S.B., PLAINTIFF - v. -, 2022 SKKB 216

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 216 Date: 2022 09 26 Docket: QBG-SA-01668-2019 Judicial Centre: Saskatoon BETWEEN: S.B., PLAINTIFF - and - D.H., DEFENDANT PUBLICATION RESTRICTION: No person shall publish, broadcast or disseminate in any way the plaintiff’s name or any information that could identify the plaintiff, including without limitation, her place of employment and the community in which she resides. Counsel: Sean M. Sinclair for the plaintiff Ronald P. Piche for the defendant ___________________________________________________________________________ JUDGMENT ZERR J.

September 26, 2022 ___________________________________________________________________________ Introduction [ 1 ] The parties’ relationship began in 2012. On July 11, 2015, they were married. [ 2 ] In March 2017, they separated. Two years later, on March 2, 2019, the plaintiff, S.B., received a telephone call. It was an RCMP officer, calling to advise that the defendant, D.H., had uploaded intimate images of her to a pornography website. [ 3 ] D.H. was criminally charged with the distribution of intimate images, contrary to s. 162.1 of the Criminal

Code , RSC 1985, c C-46 . He pleaded guilty. On November 1, 2019, he was sentenced to 18 months jail, less 149 days credit for time spent in pre-sentence custody, followed by two years probation. [ 4 ] S.B. claims D.H. is liable to her for the non-consensual distribution of intimate images, a tort established by s. 7.3 of The Privacy Act , RSS 1978, c P-24 [ Act ]. She further claims D.H. is liable to her for public disclosure of private facts, a common law tort not yet recognized in Saskatchewan. Finally, S.B. claims D.H. is liable to her for the intentional infliction of mental distress.

She seeks general, aggravated and punitive damages. [ 5 ] S.B. applies to have her claim determined upon

summary judgment. Issues [ 6 ] The issues are: 1. Is S.B.’s claim appropriately determined upon

summary judgment? If so: 2. Is D.H. liable to S.B. for the statutory tort of non-consensual distribution of intimate images? 3. Should the common law tort of public disclosure of private facts be recognized in Saskatchewan? If so, is D.H. liable to S.B. pursuant to this common law tort? 4. Is D.H. liable to S.B. for the intentional infliction of mental distress? 5. Do either contributory negligence or voluntary assumption of risk factor into this decision? 6. What is the appropriate award of damages? Analysis 1. Is S.B.’s claim appropriately determined upon

summary judgment? [ 7 ] Rule 7-5 of The Queen’s Bench Rules sets out when the court may grant

summary judgment, namely, when there is no genuine issue requiring a trial with respect to a claim or defence. There will be no genuine issue requiring a trial if the

summary judgment process allows the court to make the necessary findings of fact, apply the law to the facts, and provides a proportionate, more expeditious, and less expensive means to a just result: Tchozewski v Lamontagne , 2014 SKQB 71 , [2014] 7 WWR 397 . [ 8 ] In McCorriston v Hunter , 2019 SKCA 106 , 33 RFL (8 th ) 310 [ McCorriston ] , Leurer J.A. provides this helpful guidance: [44] ... the existence of a “genuine issue” is seldom in dispute. Instead, in most cases, the issue at large when a motion for

summary judgment is presented is whether the resolution of that issue requires a trial in order to sort out the facts. To assess if a trial is required, a Chambers judge must get into the detail of how the issue and evidence interrelate, and then decide if the evidence allows the issue to be fairly resolved. This follows from the idea that no genuine issue requiring a trial exists if facts can be found , law applied, and a fair and just determination on the merits achieved.

In the course of undertaking this process, the judge has discretion whether, if necessary, to use the so-called “new powers” set out in Rule 7 - 5(2) (i.e., to weigh evidence, evaluate credibility, and draw reasonable inferences) in order to sort out the facts. However, the fundamental question does not change – the question remains whether a trial is required to reach a fair and just determination of the issue. … [Italics in original] [ 9 ] In order to identify how the evidence and issues interrelate, it is helpful to first identify what S.B. must do to prove each of the three torts she claims.

Non-Consensual Distribution of Intimate Images [ 10 ]

Section 7.3 of the Act states: Non-consensual distribution of intimate images 7.3

(1) It is a tort for a person to distribute or threaten to distribute an intimate image of another person without that other person’s consent.

(2) A person who distributes or threatens to distribute an intimate image commits the tort mentioned in subsection (1) against the person who is or is depicted in the image in any of the following circumstances: (

a) the person knows that the person who is or is depicted in the image did not consent to the distribution; (

b) the person is reckless as to whether or not the person who is or is depicted in the image consents to the distribution. [ 11 ]

Section 7.1 defines “intimate image” as a visual recording of a person in which the person is either nude; exposing his or her genital or anal region or, if female, her breasts; or is engaged in explicit sexual activity. The visual recording must have been recorded under circumstances that gave rise to a reasonable expectation of privacy and in relation to which the person retained

an expectation of privacy at the time of distribution. [ 12 ] According to s. 7.2, a person “distributes” an intimate image if she or he publishes, transmits, sells, advertises or otherwise distributes it or makes it available to a person other than the person depicted in the image. [ 13 ]

Section 7.4 makes clear that the person depicted in an image does not lose their expectation of privacy because they consented to its recording, provided the person doing the recording knew or reasonably ought to have known the image was not to be further distributed. Similarly, the person depicted in an intimate image does not lose their expectation of privacy because they shared it with another person, provided the recipient knew or reasonably ought to have known the image was not to be further distributed. [ 14 ] Finally, s. 7.5 creates a reverse onus.

Distribution is presumed to have been made without consent unless the defendant is able to establish reasonable grounds to believe he or she had ongoing consent for distribution. [ 15 ] Accordingly, in order to prove the tort of non-consensual distribution of intimate images, a plaintiff must prove: 1. The images depict the plaintiff; 2. The images are intimate images within the meaning of s. 7.1 of the Act ; 3. The defendant distributed the images within the meaning of s. 7.2; 4.

The plaintiff did not consent to the distribution (pursuant to s. 7.5, this is presumed, meaning the onus shifts to the defendant to establish reasonable grounds to believe he or she had ongoing consent for the distribution of the images); and 5. The defendant knew the plaintiff did not consent to the distribution or was reckless as to whether or not the plaintiff consented to the distribution.

Public Disclosure of Private Facts [ 16 ] In Doe 464533 v D. (N.) , 2016 ONSC 541 , 128 OR (3d) 352 [ Jane Doe No. 1 ] , Stinson J. identified the elements of this tort as follows: [46] I would essentially adopt as the elements of the cause of action for public disclosure of private facts the Restatement (Second) of Torts (2010) formulation, with one minor modification: one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of the other’s privacy, if the matter publicized or the act of publication (

a) would be highly offensive to a reasonable person; and (

b) is not of legitimate concern to the public . [Underlining in original] [ 17 ] I did not at first appreciate the distinction between “the matter publicized” and “the act of publication”. I have since come to understand it.

While a reasonable person might not view the subject matter to be highly offensive, they might well reach a different conclusion respecting the act of publication. [ 18 ] Justice Gomery said it better in Jane Doe 72511 v M. (N.) , 2018 ONSC 6607 , 143 OR (3d) 277 [ Jane Doe No. 2 ]: [98] I accept Stinson J.’s modification to the description of the tort in the Restatement [ (Second) of Torts (2010) ], because it is important to emphasize that a sexually explicit videotape is not in itself necessarily “highly offensive”.

There is nothing inherently wrong about taking intimate photos of an adult or filming consensual sex between adults, or agreeing to participate in such photos or recordings. What is wrong is the non-consensual publication or sharing or a photo or recording of someone who did not want to share it with anyone else. [99] To establish liability, the plaintiff must therefore 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; and (

d) the publication was not of legitimate concern to the public. [ 19 ] With one clarification, these are the elements adopted by Inglis J. in the recent decision of E.S. v Shillington, 2021 ABQB 739 , [2021] 12 WWR 540 [ Shillington ] .

