Internet and a Breakdown of Privacy: The New Era of Sexting and The Courts’ Response Technology undoubtedly has great power when a superpower nation’s diplomacy can be built on 15-second tweets. A one-second decision to share, send, or post can irreversibly release data within the rest of the world’s reach. That same one second can also change a person’s life forever in a terrifying and nightmarish way. In Jane Doe v N.D., a couple who formerly dated in high school and had broken up continued to communicate regularly by Internet, texting, and telephone, and continued to meet up occasionally. The defendant asked the plaintiff, who were both 18 at the time, repeatedly to make a sexually explicit video of herself to send to him. She refused, but he continued to probe and send her intimate pictures and videos of himself, pressuring her to do the same. Eventually, after the defendant promised that no one else would see the video, she relented and sent him an intimate video. Later that same day, the defendant posted the video on an internet pornography website and had shown it to mutual colleagues. The plaintiff sued under the tort of intentional infliction of mental distress, among other causes of action. There are three elements of the tort of intentional infliction of mental distress, as set out in Prinzo v Baycrest Centre for Geriatric Care: (i) conduct that is flagrant and outrageous, (ii) conduct that is calculated to produce harm, and (iii) conduct that results in a visible and provable injury. Under flagrant and outrageous conduct, the court considers whether the defendant’s act constituted reckless disregard by examining whether or not mental distress or suffering would ensue from the defendant’s conduct. The court in Jane Doe v N.D. found that core examples of “flagrant or outrageous” behaviour include clear violation of promises made, and a breach of trust – a malicious purpose to cause harm or a motive of spite is not required for a finding of flagrant and outrageous conduct. The requirement that the conduct is calculated to produce harm is satisfied if the court finds it was clearly foreseeable that the conduct in question would cause the plaintiff profound distress. This test is met when the consequences or kind of harm are known to be substantially certain to follow. Finally, the third element of visible and provable injury includes both actual physical harm and also significant psychological harm, which does not require a medical expert if the court can be convinced of the plaintiff’s harm otherwise. In the Jane Doe v N.D. case, Justice Stinson of the Superior Court found that among others, the tort of intentional infliction of mental distress was made out. As a result, the plaintiff was awarded more than $140,000 in damages. However, the case did not just end there. Upon Justice Stinson’s decision, the defendant, who previously had not retained counsel, decided to retain counsel to set aside the judgment for a “do-over”. The defendant alleges that he could not afford a lawyer and that the denial of a second chance at re-litigating the case would equate to a denial of access to justice and cause serious prejudice towards him. Justice Dow of the Superior Court set aside the damages ordered by Justice Stinson in a ruling that has still not been released to the public. The plaintiff is now appealing this decision; if she is unsuccessful, she would be back at square one to re-litigate the same matters. For more information or any other questions regarding the tort of intentional infliction of mental distress, please contact our lawyers at https://devrylaw.ca/civil-litigation/. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, LitigationMarch 27, 2017June 18, 2020
Is Ontario Really the Litigation Capital of Canada? It is a commonly held belief that Ontario is the litigation capital of Canada. With more lawyers than any other province, a greater population and far larger economy, this idea is intuitive and easy to believe. However, the question remains; are individuals and corporations located in Ontario more likely to litigate than those located elsewhere? With no immediate answer at hand aside from anecdotes and conjectures, I decided to investigate. In order to analyze how much litigation is taking place in Canada, I looked at the number of Court decisions there are from Canlii for each province from January 1st, 2014 to December 31, 2016. I chose those years to standardize the input as some jurisdictions do not have data from prior to 2014, while others have not entered decisions for 2017 yet. The data is imperfect as it includes some Court decisions for matters such as cost motions and other non-trial decisions, but for the most part, it provides an accurate picture of the amount of litigation taking place in Canada. This number includes both civil and criminal court cases. Province Court decisions GDP Population Ontario 19,249 763,276,000,000 13,983,000 British Columbia 8,954 249,981,000,000 4,751,600 Alberta 4,349 326,433,000,000 4,252,900 Saskatchewan 2,235 79,415,000,000 1,150,600 Nova Scotia 1,879 40,225,000,000 949,500 Newfoundland 1,106 30,100,000,000 530,100 Manitoba 1,080 65,862,000,000 1,318,100 New Brunswick 819 33,052,000,000 756,800 Yukon 388 2,710,000,000 37,500 Northwest Territories 270 4,828,000,000 44,500 Prince Edward Island 169 6,186,000,000 148,600 Nunavut 114 2,447,000,000 37,100 The numbers are hardly surprising here, the more populous and wealthy a Province is, the more court decisions there are. This is supported by the data indicating that 98.6% of the variation in court decisions per province can be explained by population differences alone. However, after adjusting for population size, the density of a province still provides some information on how litigious the province is. Adjusted for population size, 78% of the variation in court cases across Canada is explained by a province’s population density. The smaller provinces have slightly more court decisions per capita than larger Provinces do. Province Court decisions per 10,000 people Manitoba 8.19 Alberta 10.23 New Brunswick 10.82 Prince Edward Island 11.37 Ontario 13.77 British Columbia 18.84 Saskatchewan 19.42 Nova Scotia 19.79 Newfoundland 20.86 Nunavut 30.73 Northwest Territories 60.67 Yukon 103.47 I then looked to see what other factors might influence the amount of litigation taking place in a province. Aside from population size, both crime and economic activity seem to be good indicators of litigation. The more economic activity there is in a Province, the more money there is to litigate over. Similarly, the higher the crime rate in a province, the more criminal trials there should be. To try and discern how these variables interacted with each other, I ran a multivariate regression on the number of court decisions per province, using population size, economic data, and crime rates as the variables. Together, these factors explain 61% of the variation in the number of court decisions per province. Ontario and Nova Scotia have more court decisions than the model predicts, while Alberta, Manitoba and Saskatchewan have far less. This means that Ontario and Nova Scotia are slightly more litigations than their population size, economic activity and crime rates suggest, while Alberta, Manitoba and Saskatchewan have less legal activity. After investigating the data, it seems as if Ontario has slightly more litigation than the rest of Canada. However, the effect is minor, and the level of litigation remains similar throughout the country. If you are in need of any legal services or advice, please contact Devry Smith Frank LLP at 416-449-1400, or visit our website today. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, LitigationFebruary 13, 2017June 18, 2020