Privacy of Intimate Images and Videos in a Digital Age
By Sean Sinclair of Robertson Stromberg LLP
The online distribution of intimate images and videos (often referred to as “revenge porn”) is a growing problem in Canada. According to the RCMP, as outlined in a story by CBC News, police forces are on track to handle more than 5,000 complaints of the unauthorized distribution intimate images or videos over a five-year period. The problem is intensifying in recent years, with police handling more than 1,500 cases per year for each of the past three years.
There are both criminal and civil law issues that arise from these actions. Some of these issues are addressed below.
Section 162.1 of the Criminal Code criminalizes the publication or distribution of intimate images (including videos) of an individual without consent. A working group looking at whether to pass this law found that the existing offences of voyeurism, obscene publication, criminal harassment, extortion and defamatory libel did not adequately address the issue of non-consensual distribution of intimate images and that changes to the law were needed. Section 162.1 of the Criminal Code was introduced in 2014, motivated in part by the cases of Rehtaeh Parsons and Amanda Todd who had committed suicide after individuals had distributed intimate images of them online.
An individual in Saskatchewan has since been convicted under Section 162.1 and received an 18-month prison sentence. There are other cases decided across Canada and several ongoing matters which deal with this same issue.
In addition to criminal law prosecutions, there are a few cases where victims of this conduct have brought court actions against perpetrators.
The nature of the civil lawsuits varies, to some extent, province-to-province.
In Saskatchewan, the government passed amendments to The Privacy Act in 2018 to address the distribution of intimate images. It is now a tort in Saskatchewan for a person to distribute an intimate image of another person without that person’s consent. The Act presumes that consent was not given, and the poster of the material bears the onus to establish that he or she had reasonable grounds to believe that consent was given, to avoid liability.
There are no reported Saskatchewan decisions on these new sections of The Privacy Act. Thus, it is difficult to know what monetary compensation might be given for this type of conduct.
In several other provinces, there are no statutes that create civil liability for the online distribution of intimate images. However, courts have expanded tort law to allow for civil liability for this type of a claim.
The leading case is Jane Doe 464533 v N.D. (an Ontario case where they do not have a statute that deals with this issue). The basic facts are that the defendant had posted an intimate video of the plaintiff on a pornographic website without consent. The defendant allegedly also showed the video to some of his friends or acquaintances. The plaintiff’s friends became aware of the video as well. It was removed by the defendant after approximately 3 weeks. There is no way to know how many times it was viewed or downloaded. The plaintiff was devastated. She deferred examinations, skipped school and stayed in bed. She had trouble sleeping and started seeing a counsellor to deal with the emotional fallout. She experienced serious depression.
The defendant in Jane Doe did not initially file a statement of defence. He was, therefore, deemed to have admitted to the acts in the claim, including the fact that he posted the video without consent. The judge found that the acts of the defendant led to liability on three different bases: breach of privacy, intentional infliction of mental distress and breach of confidence.
On the breach of privacy claim, the judge adopted a new tort, which stems from American case law, of “public disclosure of private facts”. In order to establish that there has been public disclosure of private facts, the judge in Jane Doe indicated that a plaintiff would need to show that there had been publication of a matter that is highly offensive to a reasonable person and is not of legitimate concern to the public.
The Court in Jane Doe awarded general damages of $50,000, aggravated damages of $25,000 and punitive damages of $25,000.
It should be noted that the defendant later successfully brought a motion to lift the default judgment to allow him to defend the claim.
These issues of online dissemination and distribution of intimate images and videos without consent are increasing. Hopefully though, the relatively new criminal sanctions and developing tort law will have some positive effect in deterring individuals from sharing such materials without consent.
 Section 7.3(1) of The Privacy Act
 2016 ONSC 541
 2016 ONSC 4920
Good Faith in Contract Law
By Jared D. Epp, Robertson Stromberg LLP
Although no one on a construction project would argue that good faith is not important, what it means to act in good faith can mean different things to different people. The concept of good faith can often be relevant in the context of termination notices. It is not uncommon, where a party’s contract is terminated, for that party to allege, whether formally or informally, that some aspect of the termination was not done “in good faith”. The issue of good faith, in the context of a termination notice, was recently the subject of a decision by the Ontario Court of Appeal in CM Callow Inc. v. Zollinger.