In that decision, the court made clear that the reasonable person stands in the position of the plaintiff, not the viewer. [ 20 ] Accordingly, in Shillington , the elements of the common law tort of public disclosure of private facts are: 1. the defendant publicized an aspect of the plaintiff’s private life; 2. the plaintiff did not consent to the publication; 3. the matter publicized or its publication would be highly offensive to a reasonable person standing in the position of the plaintiff ; and

4. the publication was not of legitimate concern to the public. If I recognize this tort, these are the elements S.B. will have to prove. Intentional Infliction of Mental Distress [ 21 ] The elements of this intentional tort are not in dispute. They are: 1. the defendant’s conduct was flagrant and outrageous; 2. the defendant’s conduct was intended to cause harm; and 3. the defendant’s conduct resulted in a visible and provable mental injury. I turn now to the evidence. Evidence [ 22 ] In support of her application, S.B. has filed four affidavits (November 18, 2019, January 22, June 15, and October 8, 2020).

Screenshots of images taken from 10 pornographic websites appear as exhibits to S.B.’s June 15, 2020 affidavit. [ 23 ] D.H. has filed two affidavits, sworn June 26, 2020 and October 2, 2020. [ 24 ] I have reviewed the affidavits and the exhibits attached thereto. I have also reviewed the cross-examination transcripts, dated October 29, 2020. [ 25 ] Certain factual matters are not in dispute. D.H. does not dispute that the images are intimate images within the meaning of s. 7.1 of the Act . In brief, they are images of S.B., who is sometimes fully and sometimes partially nude.

They depict her engaged in sexual activity and/or depict her genital organs, anal region, and/or breasts. They were created in circumstances that gave rise to a reasonable expectation of privacy and images in relation to which S.B. retained an expectation of privacy. [ 26 ] Similarly, D.H. does not dispute that he distributed the images. In his June 26, 2020 affidavit, he deposes: 7. I have taken full responsibility for my actions by entering a guilty plea as set out in paragraph 2. For several years, I have struggled heavily with alcoholism and addictions.

That struggle has taken me down a very dark path where my judgment and rational thinking were seriously compromised. When I was using, my ability to decipher right from wrong was completely absent. On almost every occasion for which I was sentenced, I was under the influence of cocaine. After my binge would end, and I would return to a somewhat more sober state of mind, I would soon feel a great deal of remorse and disgust. This would lead me to delete what I had posted . [Underlining mine] [ 27 ] From cross-examination: Q Okay. Now, at paragraph 8 [ sic ] of your affidavit, this is of June 26 th of 2020. A Okay.

Q You indicate that you were under the influence of, I assume, drugs or alcohol each time you posted the photos, is that correct? Photos or videos. A Yes. Yes. Q Now, where did you post all of these videos? Like, which websites? A It would have been xhamster. Q Okay. Any others? A No. It was xhamster and Pornhub, and those were the only two. Q Okay. Now, when did you post? A That was - - there were multiple nights. Like, to remember an exact date, would be, you know, almost impossible. Q Okay.

A Yeah. Q And when you say multiple nights, there would have been – are we talking more or less than ten? A Oh, more. Yeah. It was pretty much under the - - well, like I said, an addition [ sic ] to alcohol and, like I said, whenever I (inaudible) using (inaudible), so. Q Okay. What usernames were you posting under? A I think the xhamster was rollin_coal. So, that would be R-O-L-L-I-N and then underscore, C-O-A-L, Q And Pornhub?

A Honestly, to tell you the truth, can’t quite remember that one. [ 28 ] D.H. also admits he shared S.B.’s name and Facebook profile with other users of the pornography websites: Q And not only were you posting photos and videos of [S.B.], you were also commenting on them, correct? A Yeah. Q Did you offer to give out [S.B.’s] Facebook profile to others? A Yes. … Q Okay. Did you share her name on websites? A Yes. Q And on Facebook - - did you also copy her - - her Facebook profile and put that on - - on websites? A Yes. [ 29 ] Despite these admissions, there are still some factual matters in dispute.

The most significant are: • whether S.B. consented to D.H. uploading the images; and • whether D.H. knew S.B. did not consent or was reckless as to whether she consented. To D.H., a trial is required to determine these essential facts. [ 30 ] D.H. also submits a trial is required to determine the extent of S.B.’s injuries, including whether they rise to the level of “a visible and provable mental injury”. If liability is found, he submits that a trial is required to assess damages fairly and accurately. More generally, D.H. submits the

summary judgment process should not be used for novel cases such as this one, which involves new legislation and a new tort. Finally, he questions whether the

summary judgment process allows for the correct application of facts to complex legal standards such as “flagrant and outrageous”. [ 31 ] Having identified the factual and legal issues and examined the evidentiary record, I have determined the

summary judgment process will allow for a fair and just determination of S.B.’s claim. My conclusion in this regard is largely based upon the ease and confidence with which I am able to resolve the central facts in dispute and thereby providing a proportionate, more expeditious, and less expensive means to a just result. [ 32 ] Respecting the issue of consent, it is not difficult to marshal the relevant evidence. In her January 22, 2020 affidavit, S.B. deposes: 8. The photos and videos were taken when we were in a relationship. I believe that there were 7 videos taken during our relationship. I

did not object to the videos being taken. However, I understood that the videos were being taken for the Defendant and I and [ sic ] would not be seen by anyone else. At one stage during the relationship, the Defendant asked me whether he could post a video to a website and I said no. 9. ... 10. Apart from the one video posted in 2015, all of the postings appear to have been made in 2018 and 2019. 11. ... 14. When the Defendant and I broke up I asked him to delete all the intimate images he had in his possession of me. I also warned him that sharing the intimate images was illegal.

In his first affidavit, D.H. did not dispute or in any way engage with these assertions. [ 33 ] In fact, it was not until October 2, 2020 that D.H. first raised the possibility S.B. knew he was posting videos and did not object: 3. [S.B.] was aware that a couple of these videos were being posted by myself. On at least two occasions while we were still married, I had the desktop opened and she was beside me. I showed her the page in which the videos were posted. The page had the description: “Amateur couple porn” or words to that effect. I cannot exactly remember the titles. 4.

The videos that were posted showed her face but did not reveal her name. 5. She also only voiced her displeasure with the video material when we were beginning our divorce proceedings. [ 34 ] As to why he never raised this earlier, D.H. deposes: 6. I did not raise the issue of her knowing that the videos were being posted previously as I had no proof that it happened other than my word. I thought no one would believe me over her. I also was incarcerated from July 25, 2019, until my release on July 23, 2020.

As indicated in my previous affidavit, I was in a very dark place both before and during my incarceration due to problems with alcoholism and addiction. I have now had the benefit of counselling and running the AA program since my release and I am thinking more clearly and rationally now with a much more positive outlook on life. [ 35 ] In her October 8, 2020 reply, S.B. denies she ever saw D.H.’s laptop open to a page upon which intimate images of her had been posted.

She deposes that she would never have consented to D.H. uploading such images and that, throughout their relationship, made very clear to D.H. that he must never do so. [ 36 ] In the same affidavit, S.B. deposes: Upon reviewing the Defendant’s Affidavit, I also went back and reviewed the available messages between myself and the Defendant. There is one Facebook message which I believe, to the best of my recollection, refers to me encountering the Defendant editing images of me on his computer.

The Facebook message is dated April 22, 2014 and is attached hereto and marked Exhibit “A” . [ 37 ] The Facebook message is dated April 22, 2014. The relevant portions read as follows: S.B.: You can see my face. D.H.: Haha just a little babe! Good isn’t it, your [ sic ] perfect lol D.H.: Duck?! S.B.: Thanks I’m just not comfortable with it D.H.: Thats absolutely fine babe. I took it off, sorry. Love you sooo much. You just trun [ sic ] me on so much haha. I am probably going to ride my bike and my phone is charging.

Love you [ 38 ] Under cross-examination, it was suggested to S.B. that this exchange referred to an intimate video that had been uploaded to a website and that her only concern was the fact her face was visible. She repeatedly denied this suggestion. Q [...] Now, when you’re saying you can see my face, what are you referring to there? A Referring to a video.

Q Okay. And – and this is a video that you accessed online? A No. Q Okay. Where – where did you see this video in which you – you say you can see my face? A On the desktop. On our computer or his computer. Q Okay. And what site were you on at that time? A It wasn’t on a site. It was just on our computer. ... Q ... you had not retrieved that – that from any internet site? A No. Sorry. Q But it was simply a – a video – and, again, I want to make sure it’s clear, video, not – not a photo. It was a video that was on his computer? A Correct. Q Okay.

