Grummett v Warholik, 2023 ABKB 208

Court of King’s Bench of Alberta Citation: Grummett v Warholik, 2023 ABKB 208 Date: Docket: 1903 03719 Registry: Edmonton Between: Taija Grummett Plaintiff - and - Jesse Warholik Defendant Corrected judgment: A corrigendum was issued on December 6, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice W.N.

Renke _______________________________________________________ [ 1 ] In this Special Chambers hearing, the Plaintiff sought a determination of damages and injunctive relief for the Defendant’s commission of the torts of public disclosure of private facts and breach of confidence. [ 2 ] The Plaintiff sought general damages of $80,000 and aggravated damages of $25,000. Initially, the Plaintiff did not seek punitive damages but, following review of the Defendant’s Brief, sought punitive damages of $25,000 in her “Rebuttal Brief.” The Statement of Claim had sought punitive damages of $100,000.

No objection was taken to the revival of the punitive damages claim. The

Defendant disputed the quantification of the general damages claim and denied that aggravated or punitive damages or injunctive relief were warranted in the circumstances. [ 3 ] I have awarded damages of $92,500, being general damages of $80,000 with a further $12,500 in aggravated damages. I do not award punitive damages and grant no injunctive relief. My reasons follow. [ 4 ] I will address the procedural, legal, and factual background to the litigation, the governing damages principles, and the application of the law to my factual findings. Table of Contents I. Background . 4 A. Procedural Background . 4 B.

Legal Background . 4 C. Factual Background . 5 II. Damages – Principles . 6 A. General Damages . 6 1. General Damages are “At Large” . 6 2. Damages and Parity . 6 3. No Limitation by Foreseeability . 6 4. No Moderation of General Damages as Complementary to Pecuniary Damages . 7 5. General Damages and Aggravated Damages . 8 6. Actual Malice and Aggravated Damages . 9 B. Considerations Relevant to the Damages Assessment 13 1. Inherent Wrongfulness . 13 2. Emotional and Psychological Injury . 14 3. Factors Bearing on Damages . 17 C. Punitive Damages . 18 III. Factual Determinations . 19 A.

Relationship of Plaintiff and Defendant 19 B. Injuries . 19 1. Plaintiff’s Testimony . 19 2. No Independent Evidence of Injury . 20 3. Plaintiff’s After-the-Fact Conduct 20 C. Nature of the Wrongdoing . 21 1. Nature of the Uploaded Images . 21 2. Identifiability of the Plaintiff . 21 3. Number of Uploaded Images . 21 4. Number of Instances of Uploading . 22 5. Duration of the Uploads . 22 6. Views of the Uploads . 22 7. Nature of Website . 23 D. Degree of Responsibility . 24 1. Attempted Minimization . 24

2. Fault 25 E. Extra-Tortious Conduct 26 IV. Setting Damages . 27 A. Comparator Quantums . 27 1. General Damages . 27 2. Aggravated Damages . 27 3. Punitive Damages . 27 B. General Damages . 28 C. Aggravated Damages . 28 1. Characteristics of the Plaintiff . 29 2. The Plaintiff’s Injuries . 29 3. Nature of the Wrongdoing . 30 4. The Defendant’s Degree of Responsibility . 31 5. Extra-Tortious Conduct by the Defendant 31 6. Conclusion respecting Aggravated Damages . 32 D. Punitive Damages . 32 III. Injunctive Relief . 33 IV. Conclusion . 34 I. Background A.

Procedural Background [ 5 ] The Plaintiff commenced an action against the Defendant in 2019. [ 6 ] The Defendant, then self-represented, filed a Statement of Defence. [ 7 ] The Plaintiff applied for Judgment. [ 8 ] On May 9, 2022, Justice Hillier granted an Order • confirming that the Defendant admits liability for the torts of breach of confidence and public disclosure of private facts • confirming that the Plaintiff abandons her claim for the tort of intentional infliction of mental distress • setting the issues of damages and injunctive relief to a Special Chambers hearing. B.

Legal Background [ 9 ] The elements of the tort of public disclosure of private facts were recently confirmed in Justice Inglis’ landmark decision in ES v Shillington , 2021 ABQB 739 recognizing this tort in Alberta. The elements of the tort are set out at para 68: [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.

See also LDS v SCA, 2021 ABQB 818, Belzil J at para 21; SB v DH, 2022 SKKB 216, Zerr J at paras 19-20. [10] Justice Inglis set out the elements of the tort of breach of confidence in ES v Shillington at para 43: [43] .... to establish the tort of breach of confidence, a plaintiff must prove the following: (

a) the information conveyed was confidential; (

b) the information was communicated in confidence; (

c) the information was misused by the party to whom it was communicated. (Hutton v Canadian Broadcasting Corp, 1992 ABCA 39 at para 15, citing from LAC Minerals Ltd v International Corona Resources Ltd, (SCC), [1989] 2 SCR 574) See also LDS v SCA at para 23. C. Factual Background [11] The Plaintiff and Defendant were in a relationship commencing in November 2015. They lived together for about a year.

ThePlaintiff and Defendant were in their mid-20s. [12] During the relationship, the Plaintiff sent some intimate photographs to the Defendant and the Defendant took some intimatephotographs of the Plaintiff (the Images). The Images were sexually explicit. [13] The Defendant understood that the Images would remain confidential and would not be disclosed to any third party withoutconsent. The Defendant admitted this in Questioning on May 1, 2019 (Questioning) at 16.14-19. [14] The relationship ended on or about March 7, 2017. The break-up was amicable, according to both parties.

The Plaintiffremained in the Defendant’s premises for a few days after the break-up, until her new accommodations were available. [15] In the early morning of March 11, 2017, the Defendant uploaded some Images to a publicly accessible website, myex.com(the Uploaded Images). The Uploaded Images were authenticated under r. 5.15. [16] In uploading the Images, the Defendant identified the Plaintiff by her first name, middle initial, and her location (Alberta).Her face was depicted in the Uploaded Images.

This identifying information was visible to website users. [17] By about 11 a.m. on March 11, 2017 the Plaintiff had been contacted by three strangers. Two told her that her photos wereonline. The third attempted to extort her to provide more photos to him, threatening to distribute other photos of her. [18] The Plaintiff telephoned the Defendant on March 11 and asked him if he posted the Images. The Defendant denied that he hadposted any Images. He said his e-mail must have been hacked. [19] The Plaintiff asked a friend to find the photos online.

He found the Uploaded Images and took some screenshots of theUploaded Images on the myex.com website. [20] The Defendant contacted the website administrator and had the photos removed from the website. [21] On March 13, 2017, the Plaintiff texted the Defendant demanding to know why he had posted the Images. The Defendantadmitted that he had posted the Images and apologized. [22] On the Plaintiff’s complaint, the Defendant was charged with and convicted of an offence under s. 162.1 of the CriminalCode (publication of an intimate image without consent).

He pled guilty to the offence and received a two-year suspended sentence withprobation, including 200 hours of community service, and a fine. II. Damages – Principles [23] The Plaintiff claimed general and punitive damages. A. General Damages [24] The general damages claim had two aspects – a claim for general damages and a claim for aggravated damages. 1.

General Damages are “At Large” [25] General damages for intentional torts such as breach of confidence and public disclosure of private facts are “at large,” in thesense that the damages cannot be precisely measured as could pecuniary damages: ES v Shillington at para 66.

The damages are amatter “of impression” taking into account the injury to a plaintiff’s interests inherent to the torts, any specific injury suffered by theplaintiff established on the evidence, and any circumstances aggravating or mitigating the harm caused by the torts: see GrandFinancial Management Inc v Solemio Transportation Inc, 2016 ONCA 175 at paras 82-86.

2. Damages and Parity [26] Nonetheless, general damages are not determined only through the impression arising from a particular case. A principle of“parity” is operative in the assessment of damages. If I might borrow from the decision of Chief Justice Wagner and Justice Rowe in R vFriesen, 2020 SCC 9 at para 33, a general damages award “cannot be deduced from first principles.” Rather, a just general damagesaward should be calibrated to damages awards in other cases. A damages award should be similar to damages awards imposed on similartortfeasors for similar tortious acts committed in similar circumstances.

