Breaking news! Justice Kristjanson recognized a nNew Tort in Divorce Law ew tort in Ontario law: the tort of “publicly placing a person in a false light” in the case of Yenokvian v. Gulian, 2019 ONSC 7279.

The tort of “intrusion upon seclusion” has been part of Ontario law since 2012. The new tort of “publicly placing a person in a false light” is different, in part, because it can result in significant damages without the need to establish economic loss.

Yenokvian v. Gulian was a complex and challenging family law case involving a mother who took the children to England following the separation, an Application under the Hague Convention, a father who took the children and refused to return them when they returned from England, and a temporary order for sole custody to the mother, all before the trial in 2019.

The temporary order for sole custody to the mother was followed by the father’s lengthy and relentless cyberbullying of the mother, her family, her lawyer, and even a judge of the Superior Court of Ontario.

The father created two websites and posted videos, online petitions, and other internet posts, all with the sole purpose to publicly cast those directly and indirectly involved in this family law case in a false light. He accused the mother and her family of many terrible acts including kidnapping, child abuse, multiple offences against the Canadian and UK governments, assault and drugging the children.

Justice Kristjanson found the father’s behaviour to be “outrageous and egregious conduct at the extreme reprehensibility” and awarded the wife $100,000 in damages for the tort of publicly placing a person in false light.

Justice Kristjanson adopted the description of this tort from Section 652E of the American Restatement (Second) of Torts (2010) at paragraph 170 of her decision:

Publicly Placing Person in False Light

One who gives publicly 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

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

Justice Kristjanson goes on to clarify at paragraphs 171 to 173:

  • 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.
  • “False light” publicity involves false or misleading claims.
  • “False light” invasion of privacy requires that the defendant know or be reckless to the falsity of the information

Well there you have it folks! A new tort.

There is a great deal of hurt, anger, and vengeance that can surface over the course of separation and divorce. The combination of these powerful emotions with the ease of disseminating information on the internet has proven to be a dangerous cocktail. This case will hopefully become a strong reminder and forceful deterrent against this kind of harmful behaviour.