And why – why then was that a concern to you, and why did you voice that to D.H. that – that indeed this – you could see your face on his computer? A When he had that stuff on the computer, I was worried where it was going to end up. ... Q [...] As I understand things, and I put it to you, you didn’t have so much a concern with uploading these images and videos. The caveat to it was that D.H. could upload them as long as your face or any identifiable characteristics were – were edited out or were not depicted. Would you agree with that? A No. Q Okay.

And again, so I’m clear, and I don’t want to muddle you a – a confused questions, but you perhaps not in a formal way but you approved with him – you approved him posting it as long as you couldn’t identify it was you in there? A No, never. Q You – you deny that 100 percent? A I’ve never consented. ... Q ... and then a little bit later you apparently indicate, thanks. I’m just not comfortable with it. And the response is, that’s absolutely fine, babe. I took it off, sorry.

Again, agree or disagree with me, but when – when one uses the term, I took it off, that sounds more like I took it off – offline or off the internet. Would you agree with me on that? A I would agree that it sounds like that. Q Yeah. Because if you’re going to take something off your own computer, more likely, one would use the word delete. I don’t know if you agree with me with that or not. A Yeah, I – I guess. I don’t know.

Q Yeah, fair enough. But again, your explanation or at least background to this is that this discussion is referencing a video or a – avideo that was on the computer that D.H. accessed, or at least D.H.’s computer that was in – in your home, is that correct? A Correct. [39] During re-examination, S.B. was again asked what she understood D.H. to mean when he used the words, “Itook it off”. She said, “I – I don’t know.

I seen it on the desktop, and I assumed that what I thought was that he was going to take it offthe computer”. [40] According to D.H., S.B.’s concession that the words “I took it off” are more consistent with removingsomething from the internet than a desktop computer creates a legitimate question about consent that can only be resolved at trial. [41] For four reasons, I disagree. [42] First, D.H. was also cross-examined. His answers include the following: Q All right. Can we agree that all of the postings and distributions of any photos and videos after your separation were done withoutconsent? A Yes.

Q In fact, can we agree that [S.B.] expressly warned you not to do it? A Yes. These are significant admissions, highly probative to the issue of consent. [43] Second, D.H. pleaded guilty to a charge that, between January 1, 2015 and July 15, 2019, he distributed intimateimages of S.B., contrary to s. 162.1(2) of the Criminal Code. As Schwann J.A. noted in Thomas v Quinlan, 2020 SKCA 82, 64 MVR (7th) 175: [58] ... It is beyond dispute that a plea of guilty in a criminal proceeding is considered an admission by an accused of having committedthe offence and is admissible “in a subsequent civil proceeding” (Sidney N.

Lederman, Alan W. Bryant, Michelle K. Fuerst and John Sopinka, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) at para §6.435 [Evidence in Canada]).

A guilty pleaconstitutes an admission to all of the essential elements of the offence charged in the indictment and no more: R v Adgey, (SCC), [1975] 2 SCR 426; R v Gardiner, [1982] SCR 368 at 414-415; R v Toulejour (1983), (SK CA), 27 Sask R 72(CA) at para 6; and R v D.M.G., 2011 ONCA 343 at para 41, 275 CCC (3d) 295 [D.M.G.]. … [44] The essential elements of the offence created by s. 162.1(2) are: • the accused knowingly publishes, distributes, transmits, sells, makes available, or advertises an intimate image; and • at the time of publication, the accused knew the person depicted in the image did not consent or was reckless as to whether she did.

In other words, D.H.’s guilty plea constitutes a formal admission that S.B. did not consent and he either knew she did not consent or wasreckless as to whether she consented. [45] Third, according to the statement of defence, D.H. admits that s. 7.3(1) of the Act “provides a statutory cause ofaction for the Plaintiff”. By contrast, he denies the facts pled in support of the common law torts and “puts the Plaintiff to the strict proofthereof”. In other words, the statement of defence appears to concede the statutory tort is made out.

This would include an admission thatS.B. did not consent and he either knew it or was reckless in respect of it. [46] Fourth, it was not until October 2, 2020 that D.H. first asserted S.B. knew he was uploading intimate images topornography websites.

Not only does this assertion post-date his initial affidavit, but it is also inconsistent with his guilty plea, statementof defence, and cross-examination. [47] Accordingly, I have no difficulty rejecting D.H.’s evidence and finding that S.B. did not consent and, at the timehe uploaded the images, D.H. knew S.B. was not consenting. [48] As for D.H.’s other concerns about the

summary judgment process, they do not persuade me a trial is required.Respecting S.B.’s injuries, D.H. has had the opportunity to cross-examine S.B. and could have applied to cross-examine her counsellor,Stephen Murphy: Regional Tire Distributors (Saskatchewan) Inc. v Quality Tire Service Ltd., 2016 SKQB 411 at para 9; Casbohm v Winacott Spring Western Star Trucks, 2018 SKQB 15, 30 CPC (8th) 175. At paragraphs 10, 11, and 12 of his June 26, 2020 affidavit,D.H. disputes the extent of S.B.’s injuries, and it was open to him to file additional evidence in that regard.

To suggest a trial is requiredto remedy these perceived deficiencies (largely of his own making) is not persuasive. Similarly, I am not persuaded a trial would assist inthe resolution of pure legal issues such as the

interpretation of new legislation or the recognition of a new tort, or the application of facts

to a legal standard. As Leurer J.A. stated in McCorriston , trials are required when facts need to be sorted. Where, as here, I am satisfied I can confidently resolve the facts; a trial is not required. [ 49 ] Having found the

summary judgment process is appropriate to resolve the facts and apply the evidence, I turn now to the remaining issues. 2. Is D.H. liable to S.B. for the statutory tort of non-consensual distribution of intimate images? [ 50 ] When I was preparing this decision, it occurred to me that neither counsel had addressed me with respect to the temporal application of

Part 2 of the Act , which creates s. 7.3 and all related provisions. Accordingly, in April 2022, I invited counsel to file supplementary briefs of law. The supplementary briefs are very helpful, and I thank counsel for their prompt and professional assistance. [ 51 ] The Privacy Amendment Act, 2018 , SS 2018, c 28 [ Amendment Act ], which contains

Part 2, was proclaimed in force on September 15, 2018. [ 52 ] Respecting timing, S.B. deposes, “[A]part from the one video posted in 2015, all of the postings appear to have been made in 2018 and 2019”. The question thus becomes: if a video was posted prior to September 15, 2018, does s. 7.3 of the Act apply? [ 53 ] To D.H., the answer is no. As he puts it: The Defendant’s position can be succinctly stated. There is a presumption against the retroactive or retrospective operation of legislation. In other words, the law should operate only from the date it was enacted.

This had been classified as a fundamental aspect of the rule of law ( Thow v BC Securities Commission , 2009 BCCA 46 at para. 10 ) ... This presumption can only be rebutted where it can be determined, either explicitly or by implication, that the legislature intended for the legislation to operate retroactively. [ 54 ] S.B. agrees there is a strong presumption against retroactivity. However, she makes two arguments. First, she directs my attention to the evidence that, she says, proves the intimate images were uploaded after September 15, 2018.

Second, she argues that the ongoing availability of the images constitutes a “continuing fact scenario” to which the presumption against retroactivity does not apply. [ 55 ] I agree that this is an issue of retroactivity, namely, whether the amendments apply to events that predate their existence: see Mercier v Saskatchewan Government Insurance , 2020 SKCA 136 at para 49 , 71 MVR (7th) 13 .

I agree with D.H. that there is nothing, express or implied, within the Amendment Act to support a conclusion the Legislature intended the amendments to operate retroactively. [ 56 ] Respecting S.B.’s first argument, I accept that the screenshots in evidence were captured after March 2, 2019, the date she was contacted by police. [ 57 ] However, I do not accept that I should examine every screenshot for evidence of when the images were uploaded.

While D.H. admits to uploading intimate images to two pornographic websites (xhamster.com and pornhub.com), I am satisfied he uploaded to three: xhamster.com, pornhub.com, and xvideos.com. Respecting the latter, I note the following passage from S.B.’s June 15, 2020 affidavit: 6. The RCMP also confirmed to me that the account “Rollin_Coal” was one of the accounts used by the Defendant to upload sexually explicit videos of me onto the internet.

