-laws of the co-operative require.
The temporary changes were extended to May 31, 2021, per O Reg 543/20, Extension of Temporary Suspension Period:
Extension of temporary suspension period for certain provisions
1. For the purposes of sections 1, 3, 4, 6 and 7 of the Schedule to the Act, the temporary suspension period is extended to end on May 31, 2021.
2. Omitted (provides for coming into force of provisions of this Regulation).
Ontario does not have any privacy legislation that is applicable to the private sector. However, the federal Personal Information Protection and Electronic Documents Act, SC 2000, c 5 ("PIPEDA") applies to private sector organizations that are not federally regulated, as well as federally-regulated organizations, in respect of personal information that the organization collects, uses or discloses in the course of commercial activities per Summary of privacy laws in Canada, Office of the Privacy Commissioner of Canada, January 2018):
Application
4 (1) This Part applies to every organization in respect of personal information that
(a) the organization collects, uses or discloses in the course of commercial activities; or
(b) is about an employee of, or an applicant for employment with, the organization and that the organization collects, uses or discloses in connection with the operation of a federal work, undertaking or business.
"Personal information" is defined as information about an identifiable individual:
Definitions
2 (1) The definitions in this subsection apply in this Part.
[...]
personal information means information about an identifiable individual. (renseignement personnel)
Principle 3 of Schedule 1 of PIPEDA provides that the knowledge and consent of an individual are required for the collection, use, or disclosure of personal information, except where inappropriate. The circumstances that may make it inappropriate to obtain consent are varied. Several examples are provided. One of the examples is when an organization acquires a mailing list from another organization. In that case, the organization providing the list would be expected to obtain consent before disclosing the personal information:
4.3 Principle 3 - Consent
The knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.
Note: In certain circumstances personal information can be collected, used, or disclosed without the knowledge and consent of the individual. For example, legal, medical, or security reasons may make it impossible or impractical to seek consent. When information is being collected for the detection and prevention of fraud or for law enforcement, seeking the consent of the individual might defeat the purpose of collecting the information. Seeking consent may be impossible or inappropriate when the individual is a minor, seriously ill, or mentally incapacitated. In addition, organizations that do not have a direct relationship with the individual may not always be able to seek consent. For example, seeking consent may be impractical for a charity or a direct-marketing firm that wishes to acquire a mailing list from another organization. In such cases, the organization providing the list would be expected to obtain consent before disclosing personal information.
Despite the open-endedness of the note in Principle 3, s. 7 of PIPEDA specifically defines the circumstances in which organizations are exempted from the consent requirement for the collection, use, or disclosure of personal information. There is no explicit exception for acquiring a mailing list from another organization:
Collection without knowledge or consent
7 (1) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may collect personal information without the knowledge or consent of the individual only if
(a) the collection is clearly in the interests of the individual and consent cannot be obtained in a timely way;
(b) it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province;
(b.1) it is contained in a witness statement and the collection is necessary to assess, process or settle an insurance claim;
(b.2) it was produced by the individual in the course of their employment, business or profession and the collection is consistent with the purposes for which the information was produced;
(c) the collection is solely for journalistic, artistic or literary purposes;
(d) the information is publicly available and is specified by the regulations; or
(e) the collection is made for the purpose of making a disclosure
(i) under subparagraph (3)(c.1)(i) or (d)(ii), or
(ii) that is required by law.
Use without knowledge or consent
(2) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may, without the knowledge or consent of the individual, use personal information only if
(a) in the course of its activities, the organization becomes aware of information that it has reasonable grounds to believe could be useful in the investigation of a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed, and the information is used for the purpose of investigating that contravention;
(b) it is used for the purpose of acting in respect of an emergency that threatens the life, health or security of an individual;
(b.1) the information is contained in a witness statement and the use is necessary to assess, process or settle an insurance claim;
(b.2) the information was produced by the individual in the course of their employment, business or profession and the use is consistent with the purposes for which the information was produced;
(c) it is used for statistical, or scholarly study or research, purposes that cannot be achieved without using the information, the information is used in a manner that will ensure its confidentiality, it is impracticable to obtain consent and the organization informs the Commissioner of the use before the information is used;
(c.1) it is publicly available and is specified by the regulations; or
(d) it was collected under paragraph (1)(a), (b) or (e).
