Cyber-bullying is a growing concern in family law litigation. Some provinces already have legislation to deal with such issues. While Ontario currently does not, in recent years Ontario courts have recognized new common law remedies to address these issues.
In Yenovkian v. Gulian, 2019 ONSC 7279, Justice Kristjanson of the Ontario Superior Court of Justice recognized the act of publicly placing a person in a false light as a new cause of action under the tort of invasion of privacy. Yenovkian involved an extremely acrimonious separation and custody dispute involving two children, one of whom has special needs. Shortly after separating in 2016, the Respondent, Ms. Gulian, took the parties children to England and refused to return to Ontario.
The Applicant, Mr. Yenovkian, engaged in a cyberbullying campaign spanning several years against his estranged wife. This campaign included videotaping court-ordered access visits with the children, without the children’s knowledge and without Ms. Gulian’s consent, and editing and posting these videos and photographs of the children on the internet, with commentary. This campaign continued despite court orders prohibiting same and orders to remove the videos and images.
At trial, Justice Kristjanson spent hours viewing Mr. Yenovkian’s videos, websites, petitions and internet posts. In one video, Mr. Yenovkian claims his daughter was drugged by her “violent and abusive grandmother” who “kidnapped” her.” In other videos, Mr. Yenovkian “states he has documented the “mental degradation” of his child” and posted contrasting before and after pictures of his daughter.
Mr. Yenovkian also circulated online petitions and emails with commentary accusing Ms. Gulian and her parents of “various illegal acts including kidnapping, child abuse, stealing money from the UK government, multiple ‘felonies’ against the UK, U.S. and Canadian governments, assault, drugging the children, slapping the children, death threats, ‘breaking countless laws,’ forging documents, fraud and abusing the children.”
Further, Justice Kristjanson found Mr. Yenovkian attacked the administration of justice through his attacks on some of Ms. Gulian’s witnesses and her counsel in his videos, petitions and online posts and on a named Justice who made prior temporary orders in this matter .
Justice Kristjanson defined cyberbullying in family law: “as the use of electronic technology, including social media, text messaging, websites and email, in a manner that is intended to cause, or should reasonably be known to cause, fear, intimidation, humiliation, distress or other forms of harm to another person’s body, feelings, self-esteem, reputation or property.”
In addition to claims for custody, access, support and equalization, Ms. Gulian brought a crossclaim against Mr. Yenovkian for the intentional infliction of mental suffering, the tort of invasion of privacy and punitive damages. The court referenced Jones v. Tsige where the Ontario Court of Appeal recognized intrusion upon seclusion as a new category of the invasion of privacy tort, and its analysis of other categories of the tort of invasion of privacy developed in the United States and incorporated into the Restatement of Torts:
- Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
- Public disclosure of embarrassing private facts about the plaintiff.
- Publicity which places the plaintiff in a false light in the public eye.
- Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.
Since Jones, the Ontario Superior Court of Justice in Jane Doe 464533 v. D. (N.) and Jane Doe 72522 v N. M., 2018 ONSC 6607, has recognized the public disclosure of embarrassing private facts as a category of the breach of privacy tort. Appropriation of the plaintiff’s likeness has long been recognized in Ontario (see Athans v Canadian Adventure Camps Ltd., O.J. No. 2417 (H.C.J.)).
In Yenovkian, Justice Kristjanson recognized the remaining category, publicity placing the plaintiff in a false light as an independent cause of action warranting damages. To succeed on this claim, a plaintiff must show:
- The defendant gave publicity to a matter involving the plaintiff.
- The plaintiff was presented to the public in a false light.
- The false light in which the plaintiff was placed would be highly offensive to a reasonable person.
- The defendant knew of the falsity, or was reckless to it.
Critically, the court noted the publicity giving rise to this case of action may be defamatory but does not have to be. The plaintiff only needs to demonstrate “that a reasonable person would find it highly offensive to be publicly misrepresented as they have been.”
Justice Kristjanson easily found Mr. Yenovkian exposed Ms. Gulian in a false light as well as finding Mr. Yenovkian published private facts. Ms. Gulian was awarded $100,000 in damages for breach of privacy, $50,000 for the intentional infliction of mental suffering and $150,000 in punitive damages.
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