When the RCMP executed a search warrant at the Defendant’s home and seized his computer tower, it was discovered that the account Rollin_Coal had uploaded intimate images of me to Xvideos.com. A screenshot of Rollin_Coals Xvideos.com account which featured intimate images of me is attached hereto and marked as Exhibit “D” . The RCMP further confirmed to me that the computer tower also had two tabs open at the time it was confiscated logged into the account “Rollin_Coal”. 7.

Additionally, the RCMP confirmed to me that Xhamster.com provided information to the RCMP that the account “Rollin_Coal” was linked to the email account D.H._108@hotmail.com. Exhibit “D” is a screenshot of Rollin_Coal’s user profile from xvideos.com.

Not only is the username one D.H. admits using, the profile picture is an intimate image of S.B. [ 58 ] Because I am satisfied S.B. has proven D.H. uploaded images to three pornographic websites, my review of the screenshots for evidence of time will be restricted to the screenshots taken from those three websites. [ 59 ] Before undertaking this examination, I pause to make two additional points: • S.B. directs my attention to all the times Rollin_Coal commented upon an intimate image of her. Often the comment notes the amount of time that has passed since it was made (e.g. 10 days ago).

I am not prepared to infer that, because a comment was posted 10 days prior to the screen capture, the image to which it relates was uploaded at the same time. • Similarly, S.B. directs my attention to Exhibits “I” and “Q” which are a list of Google search results for her name. Some of the results are links to xhamster.com, pornhub.com, and xvideos.com. Some of the links include a date (e.g., February 11, 2019).

However, without more, I am not prepared to infer that is the date a particular image was uploaded. [ 60 ] Turning to the images captured from xhamster.com, S.B. draws my attention to a collage created by adding intimate images of her to a screen capture of her Facebook profile. With respect to the collage, S.B. submits: The most recent post on [my Facebook] profile appears to be from September 18, 2018. Accordingly, this was posted sometime after

September 18, 2018. This same collage forms part of Exhibits “O” and “Q”. Despite careful scrutiny, I cannot discern the date September 18, 2018. [61] Respecting the images captured from pornhub.com, S.B. draws my attention to one that forms part of Exhibit“C”. It is a still shot of a video, the title of which includes S.B.’s first and last names. It also includes the words: From: Wannaslutwife Added on: 2 weeks ago. There is no evidence associating D.H. with this username. [62] Exhibit “P” also contains images captured from pornhub.com.

The first is a screenshot of a video, which (as ofthe date of the screenshot) had been viewed 1,577,175 times. It also includes the words: From: Unknown Added on: 4 years ago. [63] Turning to xvideos.com, Exhibit “D” states that Rollin_Coal’s last activity was 193 days ago. 193 days prior toMarch 2, 2019 is August 21, 2018. [64] Exhibit “G”, also captured from xvideos.com, states that Rollin_Coal’s last update was “three years ago”. [65] D.H. is correct that S.B. bears the onus of satisfying me, on a balance of probabilities, that he uploaded thevideos after September 15, 2018.

Based upon the limited and inconclusive evidence before me, she has not discharged that burden. [66] With respect to S.B.’s alternate argument, however, I have reached a different conclusion. She states thisargument as follows: The presumption against retroactive application of legislation does not apply in “continuing fact scenarios”, as held by the court inRegina Police Superannuation & Benefit Plan v Wyatt Co., 1996 CarswellSask 402. Continuing facts can be a state of affairs, a status,relationship, or characteristic that is capable of persisting over time.

I would suggest that the presumption against the retroactiveapplication of legislation is rebutted in the current circumstances due to the continuing and persistent nature of the intimate images thatwere shared with [S.B.]. The uploading of an intimate image on a pornographic website ensures that it can be conveniently and repeatedly viewed months or evenyears subsequent to the original upload. The saying “the internet is forever” aptly applies in these circumstances.

These intimate imageshave a long-lasting effect, and do not exist merely frozen in time that is relevant to the upload. [67] One issue in Regina (City) Administration Board of the Regina Police Superannuation and Benefit Plan v WyattCo. (SK KB), [1996] 8 WWR 74 (QL) (Sask QB), was whether the plaintiff, the administrative board of the policesuperannuation and benefit plan, had the right to sue the defendant actuaries on behalf of its members. One argument focused upon ThePension Benefits Act, 1992, SS 1992, c P-6.001, which had come into force after the acts of alleged malpractice were complete.

ThePension Benefits Act, 1992, defined the duties of an administrator in such way that Barclay J. concluded: 55 … It is clear that the plaintiff, in its position administrator/statutory fiduciary/trustee for the members of the Plan, would have a rightto bring this action. The issue became whether the presumption against retroactivity applied. [68] Barclay J. began his analysis by adopting from Pierre-Andre Côté, The

Interpretation of Legislation in Canada,2d ed (Quebec: Les éditions Yvon Blais, Inc., 1991), the following three categories of “temporal fact situations”: 1. Ephemeral: facts that begin and end within a short period of time. The fact, such as an action or event, becomes part of the past assoon as it has ended. 2. Continuing: facts that extend over time. A continuous fact may be a status, a relationship, or a state of affairs that endures over thepassage of time. 3. Successive: facts that occur at separate times but are part of a continuing transaction.

The transaction does not become part of thepast until the final fact in the transaction has been completed. [69] He then quoted from Ruth Sullivan, Driedger on the Construction of Statutes, 3d ed (Toronto: Butterworths,1994) at 515: … In the case of a provision that attaches legal consequences to a continuing fact, such as a relationship or a state of affairs, the provisionis not retroactive unless the relationship or state of affairs has ended before commencement.

In the case of a provision that attaches legalconsequences to successive facts, the provision is not retroactive unless the final fact in the series has ended before commencement. [70] Noting that the relationship between the board and its members pre-dated the legislation and continued after itcame into force, Barclay J. found that the presumption against retroactivity did not apply. [71] While I have thus far focused upon the date D.H. posted the intimate images, I must now expand my focus.

Pursuant to s. 7.2 of the Act, a person distributes an intimate image if he or she “publishes, transmits, sells, advertises or otherwisedistributes the image, or makes it available, to a person other than the person who is or is depicted in the image” (my emphasis). [72] In this case, each act of uploading happened at a discrete moment in time. However, once uploaded, each videocontinued to be “made available” for an unspecified period. According to D.H., this period was short -- once he sobered up, he took thevideos down.

S.B. disagrees, pointing out that the videos remained available after March 2, 2019. [73] I do not accept that D.H. took the videos down. One video continues to be associated with the username Rollin-Coal on xhamster.com. On pornhub.com, one carries the title “[S.B.] Fucked” – who else but D.H. would name that video in that way?The Rollin_Coal account on xvideos.com continues to exist, the profile picture for which is an intimate image of S.B. If D.H. was trulyovercome with remorse and disgust, why did he continue to engage with the images as he did? Why did he upload screenshots fromS.B.’s Facebook page?

Some comments made by Rollin-Coal on xhamster.com are: o Message me for her full name and share this video [sic] o Want to share this video with her full name o Want her name? o Check messages for her name o Repost this video and I’ll share you her name and Facebook o Want to know who she is? [74] In other words, I am satisfied D.H. posted intimate images to three websites: xhamster.com, pornhub.com, andxvideos.com and continued to make them available until well after September 15, 2018.

The presumption against retroactivity does notapply. [75] S.B. has satisfied me that D.H. distributed intimate images of her without her consent and knowing that she didnot consent. D.H. is liable pursuant to s. 7.3 of the Act. 3. Should the common law tort of public disclosure of private facts be recognized in Saskatchewan? If so, is D.H. liable to S.B.pursuant to this common law tort? [76] In Shillington, Inglis J. at para 24, was confronted with the very same question.