Disclosure without knowledge or consent
(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is
(a) made to, in the Province of Quebec, an advocate or notary or, in any other province, a barrister or solicitor who is representing the organization;
(b) for the purpose of collecting a debt owed by the individual to the organization;
(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;
(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that
(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,
(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law,
(iii) the disclosure is requested for the purpose of administering any law of Canada or a province, or
(iv) the disclosure is requested for the purpose of communicating with the next of kin or authorized representative of an injured, ill or deceased individual;
(c.2) made to the government institution mentioned in section 7 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act as required by that section;
(d) made on the initiative of the organization to a government institution or a part of a government institution and the organization
(i) has reasonable grounds to believe that the information relates to a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed, or
(ii) suspects that the information relates to national security, the defence of Canada or the conduct of international affairs;
(d.1) made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation;
(d.2) made to another organization and is reasonable for the purposes of detecting or suppressing fraud or of preventing fraud that is likely to be committed and it is reasonable to expect that the disclosure with the knowledge or consent of the individual would compromise the ability to prevent, detect or suppress the fraud;
(d.3) made on the initiative of the organization to a government institution, a part of a government institution or the individual’s next of kin or authorized representative and
(i) the organization has reasonable grounds to believe that the individual has been, is or may be the victim of financial abuse,
(ii) the disclosure is made solely for purposes related to preventing or investigating the abuse, and
(iii) it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the ability to prevent or investigate the abuse;
(d.4) necessary to identify the individual who is injured, ill or deceased, made to a government institution, a part of a government institution or the individual’s next of kin or authorized representative and, if the individual is alive, the organization informs that individual in writing without delay of the disclosure;
(e) made to a person who needs the information because of an emergency that threatens the life, health or security of an individual and, if the individual whom the information is about is alive, the organization informs that individual in writing without delay of the disclosure;
(e.1) of information that is contained in a witness statement and the disclosure is necessary to assess, process or settle an insurance claim;
(e.2) of information that was produced by the individual in the course of their employment, business or profession and the disclosure is consistent with the purposes for which the information was produced;
(f) for statistical, or scholarly study or research, purposes that cannot be achieved without disclosing the information, it is impracticable to obtain consent and the organization informs the Commissioner of the disclosure before the information is disclosed;
(g) made to an institution whose functions include the conservation of records of historic or archival importance, and the disclosure is made for the purpose of such conservation;
(h) made after the earlier of
(i) one hundred years after the record containing the information was created, and
(ii) twenty years after the death of the individual whom the information is about;
(h.1) of information that is publicly available and is specified by the regulations; or
(h.2) [Repealed, 2015, c. 32, s. 6]
(i) required by law.
Ontario has not codified a statutory tort of invasion of privacy as has been done in some other provinces (Jones v. Tsige, 2012 ONCA 32 (CanLII), paras. 51-53). Nor is there a broad common law tort of "invasion of privacy" in Canada. Instead, the concept is divided into four separate torts, most of which have only been recently recognized by the Ontario courts. In Jones v. Tsige, the first decision to recognize the tort of intrusion upon seclusion, the Court of Appeal explained the four privacy torts as follows:
[16] Canadian, English and American courts and commentators almost invariably take the seminal articles of S.D. Warren & L.D. Brandeis, "The Right to Privacy" (1890) 4 Harv. L. R. 193 and William L. Prosser, "Privacy" (1960), 48 Cal. L. R. 383 as their starting point.
[...]
[18] Professor Prosser's article picked up the threads of the American jurisprudence that had developed in the seventy years following the influential Warren and Brandeis article. Prosser argued that what had emerged from the hundreds of cases he canvassed was not one tort, but four, tied together by a common theme and name, but comprising different elements and protecting different interests. Prosser delineated a four-tort catalogue, summarized as follows, at p. 389:
1. Intrusion upon the plaintiff's seclusion or solitude, or into his 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 Jones v. Tsige, the Court of Appeal recognized the tort of intrusion upon seclusion, describing the tort as:
[19] ... The tort that is most relevant to this case, the tort of "intrusion upon seclusion", is described by the Restatement, at § 652B as:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
The tort is applicable to intrusions, both physical and non-physical, into the plaintiff's private affairs, and does not require publication or dissemination of information learned through the intrusion:
[20] The comment section of the Restatement elaborates this proposition and explains that the tort includes physical intrusions into private places as well as listening or looking, with or without mechanical aids, into the plaintiff's private affairs. Of particular relevance to this appeal, is the observation that other non-physical forms of investigation or examination into private concerns may be actionable. These include opening private and personal mail or examining a private bank account, "even though there is no publication or other use of any kind" of the information obtained.