See Nova Scotia (Attorney General) v BMG, 2007 NSCA 120,Cromwell JA, as he then was, at para 136: [136] All of that said, an acceptable range of damages must be identified. Recognizing that any figure will of necessity be arbitrary orconventional, it must also be fair and reasonable, fairness being gauged by earlier decisions …. Thus, the assessment proceeds by whathas been referred to as a horizontal comparison, that is, by determining from the case law a range of acceptable awards and then placingthe present case within that range. And see Zando v Ali, 2018 ONCA 680, van Rensburg JA at para 14. 3.

No Limitation by Foreseeability [27] Responsibility for damages for intentional torts is not confined to foreseeable damages: Norberg v Wynrib, (SCC), [1992] 2 SCR 226, LaForest J at 263; ES v Shillington at para 85; Roque v Peters, 2022 MBQB 34, Zimchuk J at para 130. [28] A tortfeasor like the Defendant must “take his victim as he finds her:” Roque v Peters at para 131. [29] Defence counsel submitted respecting the Plaintiff that she “should have recovered long ago” and “such protracted suffering”was “not reasonable.” These submissions, in my view, did not reflect the law.

The Defence sought to impose some form of foreseeabilitytest or restriction to “reasonable” damages. Alternatively, the Defence assumed some form of ideal victim, whose injury would notexceed some assumed extent and duration. The assumption of the ideal victim must also be rejected as a matter of law. I’ll return to thispoint below. 4. No Moderation of General Damages as Complementary to Pecuniary Damages [30] There was a suggestion in the Defendant’s Brief at para 42 that damages for conduct like that in question ought to bemoderated, relying on Andrews v Grand & Toy Alberta Ltd, (SCC), [1978] 2 SCR 229.

A similar suggestion was rejectedby Justice Cory in Hill v Church of Scientology, (SCC), [1995] 2 SCR 1130 at paras 167-171: 167 The appellants contend that there should be a cap placed on general damages in defamation cases just as was done in the personalinjury context. In the so-called “trilogy” of Andrews v. Grand & Toy ... Arnold v. Teno, (SCC), [1978] 2 S.C.R. 287, andThornton v.

Board of School Trustees of School District No. 57 (Prince George), (SCC), [1978] 2 S.C.R. 267, it washeld that a plaintiff claiming non-pecuniary damages for personal injuries should not recover more than $100,000. 168 In my view, there should not be a cap placed on damages for defamation. First, the injury suffered by a plaintiff as a result ofinjurious false statements is entirely different from the non-pecuniary damages suffered by a plaintiff in a personal injury case.

In thelatter case, the plaintiff is compensated for every aspect of the injury suffered: past loss of income and estimated future loss of income,past medical care and estimated cost of future medical care, as well as non-pecuniary damages. Second, at the time the cap was placedon non-pecuniary damages, their assessment had become a very real problem for the courts and for society as a whole. The damagesawarded were varying tremendously not only between the provinces but also between different districts of a province.

Perhaps as a resultof motor vehicle accidents, the problem arose in the courts every day of every week. The size and disparity of assessments was affectinginsurance rates and, thus, the cost of operating motor vehicles and, indeed, businesses of all kinds throughout the land. In thosecircumstances, for that one aspect of recovery, it was appropriate to set a cap. 169 A very different situation is presented with respect to libel actions. In these cases, special damages for pecuniary loss are rarelyclaimed and often exceedingly difficult to prove.

Rather, the whole basis for recovery for loss of reputation usually lies in the generaldamages award. Further, a review of the damage awards over the past nine years reveals no pressing social concern similar to that whichconfronted the courts at the time the trilogy was decided .... Therefore, there is no indication that a cap is required in libel cases. 170 There is a great difference in the nature of the tort of defamation and that of negligence. Defamation is the intentional publicationof an injurious false statement ....

Personal injury, on the other hand, results from negligence which does not usually arise from any desireto injure the plaintiff. Thus, if it were known in advance what amount the defamer would be required to pay in damages (as in thepersonal injury context), a defendant might look upon that sum as the maximum cost of a licence to defame. A cap would operate in amanner that would change the whole character and function of the law of defamation.

It would amount to a radical change in policy anddirection for the courts. 171 The courts in England have unequivocally rejected the comparison of libel and personal injury cases .... [emphasis added] [31] Breach of confidentiality and public disclosure of private facts are, like defamation, intentional torts. For these torts too, “thewhole basis for recovery” generally “lies in the general damages award.” If there is a pressing social concern, it is not that damageawards are too high for these torts but that tortfeasors continue to publish intimate images online.

Damages should not be set so low thattortfeasors can, in effect, purchase an inexpensive licence to ruin a life. 5. General Damages and Aggravated Damages [32] General damages and aggravated damages are aspects of a compensatory general damages award: Elkow v Sana, 2020 ABCA

350 at para 31. Aggravated damages are not a separate head of damages. General damages are to be assessed taking into account anyaggravating circumstances: Norberg v Wynrib at 263; Jane Doe 72511 v NM, 2018 ONSC 6607, Gomery J (Jane Doe 2) at para 134. [33] In theory, then, there need be no distinct accounting for general damages and aggravated damages.

All that would be requiredis a damages award that fully assesses the plaintiff’s injuries, including any injuries aggravated or made worse by any conduct of thedefendant. [34] In practice, aggravated damages have received their own assessment in cases like the present. [35] This practice presupposes a distinction between non-aggravated damages and aggravated damages. [36] What constitute “non-aggravated” damages or general damages as distinct from aggravated damages? In my opinion, non-aggravated damages have two levels.

I’ll focus on the tort of public disclosure of private facts. [37] The first level of general damages concerns the commission of the tort itself, damages that would be shared by all plaintiffssubjected to the non-consensual publication of an aspect of private life when the matter publicized or its publication would be,objectively, highly offensive to persons in the plaintiffs’ positions and the publication would not serve legitimate public concern.

Therewould be some compensable quantifiable injury regardless of • the medium of information disclosed (e.g. whether an image or text) • the nature of the disclosure (e.g. whether the disclosure was the physical distribution of a hard copy or the electronic distributionof a digital record) • the nature of the “public” receiving access to the disclosed information • the nature of the aspect of private life (e.g., sexual or non-sexual), so long as the disclosure was non-consensual and the matter publicized or the publication was objectively highly offensive and not oflegitimate public concern. [38] The second level of general damages, without considering aggravating factors, would vary with the particular type or mode ofpublication and the aspect of private life injured, i.e., with the manner of commission of the tort.

From a Nova Scotia v BMGperspective, this step puts the particular case into the appropriate damages range. All (or at least most) plaintiffs subjected to non-consensual uploading of their intimate images to a publicly-accessible internet site would suffer injury to similar interests, includinginterests of privacy, dignity, and autonomy, by virtue of the commission of the tort.

I’ll return to these interests below. [39] The “aggravated damages” assessment, then, is the determination of whether the injuries caused to the plaintiff exceed theinjuries caused by the commission of the tort by a common means or type of method.

The particular circumstances of the commission ofthe tort may warrant an elevation in damages to reflect elevated injury. [40] Thus, the Court of Appeal wrote in Elkow v Sana at paras 31, 32, and 33 that “[a]ggravated damages, in order to be justified,must represent some greater injury to the plaintiff, not captured by the award of general damages,” “some increase in the injury from thedefendant’s conduct;” “an increase in the injury suffered by the respondent.” [emphasis in original] The Court of Appeal further clarifiedthat “[t]he mere identification of ‘aggravating factors’ does not support an award of aggravated damages, unless these aggravating factorswere over and above the core findings with respect to the defamation, and resulted in damage not recognized in the general damageaward:” at para 35. [41] If there is a distinct aggravated damages assessment, it is important that damages factors or considerations are not “double-counted,” once for general damages and again for aggravated damages. “[I]f the plaintiff is fully compensated by the award of generaldamages, aggravated damages are not warranted:” Elkow v Sana at para 32. “[O]verlapping factors do not justify a duplication ofdamages:” ibid. [42] This caution against double-counting was anticipated by Justice Cory in Hill v Church of Scientology at para 188.Aggravated damages must be compensation for “additional” harm, harm not compensated in the general damages assessment. [43] The requirement that aggravated damages be founded on additional, elevated, or increased injury in the present tortiouscontext is reflected in Jane Doe 2 at para 137: [137] Based on the test I have adopted, liability for public disclosure of private facts requires the court to find that the defendant’sconduct was “highly offensive”.

