News

Lawyer disciplined for allowing staff to use his password to access electronic land registry

In Dhindsa (Re), a Hearing Panel on Disciplinary Action of the Law Society of British Columbia presided over a disciplinary hearing for a lawyer who had engaged in irregular practices relating to access to the province’s electronic land registry system. Specifically, as had been found at an earlier hearing, he had disclosed his password to “Juricert” to his staff, which allowed them to affix his electronic signature to documents that were filed with the Land Title Office. There were two or three documents that had to be signed on each file, and staff testimony indicated that they had used the lawyer’s password anywhere from several hundred to a thousand times, between 2012 and 2015. The Law Society sought a suspension of the lawyer and costs, while the lawyer argued that a fine of $10,000 would be more appropriate.

The Panel made some interesting remarks about the ethical duties of lawyers regarding access to encrypted electronic systems generally and land registry systems specifically:

[15] In our earlier decision we noted at paras. 61 to 63:

The BC Code provides at section 6.1-5:

A lawyer who has personalized encrypted electronic access to any system for the electronic submission or registration of documents must not

1. permit others, including a non-lawyer employee, to use such access; or
2. disclose his or her password or access phrase or number to others.

The commentary in the BC Code applicable to section 6.1-5 states:

[1] The implementation of systems for the electronic registration of documents imposes special responsibilities on lawyers and others using the system. The integrity and security of the system is achieved, in part, by its maintaining a record of those using the system for any transaction. Statements professing compliance with law without registration of supporting documents may be made only by lawyers in good standing. It is, therefore, important that lawyers should maintain and ensure the security and the exclusively personal use of the personalized access code, diskettes, etc., used to access the system and the personalized access pass phrase or number.

…

(b) In 2010, a Law Society hearing panel issued the decision Law Society of BC v. Williams, 2010 LSBC 31, in which they emphasized the importance of lawyers complying with the execution and electronic submission provisions of the Land Title Act, which were important safeguards of the integrity of the land title system. The panel stated as follows at paras. 12 and 13:

Both the execution provisions under Part 5 of the Land Title Actand the electronic submission provisions under Part 10.1 are important safeguards of the integrity of the land title system in British Columbia. As officers under the Act, members of the legal profession play a key role in ensuring the integrity of transfer documents and safeguarding the system from fraud.

Given the importance of the role played by lawyers who act as officers, conduct related to the electronic submission of improperly executed documents must be viewed as serious. In this case, the executed paper copy of the Form C release was not registrable because, on its face, it had not been witnessed by an officer. The Respondent overcame this impediment to registration not by obtaining a properly executed document, but by incorporating his electronic signature and inserting his name under the signature space for the officer, then submitting an electronic version.

[16] Paragraph 14 from Williams is also worth noting:

No financial harm ensued because the document was a release of a builders lien claim and was apparently properly authorized by the corporate claimant. However, the submission of documents that are defective in their execution harms the land title system by eroding the reliability and authenticity of documents submitted for registration. Further, because the officer does not submit the originally executed document when an electronic document is submitted for registration, the defect is not apparent, and the Land Title Office cannot scrutinize the original document to ensure its registrability

[emphasis added]

[17] We also noted in our reasons several publications from the Law Society pointing out that it was an offence to disclose ones Juricert password and that the integrity of the Land Title registration system depended on lawyers not sharing their password.

Noting that the Society’s main function is regulating the profession in the public interest, the Panel added:

[32] We have noted above the importance the profession plays in the use of electronic documents. As gatekeepers of the land title electronic registration system, lawyers must use that authority ethically and responsibly. The public depends on the profession to ensure the reliability and authenticity of electronically filed documents.

The Panel took into account that by having his staff carry out tasks that he was supposed to do, the lawyer reduced the amount of time he would have spent in the office on such administrative work, and correspondingly reduced his own workload, possibly benefiting his “very busy conveyancing practice.” On the other hand it was clear that the lawyer’s practice had been harmed by the proceedings, as some banks were refusing to deal with him and he had experienced a decline in business. In the result, the lawyer was suspended from practice for 4 months and had an order of costs imposed on him.

Chain of text messages found to be necessary for accused to have fair trial

In R. v. R.S., 2020 ONSC 1509 (no hyperlink available as yet) the accused was being tried for sexual assault. He applied to adduce in evidence two items: 1) a number of texts that were sent to him by the complainant, which the trial judge described as:

Deal[ing] with events proximate to the date of the offences and the intervening period. They relate to communications pertinent to setting up the occasions when the sexual assaults are alleged to have occurred and to discussions about what transpired afterwards.

