A recent decision of the Superior Court of Justice expanded Ontario’s tort law relating to the invasion of privacy. Yenovkian v. Gulian, released in December 2019, was the first Ontario case to recognize and apply the tort of placing a person before the public in a false light, a tort previously recognized in the United States and bearing a close resemblance to defamation. However, there are key distinctions between defamation and this privacy tort, which may soon find its way into employment litigation. These include the degree of publication and that the publication need not be defamatory, per se.
The tort of defamation often arises in the context of employment relationships, and their breakdown. Defamation has been claimed in respect of references given by former employers, and the case law has dealt with the applicability of the qualified privilege defence: see Kanak v. Riggin. Allegations of defamation also arise as added claims in wrongful dismissal actions (Gholami v. The Hospital of Sick Children) and in claims by employers over disparaging statements made by dismissed employees (The Association for Social Integration of Ottawa c. Casimir). It may be only a matter of time before the similar “false light” tort makes its way into the employment sphere.
Yenovkian v. Gulian was a family law case concerning a father who had, among other things, relentlessly, and despite court orders, cyber-bullied the mother online. There was no claim in defamation, but the Court addressed the mother’s claims for nuisance, harassment, intentional infliction of mental suffering, and invasion of privacy.
Justice Kristjanson considered the development of tortious invasion of privacy in Ontario. Her Honour noted that, over the years, three of four such torts developed in the United States have come to be applied in this province:
1. Intrusion upon seclusion;
2. Public disclosure of embarrassing private facts; and
3. Appropriation of the plaintiff’s name or likeness.
The fourth privacy tort, publicity placing the plaintiff in a false light, had not yet been recognized in Ontario. Holding that “this is the case in which this cause of action should be recognized”, Kristjanson J. went on to adopt the following legal test:
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.
Her Honour added that:
[W]hile 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. [Emphasis added.]
Therefore, a key distinction between defamation and the false light tort is that the light in which the plaintiff is cast need not lower the plaintiff’s reputation in the eyes of the reasonable person.
In Yenovkian, the father had falsely represented the mother to be a kidnapper who abuses her children, forges documents, and defrauds governments – a false light which it was easily determined a reasonable person would find highly offensive. Justice Kristjanson noted that the circumstances of the false publicity in that case were particularly egregious and ultimately awarded damages of $100,000 for invasion of privacy, which included both the publicity in a false light and public disclosure of private facts iterations of the tort.
While the false light tort has yet to be applied in the employment context in Ontario, claims against former employers have arisen in the US: for example, in Freeman v. Unisys Corp., Pace v. Bristol Hosp., and Robinson v. Vitro Corp. Consideration of this jurisprudence reveals another, significant distinction between the false light tort and that of defamation, that did not arise on the facts in Yenovkian: the required degree of publication. The US case law requires that the “matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge”. This is a clear departure from the requirement for defamation, which may be satisfied by publication to a single third party.
While this requirement, if adopted in Ontario, would foreclose claims based on statements made to individuals, and potentially even those published within a broader but confined group, the internet provides a constant and accessible means of communicating and portraying others to the public at large. It goes without saying that the nuances of the tort’s application in Ontario have yet to be seen. However, this is a novel avenue towards potential liability that parties should be aware of when navigating contentious relationship breakdowns.
By Michelle A. Stephenson, Corman Feiner LLP
 Yenovkian v. Gulian, 2019 ONSC 7279.
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