In this decision, a condominium corporation, through its property manager, had two different maintenance contracts with Callow in relation to a number of condominiums. One contract was for summer maintenance work, while the other contract was for winter maintenance services. The summer maintenance contract was in effect between May 2012 and October 2013, while the winter maintenance contract was in effect from November 2012 until April 2014. Significantly, the winter maintenance contract could be terminated, prematurely, on 10 days’ notice without cause.
Although Callow’s work during the summer seemed to be largely satisfactory, the property manager received a number of significant complaints with respect to Callow’s snow removal services. As a result, in early 2013, the condominium management group (“CMG”) decided that it would terminate Callow’s winter maintenance contract.
However, the CMG specifically chose not to inform Callow of its decision to terminate the winter contract in order to ensure that Callow would complete its summer maintenance work. Not only did Callow complete this work, it also performed a number of additional summer maintenance services in “good faith” and free of charge. Callow also took steps during the summer to lease equipment for the upcoming winter season. Throughout this entire time, CMG did not give Callow any indication that it had decided to terminate Callow’s contract, however, as soon as the summer work was finished, CMG served notice of its intention to terminate Callow’s winter maintenance contract.
After being terminated, Callow decided to sue CMG alleging, among other things, that CMG failed to treat them in “good faith” by failing to let Callow know once a decision had been made to terminate Callow’s contract. At trial, Callow succeeded with this argument and was awarded its lost profit, from the income it would have generated from the winter work, less expenses. Callow was also compensated for the funds that it expended to lease winter equipment which it no longer needed.
However, this decision was over-turned by the Court of Appeal. Although the Appeal Court agreed that CMG had acted “dishonourably”, their deception of Callow did not amount to a breach of CMG’s duty to perform its contractual obligations in good faith. In coming to this conclusion, the Court of Appeal stressed the fact that no one, including CMG, has a duty to disclose information “relevant to termination” nor did the lack of forthright communication by CMG to Callow mean that CMG had forfeited its right to terminate the winter maintenance contract in accordance with that contract’s terms. Callow has since sought leave to appeal this case to the Supreme Court of Canada.
At its core, this decision serves to highlight the uncertain nature of good faith in contract law. Although the Court of Appeal did not believe that CMG had done anything “legally wrong”, the initial judge who heard the case came to the opposite conclusion. It also seems to highlight the difference between a deception by omission and a deception by action, two decidedly unclear legal categories. This is something that the Supreme Court of Canada may very well clarify once they make a decision. However, in the interim, it is a good reminder of the potential perils that can accompany a situation where a decision to terminate is made, but the actual implementation of that decision is deliberately delayed to the prejudice of the party performing the work
James Steele’s article on the latest target of data bank robbers – Canadian municipalities – appears in the August 2019 issue of Canadian Underwriter. James speaks anecdotally of Canadian municipalities who have been hijacked by cyber criminals and advises municipal councils to carefully select the cyber policy that will best protect their taxpayers.
The article can be read here.
by Misty Alexandre
Robertson Stromberg LLP
Like the onus carried by the proverbial middle child, the Consultant is bound to wear the unbiased hat of fairness as they administer the typical construction contract. Perhaps this is why the Courts have consistently paid such deference to the role when disputes reach the courts. A recent Alberta Court of Queen’s Bench decision has confirmed that tradition and provided a few clues as to why the courts typically take a back seat to the findings of a Consultant under a contract.
In ASC (AB) Facility Inc v. Man-Shield (Alta) Construction (2018 ABQB 130), the primary issue considered by the Court was whether the Court should make its own findings or defer to the findings already made by the Consultant.