And 2) an email sent to the accused by the complainant in which the complainant described an erotic dream that she had about the accused.

The trial judge, Nakatsuru J. of the Ontario Superior Court, noted that the application was brought under ss. 278.92 and 278.94 of the Criminal Code, relatively new provisions that put strict requirements on the admissibility of records containing personal information about the complainant, which are in the possession of the accused. The texts were held to meet these requirements. Because of their content and their proximity to the events from which the accusation of sexual assault emerged, they were directly relevant to the complainant’s credibility; for the accused to have fair answer and defence, he had to be permitted to use them in cross-examination. As to the complainant’s interests, Nakatsuru J. noted:

In terms of prejudice to L.H.'s personal dignity and right of privacy and her right to personal security and the protection of the law, it must be remembered that these are text messages that she voluntarily sent to the accused. Any assertion of a reasonable expectation of privacy must be assessed in that context. L.H. chose the words she sent. This is not a record whereby some third party noted or is interpreting what she said. As an autonomous individual, it is not an unfair intrusion into L.H.'s privacy to have her explain what she meant by these texts. Texts which are relevant to the issues that the jury must decide.

However, the email was excluded as being insufficiently probative on the conduct charged, and more likely to bring into play some stereotypical views about the behaviour of sexual assault victims.

In response to the current COVID-19 pandemic and declared public health emergencies, Canadian federal, provincial and territorial privacy regulators have posted specific guidance to employers, companies and government institutions on the collection, use and disclosure of personal information and personal health information in this new context. The relevant documents can be found here:

• Office of the Privacy Commissioner of Canada
• Office of the Information and Privacy Commissioner of British Columbia
• Office of the Information and Privacy Commissioner of Alberta
• Office of the Information and Privacy Commissioner of Saskatchewan
• Office of the Information and Privacy Commissioner of Ontario
• Commission d'accès à l'information du Québec
• Office of the Information and Privacy Commissioner of Newfoundland and Labrador
• Yukon Information and Privacy Commissioner
• Office of the Information and Privacy Commissioner of the Northwest Territories

Year-long smear campaign over multiple websites results in large damage award

The Supreme Court of British Columbia ordered a very high damage award for online defamation with its decision in Rook v Halcrow.

The plaintiff, Brandon Rook, had been director and CEO of a mining company, a founder of his own company, and provided business consultancy services. He had entered into a romantic relationship with the defendant for less than a month in 2015, and then again for about six months in 2016: on both occasions Rook was the one to end the relationship. The relationship ended in July 2016: from August 2016 until August 2017, scores of posts about the accused were made on many websites. These claims included that he was an alcoholic, that he was a business failure and a fraud, that he had STDs, and that over a period of many years he did not disclose these STDs to sexual partners and had spread them (which the trial judge noted amounted to an accusation that Rook had committed sexual assault), that he was heartless and uncaring, that he failed to pay child support, and others.

Among other places, these posts had been made on Instagram, giving Rook’s name and attaching his image, with the hashtag #brandonrook as well as others like #loserlife, #drunk, #noheart, #notnicepeople, #whatswrongwithpeople, and #stdspreader. In addition, there were multiple postings about the plaintiff on sites such as thedirty.com, stdcarriersdatabase.com, stdregistry.com, liarscheatersrus.org, reportmyex.com, cheatersandbastards.com, www.badbizreport.com, deadbeatregistry.com, and others.

The defendant’s only defence was that she was not the one who had made the posts, but the trial judge noted that the evidence was “clear and compelling” that she had done so. First, there was expert evidence that the IP address from which the defendant sent emails to the plaintiff was also the IP address used to set up the Instagram account from which the posts in question were made. The defendant suggested that others could have used her WiFi while at her house to set up the account, but the judge found that explanation not credible. In particular this was because: the defendant frequently texted the plaintiff about taking down the posts and threatening to put them up again or to create further posts; the phraseology in the posts was remarkably similar to that of the defendant in her texts, and; there was no evidence of anyone else with a motive to make the posts or the knowledge of the personal details which were mentioned.