This element of the tort does not mean that an aggravated damages award will be appropriate in everycase where the cause of action is made out. There must be something more. 6. Actual Malice and Aggravated Damages [44] The “something more” referred to by Justice Gomery in Jane Doe 2 is often considered to be founded on proof of “actualmalice.” Proof of actual malice has been taken to be a necessary condition for the award of aggravated damages on the authority of Hill vChurch of Scientology.

There are some complications. [45] At para 188 of Hill v Church of Scientology, Justice Cory wrote that “[a]ggravated damages may be awarded incircumstances where the defendants’ conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff’shumiliation and anxiety arising from the libellous statement,” and quoted with approval Justice Robins’ account of aggravated damagesin Walker v CFTO Ltd (1987), 59 OR (2d) 104, (ON CA) at 111:

Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress -the humiliation, indignation, anxiety, grief, fear and the like - suffered by the plaintiff as a result of being defamed, the plaintiff may beentitled to what has come to be known as “aggravated damages”.

Justice Cory continued at para 189, stating that “[t]hese damages take into account the additional harm caused to the plaintiff's feelingsby the defendant’s outrageous and malicious conduct.” [emphasis added] [46] Justice Cory then wrote at para 190 that “[i]f aggravated damages are to be awarded, there must be a finding that thedefendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to thereputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff.” [emphasis added] [47] Justice Cory did not provide a definition of “actual malice” in the damages context.

Hill v Church of Scientology did rejectthe incorporation in Canadian defamation law of the “actual malice” standard of liability in cases of defamation of public officials. Forthat purpose, the “actual malice” at issue was making a defamatory statement “with knowledge that it was false or with recklessdisregard of whether it was false or not:” at para 55. The term has been held to “relate to the actual state or condition of the mind of theperson who did the act.

It implies some personal hatred or ill will or wanton intention to injure ....:” Allan v Bushnell TV Co, (ON CA), [1969] 2 OR 6, 1969 CarswellOnt 997 (ON CA), Schroeder JA at para 18 (CarswellOnt). (See Elkow v Sana atpara 12 respecting further aspects of “malice” in defamation law.) [48] The term may be interpreted to denote “actual” intent to harm. [49] Despite para 190, in my opinion, aggravated damages may be awarded for the torts of public disclosure of private facts orbreach of confidence on a broader basis than proved “actual malice,” in the sense of a particular subjective state. (

a) Hill as a Whole [50] The reference in para 190 to “actual malice” appears to be more restrictive than Justice Cory’s own words in para 188 or hisquotation from Justice Robins. Those passages referred to high-handed and oppressive conduct. [51] The Oxford English Dictionary, 3rd ed (online, March 2022) defines “high-handed” as “[i]nvolving, characterized by, ortending to the use of power or authority without regard for others; imperious, autocratic; overbearing.” [52] What Justice Cory and Justice Robins appear to have had in mind in the use of this expression was its connotation of disregardfor others.

What Justice Cory appears to have ruled out as a foundation for aggravated damages is merely “careless” behaviour or mereerror. But failing to give any thought at all to the impact of conduct on others may, in the circumstances, be as culpable as intentionaldisregard. [53] Further to this point, Hill v Church of Scientology contained an extensive discussion by Justice Cory of “actual malice” in thecontext of circumstances defeating qualified privilege.

Justice Cory determined that proof of actual malice in the sense of subjectiveanimus was not necessary to defeat qualified privilege, writing as follows at para 156: [156] .... While it is not necessary to characterize Manning’s conduct as amounting to actual malice, it was certainly high-handed andcareless. It exceeded any legitimate purpose the press conference may have served. His conduct, therefore, defeated the qualifiedprivilege that attached to the occasion. [emphasis added] “High-handedness” and “carelessness” defeated the privilege.

High-handedness and at least serious or culpable carelessness, then, couldfit within the “actual malice” that supports aggravated damages. (

b) Broader Authority [54] Some authorities focus on aggravating features of conduct that may not include actual malice. As LaForest J. said in Norbergv Wynrib at 263, “[a]ggravated damages may be awarded if the battery has occurred in humiliating or undignified circumstances.” InNova Scotia v BMG, Justice Cromwell wrote at para 131 that [131] Another important aspect of the non-pecuniary damages award in sexual battery cases is the element of aggravated damages. AsLaForest, J. said in Norberg at p. 263, aggravated damages may be awarded if the battery has occurred in humiliating or undignifiedcircumstances.

These damages are compensatory and are assessed taking into account any aggravating features of the case and to thatextent increasing the amount awarded. An award of aggravated damages must consider not only the effect of the wrong on the victim,but the nature of the entire conduct of the defendant...: Hill at para. 189 …. [55] As is in my view contemplated by Hill v Church of Scientology, “malice” may be founded on culpable heedlessness ornegligence, on “recklessness” as opposed to mere carelessness.

See, in the defamation context, Oliveira v Oliveira, 2019 ONSC 4400,Leiper J at para 45: [45] A finding of malice may also ground a claim for aggravated damages. Malice is generally understood to be spite, ill will or anyindirect motive other than a sense of duty. Malice may also be established by showing that the defendant was not telling the truth or wasreckless in that regard: Magno v. Balita Media Inc. et al. supra. at paras. 60-61.

See also Senft v Vigneau, 2020 YKCA 8, Smith JA at paras 85, 88, 90, 93: [85] Actual or express malice is typically inferred from evidence that the publisher acted out of an improper motive: WIC Radio atpara. 63. An improper motive may include actuation by spite, ill-will, a desire to harm, an intent to injure, or knowingly or recklesslypublishing a false defamatory comment. [emphasis added] ....

[88] In the context of the defence of qualified privilege, the Supreme Court in Botiuk v. Toronto Free Press Publications Ltd., (SCC), [1995] 3 S.C.R. 3 stated: [79] Where an occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publishremarks which may be defamatory and untrue about the plaintiff. However the privilege is not absolute. It may be defeated in two ways.The first arises if the dominant motive for publishing is actual or express malice.

Malice is commonly understood as ill will towardsomeone, but it also relates to any indirect motive which conflicts with the sense of duty created by the occasion. Malice may beestablished by showing that the defendant knew he was not telling the truth, or was reckless. [Emphasis added [in original].] .... [90] In Creative Salmon, the court adopted Lebel J.’s description of malice in WIC Radio.

Writing for the court, Tysoe J.A. found thatBotiuk (at para. 79) did not equate a lack of honest belief to malice, but only “that a trier of fact may draw an inference of malice if thedefendant knew he or she was not telling the truth or was reckless as to the truth of the statement.” (at para. 33) (emphasis added). Hestated: [34] ... I agree with this qualification.

It is open to the trier of fact to draw an inference of malice from a lack of honest belief, butthere may be circumstances where malice is not the dominant motive of the defendant even though he or she does not have an honestbelief in the comment they expressed. In Gatley on Libel and Slander, 10th ed.

London: Sweet & Maxwell, 2004) at para. 16.4, theauthors express the view that “malice arises only where the defendant acts from an improper motive: knowledge of or recklessness as tofalsity is not a separate head of malice, it is simply a way if establishing that the defendant was acting from an improper motive.”[Emphasis added [in original].] .... [93] Finally, it must be noted that carelessness as to the truth of a statement is not recklessness for the purpose of inferring malice.The two concepts are different.

In Botiuk, the Court explained the distinction as follows: [96] A distinction in law exists between “carelessness” with regard to the truth, which does not amount to actual malice, and“recklessness”, which does. In The Law of Defamation in Canada, supra, R.E.

Brown refers to the distinction in this way (at pp. 16-29 to16-30): … a defendant is not malicious merely because he relies solely on gossip and suspicion, or because he is irrational, impulsive, stupid,hasty, rash, improvident or credulous, foolish, unfair, pigheaded or obstinate, or because he was labouring under some misapprehensionor imperfect recollection, although the presence of these factors may be some evidence of malice. [Emphasis added [in original].] (

c) Distinct Torts [56] In any event, a limitation on recovery of aggravated damages to circumstances when a defendant has exhibited a particularsubjective state need not be need not be imported to the torts of non-consensual publication of private facts or breach of confidence. (

d) Similarity of Evidence [57] Evidentially, there may be little difference between actual malice and spiteful, oppressive, high-handed, or reckless conduct,particularly as understood functionally, as going to the degree of injury of the plaintiff. B. Considerations Relevant to the Damages Assessment [58] Considerations emerging from the cases respecting the determination of damages for the public disclosure of private factsinclude the following. I have not forgotten that the tort of breach of confidence was also established, but in this case the main injury wascaused by the public disclosure of private facts. 1.

