Listen to this post

Around this time last year, we blogged about the decision of the Ontario Superior Court of Justice (the “ONSC”) in Jane Doe 464533 v ND (“Jane Doe“), a case that effectively created a new privacy tort – “public disclosure of embarrassing private facts” (you can read our post here). It was a tort that responded to a disturbing trend on the internet where embarrassing images or videos of people are posted without their consent. This issue is of increasing public concern, but it has only recently been substantively addressed through legislation (the Criminal Code of Canada now contains an offense for the “publication of an intimate image without consent”). Prior to this decision, while other torts existed regarding an invasion of privacy, few cases have dealt with the significant impact and psychological harm that may result from public disclosure of intimate images and videos.

Briefly, Jane Doe involved an unnamed woman who sued her ex-boyfriend for the tort of breach of privacy after he posted online and shared with friends a sexually explicit video of her without her consent. Her case was heard by the Honourable Justice Stinson, who found in favour of the unnamed woman, creating a new tort of “public disclosure of embarrassing private facts” and awarding over $100,000 in damages and costs (the plaintiff brought her action under the Simplified Procedure which limits a claim of damages to $100,000).

Upon the decision in Jane Doe being made in January of 2016, the media took hold of this compelling case and discussed at length the impact that the judge’s findings would have. However, a key aspect of this decision was left out of the news – the fact that the decision was a default judgment. In this case, the defendant refused to participate in the proceedings, so the plaintiff’s claims went unchallenged in court. As a procedural matter, when a defendant has been noted in default, he or she can apply to the court to have the decision set aside and reheard.

Upon becoming aware of the significant award of damages that was made against him, the defendant reconsidered his decision to ignore the claim and applied to have the default judgment set aside. He was successful. The plaintiff then applied to the ONSC for leave to appeal the decision to set aside the default judgment, but leave was not granted. In coming to its decision, the ONSC reviewed the test for leave to appeal and considered the factors relevant to setting aside a default judgment, namely: (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; (3) whether the facts establish that the defendant has an arguable defense on the merits; (4) the potential prejudice to each party; and (5) the effect of any order the court might make on the integrity of the administration of justice. In considering these five factors, the ONSC determined that factors (1) and (3) favoured the defendant and there would be no prejudice to either party as a result of setting aside the default judgment. The ONSC also specifically noted that failure of a defendant to engage in an action will not necessarily be fatal to a motion to set aside a default judgment. Ultimately, the ONSC found that the “uniqueness of the case and the prospect for a decision on the merits making a contribution to a 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”.

The setting aside of the defendant’s noting in default is important as this means that the decision, which garnered so much publicity, is not of precedential value and does not have to be followed in subsequent cases, at least at this point. However, given the original decision in Jane Doe and the fact that the ONSC previously acknowledged the tort of “public disclosure of embarrassing facts” (in Jones v. Tsige), it is likely that a precedent for this tort could be established by the court in the near future, either when the Jane Doe case is reheard or in another similar case.

So what should employers take from this:

Regardless of the (perhaps temporary) loss of precedential value of the Jane Doe decision, employers should continue to be sensitive to the issues that this tort raises and consider it to be an example of what they might have to deal with in the future. As noted in our previous blog, employers must continue to ensure that private information of employees is not disclosed without consent and may be exposed to liability where employees use employer property to disclose private information or disclose private information of co-workers.