[137] Based on the test I have adopted, liability for public disclosure of private facts requires the court to find that the defendant’s conduct was “highly offensive”. This element of the tort
does not mean that an aggravated damages award will be appropriate in every case where the cause of action is made out. There
must be something more.
[138] In this case, I conclude that there was something more.
N.M. was motivated by actual malice. His conduct increased
Jane’s humiliation and anxiety. He aggravated the damage to
Jane’s reputation by posting the video to a pornographic website,
giving it a degrading title (“yellow hoe sucking a big one”), and
showing it or sharing it with his friends. He further added to
Jane’s distress after she discovered the video by taunting her and
threatening to post further nude images of her online.
[139] I conclude that Jane is entitled to general damages of
$50,000, and an additional amount of $25,000 for aggravated
damages. I therefore order N.M. to pay $75,000 in general and
aggravated damages to Jane for his posting of the video on the
Internet.
[140] Punitive damages are awarded for malicious, high-handed,
arbitrary or highly reprehensible misconduct that falls outside the
standards of decent behaviour.63 Punitive damages are exceptional.
Their function is not to compensate the plaintiff for harm or loss
suffered. The objectives of punitive goals are instead to punish the
defendant, denounce their conduct and deter similar behaviour in
future.64 Punitive damages are only awarded when the compensatory damages awarded are insufficient to accomplish the objectives
of punishment, deterrence and denunciation.65
[141] I have already found that N.M. acted maliciously. His
conduct was highly offensive and inconsistent with standards of
decent behaviour. He has shown no remorse for his actions. On
the contrary, when Jane discovered the video, he sent her texts
telling her to “fuck off” and threatened to humiliate her further
by distributing other nude images.
[142] In my view, the compensatory damages already awarded
are not sufficient to accomplish the objectives of punishment,
deterrence and denunciation. Punitive damages are necessary
here to emphasize the seriousness of N.M.s’ malicious actions and
_____________
63 Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19,
2002 SCC 18, at para. 36.
64 Hill v. Church of Scientology of Toronto, at para. 197.
65 C. (R.) v Cybulski, [2017] O.J. No. 3708, 2017 ONSC 4331 (S.C.J.), at para. 249.