Inherent Wrongfulness [59] Public disclosure of private facts offends a plaintiff’s dignity, privacy, and autonomy. Part of the function of general damagesis to recognize and compensate for the injury to these fundamental interests: Doe 464533 v ND, 2016 ONSC 541, Stinson J (Jane Doe 1)at para 53; Nova Scotia v BMG at paras 120, 127, 130, 132. [60] The plaintiff’s dignity is violated by private facts being displayed for all to see. A person who should have been respected istreated as an object, as a means for others’ entertainment or for satisfying more corrupt impulses.

Disclosure degrades the plaintiff: ES vShillington at para 89. [61] The plaintiff’s privacy is violated, since what was to be held in confidence, what was to be kept between two people, has beendisplayed before the world: ES v Shillington at para 89; Jane Doe 2 at para 87 and 88: [88] It is difficult to conceive of a privacy interest more fundamental than the interest that every person has in choosing whether toshare intimate or sexually explicit images and recordings of themselves. Every person should have the ability to control who sees imagesof their body.

This is an important part of each individual’s personal freedom to decide how they share the most intimate aspects ofthemselves, their sexuality and their bodies. A cause of action which protects this privacy interest is rooted in our deepest values as asociety.

Failing to develop the legal tools to guard against the intentional, unauthorized distribution of intimate images and recordings onthe Internet would have a profound negative significance for public order as well as the personal wellbeing and freedom of individuals. [62] The plaintiff’s autonomy is violated, since her choice to disclose the information or keep it private has been ignored and thetortfeasor has made the choice for her, without regard to her interests: Jane Doe 2 at para 132; Roque v Peters at para 33. [63] Thus, in Jane Doe 1 at para 53, Justice Stinson referred to Nova Scotia v BMG as outlining principles relevant to the public

disclosure of private facts. This tort does not involve the physical element of a sexual battery, but the interests the tort violates aside fromthe physical are similar to the interests violated by sexual battery. Justice Cromwell wrote as follows in Nova Scotia v BMG at paras127-130: [127] In the context of sexual assault and battery, the cases have recognized that there are fundamental, although intangible, interests atstake: the victim’s dignity and personal autonomy.

Thus, the award of damages should take a functional approach in relation to theseinterests in addition to the more familiar ones of pain, suffering and loss of enjoyment of life. [128] There is no doubt that sexual battery constitutes a deep affront to the victim’s dignity. In Norberg v. Wynrib ... at 265, LaForest,J. echoed the words of Cory, J. in R. v. McCraw, (SCC), [1991] 3 S.C.R. 72 that it is hard to imagine a greater affront tohuman dignity than non-consensual sexual intercourse. To the same effect, Cory, J. said in R. v.

Osolin, (SCC), [1993] 4S.C.R. 595 at 669, that it cannot be forgotten that a sexual assault is very different from other assaults. It is true that it, like all the otherforms of assault, is

an act of violence. Yet it is something more than a simple act of violence .... It is an assault upon human dignity. [129] The law also recognizes one of the purposes of the law of battery is to protect the individual’s physical autonomy .... [130] It follows from this, in my view, that an important function of the non-pecuniary damage award in a case of sexual battery is todemonstrate, both to the victim and to the wider community, the vindication of these fundamental, although intangible, rights which havebeen violated by the wrongdoer. [emphasis added] 2.

Emotional and Psychological Injury [64] The public disclosure of private facts causes emotional and psychological injury. Another part of the function of generaldamages is to compensate for the pain and suffering caused by the tort. [65] In my opinion, emotional and psychological injury caused by the public disclosure of private information may be of twotypes, inherent harm and additional (actual) harm. (

a) Inherent Harm (

i) Harm and Evidence [66] First, some emotional and psychological injury is inherent to the commission of the tortious acts. I note that as an intentionaltort, like sexual battery, the tort is actionable without proof of injury. [67] Just as the interests violated by the publication tort overlap with the interests violated by the tort of sexual battery, theinterests violated overlap with the interests protected by the offence of sexual assault.

The emotional and psychological injury thatfollows from the publication tort will therefore be similar to the emotional and psychological injury that follows from being the victim ofsexual battery or sexual assault. See ES v Shillington at para 95. [68] In a sentencing for the commission of sexual assault, evidence of a victim is not required to show emotional and psychologicalharm.

In R v Moore, 2022 ABKB 816, Justice Friesen wrote as follows at para 6: [6] Following a sexual assault conviction, the Court does not require evidence from a victim to recognize, in general terms, thedegree of harm caused by serious sexual assaults: see R v Arcand, 2010 ABCA 363 … at para 69, R v Goldfinch, 2019 SCC 38 at para37 and R v Friesen … at para 118. All victims of sexual assault experience profound physical and psychological harm.

As noted inGoldfinch at para 37: Throughout their lives, survivors [of sexual assault] may experience a constellation of physical and psychological symptoms including:high rates of depression; anxiety, sleep, panic and eating disorders; substance dependence; self-harm and suicidal behaviour. In Arcand, the Court of Appeal wrote at para 177 that [177] …. there is also intrinsic to major sexual assaults the likelihood of other very real psychological or emotional harm.

That includesfear, humiliation, degradation, sleeplessness, a sense of defilement, shame and embarrassment, inability to trust, inability to formpersonal or intimate relationships in adulthood with other socialization problems and the risk of self-harm or even suicide.

While theseeffects fall into the psychological or emotional harm category, they may be equally or even more serious than the physical ones but muchless obvious, indeed even unascertainable at sentencing. [69] It follows that evidence from health care professionals is not required to establish inherent harm in damages litigationrespecting the publication tort. (ii) Harm and Internet Publication [70] The nature and extent of inherent harm will vary with the way that the tort was committed. [71] I referred above to the second level of general non-aggravated damages attributable to a typical manner of commission of thetort, such as by uploading of intimate images to publicly-accessible internet sites. [72] The inherent nature of injury caused by public disclosure of private facts, when that private information concerns intimateimages and the public disclosure is on the internet, is confirmed by the similarity in the injuries claimed by different plaintiffs indifferent cases.

Plaintiffs often claim loss of self-esteem, loss of self-confidence, loss of trust in others, an inability to enter into intimaterelationships, anxiety, and fear.

[73] Publication on the internet, even if the initial publication was only for a short period of time, creates the risks that manyinternet users could observe the images and that those images could be copied and reobserved and republished many times. It isimpossible to know how often an image is viewed, shared, and downloaded: LDS v SCA at para 102; Jane Doe 1 at paras 10, 57; JaneDoe 2 at para 6; SB v DH at para 128. Many of the cases observe that publication on the internet has or at least risks permanence. Whatis uploaded may remain forever accessible.

The internet never forgets: Jane Doe 2 at para 132. [74] A plaintiff’s world is transformed. She can never know which passers-by have seen her. She can never know whether whatwas uploaded may return to harm her present and future.

The often-claimed psychological and emotional effects of this form ofpublication are entirely understandable reactions to the risks of this form of publication: see ES v Shillington at paras 12, 17; SB v DH atpara 92; Jane Doe 1 at paras 9, 14; Jane Doe 2 at paras 6, 30, 31, 125. [75] In Jane Doe 2 at paras 123-124, Justice Gomery wrote as follows: [123] Revenge porn can have devastating consequences.

In the most extreme cases, where sexually explicit images of very youngpeople have been shared without their consent, the victims have been driven to suicide because of their feelings of intense shame andsocial isolation. In every case, the victim is betrayed by someone they trusted. Something that may have been a celebration of theiraffection or sexual attraction for another person is used against them. They have forever lost their right to control who sees their body.Even if the posting is removed, copies remain as the result of downloads and sharing.

They live with the fear that this single event willdefine how they are perceived and treated by family, friends and strangers for the rest of their lives. [124] As Justice M.M. Rahman eloquently observed in a case where unauthorized, sexually explicit videos of a young woman, C.S.,were posted on the same website that the video of Jane was posted: There is a popular saying that “the internet never forgets.” C.S.’s images became available as torrents. That means they remainedavailable to others even though the offender removed them from the websites to which he had originally uploaded them.