Her analysis rests on the framework established by Nevsun Resources Ltd. v Araya, 2020 SCC 5 at para 237, 443 DLR (4th) 183: 24 … Three clear rules for when the courts will not recognize a new nominate tort have emerged:

(1) The courts will not recognize a new tortwhere there are adequate alternative remedies (see, for example, Scalera [2000 SCC 24]); (2) the courts will not recognize a new tort thatdoes not reflect and address a wrong visited by one person upon another (Saskatchewan Wheat Pool [ (SCC), [1983] 1SCR 205], at pp 224-25); and (3) the courts will not recognize a new tort where the change wrought upon the legal system would beindeterminate or substantial (Wallace v United Grain Growers Ltd, (SCC), [1997] 3 SCR 701 (SCC), at paras 76-77).Put another way, for a proposed nominate tort to be recognized by the courts, at a minimum it must reflect a wrong, be necessary toaddress that wrong, and be an appropriate subject of judicial consideration. [77] Like Saskatchewan, Alberta has a statutory tort to address the publication of intimate images (Protecting Victimsof Non-Consensual Distribution of Intimate Images Act, SA 2017, c P-26.9).

However, in Shillington, the defendant’s actions predated itscoming-into-force. Accordingly, Inglis J. wrote: [41] ... The rule against retrospective application of statutes prohibits this Plaintiff from relying on this cause of action.

Withoutrecognition of this tort in common law, the Plaintiff has no civil remedy given the date of the conduct complained of, even though it isnow recognized as conduct requiring a legal response. [78] Justice Inglis went on to describe other circumstances in which the statutory scheme would not apply --distribution of images that fall outside the statutory definition, distribution of information as opposed to images.

It is not difficult toconceive of circumstances under which publication of images falling short of the statutory definition or publication of information couldnonetheless be highly offensive to a reasonable person and a serious breach of privacy. [79] In addition to the temporal and definitional limits of the statutory scheme, Inglis J. considered whether anyrecognized tort could adequately address the wrong targeted by the proposed new tort.

She began with breach of privacy, noting thatCanadian courts have consistently held there is no common law tort for breach of privacy (Al-Ghamdi v Alberta, 2017 ABQB 684; Mohlv University of British Columbia, 2009 BCCA 249, 271 BCAC 211, leave to appeal refused [2009] SCCA No 340 (QL); Scherf vNesbitt, 2009 ABQB 658, 479 AR 372; and Pinder v Canada (Minister of the Environment), 2015 FC 1376). She also noted Merrifield vCanada (Attorney General), 2019 ONCA 205, 145 OR (3d) 494, in which the Ontario Court of Appeal overturned a lower court decisionrecognizing the tort of “internet harassment”.

Respecting the tort of breach of confidence, she concluded that “imposing an obligationupon a victim to prove that their shared image was both confidential and communicated in confidence creates an unnecessary barrier to aremedy”. Finally, respecting the intentional infliction of mental distress, she held: [48] ... “Calculated to cause harm” creates a hurdle a victim must clear in establishing the subjective intent of the Defendant.

Thatelement is not a barrier in this case as the plaintiff here received judgment for intentional infliction of mental distress in October 2019,however it is easily imagined as a bar to many other fact scenarios where a victim would otherwise have significant harmful actions to

complain of.

Further a “provable illness”, although no longer requiring a psychiatric diagnosis, may require proof of something beyondthe anxiety, stress, and humiliation a victim may suffer upon discovery of public sharing of their intimate images. [80] Having conducted this analysis and, with reference to the following decisions, Inglis J. concluded that necessityhad been made out: • Jones v Tsige, 2012 ONCA 32, 108 OR (3d) 241 (recognized the tort of intrusion upon seclusion; confirmed the tort ofappropriation of name or likeness) • Jane Doe No. 1 (recognized the tort of public disclosure of private facts; default judgment subsequently set aside) • Jane Doe No. 2 (recognized the tort of public disclosure of private facts) • Racki v Racki, 2021 NSSC 46, 52 RFL (8th) 1 (recognized the tort of public disclosure of private facts) • Yenovkian v Gulian, 2019 ONSC 7279 (recognized the tort of publicity placing the plaintiff in a false light). [81] From there, Inglis J. went on to consider the remaining two requirements: (

i) response to a wrongdoing, and (ii)appropriate for judicial authorization. As she notes, the right to privacy is recognized internationally and within Canada, where it isprotected by the Canadian Charter of Rights and Freedoms, the Criminal Code, statute and tort law. Recognizing the significantforeseeable harm that flows from public disclosure of private facts, she appears to have had little difficulty in concluding the new tortwould address a wrong visited by one person upon another and constitute an appropriate subject for judicial authorization.

Thisconclusion is, to me, aptly supported by the following quotation from Jane Doe No. 2: 59 … The adoption of this tort is consistent with Charter values. In R. v Dyment [ (SCC), [1988] 2 SCR 417], a case cited inJones [2012 ONCA 32], La Forest J. stated that “privacy is essential for the well-being of the individual. For this reason alone, it isworthy of constitutional protection, but it also has profound significance for the public order”. As observed by Justice L’Heureux-Dubé,privacy is “an essential component of what it means to be ‘free’”. [82] I agree with and adopt Justice Inglis’s analysis.

Accordingly, the tort of public disclosure of private facts will berecognized in Saskatchewan. [83] D.H. admits he uploaded the images, from which I can easily conclude he publicized an aspect of S.B.’s privatelife. I have already found as a fact that S.B. did not consent to him sharing the images. As to whether the act of publication would behighly offensive to a reasonable person in the position of the plaintiff, I am easily satisfied it would. Similarly, I have no difficultyconcluding the publication was not of legitimate concern to the public. This tort is made out. 4.

Is D.H. liable to S.B. for the intentional infliction of mental distress? [84] As noted above, in order to prove this intentional tort, S.B. will need to establish three elements: (

i) the conductagainst her was flagrant and outrageous; (ii) the conduct against her was intended to cause harm; (iii) the conduct resulted in a visibleand provable mental injury. [85] Professors Lewis N. Klar & Cameron S.G. Jefferies, Tort Law, 6th ed (Toronto: Thomson Reuters, 2017) at 95,provide examples of acts previously found to constitute flagrant and outrageous: … In Purdy v Woznesensky [ (SK CA), [1937] 2 WWR 116 (Sask CA)], a violent assault made by the defendant uponthe plaintiff’s husband in the plaintiff’s presence caused her nervous shock and illness.

Stating that this was an action on the case, thecourt upheld the plaintiff’s claim for damages. As well, the tort of intentional infliction of mental suffering has met with some success inthe area of sexual harassment.

In Clark v Canada [(1994), (FC), 20 CCLT (2d) 241 (Fed TD)], a female officer in theR.C.M.P. brought a successful action against her employer, the Crown, as a result of a four-year period of harassment which she sufferedat the hands of fellow officers. … [86] More recently, in Jane Doe No. 1, Stinson J. held: [28] The first question to ask is whether the defendant’s conduct was flagrant and outrageous. The following facts are relevant to thisissue. To begin with, the defendant knew that the plaintiff had been reluctant to make the video.

He also knew that the plaintiff washesitant to share with him such intimate and private images of herself. He persuaded her to do so on the basis of his express assurancethat he alone would view the video. On the very day she forwarded it to him, the defendant posted the video online, in violation of theterms upon which he had received it. He also shared the video with his friends.

This was not a mere act of inadvertence on his part, butrather a clear violation of the promise he had made to the plaintiff and as well as a breach of the trust in him that motivated her to prepareand provide the video. [29] On the basis of the foregoing facts, I am satisfied that the defendant’s conduct was flagrant and outrageous. The first element of thetest is easily met on the facts of this case. [87] Here, D.H. admits that he knew that, after separation, S.B. did not consent to him uploading the images to anypornography websites.

Not only did he do so, knowing she did not consent, he also shared her full name, as well as screen captures of herFacebook page. I have no hesitation in concluding this behaviour is flagrant and outrageous. [88] My analysis of the second element is largely the same. The number of occasions upon which D.H. encouragesother users to share the videos, offers to provide S.B.’s name, and his decision to share her Facebook page leads to only one reasonable

inference: he intended to cause her harm. [ 89 ] Finally, with respect to whether S.B. has proven a visible and mental injury, I note the Saskatchewan Court of Appeal decision in McLean v McLean , 2019 SKCA 15 , [2019] 5 WWR 67 , wherein the Court concluded: [77] ... proving mental injury in the tort context does not require the plaintiff to prove a recognized psychiatric illness. A diagnosis of such illness may be helpful to a trier of fact, but it is but one factor to be weighed.