The judge found it unambiguous that the posts were defamatory, and noted that each post was a separate cause of action on its own. Further, although proof that the posts had come to the attention of a third party was not necessary if it could be inferred, in this case there was such proof. First, there was evidence from the accused’s ex-wife that she had read them. Beyond that, it was apparent from the sites that some individual posts had been viewed thousands of times, and many had comments on them.

The judge noted that defamatory statements were presumed to be damaging, but that in addition aggravated damages could be awarded where actual malice was shown, as it was in this case. The plaintiff was therefore awarded $175,000 in general damages as well as $25,000 for aggravated damages. In addition, the plaintiff had engaged the services of reputation consultants to assist him in having the defamatory postings removed, and so he was also awarded US$29,870 as special damages for the cost of that service. In addition he was given an injunction restraining the defendant and others with knowledge of the order, wherever they were located in the world, from publishing any of the comments contained in the attached schedule.

Defamation plaintiffs granted summary judgment and permanent injunction after effusive campaign of internet defamation

In West Edmonton Mall Property Inc. v. [Defendant], the plaintiff company and its principal had commenced a defamation action against the defendant, who had previously operated a store in the West Edmonton Mall that sold beachwear and swimwear. At one point she had made a Facebook post in which she invited the Premier and Prime Minister to come to her store, in order to discuss the “retail apocalypse” that she felt was happening to small business owners. After this, her store was closed, her lease terminated and her product seized, all for alleged non-payment of rent. The next series of events was described by Justice Douglas Mah of the Alberta Court of Queen’s Bench as follows:

[21] Following Surfco’s demise at WEM, sometime in 2017 Ms. Proctor began her internet campaign of criticism and disparagement against the Ghermezians and their mall complexes. Using social media platforms such as Facebook, Twitter, Instagram and LinkedIn, as well as her own website (americandreamstore.blogspot.com) and Youtube channel, Ms. [Defendant] has relentlessly attacked, insulted and heaped scorn on David and his family and WEM and its associated businesses. The extent and scope of these attacks are described in some detail in 52 paragraphs of David’s affidavit of November 7, 2019 along with examples as exhibits. Apparently wishing that nothing be overlooked, Ms. Proctor herself, as her own evidence, submitted screenshots of the material in question, which evidence is contained in three large binders and, as I said, comprises by estimate some 1000 pages.

[22] It would be difficult to recite the complete catalogue of Ms. [Defendant]’s work. Rather, for illustrative purposes, I will mention some examples and try to focus on the material that David and WEM find most troubling and defamatory.

Justice Mah went on to catalogue a large representative sample of the defendant’s internet-based hostility towards the defendants, which was largely along fairly racist, anti-immigration and other critical lines, referring to the individual plaintiff in particular as having stolen the defendant’s business, calling him a “snake” and involved various videos in which the plaintiff’s head was superimposed onto different bodies. On the day of the hearing she had filed a new affidavit with an accompanying video, which showed the head of the plaintiff’s lawyer superimposed onto the body of a bikini-clad woman, and referred to the lawyer’s law firm as “SNAKE LAW.”

The court considered the plaintiffs’ application to be granted summary judgment on the defamation claim (having already dismissed the defendant’s counterclaim for being vexatious and not disclosing a cause of action). The defendant’s various communications were clearly defamatory, particularly in that they suggested that the plaintiffs were criminals and terrorists. Given that the comments were published on the internet, “there was publication of the defamatory comments to the entire world: Fort McKay Métis Community Association v Morin, 2019 ABQB 185 at paras 1, 55-56.” No defences were available, particularly as the defendant was found to have been motivated by malice.

Further, because the defendant had already wilfully failed to comply with various orders and an injunction against her behaviour, there was “a clear danger that Ms. [Defendant], if unfettered, will engage in online activity that will contravene fundamental notions of justice and undermine the integrity of the judicial process.” Justice Mah extended the previous injunction and added a provision enjoining the defendant from publishing any material or commentary concerning the proceedings or anyone involved in them. It was clear that the plaintiffs were in a position to apply for a permanent injunction as well, and in that regard Justice Mah stated:

As far as I am concerned, what is at stake for Ms. [Defendant] in any permanent injunction application is the extent to which she should be allowed to access and use the internet, given her history of misuse. Her chances for continuing to be allowed to use the internet will, in large part, depend on whether between now and the date of the upcoming application, she has complied with Court Orders and has demonstrated that she can use the internet responsibly.