There is no wayto know how many people have access to the images. Every time someone views one of these images, C.S.’s privacy and dignity areviolated. C.S. must live with the knowledge that strangers anywhere in the world may view her private images whenever they choose to.She has lost control over a very private part of her life forever. She faces the potential violation of her privacy, by total strangers, inperpetuity. [footnotes omitted] (

b) Additional Evidence of Additional Harm [76] Second, a plaintiff may provide additional evidence of additional harm, beyond the harm inherent in victimization by the tort,as through the evidence of a health care professional. [77] Defence counsel suggested in submissions that evidence from a health care professional provides needed corroboration of theplaintiff’s testimony.

It provides a check on the plaintiff’s credibility. [78] It is true that at least some psychological testing will involve validity metrics, to ensure that the test-taker is not (e.g.)exaggerating responses. [79] In my opinion, though, third party testimony cannot be used to support a plaintiff’s credibility. That would give this evidencea prohibited bolstering or oath-helping function: R v Béland, (SCC), [1987] 2 SCR 398, McIntyre J at paras 7-9 . Moreover, the task of assessing credibility is for a judge, assisted by counsel through the questioning and cross-examinationof witnesses: ibid. at paras 17-20 .

Credibility assessment is not delegated to health care professionals. [80] Finally, the testimony of a victim of public disclosure of private facts need not be corroborated. [81] In my opinion, evidence by health care professionals is not necessary to establish the full scope of harm to a plaintiff. She maytestify. 3. Factors Bearing on Damages [82] A review of the cases provides a non-exhaustive list of factors relevant to setting damages for public disclosure of privatefacts. See Nova Scotia v BMG at para 134; Zando v Ali at para 13. (

a) Characteristics of the Plaintiff [83] Characteristics of the plaintiff include • age • vulnerability. (

b) Relationship of the Plaintiff and Defendant [84] The relationship between the Plaintiff and Defendant includes • close relationships, intimate relationships, relationships of trust • rivalrous relationships • being strangers.

(

c) Nature of the Wrongdoing [ 85 ] The nature of the wrongdoing includes • what was disclosed • the identifiability of the plaintiff through the disclosure • the number of items disclosed • the frequency or repetition of disclosure • the period of time that the items were publicly accessible • where the items were disclosed and the nature of that location • whether the disclosure was of physical records or the disclosure was digital. (

d) The Defendant’s Degree of Responsibility [ 86 ] Factors bearing on the defendant’s degree of responsibility include (and there is some overlap with the previous factors) • characteristics of the defendant (e.g. age, psychological condition) • the degree of fault accompanying the disclosure (and the actual malice issue) • any further motives of the plaintiff for disclosure • any factors tending to diminish the fault of the disclosure or the defendant’s degree of responsibility • the relationship between the plaintiff and defendant. (

e) Extra-Tortious Conduct by the Defendant [ 87 ] Extra-tortious conduct by the defendant includes • steps taken by the defendant to mitigate impact on the plaintiff • an apology • post-tort aggravating conduct. [ 88 ] Post-tort aggravating conduct could include (e.g.) taunting or insulting conduct by the defendant. It may also include the defendant’s litigation conduct. In Hill v Church of Scientology , Justice Cory referred to litigation conduct as a potentially aggravating factor at para 182: 182 The factors which should be taken into account in assessing general damages are clearly and concisely set out in Gatley on Libel and Slander (8th ed.), supra , at pp. 592-93, in these words:

SECTION 1. ASSESSMENT OF DAMAGES 1451. Province of the jury. In an action of libel “the assessment of damages does not depend on any legal rule.” The amount of damages is “peculiarly the province of the jury,” who in assessing them will naturally be governed by all the circumstances of the particular case. They are entitled to take into their consideration ... “ the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict.

They may take into consideration the conduct of the defendant before action, after action, and in court at the trial of the action,” and also, it is submitted, the conduct of his counsel, who cannot shelter his client by taking responsibility for the conduct of the case .... C. Punitive Damages [ 89 ] Justice Binnie provided the classic exposition of punitive damages in Whiten v Pilot Insurance Co , 2002 SCC 18 .

At paras 36 and 37, Justice Binnie wrote that 36 Punitive damages are awarded against a defendant in exceptional cases for “malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency”: Hill v. Church of Scientology ... at para. 196 . The test thus limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour.

Because their objective is to punish the defendant rather than compensate a plaintiff (whose just compensation will already have been assessed), punitive damages straddle the frontier between civil law (compensation) and criminal law (punishment). 37 Punishment is a legitimate objective not only of the criminal law but of the civil law as well. Punitive damages serve a need that is not met either by the pure civil law or the pure criminal law .... [ 90 ] At para 73, Justice Binnie commented that “[t]he proper focus is not on the plaintiff’s loss but on the defendant’s

misconduct.” [ 91 ] Paras 66-76 set out general principles concerning punitive damages.

I’ll summarize the relevant principles: • punitive damages are available respecting intentional torts (para 67) • the general objectives of punitive damages are punishment (in the sense of retribution), deterrence of the wrongdoer and others, and denunciation or expressing outrage at egregious conduct (para 68) • punitive damages should be resorted to only in exceptional cases and with restraint (para 69) • if criminal punishment has been imposed for an offence arising out of substantially the same facts, punitive damages are not precluded but the conviction is a factor to be considered, potentially a factor of great importance (para 69) • in determining punitive damages, the court should determine how, on the facts of the case, punitive damages would serve one or more of the objectives of these damages and should determine the lowest award that would serve that purpose (para 71) • the overall award, including punitive damages, should be rationally related to the objectives of punitive damages and should be proportional (para 74).

III. Factual Determinations [ 92 ] The hearing proceeded on affidavit evidence, transcripts of the Defendant’s Questioning, and the oral evidence of the Plaintiff and the Defendant. [ 93 ] In addition to the facts set out in the “Factual Background,” I have found the facts set out in the following. A.

Relationship of Plaintiff and Defendant [ 94 ] The Plaintiff and Defendant had been in an intimate relationship. [ 95 ] The Plaintiff provided the Images to the Defendant during that relationship and the parties expected that the Images would be kept private and confidential, between them. [ 96 ] When the Defendant uploaded the Images, he and the Plaintiff had recently broken up. B. Injuries 1.

Plaintiff’s Testimony [ 97 ] The Plaintiff testified that • she was humiliated • she felt betrayed • she is unable to have romantic relationships • she does not trust others • she has lost self-esteem • she feels that everyone would know about what was posted; she does not know who’s judging her • she is anxious and uncomfortable • she felt as if no one cared about her injuries when the materials were posted • she thinks about what happened every single day • she finds it hard to live • she struggles with enjoying things • her general enjoyment of life is gone. [ 98 ] She quit her job because of what happened. [ 99 ] One of the strangers who contacted her after the materials were posted had a manifest link to the post-secondary institution where she was attending classes.

This heightened her anxiety and sense of exposure whenever she attended classes. [ 100 ] Another of the strangers who contacted her attempted to extort her by threatening to distribute images of her. She felt fear

because of this. [101] She said that coming to court and testifying was excruciating. [102] Her testimony was not undermined in the trial process. I accept her testimony. It established that the Plaintiff suffered seriousadverse emotional and psychological injuries caused by the tort. 2. No Independent Evidence of Injury [103] The Plaintiff did not call any expert evidence. She testified that she did not seek assistance from any medical professionalbecause she did not want to talk to anyone about what happened. [104] In my opinion, expert evidence was not necessary to establish her injuries. 3.

Plaintiff’s After-the-Fact Conduct [105] The Plaintiff had been living with the Defendant. After she learned what he had done, she did not move out immediately.Instead, she stayed at his premises for a few days. He helped her move out. [106] In addition, the Plaintiff told the Defendant’s sister what he had done. His sister lived in the same premises as the Plaintiff andDefendant. The Plaintiff told some acquaintances at work what the Defendant had done. [107] Did the Plaintiff’s after-the-fact conduct undermine her claims of injury?

The inferences sought by the Defendant were that hadshe suffered the injury she claimed, she would not have stayed with him. Had she been concerned about the publication, she would nothave further publicized what had occurred by telling others, particularly the work acquaintances. [108] This use of after-the-fact contact evidence has been rejected in criminal cases and it should not gain new life in civil cases. [109] What the Defence has done is to make assumptions about how a victim of non-consensual internet publication responds.