The Court set out the three constituent elements and noted that proof of harm is not an element of the cause of action:
[71] The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.
A claim will arise only from deliberate and significant invasions of privacy. It is only for intrusions into matters such as financial or health records and other sensitive information that would be described as offensive when viewed in the standard of a reasonable person:
[72] These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one's financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.
Damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. The Court of Appeal fixed the range at up to $20,000.
Public disclosure of embarrassing private facts was recognized by Justice Stinson of the Ontario Superior Court of Justice in Doe 464533 v N.D., 2016 ONSC 541 (CanLII), and publicity which places the plaintiff in a false light was recognized by Justice Kristjanson of the Ontario Superior Court of Justice in Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII).
In Doe 464533 v N.D., the plaintiff had sent the defendant, an ex-boyfriend, an intimate video of herself on the promise that the video would not be shared with anyone else. However, the defendant immediately broke his promise and posted the video on a pornography website. He also showed the video to his friends. The defendant never served a statement of defence and was noted in default. As a result, the plaintiff's allegations were uncontested. Though the video was eventually removed from the website, it was online for approximately 3 weeks. Stinson J. recognized that the dissemination of intimate images was a social ill created by technology that the law had to adapt to in order to provide recourse for victims:
[16] In recent years, technology has enabled predators and bullies to victimize others by releasing their nude photos or intimate videos without consent. We now understand the devastating harm that can result from these acts, ranging from suicides by teenage victims to career-ending consequences when established persons are victimized. Society has been scrambling to catch up to this problem and the law is beginning to respond to protect victims.
[17] Each year, criminal courts in Canada deal with an increasing number of these cases. Unlike past decades, many child pornography cases now involve same-aged peers who share nude photos or sex videos with each other. Adults also suffer great harm from these acts. In 2014, Parliament responded by amending the Criminal Code to include a new offence of "publication of an intimate image without consent": Criminal Code, R.S.C., 1985, c. C-46, as amended, s. 161.1. Under this new provision, anyone who publishes an intimate image of a person without that person's consent is guilty of an offence and can be sentenced to up to five years in prison.
[18] In November 2015, the Province of Manitoba enacted legislation to create the tort of "non-consensual distribution of intimate images": see The Intimate Image Protection Act, C.C.S.M. c. 187, s. 11, which came into force on January 15, 2016. No other legislature has so far passed similar legislation. This case, therefore, raises legal questions about the availability of a common law remedy for victims of this conduct, and the legal basis upon which such claims might be founded. Counsel for the plaintiff informed the court that she had been unable to locate any reported decision in Canada concerning a victim seeking civil damages on these or similar facts and my research has not revealed one. This case is possibly the first.
[19] For the reasons that follow, I have concluded that there are both established and developing legal grounds that support the proposition that the courts can and should provide civil recourse for individuals who suffer harm arising from this misconduct and should intervene to prevent its repetition.
Stinson J. found that the facts of the case more closely resembled public disclosure of embarrassing private facts than intrusion upon seclusion. Public disclosure of private facts deals with the situation in which one gives publicity to a matter concerning the private life of another:
[41] While the facts of this case bear some of the hallmarks of the tort of "intrusion upon seclusion", they more closely fall within Prosser's second category: "Public disclosure of embarrassing private facts about the plaintiff." That category is described by the [Restatement (Second) of Torts (2010) at 652D as follows: "One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public."
[42] The comment section of the Restatement elaborates on this proposition as follows:
Every individual has some phases of his life and his activities and some facts about himself that he does not expose to the public eye, but keeps entirely to himself or at most reveals only to his family or to close friends. Sexual relations, for example, are normally entirely private matters, as are family quarrels, many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most details of a man's life in his home, and some of his past history that he would rather forget. When these intimate details of his life are spread before the public gaze in a manner highly offensive to the ordinary reasonable man, there is an actionable invasion of his privacy, unless the matter is one of legitimate public interest.
Although written in somewhat antiquated language, the concepts described were entirely apposite to this case. Among the illustrations offered by the Restatement is the following: "A publishes, without B's consent, a picture of B nursing her child. This is an invasion of B's privacy."
[43] Prosser listed the features of this tort as follows:
• the disclosure of the private facts must be a public disclosure, and not a private one;
• the facts disclosed to the public must be private facts, and not public ones; and
• the matter made public must be one which would be offensive and objectionable to a reasonable man of ordinary sensibilities.