Man-Shield was contracted to construct a retirement residence in Calgary for the Owner, ASC (AB) Facility Inc. Page+steele/IBI Group Architects acted as the Consultant under the terms of the CCDC2 Contract. The dispute centred around 2 invoices – the former submitted prior to ManShield’s termination from the project, and the latter submitted quite some time thereafter. Relying upon the Consultant’s review and determinations on the invoiced work, the Owner withheld payment on the basis that some of the invoiced work was either deficient or incomplete.
Man-Shield argued that deference to the Consultant’s findings was only applicable during the life of the contract, and that no deference is owed following termination.
Justice Antonio, following various past precedents, concluded that deference to the Consultant continues after termination of the contract for a number of reasons, notably:
• The Consultant has the best opportunity and expertise to determine the matters at stake, and the benefit of the best evidence;
• The terms of a CCDC2 contract clearly show an intention by the parties “that the Consultant’s decisions will be binding at least absent demonstrable and significant error, legal or factual”;
• The parties, in the context of a stipulated price contract, have “subjected themselves to the expertise of a payment certifier and not to a “nuts and bolts” accounting before court”; and
• Prudent policy considerations require deference to the Consultant’s findings, as “to defy or ignore certifications would “encourage litigation of a very harassing kind, and probably to a great extent””.
While the Court will generally defer to the Consultant on decisions of fact or contractual interpretations, the situation is slightly different for a Consultant’s determination of law, as presumably the Court would be in a position of greater expertise.
The Court confirmed that the Consultant was not held to a standard of perfection. Rather, the Consultant’s decisions are persuasive in the absence of contrary evidence or demonstrable and significant error.
Despite Man-Shield’s arguments on various aspects of the Consultant’s findings, it was ultimately unable to satisfy the onus of proving a “demonstrable or significant error” in those findings. As a secondary argument, Man-Shield attempted to discredit the Consultant by providing evidence that his numbers changed over time. The Consultant explained that such changes resulted from correction of superficial errors, or refinement of estimates, each time resulting in Man-Shield’s favour. Man-Shield’s efforts backfired on this aspect, as the Court reasoned that the Consultant’s openness to reviewing his numbers based on new information “supports an inference that he took his role seriously and performed it with objectivity.”
A Consultant’s decision is subject to challenge under the dispute provisions of a CCDC2 Contract. However, disputing parties should be aware of the general deference paid by the courts to a Consultant’s findings. On matters of fact or contractual interpretation, the burden of overturning a Consultant’s findings is a heavy one.
I have been in a car accident and suffered an injury. Can I sue the other driver?
Saskatchewan is often referred to as a no-fault insurance jurisdiction. The reality is more nuanced.
In Saskatchewan, you can elect to either have no-fault insurance or ‘tort-election’ insurance. Each comes with different abilities to sue at fault drivers for your pain and suffering
The default coverage is no-fault insurance in Saskatchewan. With this option, you cannot sue the party who hurt you. Instead, SGI compensates you for your injuries, regardless of who caused the accident. Under no-fault coverage, SGI provides you with a broad range of benefits. However, this does not prevent you from suing the other party for some forms of specific economic loss above and beyond what was covered by your no-fault insurance. For example,
Saskatchewan driver’s are entitled to choose tort-election insurance instead of the no-fault coverage default. With this option, you still get basic insurance regardless of whoever caused the accident. However, the standard benefits included are fewer than no-fault coverage. Under this form of insurance, if the other driver is at fault, you are able to sue them for any injuries over and above your benefits, as well as any pain and suffering that may have resulted from the collision.
Tort-election coverage also allows you to also sue for economic loss: think loss of wages because you missed work due to your injuries. If you suffer what the government calls a ‘catastrophic injury,’ along the lines of paralysis or amputation, you will be entitled to additional benefits to compensate for this.
Tort-election insurance is subject to the regular rules of negligence and contributory negligence. This means if you choose to sue the other side under tort-election, there is a chance you may also be found at fault. If this happens, your damages will be reduced accordingly.
For more information about vehicle insurance in Saskatchewan, contact Jennifer D. Pereira, Q.C.
The above is for general information only. Parties should consider seeking legal advice prior to taking action in specific situations.
Copyright 2019 by Robertson Stromberg LLP. All rights reserved.
