Jane Doe 72511 v. N.M. et al.
[Indexed as: Jane Doe 72511 v. M. (N.)]
2018 ONSC 6607
Superior Court of Justice, Gomery J. November 2, 2018
Damages — Personal injuries — Defendant subjecting plaintiff to
physical and emotional abuse over six-month period while they were
living together — Plaintiff not suffering any permanent physical injuries but experience leaving her with significant emotional and psychological trauma — Plaintiff awarded general damages of $20,000 for
assault and battery.
Torts — Negligence — Occupier’s Liability — Defendants’ son frequently assaulting and threatening plaintiff while she and son were living in defendants’ residence — Defendants owing plaintiff duty of care
under Occupier’s Liability Act — Defendants breaching that duty of care
as they witnessed abuse and threats and failed to call police or otherwise intervene to prevent further violent acts — Defendants jointly liable with son for plaintiff’s damages arising from assault and battery.
Torts — Public disclosure of private facts — Tort of public disclosure
of private information recognized in Ontario — Defendant uploading
sexually explicit video of plaintiff on pornographic website without her
knowledge to punish her for reporting his assaults and threats to police
— Defendant liable to plaintiff for public disclosure of private information — Plaintiff awarded general damages of $50,000, aggravated
damages of $25,000 and punitive damages of $25,000.
N physically assaulted and threatened the plaintiff over a period of about six
months while they were living together in the residence of N’s parents, the Ms. Some
of the abuse occurred while the plaintiff was pregnant. The Ms witnessed the abuse
but did not intervene. The plaintiff ultimately called the police, and N was charged
with and convicted of assault. In order to punish the plaintiff for reporting him to the
police, N uploaded a sexually explicit video of her on a pornographic website without
her knowledge. By the time the plaintiff found out about the video and had it taken
down, it had been viewed over 60,000 times. The plaintiff sued N and the Ms for
damages. They did not defend the action, and she moved for default judgment.
Held, the motion should be granted.
N was clearly liable for damages for assault and battery. The Ms owed a duty of
care to the plaintiff under the Occupier’s Liability Act, R.S.O. 1990, c. O.2 (“OLA”).
The exception in s. 4(1) of the OLA did not apply. In order for the Ms duty to the
plaintiff to be vitiated under s. 4(1), the plaintiff must have accepted that N would
physically harm her and that she would have no right to sue him or his parents for
her injuries. However, the Supreme Court of Canada has ruled that a person cannot consent to intentional application of force causing serious hurt or non-trivial
harm. The Ms breached their duty of care to the plaintiff as they were aware of
N’s abuse and did not call the police or otherwise intervene to prevent further violent acts. The plaintiff suffered injuries and damages as a result of the Ms’ failure
to take reasonable steps to protect her in their home. They were jointly liable, with
N, for the plaintiff’s damages for assault and battery.
The tort of public disclosure of private facts should be recognized in Ontario.
A cause of action for public disclosure of private facts represents a constructive,