In the recent case of ES v. Shillington, 2021 ABQB 739, the plaintiff sought the recognition of the tort of Public Disclosure of Private Facts – a first in Alberta. The plaintiff was in a romantic relationship with the defendant between 2005 and 2016, during which time the defendant physically and sexually assaulted the plaintiff. During their relationship, the plaintiff shared intimate photographs with the defendant, who was often away deployed with the military. Towards the end of the relationship, the defendant admitted that he had posted some of the plaintiff’s explicit images online without her consent. Postings of the photos were found to have taken place from 2005 up to 2018. The plaintiff was recognizable in some of the photos, which caused her significant and continuing mental distress.
While Alberta has a statute that protects against these types of matters - Protecting Victims of Non-Consensual Distribution of Intimate Images Act, RSA 2017, c P-26.9 [the “Act”] – it came into force on August 4, 2017 and can not be applied retroactively. Further, even if the plaintiff could have relied on the Act, it only protects against a narrow definition of “intimate” acts and would not necessarily have covered the disclosure of all of the images at issue. As such, there appeared to have been no statute or tort that would have provided the plaintiff with a remedy for the deliberate wrongful conduct of the defendant.
Elements of the Tort
Justice Inglis began her analysis by reviewing the three required elements in order for a court to recognize a new tort:
(a) The courts will not recognize a new tort where there are adequate alternative remedies;
(b) the courts will not recognize a new tort that does not reflect and address a wrong visited by one person upon another (Saskatchewan Wheat Pool, at pp 224-25); and,
(c) the courts will not recognize a new tort where the change wrought upon the legal system would be indeterminate or substantial.
Put another way, for a proposed nominate tort to be recognized by the courts, at a minimum it must reflect a wrong, be necessary to address that wrong, and be an appropriate subject of judicial consideration.
Justice Inglis then set out what a plaintiff must prove in order to satisfy the test for the tort of Public Disclosure of Private Facts, which have been previously articulated by courts in other Canadian jurisdictions:
(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 in the position of the plaintiff; and,
(d) the publication was not of legitimate concern to the public.
Justice Inglis found that the above-noted elements of the tort were easily met in this case and found the defendant liable.
Damages
In addition to the Public Disclosure of Private Facts, the defendant was also found liable for the intentional torts of Breach of Confidence and Intentional Infliction of Mental Distress. The plaintiff was awarded general damages in the amount of $80,000 in respect of the intentional torts. Justice Inglis indicated that the continued availability of the plaintiff’s images online, as well as the nature of the embarrassment to her, resulted in an increased general damages award.
The plaintiff was also awarded $50,000 in punitive damages for the intentional torts given that the defendant was aware that his conduct would cause the plaintiff distress. Justice Inglis further found that the defendant’s conduct was motivated by malice and was intended to humiliate the plaintiff and increase her anxiety. The publication of the private photos was determined to be another form of domestic abuse and the plaintiff was awarded $25,000 in aggravated damages.
Along with the monetary awards, Justice Inglis granted an injunction against the defendant requiring him to return all images of the plaintiff and to remove any images that he posted online. The defendant was also prohibited from sharing any private photos of the plaintiff in the future. Justice Inglis noted that “[w]here general common sense and decency failed to prevent his conduct in the past, hopefully this explicit prohibition will be effective in curtailing him from repeating his behavior” (at para. 81).
Significance in Alberta
The recognition of this tort in Alberta provides victims with a cause of action to pursue a civil claim for a breach of privacy. Justice Inglis noted that, while the Act generally provides a remedy for conduct of this type, the tort of Public Disclosure of Private Facts may allow for a broader range of claims from a wider definition of “intimate” images than the statute provides. Having a common law remedy will provide greater assistance for victims of the type of conduct seen in this case, particularly if the Act does not adequately protect their interests.
For more information, please contact Billy Cowitz.