Ontario Law Reform Commission proposes reforms in light of internet defamation

On March 12, 2020, the Law Commission of Ontario (“LCO”) released Defamation Law in the Internet Age(“Final Report”). This Final Report builds on the analysis of the LCO’s November 2017 Consultation Paper, looking at reforms driven by two primary factors:

first, that the internet is now the arena in which much, if not most, defamation occurs and, second, that the internet has had an unprecedented impact on the two core values underlying defamation law: freedom of expression and protection of reputation. (p 1).

In its Final Report, the LCOmakes 39 recommendations. For the most part these recommendations do not address the substantive law of defamation, which the LCO proposes should continue to be defined by the common law. Other than some specific proposals, such as narrowing the definition of “publication”, the recommendations address the mechanisms for enforcing defamation law, including through measures involving internet intermediaries such as Facebook and Google.

Many of the report’s recommendation aim at improving access to justice in defamation disputes in Ontario by diverting high volume, low value defamation claims away from the formal court system and encouraging informal, practical resolutions. To accomplish this, the LSO recommendations contemplate three procedural streams for resolving defamation complaints:

1. Notice and takedown
   
   All defamation claims would begin with the complainant serving a mandatory notice of complaint of the alleged defamation to the publisher. In certain circumstances, this service might be effected electronically, such as by email, text, or private messaging to a social media account (p 40). Electronic service of a defamation notice is not currently permitted in Ontario.
   
   If the complainant cannot contact the online publisher directly, the notice requirement would be met by sending notice to the intermediary platform about the allegedly defamatory material being hosted on the platform. The platform would then pass the complaint on to the publisher without assessing the legitimacy of the claim and while protecting the identity of anonymous publishers (p 45). The intermediary platform would play a crucial role in improving access to justice in online defamation disputes:

   The LCO recommends that the publisher be granted two days to respond to the allegation. If the publisher does not respond within the required time, it would trigger the intermediary platform’s obligation to take down the allegedly defamatory content from its online publication. However, if the publisher does respond, then the complainant could pursue the publisher directly, either by informal means or through a defamation action. (p 71)

2. Online Dispute Resolution
   
   The report also encourages the government to explore allocating public resources to developing a voluntary Online Dispute Resolution (ODR) platform as an inexpensive and expedient mechanism to structure and facilitate informal negotiations and resolutions. Specifically, the LCO advocates for a government-created ODR tribunal (p 100). British Columbia has implemented the Civil Resolution Tribunal (“CRT”) to resolve small claims under $5,000, condominium disputes, and recently motor vehicle accident claims below $50,000. The LCO recommends that a government-created ODR tribunal similar to the CRT would improve access to justice in resolving online defamation disputes in Ontario.
3. Court action
   
   Court action would be reserved primarily, but not exclusively, for higher value defamation claims involving professional public interest publishers. Other factors would also be considered, including whether the complainant was a private individual or someone with a public reputation, and the nature and extent of reputational harm at issue. Here, a preliminary anti-SLAPP motion would remain available to defendants, and an additional new motion would be introduced for an interlocutory takedown order. This order would no longer be based on the “rarest and clearest” test, bur rather a statutory test that would balance the potential for and extent of online reputational harm suffered by the plaintiff against the public interest in protecting freedom of expression in the circumstances would be introduced (p 57). This would be used “where the potential for reputational harm significantly outweighs the expressive value of the publication at stake” (p 16). With respect to Norwich orders, the LCO recommends that filing a notice for a Norwich order “should automatically put intermediary platforms on notice that they must preserve evidence of the IP address at issue” (p 61).

The LCO summarized these three proposed approaches in chart form.

The Report also proposed some specific changes to defamation law, and suggested other procedural changes. For example, the LCO argued that “disparate limitation periods for different types of publication are no longer justifiable in the internet era” (p 49) and recommended that there be a single limitation period of two years applicable to all defamation claims. The Report also suggested narrowing the definition of “publication” in the context of defamation so that, generally speaking, internet intermediaries would not be liable for defamatory third party (user-generated) content. Instead those intermediaries would be responsible under the notice and takedown regime, but would not face common law liability.