The task of the trier of fact is, at all times, concerned with symptoms and effects in determining the level of harm experienced by the plaintiff.

The plaintiff is to show on a balance of probabilities that he or she has sustained mental injury that is serious and prolonged and that the degree of injury rises above the ordinary annoyances, anxieties, and fears that come with living in a civil society. [78] Thus, the law is clear that a psychiatric diagnosis is not necessary for proving compensable mental injury, just as a visible physical injury is not required to ground a claim of injury. … [ 90 ] I also note the following evidence: • In addition to xhamster.com, pornhub.com, and xvideos.com, S.B. located intimate images of her on seven additional websites, one of which was memecrunch.com.

While I accept D.H. did not add the words that turned the images into “memes”, I am satisfied he was the source of S.B.’s identifying information. The screenshots from memecrunch.com show an intimate image of S.B. that is captioned: o This is why you shouldn’t cheat. Karma is a bitch, ain’t she S.B.! o #National Good Samaritan Day o S.B. from *** Saskatchewan.

Congratulations S.B., you’re a meme. • Similarly, S.B.’s full name is attached to the images found at imagefap.com, askjolene.com, thumbzilla.com, and 4crot.com. • One screenshot captures a particularly vile piece of text entitled “The Exposure Manifest”, which has been added to an intimate image of S.B., her Facebook profile picture, and her full name. This “manifest” exhorts others to download, re-post, share, and masturbate to the images. It proclaims that “all women, girls, sluts, cunts and whores” should be exposed, preferably starting at the age of 18.

It exhorts its readers to include as many identifiers as possible. It reminds S.B. that her exposure cannot be undone and that no part of her body is private. It is misogynist, sickening, and degrading. While I accept D.H. did not add it to S.B.’s image, it is clearly relevant to the extent of her injury. • S.B. is aware of how frequently some of the videos have been viewed.

Attached to her June 15, 2020 affidavit are screenshots, establishing that two videos on pornhub.com had 1,577,175 and 271,500 views respectively. • A google search of the name S.B. results in a list of webpages, many of which are pornography websites. The first “hit” is xhamster.com, with the description “S.B. Slutty Fuck, Free Fuck Porn Video”. • As a result of D.H.’s actions, S.B. received numerous Facebook messages and friend requests from people she does not know. Some are designed to help, alerting S.B. to the location of the images. Others are “complimentary” (i.e. “hi ... nice nude pics ... love you”.

Some are critical (i.e., “showing your talent to the internet?”); still others are coercive: o “This one I have a lot!! Be my friend and i’il dleat [ sic ] it from internet o “Oh dear me I do hope Debbie [S.B.’s boss] doesn’t see these”. [ 91 ] S.B. uses the phrase “emotionally and psychologically devastating” to describe the impact D.H.’s actions have had on her. She was four months pregnant when she discovered the images. On the same day D.H. made his first appearance in Provincial Court, her son was born at 31 weeks.

Although I cannot conclude D.H.’s acts caused this premature delivery, S.B.’s pregnancy and status as a new mother form part of the context within which I must assess her evidence. [ 92 ] According to S.B., she experiences severe anxiety and distress, and lived in a constant state of fear, unease, and dread. She continues to have issues with trust and does not know how to move forward. She knows she can never completely delete the photos and videos from the internet. More specifically, she deposes: 32. I had difficulty sleeping as a result of the intimate images of myself being posted online.

I would search the internet at all hours of the night in order to find images of myself and report them so that they could be removed before others would see them. 33. Sometimes I was so upset and depressed as a result of my intimate images being shared that I was unable to get out of bed for the day. I was embarrassed and ashamed of my images being shared with the world and I felt as if all hope had been lost. 34. I am anxious and upset that my son will one day see these intimate images of me and be bullied and experience difficulties as a result. ... 37. I work as a clerk in the Provincial Court in ***.

The Defendant’s criminal issues took place in *** in front of my co-workers. I have experienced embarrassment and shame. I am scared to go back to work given that they are aware of what has happened. [ 93 ] S.B. attended six counselling sessions with Stephen Murphy, a registered social worker who provides counselling services in the *** area. The sessions took place between March 26, 2019 and September 18, 2019. Mr. Murphy, a counsellor with 25 years experience, observed S.B. to be very sad and anxious.

She discussed sleeplessness, her concerns about others seeing the images, and her anxiousness at the prospect the postings would never stop. According to Mr. Murphy, S.B. “had feelings of

hopelessness” and “these issues weighed heavily” upon her. He characterized the situation as particularly difficult for anyone during a pregnancy. He described S.B. as very resilient (“she handled this as well as could be expected”), but opined that she would have benefitted from continued counselling sessions.

Unfortunately, six sessions were the maximum her insurance would cover. [ 94 ] The repercussions of D.H.’s actions include widespread and uncontrolled dissemination of the images, manipulation of the images to create humiliating and frightening content associated to S.B., and a flood of unwanted Facebook activity. [ 95 ] This is the context within which I must assess whether S.B. has proven, on a balance of probabilities, she sustained a mental injury that is serious and prolonged and “that the degree of injury rises above the ordinary annoyances, anxieties, and fears that come with living in a civil society”.

I am satisfied she has. In January 2020, S.B. deposed to severe anxiety and distress as a result of her images being posted online. She deposed to an ongoing lack of trust and feelings of devastation. When I consider the entire evidentiary context, I have no difficulty accepting this evidence to be true. [ 96 ] Accordingly, the tort of intentional infliction of mental distress has also been made out. 5. Do either contributory negligence or voluntary assumption of risk factor into this decision? [ 97 ] In his statement of defence, D.H. raises both contributory negligence and voluntary assumption of risk.

To D.H., the fact S.B. agreed to create the images means she must share liability. Respecting voluntary assumption of risk, the statement of defence states: 11. Further and/or in the alternative, the Plaintiff voluntarily assumed an inherent degree of risk in sharing the photos. The Defendant pleads this not as a full defence to the torts alleged, but as a significant factor as it relates to damages. [ 98 ] For the following reasons, I have concluded that contributory negligence does not arise on the facts of this case.

As s. 7.4 of the Act makes clear, a person depicted in an intimate image does not lose their expectation of privacy by virtue of the fact they consented to its creation, provided the person doing the recording knew or reasonably ought to have known the image was not to be further distributed. In other words, the statutory cause of action is made out regardless of whether the plaintiff did exactly what D.H. suggests is contributorily negligent. [ 99 ] Respecting the common law torts, I note that neither is based in negligence.

In Sound Stage Entertainment Inc. v Burns , 2019 SKCA 18 , 431 DLR (4 th ) 433 , Richards C.J.S. was tasked with interpreting the word “fault” as it appears in The Contributory Negligence Act, RSS 1978, c C-31 .

After reviewing the language of the act, its object and legislative history, as well as case law from other jurisdictions interpreting similar legislation, he concluded: 4 ... a careful examination of the wording, object and legislative history of s. 3 of the Act reveals that it is concerned only with negligence, not with tortious or at-fault acts more generally. … [ 100 ] Because I have found D.H. liable for two intentional torts (public disclosure of private facts, intentional infliction of mental distress), the provisions of The Contributory Negligence Act do not apply.

Even if they did, I would adopt Justice Gomery’s words in Jane Doe No. 2 and conclude that S.B.’s actions are not, in any way, causally connected to her loss: 98 … There is nothing inherently wrong about taking intimate photos of an adult or filming consensual sex between adults, or agreeing to participate in such photos or recordings. What is wrong is the non-consensual publication of sharing of a photo or recording of someone who did not want to share it with anyone else. [ 101 ] Respecting voluntary assumption of risk, I have again concluded it does not apply.

Contrary to D.H.’s pleadings, voluntary assumption of risk is a complete defence in which he must prove, on a balance of probabilities, that S.B. assumed the risk of injury and gave an express or implied consent to relieve D.H. of liability for it. He has failed to discharge that burden. 6. What is the appropriate award of damages? [ 102 ] S.B. seeks general, aggravated, and punitive damages. Respecting general damages, she submits that $75,000 is perhaps low, with $100,000 likely toward the upper end of the range.

