New statutory tort for intimate images was determined to not cover all the harms alleged by the plaintiff

Madam Justice Inglis of the Alberta Court of Queen’s Bench has recognized, for the first time, the tort of “public disclosure of private facts” in the province of Alberta. In ES v Shillington, the plaintiff had previously obtained default judgement against the defendant for a number of recognized claims, including assault, battery, sexual assault and intentional infliction of emotional distress. A separate hearing was held for an assessment of damages and to determine whether judgement would be granted for the novel tort and for breach of confidence.

The case flowed from a very unpleasant marital break-up in which the plaintiff fled her husband from New Brunswick, where he as posted with the military, to her home in Alberta. In addition to a number of assaults, the plaintiff alleged that he had posted images of her online:

[11] While he was deployed, near the end of their relationship, the Defendant confessed to the Plaintiff that he had posted her images online. Through accessing the Defendant’s social media accounts the Plaintiff was able to track some of these postings and was disturbed to find many of those private, explicit images available on the internet at pornography sites. At no time did the Defendant have the Plaintiff’s consent to publish these images. The Defendant admitted that he had posted photos as early as 2006, and the Plaintiff has located images posted as late as 2018. As recently as early 2021 the Plaintiff was able to find some of these images online.

[12] The availability of these photos, including the fact that the Plaintiff is identifiable in some images, resulted in the Plaintiff being recognized in them by a neighbour that spoke to her sexually, having seen her likeness on a website. She has experienced significant mental distress and embarrassment as a result of the postings. She suffers nervous shock, psychological and emotional suffering, depression, anxiety, sleep disturbances, embarrassment, humiliation, and other impacts to her wellbeing.

The Court carried out a fulsome review of whether the novel tort should be recognized in Alberta, considering the criteria set by the Supreme Court of Canada in Nevsun Resources Ltd v Araya:

Three clear rules for when the courts will not recognize a new nominate tort have emerged: (1) The courts will not recognize a new tort where there are adequate alternative remedies (see, for example, Scalera); (2) 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 (3) the courts will not recognize a new tort where the change wrought upon the legal system would be indeterminate or substantial (Wallace v United Grain Growers Ltd, [1997] 3 SCR 701 (SCC), at paras 76-77). 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.

Since the publication of the images, Alberta has created a statutory tort for the non-consensual distribution of intimate images (the Protecting Victims of Non-Consensual Distribution of Intimate Images Act), but it could not be applied retrospectively to provide the plaintiff with a remedy. Even if it would, the statutory tort is narrowly circumscribed and does not address all the harms she has experienced. In the circumstances, without recognizing the new tort, there would be no alternative remedies available for her.

The Court found that this tort was necessary to address an act of deliberate wrongdoing carried out by the defendant, and was one that is appropriate for adjudication:

[62] The conduct complained of by the Plaintiff clearly meets this third test; it is appropriate for judicial adjudication. The change sought of this court is a determinate and substantial change that recognizes the inherent harm done by dissemination of private content. When conduct attracts legislative and parliamentary attention, its wrongfulness is apparent. From Jane Doe #2 at para 88: “…Failing to develop the legal tools to guard against the intentional, unauthorized distribution of intimate images and recordings on the internet would have a profound negative significance for public order as well as the personal wellbeing and freedom of individuals.”

Conclusion re cause of action for Public Disclosure of Private Facts

[63] The existence of a right of action for Public Disclosure of Private Facts is thus confirmed in Alberta. To do so recognizes these particular facts where a wrong exists for which there are no other adequate remedies. The tort reflects wrongdoing that the court should address. Finally, declaring the existence of this tort in Alberta is a determinate incremental change that identifies action that is appropriate for judicial adjudication.

Following a review of the relevant caselaw from outside of Alberta, the Court stated the elements of the tort in the province:

[68] Therefore, in Alberta, to establish liability for the tort of Public Disclosure of Private Facts, the Plaintiff must 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 in the position of the plaintiff; and,

(d) the publication was not of legitimate concern to the public.

Given the overlap of damages among the intentional torts claimed, the damage award was not divided among them. Under those heads, the plaintiff sought and the court awarded general damages of $80,000, punitive damages of $50,000 and aggravated damages in the amount of $25,000.