TheDefence made assumptions about an “ideal victim” and her ideal conduct and compared the Plaintiff’s conduct to the conduct of theideal victim. See R v Seaboyer, (SCC), [1991] 2 SCR 577, L’Heureux-Dubé J at 651-654; R v ARD, 2017 ABCA 237,affd 2018 SCC 6 at paras 8 and 43(CA). In ARD the Court of Appeal wrote as follows respecting after-the-fact avoidant conduct at paras39, 42, and 50: [39] The more important question is what, if anything, can evidence of a lack of avoidant behaviour by a complainant tell a trier offact about a sexual assault allegation?

The answer is simple—nothing. [42] ... it has long been recognized that there is “no inviolable rule on how people who are the victims of trauma like a sexual assaultwill behave”: R v D(

D) at para 65. Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or achange in behaviour “must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions ofhow persons (particularly children) react to acts of sexual abuse” [emphasis in original]: R v D(

D) at para 63. [50] .... This Court recently said in R v ADG, 2015 ABCA 149 at para 33: No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault issupposed to react to the assault .... It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way.... [110] I do not consider the Plaintiff’s conduct to have in any way undermined the scope or depth of the injuries she attested to. [111] And further, in this case, the Plaintiff’s conduct was perfectly comprehensible. She had nowhere else to go.

Simply leavingmade no sense. Telling others what had happened, particularly the Defendant’s sister, was entirely natural and entirely consistent withbeing injured. C. Nature of the Wrongdoing 1. Nature of the Uploaded Images [112] The images were sexually explicit depictions of the Plaintiff. 2. Identifiability of the Plaintiff [113] The Plaintiff’s face was visible in the Uploaded Images. [114] The Uploaded Images were accompanied by her location and her first name and middle initial.

The Plaintiff’s first name wasdistinctive. [115] The location and name information made the Plaintiff easily identifiable, as shown by the three individuals contacting hershortly after the Images were uploaded. 3. Number of Uploaded Images

[ 116 ] The Defendant uploaded 33 Images of the Plaintiff to myex.com. Defence counsel suggested that the Plaintiff proved the uploading of only 5 images. These were the images that had been captured by screen shots and were appended to the Plaintiff’s affidavit. [ 117 ] However, in Questioning, the Defendant had admitted disclosing the 33 Images: 5.11-13, 5.25-6.2, 41.10-13. [ 118 ] In addition, the website gave numerical information about uploaded material. The website indicated that 32 nude and 1 non- nude photograph of the Plaintiff had been uploaded. This information was hearsay.

I consider the evidence to have been admissible. Relying on the website information was necessary. There was no indication of who might be called as a witness to verify the number of images uploaded. The inference was that the calculation was automated. The information was reliable. It was a form of business record. The information confirms to users that what was received corresponds to what was sent. Inaccurate accounting by the website would undermine its relationship with users.

Regardless, the Questioning admissions confirmed the number of uploads. [ 119 ] Defence counsel had suggested that it was “up to her to produce the photographs.” The difficulty was that the Defendant had the photographs removed from the website soon after the Plaintiff had learned about the uploads and called him. He also deleted all his copies of the Images.

The Defendant’s own conduct prevented the Plaintiff from gathering all the information about the uploads. [ 120 ] Plaintiff’s counsel rightly submitted that the Defendant had committed spoliation by eliminating evidence of his wrongdoing upon being found out. In St Louis v The Queen (1896), 1896 CanLII 65 (SCC) , 25 SCR 649, Justice Taschereau referred at 652-653 to “the rule omnia prœsumuntur contra spoliatorem .

The destruction of evidence carries a presumption that the evidence destroyed would have been unfavourable to the party who destroyed it:” see R v Sawchuk , 2015 ABQB 40 , Horner J at para 68; McDougall v Black & Decker Canada Inc , 2008 ABCA 353 , Conrad JA at para 29. I infer from the spoliation that the evidence the Defendant eliminated would have corroborated the website count of his uploads and would have reinforced his admissions in Questioning. 4. Number of Instances of Uploading [ 121 ] The Defendant uploaded images of the Plaintiff once. 5.

Duration of the Uploads [ 122 ] The Defendant had the images removed from the website in less than 24 hours. He had the images removed after his first conversation with the Plaintiff. 6. Views of the Uploads (

a) Number of Views [ 123 ] Exhibit 1 showed that there were website counts of views for five images. One image was viewed 11,691 times, a second was also viewed 11,691 times, a third 11,703 times, a fourth 11,686 times, and a fifth 11,680 times. [ 124 ] Again, this information was hearsay. But again I find that it was admissible. The same necessity ground was satisfied. The reliability ground again concerns hearsay as a form of business record. The views count is a feature of many websites allowing users to discern information considered valuable by others.

If others find it valuable, the probability increases that the user will find it valuable. An accurate view-count enhances the value of the website to the user. An inaccurate or random view-count would have less value to a user and so would diminish the commercial viability of the website. [ 125 ] Regardless, I consider the Defendant to have accepted the indicated numbers of views. In Questioning he indicated that he had no reason to dispute number of views.

See Questioning at 42.21-24. [ 126 ] Plaintiff’s counsel sought to extrapolate from the view counts to a total number of view counts for all the Uploaded Images (if each of the Images were viewed about 11,000 times, there would have been about 363,000 views of the Uploaded Images). However, I will not make this extrapolation.

Through the application of the spoliation doctrine, I infer that the other Images were viewed a significant number of times, but I cannot conclude that each would have been viewed about the same number of times. [ 127 ] In addition, I do not infer that the view count for each Uploaded Image concerns independent users. About 11,600 users viewed the first Image. It is likely that the same users viewed the second image, and so on, plus or minus some number of users. However, from the Plaintiff’s perspective, a view is a view, whether by one individual or more than one individual.

My inference does not diminish the Plaintiff’s injury. [ 128 ] There is a possibility of multiple views by single users. However, given the short period of time that the Images were on the website, I would not consider the view-counts to show many multiple views by single users. [ 129 ] In my opinion, the number of views in the short time the Images were available on the website was a significant number of views. The total views of the four Images was 58,451. The actual total was some number in excess, then, of about 60,000 views. (

b) Contact by Viewers [ 130 ] Three individuals contacted the Plaintiff by Facebook Messenger after the Images were uploaded. [ 131 ] One of those individuals attempted to extort the Plaintiff to provide more photographs to him. He threatened to re-publish her photos. 7. Nature of Website

[ 132 ] The website to which the Images were loaded was, obviously, a pornographic website. More than that, I find that it was a “revenge porn” website. [ 133 ] The Defendant claimed that he did not know at the time that he uploaded the Images that it was a revenge porn website. He only learned this later, after accusations were made against him. [ 134 ] I reject the Defendant’s claim.

He knew the website was a revenge porn website when he uploaded the Images. [ 135 ] The name of the website was “myex.com.” That would be a good indication of the nature of the website’s content. [ 136 ] The screen-shot evidence of the website showed that a banner was displayed stating “GF revenge.” In Questioning the Defendant acknowledged that this meant “girlfriend revenge.” I find that the only reasonable meaning of that banner was “revenge on girlfriends,” specifically ex-girlfriends. [ 137 ] The Defendant’s testimony was that he had been browsing the website for about half an hour before he uploaded the Images.

That gave him ample opportunity to learn the nature of the website. He could not have failed to appreciate the nature of the website and I find that he knew the nature and purpose of the website. [ 138 ] The Defence Brief suggested at para 6 that “unbeknownst to [the Defendant]” it was a revenge porn website, and that the website was chosen haphazardly by the Defendant. I reject those suggestions. The half-hour’s browsing precludes any inference that the Defendant did not know the nature of the website or that he chose the website randomly, without appreciating its nature. D.

Degree of Responsibility [ 139 ] The Defendant sought to minimize his responsibility in uploading the images in three ways. 1. Attempted Minimization (

a) Mistake of the Moment [ 140 ] At several points in submissions, Defence counsel referred to the Defendant’s conduct as a “mistake of the moment” or an “error of the moment.” [ 141 ] I find that his conduct was not a mistake or error “of the moment.” [ 142 ] In cross-examination, he testified that at the time in question he was “browsing porn” on his cellphone. Just after midnight on March 11 he “came across a website he hadn’t seen before,” myex.com. He then spent that half-hour observing the site before he uploaded the Images. There was nothing spontaneous, opportunistic, or spur of the moment in the Defendant’s conduct. (

b) Allurement by the Website [ 143 ] The Defendant sought to suggest that his conduct in uploading the Images was not or was not properly intentional. He sought to attribute agency to the website. [ 144 ] He testified that “other girls’ photos” were on the website. The website was “bright coloured.” It invited viewers to send their own photos. He was “lured to partake.” [ 145 ] He “mindlessly went through the motions” of uploading her photographs.