Nova Scotia Barristers’ Society publishes report providing guidance on the ethical use of social media

The Nova Scotia Barristers’ Society recently published a report entitled Conduct Unbecoming: What should the Society do when it comes to gossip, online posts and bad behaviour on social media? The report, written by an NSBS staff lawyer, begins by noting that the Society has seen an upswing in reports, calls and complaints to it regarding social media activity by lawyers. While it is clear that lawyers enjoy freedom of expression under s. 2(b) of the Charter in the same way as all citizens, there are ethical constraints on them which potentially require the regulator to intervene. Not every form of speech was necessarily subject to Society scrutiny and/or discipline, and the report noted that such regulatable speech would fall into one of three categories: 1) Speech that could be considered imprudent, rash, rude, defamatory or even offensive, but does not cross the threshold into being discriminatory or harassing; 2) Speech that involves the justice system: encouraging respect for the administration of justice; and 3) Speech that is discriminatory or harassing.

The report reviews the decisions of the Supreme Court of Canada in Doré and Groia, noting that there is a balance to be struck between the fact that lawyers have voluntarily joined a profession which may require constraining their speech with the desirability of lawyers being able to speak their minds. In conclusion, it offered a set of principles that would be used in evaluating a lawyer’s speech:

First principle: A lawyer has “willingly joined a profession that was subject to rules of discipline that [they] knew would limit [their] freedom of expression”

Second principle: We must take into consideration the importance of the expressive rights in each case, in light of (a) the lawyer’s right to expression and (b) the public’s interest in open discussion.

Third principle: The Society should only limit its members’ freedom of expression in their private lives insofar as it is necessary to do so to “protect the public interest in the practice of law.”

Fourth principle: The Society must consider the unique circumstances in each case: such as what the lawyer said, the context in which they said it and the reason it was said.

Commissioners specifically call for vigilance regarding “scope creep”

On Data Privacy Day, January 28, 2020, the Information and Privacy Commissioners of the four Atlantic Canadian provinces issued a statement intended to highlight the privacy implications of the adoption of facial recognition technology. The statement included a backgrounder on the technology, referring to Investigation PC-010005-1 from the Ontario Office of the Information and Privacy Commissioner (OIPC) and a publication from the Office of the Privacy Commissioner of Canada entitled “Automated Facial Recognition in the Public and Private Sectors.”

The backgrounder, available here, also raised the issue of “scope creep” and pointed to the recent implementation of biometric photos on drivers licenses and provincial ID cards in the region.

The statement came shortly after the New York Times wrote a highly-shared article on facial recognition technology that mined social media accounts and is offered to law enforcement.

Commissioners specifically call for vigilance regarding “scope creep”

On Data Privacy Day, January 28, 2020, the Information and Privacy Commissioners of the four Atlantic Canadian provinces issued a statement intended to highlight the privacy implications of the adoption of facial recognition technology. The statement included a backgrounder on the technology, referring to Investigation PC-010005-1 from the Ontario Office of the Information and Privacy Commissioner (OIPC) and a publication from the Office of the Privacy Commissioner of Canada entitled “Automated Facial Recognition in the Public and Private Sectors.”

The backgrounder, available here, also raised the issue of “scope creep” and pointed to the recent implementation of biometric photos on drivers licenses and provincial ID cards in the region.

The statement came shortly after the New York Times wrote a highly-shared article on facial recognition technology that mined social media accounts and is offered to law enforcement.

The final tort of the “four-tort catalogue” has been recognized in Ontario, and likely will be recognized in other common law provinces

In 2016, in the case of Jones v Tsige, the Ontario Court of Appeal imported into Canada the four American privacy torts as articulated by William L. Prosser in 1960. That list includes:

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

The fourth cause of action, commercial appropriation of the plaintiff's image, was already alive and well in Canadian tort law. The Court in Jones applied the “intrusion upon seclusion” tort and subsequent cases have applied “public disclosure of private facts”, particularly in the context of the non-consensual distribution of intimate images.

In December 2019, the Ontario Superior Court of Justice explicitly recognized the “false light” privacy tort, confirming that the full set of Prosser’s torts exist in Ontario. In Yenovkian v. Gulian, Justice Kristjanson was dealing with an unpleasant family law case in which the husband had made wild accusations against his former spouse, particularly related to their two children.

The judge summarized the husband’s misconduct that was at issue:

[2] It is also about a father, Mr. Vem Yenovkian, who has engaged in years of cyberbullying of the mother, Ms. Sonia Gulian on websites, YouTube videos, online petitions and emails. It is about a father who videotapes court-ordered access visits with the children—both in-person and on Skype—and edits and posts those access visits and photographs of the children on the internet, with commentary. It is about a father who publicly posts on YouTube a video of his son cowering under a table while the father harangues him over Skype on a court-ordered access visit. It is about a father who posts videos of him describing his daughter, who suffers from a neurological disorder, as looking drugged, when she used to be “normal,” and posting that his daughter has a “broken” mind.