Stinson J. set out the test for the tort as follows:
[46] I would essentially adopt as the elements of the cause of action for public disclosure of private facts the Restatement (Second) of Torts (2010) formulation, with one minor modification: One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other's privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. [modification shown by underlining]
[47] In the present case the defendant posted on the Internet a privately-shared and highly personal intimate video recording of the plaintiff. I find that in doing so he made public an aspect of the plaintiff's private life. I further find that a reasonable person would find such activity, involving unauthorized public disclosure of such a video, to be highly offensive. It is readily apparent that there was no legitimate public concern in him doing so.
[48] I therefore conclude that this cause of action is made out.
However, the default judgment of Stinson J. was set aside by Justice Dow in Doe 464533 v N.D., 2016 ONSC 541 (CanLII) (CanLII) for procedural reasons.
The cause of action of public disclosure of embarrassing private facts was recognized anew by Justice Gomery in Jane Doe 72511 v. N.M., 2018 ONSC 6607 (CanLII), which also involved a case of so-called "revenge porn". Gomery J. noted that the fact that the default judgment in Doe had been set aside did not invalidate Stinson J.'s analysis of invasion of privacy:
[74] In Jane Doe 464533, Stinson J. granted default judgment for damages based on the posting of an intimate video on a pornography website without the plaintiff's knowledge or consent. He held the defendant N.D. liable on three alternative causes of action: breach of confidence, intentional infliction of mental distress, and invasion of privacy. After Stinson J. released his decision, N.D. moved successfully to set it aside, on the basis that the defendant had an arguable defence on the merits and that it would be in the interests of justice to allow the case to proceed to a full hearing. This does not make Stinson J.'s analysis of invasion of privacy less important or persuasive.
Gomery J. agreed with Stinson J. that the tort of public disclosure of embarrassing private facts should be recognized:
[86] I conclude that the best way of fashioning a civil remedy is to adopt the tort of public disclosure of private facts in Ontario. In doing so I rely on the same reasoning that led the Court of Appeal to recognize the related tort of intrusion on seclusion in Jones v. Tsige.
[87] The adoption of this tort is consistent with Charter values. In R. v. Dyment [1988 CarswellPEI 7(S.C.C.)], a case cited in Jones v. Tsige, La Forest J. stated that "privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order". As observed by Justice L'Heureux-Dubé, privacy is "an essential component of what it means to be 'free'".
[...]
[95] Finally, failing to provide a remedy in this case would deprive Jane of any meaningful recourse in the face of a deliberate and flagrant breach of her privacy rights. In Jones v. Tsige, the Court of Appeal characterized Tsige's actions in accessing Jones' personal banking records as "deliberate, prolonged and shocking", and said that the case cried out for a remedy. But, in that case, Tsige took no steps to record, publish or distribute the plaintiff's information, and Jones suffered no long-term damages as a result of the breach of her privacy rights. In the case at bar, the explicit video that Nicholas posted without Jane's knowledge of consent remained online for over two years, and was viewed over 60,000 times. The damage suffered by Jane is profound and still ongoing. How can the court deny her a remedy in these circumstances?
[96] I conclude that Jane has a cause of action against Nicholas for the public disclosure of private facts without her consent. In Jones v. Tsige, the Court of Appeal recognized the need for civil remedies to protect the privacy of personal information. I see no reason why this protection should not extend to prevent the unauthorized publication of intimate images, given the privacy rights at stake and the serious harm caused by such publication.
Gomery J. adopted Stinson J.'s elements for the tort:
[97] I agree with the elements of the cause of action proposed by Stinson J. which for convenience sake I will reproduce again here:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other's privacy, if the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.
Gomery J. stated the plaintiff must prove four criteria to establish the tort:
[98] I accept Stinson J.'s modification to the description of the tort in the Restatement, because it is important to emphasize that a sexually explicit videotape is not in itself necessarily "highly offensive". There is nothing inherently wrong about taking intimate photos of an adult or filming consensual sex between adults, or agreeing to participate in such photos or recordings. What is wrong is the non-consensual publication or sharing of a photo or recording of someone who did not want to share it with anyone else.
[99] To establish liability, the plaintiff must therefore prove that:
(a) the defendant publicized an aspect of the plaintiff's private life;
(b) the plaintiff did not consent to the publication;
(c) The matter publicized or its publication would be highly offensive to a reasonable person; and
(d) The publication was not of legitimate concern to the public.
In Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII), Kristjanson J. recognized the last remaining privacy tort from the four-tort catalogue, publicly placing a person in a false light. The defendant engaged in years of cyberbullying against the mother of his children by using online petitions, emails, YouTube videos to demean her and portray her, falsely, in a negative manner. The Court felt that the case was appropriate for the adoption of the new tort and described the elements as follows:
[170] With these three torts all recognized in Ontario law, the remaining item in the “four-tort catalogue” of causes of action for invasion of privacy is the third, that is, publicity placing the plaintiff in a false light. I hold that this is the case in which this cause of action should be recognized. It is described in § 652E of the Restatement as follows:
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 his 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.
[171] I adopt this statement of the elements of the tort. I also note the clarification in the Restatement’s commentary on this passage to the effect that, while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. 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.
Kristjanson J. distinguished the tort from the tort of public disclosure of private facts, in that "false light" involves false or misleading claims, while the former involves true facts. False light also requires that the defendant know or be reckless to the falsity of the claims:
[172] It also bears noting this cause of action has much in common with the tort of public disclosure of private facts. They share the common elements of 1) publicity, which is 2) highly offensive to a reasonable person. The principal difference between the two is that public disclosure of private facts involves true statements, while “false light” publicity involves false or misleading claims. (Two further elements also distinguish the two causes of action: “false light” invasion of privacy requires that the defendant know or be reckless to the falsity of the information, while public disclosure of private facts involves a requirement that there be no legitimate public concern justifying the disclosure.)
[173] It follows that one who subjects another to highly offensive publicity can be held responsible whether the publicity is true or false. This indeed, is precisely why the tort of publicity placing a person a false light should be recognized. It would be absurd if a defendant could escape liability for invasion of privacy simply because the statements they have made about another person are false.
The defendant was found liable for the novel tort. He had made serious and false allegations about the plaintiff and her family online, including that she was a kidnapper, child abuser, forger and fraudster
[175] I find that the false light in which Mr. Yenovkian has placed Ms. Gulian would be highly offensive to a reasonable person. I have set out detailed findings of the false light publicity throughout this decision. Mr. Yenovkian has and continues to make serious allegations online about Ms. Gulian and her family, including that she is a kidnapper, abuses the children, drugs the children, forges documents, and defrauds governments. I find these statements to be false on the evidence before me.
[176] Mr. Yenovkian has posted a video online of a person displaying posters of Ms. Gulian and her parents and the allegations at various locations in London, England. He established an online petition to persecute Ms. Gulian and her parents and enlisted the help of members of the public. He has spread his allegations on the internet and distributed them and links to the sites to friends, family members and business relations of Ms. Gulian and her parents, members of the Armenian community and her church in London, England, as well as to Ms. Gulian’s fellow employees.
[177] Mr. Yenovkian’s conduct has caused a visible and provable illness. Ms. Gulian testified that she has sought medical assistance from her family doctor as a result of Mr. Yenovkian’s conduct. She saw Dr. Rajpal because she was having nightmares, feeling ill and was undergoing mental stress.
[...]
[180] As a direct result of Mr. Yenovkian’s conduct, Ms. Gulian is concerned that one of the anonymous people on the internet who have expressed support for Mr. Yenovkian on his online petition could find the address of her parents’ business online and track down her family. This prospect is terrifying to Ms. Gulian. She worries about the safety of her children. Ms. Gulian is waking up full of dread in the morning not knowing if someone who has viewed Mr. Yenovkian’s postings and who believes Mr. Yenovkian’s false claims will do something to Ms. Gulian or take her children.
[181] The police and child welfare authorities in both Toronto and London have visited her home several times because of Mr. Yenovkian’s unfounded complaints. Mr. Yenovkian is not only interfering with Ms. Gulian’s use of her home, but also her use of her computer and the internet, where Mr. Yenovkian’s allegations are posted.
[182] Mr. Yenovkian has actively sought an audience for a website that portrays Ms. Gulian as criminally abusive of A.B. and C.D. In his vindictive pursuit of his own perceived interest, he has been, at the very least, reckless of the false light in which his campaign would place her.
O Reg 543/20, Extension of Temporary Suspension Period
Personal Information Protection and Electronic Documents Act, SC 2000, c 5
Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31
Summary of privacy laws in Canada, Office of the Privacy Commissioner of Canada, January 2018
Jones v. Tsige, 2012 ONCA 32 (CanLII)
Doe 464533 v N.D., 2016 ONSC 541 (CanLII)
Doe v N.D., 2016 ONSC 4920 (CanLII)
Jane Doe 72511 v. N.M., 2018 ONSC 6607 (CanLII)
Yenovkian v. Gulian, 2019 ONSC 7279 (CanLII)