He then went to sleep and forgot about doing this entirely. “The first time [he] knew [the images were] posted was when [the Plaintiff] called.” “Even when [he] got the call” from the Plaintiff, it “didn’t pop up” he “didn’t think of it.” [ 146 ] I reject this account completely. [ 147 ] The Defendant selected photographs saved on his cellphone. According to his evidence, he had to permit access to his photo album, then “click” three times to accomplish the upload. He did this not for one photograph but for 33. He added the Plaintiff’s first name and initial and location.

He “just followed the steps.” See Questioning at 18.17-19.22, 24.1-4. [ 148 ] Without any diminution of the Defendant’s responsibility, one can observe the internet’s facilitation of casual cruelty. (

c) Plaintiff’s Contributions [ 149 ] The Defence Brief claimed at para 2 that the Plaintiff had published multiple images of the Defendant to her female co-workers. Reference was made to the “repeated” provision of images of the Plaintiff and Defendant to the Plaintiff’s best friend. [ 150 ] Defence counsel claimed that the Plaintiff’s “insouciance about [the Defendant’s] consent contributed to his insouciance about hers.” [ 151 ] The Defendant’s testimony painted a more spare picture.

The Defendant referred to “a couple” instances of sharing, and his testimony indicated that “we” shared the photos with the Plaintiff’s best friend. On the basis of his testimony, I find that the sharing did not occur without his consent. [ 152 ] The Statement of Defence and the Defence Brief (paras 4, 54) referred to instances during the parties’ relationship when they

“joked” about the Plaintiff being displayed sexually in public or in public documents. These incidents were not confirmed by either party’s testimony. The evidence did not support the determination that the alleged events occurred. [ 153 ] But even if the evidence had offered support for the occurrences, the occurrences would not diminish the Defendant’s responsibility. [ 154 ] In effect, the Defendant sought to diminish responsibility for non-consensual conduct because of prior different consensual conduct – or in the case of the “joked about” matters, prior imaginary consensual conduct.

Past consent is not current consent. That is true respecting sexual assault and that is true respecting publication of intimate images. [ 155 ] Further, an implication of the Defendant’s position is that because the Plaintiff had consented to the prior conduct or had entertained the idea of consenting to conduct that had not occurred, her privacy interests were less worthy of protection or her injury must have been less severe. I reject this attempted diminution of the Plaintiff’s interests based on some sort of “bad character” inference.

For an analogy, see the discussion of sexual history evidence in Seaboyer at 662-664. [ 156 ] Defence counsel sought to shield the Defendant from responsibility for these sorts of arguments, but Justice Cory favourably quoted Gatley on Libel and Slander at para 182 of Hill v Church of Scientology , confirming that counsel “cannot shelter his client by taking responsibility for the conduct of the case ....” 2. Fault (

a) Intentionality [ 157 ] What the Defendant did was intentional through-and-through. On the evidence, it was not the work of a long-standing plan, but it did involve deliberate conduct pursued, on the evidence, without haste or pressure. (

b) Culpable Disregard [ 158 ] The Defendant denied intending to harm the Plaintiff. [ 159 ] In cross-examination, however, he admitted that he did not consider the website’s exploitation of vulnerable individuals, who viewed the website, what would be done with images uploaded to the website, the risks to the Plaintiff’s personal safety, or how the uploading would affect the Plaintiff. [ 160 ] On the Defendant’s own evidence, he manifested a complete and utter disregard for the Plaintiff and her interests. This was part of his attack on the Plaintiff’s dignity.

He failed even to consider her interests as another person. He treated her as a non-person, as a form of object. [ 161 ] In my opinion, this complete and utter disregard amounted to recklessness attracting aggravated damages or as evidence supporting the finding of malice, again attracting aggravated damages. (

c) Knowledge of Wrongfulness [ 162 ] The Defendant knew that what he was doing and did was wrong. [ 163 ] He did not upload any images of the Plaintiff while they were together: Questioning at 39.25-27. [ 164 ] He uploaded the Images only after they had broken up: Questioning at 25.25-27. [ 165 ] He confirmed in cross-examination and Questioning that he knew what he was doing was wrong but he did it anyway: see Questioning at 22.12-13. (

d) Motive [ 166 ] The Plaintiff and Defendant agreed that their break-up was amicable. They continued to stay in the same premises after the break-up until the Plaintiff could find her own new residence. [ 167 ] Besides the torts, there was no evidence that the relationship had been abusive or that the Defendant had been controlling.

There was no other evidence that the Defendant was angered or even especially wounded by the break-up. [ 168 ] Defendant’s counsel stated that the Defendant had been overborne by desire to show her off, driven by an insuperable desire to show her off, was taken over the top by a sexual urge. The Defendant’s testimony was similar. He stated that he wanted to show her off, to put her on display. In a text to her, he said “It turned me on to show you off.” The sharing of her images created an “arousing feeling for me.” [ 169 ] The Defendant’s motivation was mimetic.

His own words support the finding that he wanted to create an object of desire for others. He wanted to desire what others desired. For them to desire her, they needed to see her. This was accomplished by uploading the Images. [ 170 ] On his testimony, he was not motivated by hatred, anger, revenge, or any desire to do her harm. But his deliberate wrongful action, his own evidence of conduct entirely heedless of the Plaintiff’s interests and well-being, was as culpable as

an act serving a desire to injure.

[ 171 ] His fault was, in my opinion, the moral and legal equivalent of actual malice. E. Extra-Tortious Conduct [ 172 ] The Defendant did not immediately take responsibility for his actions.

When first contacted by the Plaintiff, he suggested that his telephone had been “hacked” and the hacker was responsible for the uploads. [ 173 ] However, after the Plaintiff contacted him he had the Uploaded Images removed from the website. [ 174 ] He apologized to the Plaintiff and admitted liability to her. [ 175 ] He pled guilty to the criminal charge laid respecting his uploading of the images. [ 176 ] The Defendant expressed remorse for his actions in his testimony.

He apologized to the Plaintiff. [ 177 ] However, in the passage from Gatley quoted at para 182 of Hill v Church of Scientology , we read that the triers of fact may consider “the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict. They may take into consideration the conduct of the defendant before action, after action, and in court at the trial of the action.” IV.

Setting Damages [ 178 ] This case should be compared to other cases involving the non-consensual disclosure of intimate images on the Internet. [ 179 ] The Defence urged comparisons with some cases from the Quebec courts.

I decline to take those cases into account in setting damages, for three reasons. [ 180 ] First, these cases do not fall within the line of authority beginning with Hill v Church of Scientology and Nova Scotia v BMG , extending through Jane Doe 1 and Jane Doe 2 , leading to ES v Shillington and LDS v SCA . [ 181 ] Second, these cases do not take into account the principles animating the Shillington line of authority.

In my view, these cases could not survive scrutiny in Alberta, Saskatchewan, Manitoba, or Ontario. [ 182 ] Third, we have two recent authoritative decisions in Alberta setting out principles and damage awards for public disclosure of private facts involving the non-consensual disclosure of intimate images on the Internet. Parity and comity dictate that I take guidance from these cases, as opposed to older cases operating under a different analytical framework that have not, to my knowledge, been relied on in Alberta. A. Comparator Quantums 1.

General Damages [ 183 ] The following awards were made in the comparator cases for general (non-aggravated) damages: SB v DH : $85,000 ES v Shillington : $80,000 LDS v SCA : $80,000 Jane Doe 2 : $50,000 Jane Doe 1 : $50,000. 2. Aggravated Damages [ 184 ] The following awards were made in the comparator cases for aggravated damages: SB v DH : $75,000 ES v Shillington : $25,000 LDS v SCA : $25,000 Jane Doe 2 : $25,000 Jane Doe 1 : $25,000 3. Punitive Damages [ 185 ] The following awards were made in the comparator cases for punitive damages:

ES v Shillington : $25,000 LDS v SCA : $25,000 Jane Doe 2 : $25,000 Jane Doe 1 : $25,000. B. General Damages [ 186 ] The Defendant committed two torts, the non-consensual publication of private facts and breach of confidence. [ 187 ] In my opinion, the present case falls into the same class of cases as ES v Shillington , LDS v SCA , Jane Doe 1 , Jane Doe 2 , and SB v DH . [ 188 ] The tort of non-consensual publication of private facts was committed. The Plaintiff provided sexual images to the Defendant. The images were provided in confidence, when the Plaintiff and Defendant were in an intimate relationship.