[3] Despite court orders prohibiting posting, the father continues his cyberbullying campaign abusing Ms. Gulian and her parents. He seeks to undermine the administration of justice through an online campaign to “unseat” a judge of this Honourable Court for rulings made, internet attacks on trial witnesses and the wife’s lawyer, and by flouting court orders and family law disclosure obligations.

The judge noted, with respect to the list of privacy torts:

[170] With these three torts all recognized in Ontario law, the remaining item in the “four-tort catalogue” of causes of action for invasion of privacy is the third, that is, publicity placing the plaintiff in a false light. I hold that this is the case in which this cause of action should be recognized. It is described in § 652E of the Restatement as follows:

Publicity Placing Person in False Light

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

1. the false light in which the other was placed would be highly offensive to a reasonable person, and
2. 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.

The Court noted that the “false light” may often be defamatory per se, the essence of the tort is presenting the subject of the tort as “other than they are”:

[171] I adopt this statement of the elements of the tort. I also note the clarification in the Restatement’s commentary on this passage to the effect that, while 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.

The Court in this case did not follow the $20,000 “cap” on non-pecuniary damages set out in Jones v Tsige, but rather followed the divergent train of reasoning for general damages that began with the “Jane Doe” cases (Jane Doe 464533 v N.D., 2017 ONSC 127 and Jane Doe 72511 v. Morgan, 2018 ONSC 6607):

[186] There is no claim for pecuniary damages; the only issue is non-pecuniary damages. The infliction of mental suffering and invasion of privacy are based on many of the same facts.

[187] On damages for intrusion on seclusion, the Court of Appeal in Jones v. Tsige held at paragraphs 87-88 that damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest, in a range up to $20,000. The important distinction with the two invasion of privacy torts in issue here, however, is that intrusion on seclusion does not involve publicity to the outside world: they are damages meant to represent an invasion of the plaintiff’s privacy by the defendant, not the separate and significant harm occasioned by publicity.

[188] The two Jane Doe cases have recognized that the cap on damages for intrusion upon seclusion may not apply to the other forms of invasion of privacy: Jane Doe 2016 at para. 58; Jane Doe 2018 at paras. 127-132. In this case, as is in those, the “modest conventional sum” that might vindicate the “intangible” interest at stake in Jones v. Tsige, para. 71, would not do justice to the harm the plaintiff has suffered.

[189] In Jane Doe 2016, at para. 52, Stinson J. turned to sexual battery cases for guidance in arriving at an award, and Gomery J. in Jane Doe 2018, at paras. 127-128 followed the same approach. In support of this approach, Stinson, J. pointed to the similarly of the psychological and emotional harm the plaintiff had suffered to that experienced by victims of sexual assault.

[190] I likewise adopt the method of looking to the factors applied to decide damage awards for a tort causing harms analogous to those the present plaintiff has suffered for invasion of privacy. The harm arising from the invasion of privacy in the present case is akin to defamation. Accordingly, in arriving at an award of non-pecuniary damages, I am guided by the factors described by Cory J. in Hill v Church of Scientology, at para. 187, which I am adapting to the tort of publicity placing a person a false light:

1. the nature of the false publicity and the circumstances in which it was made,
2. the nature and position of the victim of the false publicity,
3. the possible effects of the false publicity statement upon the life of the plaintiff, and
4. the actions and motivations of the defendant.

[191] In this case, the false publicity is egregious, involving alleged criminal acts including by Ms. Gulian against her children. The false publicity is widely disseminated on the internet, as well as through targeted dissemination to church friends and business associates. Ms. Gulian has suffered damage as a mother, as an employee, in the Armenian community, and in her church community. She is peculiarly vulnerable as the spouse of the disseminator of false publicity. The false publicity has had a detrimental effect on Ms. Gulian’s health and welfare, humiliation, caused her fear, and could be expected as well to affect her social standing and position. Mr. Yenovkian has not apologized, nor has he retracted the outrageous comments despite court orders.

[192] The damages for intentional infliction of mental suffering are intended to be compensatory. I award $50,000 compensatory damages for intentional infliction of mental suffering, relying on Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419.