Respecting aggravated and punitive damages, she seeks $75,000 and $50,000, respectively. [ 103 ] Respecting damages, I have again found Jane Doe No. 1 , Jane Doe No. 2, and Shillington particularly helpful. Jane Doe No. 1 [ 104 ] The central facts of Jane Doe No. 1 are similar to the central facts in this case. The plaintiff’s boyfriend posted an intimate video of her to a pornographic website without her knowledge or consent. He also showed it to some young men with whom she had gone to high school. The impacts on the plaintiff were significant and long-lasting.

She was unable to sleep, had no appetite, barely ate, could not focus, skipped classes, and deferred exams. Over the Christmas break, she barely showered, stayed in bed, had no appetite, and spent much of the day crying. Her mother took her to a crisis intervention centre. She experienced serious depression and saw a counsellor for over a year and a half. Whenever she encountered the defendant, she experienced intense emotional distress akin to panic attacks and sometimes collapsed. She was acutely aware the video had been viewed by members of her former social circle.

Four years later, she continued to experience emotional distress and was worried the video would resurface and compromise her employment, career aspirations, and future relationships. Like S.B., Jane Doe No. 1 was a resilient young woman, who had completed an undergraduate program and gained admission to graduate studies. [ 105 ] The defendant had been found liable for breach of confidence, public disclosure of private facts, and the intentional infliction of mental distress.

[ 106 ] Respecting damages, Stinson J. was unable to locate any Canadian decisions in which the defendant had posted intimate images without consent.

He agreed with the plaintiff’s submission that a review of sexual battery cases might lend assistance. [ 107 ] Characterizing Nova Scotia (Attorney General) v B.M.G. , 2007 NSCA 120 , 288 DLR (4 th ) 88 , as an authoritative account of the function and range of non-pecuniary damages in sexual battery cases, he quoted extensively from it, highlighting the following: • in the context of sexual assault and battery cases, an award of general damages should recognize the deep affront to human dignity and violation of personal autonomy implicit in such acts; • an important function of the non-pecuniary damages award in sexual battery is to demonstrate to the victim and community that these fundamental rights have been vindicated; • aggravated damages are an important aspect of non-pecuniary damages in sexual battery cases and may be awarded if the battery has occurred in humiliating or undignified circumstances; • in sexual battery cases, an award of non-pecuniary damages should provide solace for the victim’s pain, suffering, and loss of enjoyment, vindicate the victim’s dignity and personal autonomy, and recognize the humiliating and degrading nature of the acts; • the following factors, endorsed by the Supreme Court of Canada in Blackwater v Plint , 2005 SCC 58 , [2005] 3 SCR 3 [ Blackwell ] , are relevant to the assessment of non-pecuniary damages: the circumstances of the assaults, the circumstances of the defendant (including position of trust), and the consequences to the victim, including ongoing psychological injuries. [ 108 ] To Stinson J., this framework applied to the facts before him: [56] I recognize that, unlike the foregoing (and like) cases which involved actual battery of the plaintiff, there was no physical touching in the present case.

That said, the plaintiff’s resulting injuries bear striking similarities to those for which the courts have awarded compensation in these other cases. The actions of the defendant in the present case offended and compromised the plaintiff’s dignity and personal autonomy.

In my view, a non-pecuniary damage award in a case such as this should similarly “demonstrate, both to the victim and to the wider community, the vindication of these fundamental, although intangible, rights which have been violated by the wrongdoer”. [ 109 ] Working through the Blackwell factors, he acknowledged the impossibility of knowing how many times the video had been viewed, copied, or downloaded. He characterized the complainant as vulnerable. He characterized the defendant’s actions as invasive and degrading, tantamount to multiple assaults upon the plaintiff’s dignity.

Respecting breach of trust, he noted the parties’ lengthy, intimate, and trusting relationship, which allowed the defendant to persuade the plaintiff to provide the video to him. By posting the video, the defendant breached a trust relationship. In light of these factors, as well as the emotionally and psychologically devastating consequences, he awarded general damages in the amount of $50,000. [ 110 ] Respecting aggravated damages, Stinson J. focused upon the breach of trust.

He awarded aggravated damages in the amount of $25,000. [ 111 ] Respecting punitive damages, he found that the defendant had acted in a high-handed and arrogant fashion and had recklessly disregarded the plaintiff’s rights and the impact of his actions upon her. Considering proportionality, blameworthiness, vulnerability, harm, the need for deterrence, and the lack of any other sanctions, he awarded punitive damages in the amount of $25,000. Significantly, he found the defendant had acted with malice.

Jane Doe No. 2 [ 112 ] In Jane Doe No. 2 , the plaintiff sought default judgment against her boyfriend for damages arising from physical assaults and the posting of a sexually explicit video to a pornographic website without consent. The last incident of physical assault had occurred in March 2014, after which the defendant was criminally charged and later convicted of assault. Two years later, the plaintiff learned the defendant had posted the video. By this time, it had been linked to 10 other pornographic websites. Her face was clearly visible.

When she confronted the defendant, he admitted he had posted it as “fair trade” for her reporting the assault to police. As he put it, “I have a criminal record for life, ur an internet whore for life”. When she threatened to contact police, he threated to post nude photos of her. By the time she persuaded the website administrator to take the video down, it had been viewed over 60,000 times. It was impossible to know if it had been downloaded or shared. [ 113 ] As to the impact on the complainant, Gomery J. wrote: [30] ... Jane states that she has felt depressed, violated, and alone.

She continues to experience intense shame and anger. She will never know who has seen or will see the video and what it has caused or will cause people to think, do, or say. Although she has received psychotherapy, she remains depressed and anxious. [31] Jane says she is “sick with fear” that [her son] will see the video one day. She worries that her current and future co-workers, friends, and others know or will also come to know of it. She worries that she will be considered a bad mother, denied educational, employment, and social opportunities, and forever stigmatized because of the video.

She says that she has been unable to pursue other romantic relationships for fear it may resurface and ruin a budding relationship. [ 114 ] The defendant was found liable for assault and battery, as well as public disclosure of private facts. For assault and battery, Justice Gomery awarded $20,000, the full amount claimed. [ 115 ] Respecting damages for public disclosure of private facts, Justice Gomery noted the betrayal of trust that occurs whenever intimate images are posted to the internet as “payback” for some perceived slight or wrong. She noted the loss of control over

bodily autonomy, as well as the repeated and enduring violations of privacy and dignity. She adopted and applied the analysis in JaneDoe No. 1, noting the plaintiff’s vulnerability as a high school student and single mother on social assistance. She characterized thedefendant’s actions as degrading and invasive. She noted the length of time the video had been online and the number of times it hadbeen viewed.

She noted the serious and long-term impacts on the plaintiff’s psychological well-being, ability to form relationships, andability to trust. [116] Jane Doe No. 2 is particularly helpful as it pertains to aggravated damages.

After quoting from the SupremeCourt of Canada’s decision in Hill v Church of Scientology of Toronto, (SCC), [1995] 2 SCR 1130, Gomery J. adoptsand applies the following test: [136] Justice Cory went on to say that a court awarding aggravated damages must find that the defendant was “motivated by actualmalice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or byincreasing the mental distress of the plaintiff”. [117] Applying that test to the facts of her case, she held: [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. [138] In this case, I conclude that there was something more. Nicholas was motivated by actual malice. His conduct increased Jane’shumiliation and anxiety. He aggravated the damage to Jane’s reputation by posting the video to a pornographic website, giving it adegrading title ... and showing it or sharing it with his friends.

He further added to Jane’s distress after she discovered the video bytaunting her and threatening to post further nude images of her online. She awarded general damages of $50,000 and aggravated damages of $25,000. [118] Respecting punitive damages, Justice Gomery noted the defendant had acted maliciously and that his conductwas highly offensive and inconsistent with standards of decent behaviour. Finding the total award of compensatory damages insufficientto adequately punish, denounce and deter, she awarded punitive damages of $25,000.

Shillington [119] In Shillington, the plaintiff and defendant were in a relationship for about 11 years and had two children together.During the relationship, the plaintiff shared some intimate photographs with the defendant. It was understood he would not furtherdistribute or share the images. Near the end of the relationship, the defendant confessed he had posted the images online. The plaintifflocated them on pornography websites. In some of the images, she was clearly identifiable.