The Defendant published those images without consent to a pornographic website. The Plaintiff suffered injury to her interests in dignity, privacy, and autonomy. The Plaintiff suffered psychological and emotional injuries as a result. [ 189 ] Thirty-three images of the Plaintiff were uploaded. That is fewer than in ES v Shillington (at paras 10, 11 ), but more than in Jane Doe 1 (at paras 7, 57), Jane Doe 2 (paras 6, 25), or SB v DH (at para 32). [ 190 ] The Plaintiff was identifiable in the Images and through the accompanying information provided by the Defendant.

See ES v Shillington at paras 12, 95 ; Jane Doe 2 at paras 5, 25, 126; Roque v Peters at para 149 . [ 191 ] The Images were removed after less than a day had passed, but some images had already been seen viewed nearly 60,000 times.

The Plaintiff was directly contacted by three individuals who saw the Uploaded Images. [ 192 ] The images were uploaded to a pornographic website. [ 193 ] The Defendant’s conduct was intentional and deliberate, done with knowledge of the wrongfulness of his actions and with culpable disregard of the Plaintiff’s interests. [ 194 ] I accepted the Plaintiff’s testimony respecting her emotional and psychological injuries. [ 195 ] The Plaintiff must live with the risk that the Images may still exist on the internet and the images may be viewed in the future to her detriment. [ 196 ] In my opinion, ES v Shillington and LDS v SCA establish the quantum of damages for injury of this degree and scope. [ 197 ] I therefore award the Plaintiff $80,000 in general (non-aggravated) damages.

C. Aggravated Damages [ 198 ] Did the commission of the torts involve circumstances that added further injury to the Plaintiff? [ 199 ] In the discussion that follows, I will refer to types of aggravating circumstances not made out in the present case. The lack of aggravation means that the evidence does not support increasing damages on the ground discussed. Lack of aggravation, however, is not mitigating. Lack of aggravation does not diminish the wrong done or injuries caused by the Defendant. [ 200 ] I will also be comparing wrongdoing and injuries between cases.

This too does not diminish the wrong done or injuries caused by the Defendant. The damages assessment, however, presupposes that distinctions can be made between different cases. Damages are not the same for all cases. Like should be treated alike, but different should be treated differently. And again, without diminishing the Plaintiff’s experience, wrongdoing and injury can be set along spectrums. Some wrongdoing is worse and causes more injury than others. Some injuries are more profound than others. 1.

Characteristics of the Plaintiff [ 201 ] I do not consider the Plaintiff to have been especially vulnerable, because (e.g.) of her age, her mental health, or her occupation. [ 202 ] She was not, for example, very young ( Jane Doe 1 at para 57), a single mother on social assistance ( Jane Doe 2 at para 131), a pregnant or new mother ( SB v DH at para 128), or subject to heightened embarrassment or loss of employment because of the nature of her employment ( ibid. ). 2. The Plaintiff’s Injuries (

a) Emotional and Psychological Injuries [ 203 ] The Plaintiff established emotional and psychological injuries similar to the injuries suffered by plaintiffs in the comparator cases.

[ 204 ] The Plaintiff did not provide evidence of additional emotional and psychological injury, such as through evidence of psychological treatment ( ES v Shillington at para 16 ), counselling sessions ( SB v DH at para 93), psychotherapy or other therapy ( Jane Doe 2 at para 30). Without diminishing the Plaintiff’s trauma, on the evidence, it was not as severe as the plaintiff’s trauma described in Jane Doe 1 at paras 11-13, 57. See Roque v Peters at para 118 for a closer analog to the Plaintiff’s trauma. Trauma does fall along a spectrum of severity. (

b) Breach of Confidence and Trust [ 205 ] The Images were provided to the Defendant when he and the Plaintiff were in an intimate relationship. The Images were disclosed on the understanding that the Images would not be disclosed, let alone disclosed on the internet. [ 206 ] The authorities establish that breach of confidence is an aggravating circumstance: LDS v SCA at paras 95-99 ; Jane Doe 1 at paras 57; ES v Shillington at para 101 . I acknowledge that an aspect of breach of confidence is compensated in the “non-aggravated” damages.

Those damages concern the privacy that was violated by the Defendant’s conduct. [ 207 ] But the breach of confidence concerns more than privacy. Privacy can exist in information provided to a physician or to an internet service provider. Intimate information disclosed in an intimate relationship engages additional emotional and psychological connections, experiences, and expectations. The breach of confidence involves violation of interests that go beyond simply violating a privacy interest.

The additional injury caused by disclosing images provided in the context of an intimate relationship helps explain plaintiffs’ ongoing fear of new relationships and lack of trust of others. The breach of confidence is a breach of trust. [ 208 ] Further, if breach of confidence were not treated as an aggravating circumstance and the damages for commission of that tort were merged or “concurrent” with the damages for the tort of non-consensual publication of private facts, the breach of confidence tort would in effect be “free,” or consequence free. (

c) Contact by Third Parties [ 209 ] The Plaintiff was directly contacted by three individuals. One attempted to extort her. This was an aggravating factor. I recognize that the conduct was a third party’s and not the Defendant’s, but the Defendant’s conduct exposed the Plaintiff to exactly this type of interference. The third-party conduct falls within the scope of the injury caused to the Plaintiff. [ 210 ] Again, third-party viciousness falls along a spectrum. What the Plaintiff experienced by the extortion contact was bad, but the savagery of the plaintiff’s treatment by a third-party in SB v DH was worse: see paras 90, 95. (

d) Recurrence of Images [ 211 ] The Plaintiff has not in fact encountered her Images (or any other images provided to the Defendant) since the date that that the publication occurred. 3. Nature of the Wrongdoing (

a) Identifiability [ 212 ] The Plaintiff was relatively easily identifiable and indeed identified. The conduct of the defendant in SB v DH was worse. He shared the plaintiff’s name and Facebook profile: SB v DH at paras 28, 128. (

b) Number of Images [ 213 ] In ES v Shillington the defendant posted a larger number of images than in this case. (

c) Repeated Uploading [ 214 ] In this case the uploading occurred at one time only. In ES v Shillington the uploading occurred over years, from 2006-2018: at para 11. (

d) Number of Websites [ 215 ] The Defendant posted the Plaintiff’s video to one website but not to others (numerous pornographic websites – LDS v SCA at paras 9, 15 ) and therefore not to many others, as in ES v Shillington . In SB v DH the videos were posted to 3 websites but ended up on 7 more: at paras 57, 74, 90. (

e) Duration of Uploads [ 216 ] In this case the Defendant caused the Uploaded Images to be removed after being posted less than 24 hours. In ES v Shillington , the uploads remained on the internet for years: at paras 11, 97. In Jane Doe 1 the materials remained posted for three weeks (paras 10, 57) while in Jane Doe 2 , the materials were posted for several years (para 131). (

f) Number of Views

[ 217 ] In ES v Shillington the images were grossly public, published extensively: at paras 93, 95. In Jane Doe 2 , there were over 60,000 views of the recording: at paras 27, 131. The video was linked to 10 pornographic websites in addition to the website to which the video had been originally posted: at para 5. In SB v DH , one video had been viewed 1,577,175 times, another 271,500 times: at paras 62, 90.

The Plaintiff’s Images were viewed over 60,000 times, a significant number, but not at the extreme edge of the spectrum. [ 218 ] In this case, there is no evidence of disclosure in addition to the internet disclosure. In Jane Doe 1 , the materials were not only posted to a pornographic website but shown to High School acquaintances of the plaintiff: at paras 8, 14, 57. In LDS v SCA , a photograph was forwarded to the plaintiff’s boyfriend: at paras 13, 80. 4.

The Defendant’s Degree of Responsibility [ 219 ] I found that the Defendant acted with the moral and legal equivalent of actual malice, through his callous and utter disregard for the Plaintiff’s interests. [ 220 ] His fault too lies along a spectrum of fault. [ 221 ] His conduct was not an aspect or part of a context of multifaceted abuse of the Plaintiff, as in ES v Shillington at paras 9, 13 ; see Jane Doe 2 at para 2, 11-12. He was not convicted of offences like assault, sexual assa

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