In 2016, the plaintiff left the relationship,having endured a violent and intrusive sexual assault. [120] As a result of the defendant’s actions in posting the images, the plaintiff experienced mental distress,psychological and emotional suffering, nervous shock, depression, anxiety, humiliation, and sleeplessness. [121] The sexual assault also caused psychological and emotional suffering, sleep disturbances, post traumatic stressdisorder, and humiliation. [122] After fleeing the relationship, the plaintiff adhered to a rigorous treatment

schedule with a psychologist. Therapyfocused on coping, self-regulation, and boundary setting, as well as desensitization and reprocessing. Despite the lapse of four years, theplaintiff continued to suffer many of the negative effects set out above. As Inglis J. summarized: [17] … Between the treatment she requires and raising her children she is not able to attend school full time. She remains anxious andnervous; she is unable to enjoy a social life; she is unable to engage romantically with anyone. The Plaintiff carries a great deal of shameand guilt. She requires weekly therapy and medications.

She remains insecure and reactive, and finds that she is yet unable to enjoy life. [123] The defendant was found liable for assault, battery, sexual assault, intentional infliction of mental distress, breachof confidence, and public disclosure of private facts.

Recognizing the overlap between the latter three, damages were addressed globally.For those three torts, the plaintiff sought general damages in the amount of $80,000, aggravated damages in the amount of $25,000, andpunitive damages in the amount of $50,000. [124] Respecting general damages, the court noted: [93] … The torts here are not just breaches of privacy or confidence. The Defendant attacked the personal and sexual integrity of thePlaintiff in a grossly public way with disregard for her dignity and the potential and real consequences she experienced.

He appears tohave done so repeatedly and there is no evidence to suggest he has taken steps to rectify what he has done. [125] Emphasizing the plaintiff’s significant pain and suffering, the continued availability of the images, and thenumber of images, Inglis J. awarded $80,000 in general damages. [126] Respecting aggravated damages, she found the defendant was motivated by malice, his conduct another form ofthe domestic abuse she had endured. She awarded $25,000. [127] Respecting punitive damages, she observed: [98] The Defendant’s conduct is worthy of significant condemnation.

His actions were intentional and appear to have been donerepeatedly. His confession made to his partner ... after acting secretly shows that he was aware of the distress his choices would cause the

Plaintiff, and he attempted to clear his conscience. He abused a position of trust for unknown reasons. The conduct is notably nowcriminal in nature in Canada, and regardless of when the actions occurred, they are worthy of punitive measures from this court. Punitive damages were assessed at $50,000.

Analysis [128] Respecting general damages, I note the following: • D.H. admitted to uploading images on multiple occasions • once uploaded, the images were widely and uncontrollably disseminated • there is no way to know how many times the images were viewed, copied, or downloaded • one video was viewed over 1.5 million times, another was viewed over 270,000 times • S.B.’s face is often visible • by providing S.B.’s name and Facebook profile, D.H. exponentially compounded the violations of her dignity, privacy, andpersonal autonomy. • as a pregnant woman, new mother, and employee at the court house where D.H.’s criminal charges were prosecuted, S.B. was in aposition of vulnerability. • D.H.’s actions can only be characterized as invasive and degrading • D.H. abused a position of trust • The impacts on S.B.’s mental health are significant and long-lasting. [129] Under these circumstances, I have decided that a general damages award of $85,000 is required. [130] Respecting aggravated damages, I have no difficulty concluding D.H. was motivated by malice.

As the commentsreveal, he repeatedly offered to share S.B.’s identity, sometimes in exchange for another user “reposting” a video. Not only did he offerto share S.B.’s identifying information, he did share it and thereby unleashed a torrent of degrading, humiliating, and frightening contentdirected at S.B. That these acts increased the plaintiff’s injury, I have no doubt.

I award aggravated damages in the amount of $75,000,the full amount claimed. [131] In Britton v Simon Estate, 2016 SKQB 30, 395 DLR (4th) 139, Kalmakoff J. (as he then was) provided this neatsummary of the principles that govern an award of punitive damages: [90] In general, punitive damages may be awarded in situations where the defendant’s misconduct is a marked departure from ordinarystandards of decent behaviour.

The misconduct must be so malicious, oppressive or high-handed that it offends the court’s sense ofdecency: Whiten v Pilot Insurance Co., 2002 SCC 18, [2002] 1 SCR 595 [Whiten]; Hill v Church of Scientology of Toronto, (SCC), [1995] 2 SCR 1130; Lauscher v Berryere (1999), (SK CA), 177 Sask R 219 (CA). [91] Punitive damages are the means by which a judge or jury expresses outrage with the conduct of the defendant.

Generally speaking,the quantum of a punitive damage award should be sufficient to achieve the objectives of punishment, deterrence and denunciation.Proportionality is also an important governing principle in determining the quantum of punitive damages.

The overall award, includingcompensatory damages, punitive damages, and any other punishment related to the same misconduct, should be rationally related to theobjectives for which the punitive damages are awarded (retribution, deterrence and denunciation): Whiten, at paras 66 - 77. [132] In light of the fact he spent the equivalent of 18 months in jail for the very same conduct, D.H. submits thatdenunciation, deterrence, and retribution have been achieved and punitive damages are not required.

In Whiten v Pilot Insurance Co.,2002 SCC 18, [2002] 1 SCR 595, the Supreme Court noted: [69] ... there is recognition that the primary vehicle of punishment is the criminal law (and regulatory offences) and that punitivedamages should be resorted to only in exceptional cases and with restraint.

Where punishment has actually been imposed by a criminalcourt for an offence arising out of substantially the same facts, some jurisdictions, such as Australia and New Zealand, bar punitivedamages in certain contexts (Gray [(1998), 196 CLR 1]; Daniels [[1998] 3 NZLR 22]), but the dominant approach in other jurisdictions,including Canada, is to treat it as another factor, albeit a factor of potentially great importance. (Buxbaum (Litigation guardian of) v.Buxbaum, [1997] O.J. No. 5166 (QL) (C.A.); Glendale v. Drozdzik (1993), (BC CA), 77 B.C.L.R. (2d) 106 (C.A.);Pollard v.

Gibson (1986), 1 Y.R. 167 (S.C.); Joanisse v. Y. (D.) (1995), (BC SC), 15 B.C.L.R. (3d) 224 (S.C.);Canada v. Lukasik (1985), (AB KB), 18 D.L.R. (4th) 245 (Alta. Q.B.); Wittig v. Wittig (1986), (SK KB), 53 Sask. R. 138 (Q.B.)) The Ontario Law Reform Commission, supra, recommended that the “court should be entitled toconsider the fact and adequacy of any prior penalty imposed in any criminal or other similar proceeding brought against the defendant”(p. 46). [133] D.H.’s actions were malicious and constitute a marked departure from the ordinary standards of humanbehaviour.

The question thus becomes whether an award of punitive damages is required to adequately punish him, denounce hisconduct, and deter others. In light of the significant jail sentence he has served, I find it is not. [134] Accordingly, I award total damages of $160,000.

[ 135 ] As a final note, I wish to address D.H.’s submission that S.B. failed to adequately mitigate the losses she has suffered. In this regard, he submits she should have pursued additional mental health supports and/or enlisted the services of an online management service to cleanse, remove, or reorder negative content. Respecting mitigation, D.H. bears the onus. [ 136 ] Respecting counselling, S.B. availed herself of the six sessions her insurance covered. As to why she did not continue, she provides two reasons: cost and the fact she was caring for a premature infant who required oxygen.

In addition, I note that S.B. does continue to seek supports for her mental health. In September 2020, she was prescribed medication for anxiety, depression, and sleeplessness. While Mr. Murphy opines that S.B. would have benefitted from additional counselling sessions, I am not persuaded she acted unreasonably by failing to pursue them.

More importantly, I am not persuaded that additional counselling would have reduced S.B.’s loss in any meaningful way. [ 137 ] Respecting an online management service, I note S.B.’s evidence that she searched the internet all hours of the day and night to locate and report images so they could be removed. That S.B. chose to do this alone is unsurprising. To hire an online management service, she would have had to share her identity, expose one or more strangers to the images, and trust them to remove them.

Under these circumstances, I am not persuaded she acted unreasonably by failing to enlist the services of an online management service. [ 138 ] As S.B. has been almost entirely successful and given the complexity of this matter, she shall have costs in Column 3. J. K.L. ZERR