How to Avoid Challenges to your Will
by James Steele
Robertson Stromberg LLP, Saskatoon
Having a Will is meant to provide comfort, and to make sure your family gets their inheritance when you pass on. Yet all too often Wills are challenged in court. This can cause a lot of stress and family turmoil. However, there are things you can do to try to avoid your own Will being challenged.
A typical case?
I practise in the area of estate litigation. Let’s take a hypothetical but common scenario, similar to ones I have seen.
“Bill” is 85 years old and lives in Saskatoon. He is a widower and has a son and a daughter. His son lives in Ontario, and does not visit Bill often. Bill’s daughter lives in Saskatoon with her family.
In 2006, after his wife died, Bill made a new Will. It gave everything equally to his two children – a pretty standard Will. The children were aware of the 2010 Will.
In later years, Bill becomes more frail and more dependent. Bill gives up his driver’s license. His goes out of his home less and less. Bill relies on his daughter for medical needs, and errands and visits. Bill feels grateful. The son doesn’t see much of this, as he is living out of province. All the while, the son calls Bill on holidays, and notices Bill is more and more forgetful, although Bill is his cheerful self.
During this time, Bill make a new Will. He uses a homemade Will kit. He asks his daughter to buy a Will kit for him, and Bill fills it out. A friend of the daughter acts as one witness, and the daughter is the other witness (a bad idea, as shown below)
Bill leaves 80% to his daughter, and 20% to his son. He gives the daughter extra, because Bill is grateful to his daughter for the help, but still wants something to go to his son and the son’s family. Bill names the daughter as executor. Bill never tells his son about the new Will, not wishing to risk any turmoil in the family.
A challenge begins:
Bill passes away. The son learns of the new Will. The son has suspicions, and feels this unequal treatment couldn’t have been intended by dad.
The daughter tries to explain, but the son cannot help having concerns about whether his dad was taken advantage of. After all, Bill was forgetful on the phone. Thus, maybe Bill lacked mental capacity when he made the new Will? Or maybe pressure was put on Bill? After all, Bill was living alone, and maybe the daughter used her visits to pressure him?
The son decides to hire a lawyer to challenge the new Will. The daughter hires a lawyer to defend the new Will. Both sides go to court and eventually each spend tens of thousands of dollars in legal fees. Eventually they agree to a compromise, but it takes years, emotion and money.
What can we learn from the above scenario?
First, having a lawyer properly draft your Will, can be a good investment. A lawyer should know what questions to ask, and will keep good notes. The lawyer will meet with a Will-maker alone, and make sure the Will-maker is of a sound mind and is not acting under pressure. Then, if a challenge is later brought, the lawyer’s notes can be very helpful in clearing up any confusion.
The notes of a lawyer are more independent than evidence of the daughter. Right or wrong, any evidence of a beneficiary may unfortunately be seen as potentially conflicted, as she has a personal interest in upholding the Will. The other witness – the daughter’s friend is also not totally independent, as she is a friend of the daughter.
The lawyer will also make sure the Will is executed properly (i.e. the right wording is used to describe assets, and the proper signatures are applied). Here, for example, the daughter should not have acted as a witness. A person who receives a gift under a Will, should not be a witness, as it can lead to that person’s gift being void.
Finally, a Will-maker should tell his or her children about all new Wills, and not leave surprises to be discovered only after the Will-maker has passed on. In this case, if Bill had told his son what his new Will said, the son could have asked Bill questions to clear the son’s concerns. When a Will-maker has died without explaining a new Will to a disappointed child, too often the child assumes the worst.
People choose to challenge a Will for several reasons. The most common grounds are concerns of lack of mental capacity, or concerns of improper pressure.
In my experience, many people wish to challenge a Will because they simply do not believe the Will-maker (who is often their parent) could have intended something which may seem unfair.
However, situations of suspicious family members can often be avoided. With the right planning and communication up front, you can better ensure that your wishes are smoothly followed when it counts the most.
Contacting a Lawyer on this Subject
James Steele practises in Saskatoon in the area of estate litigation, including will challenges, issues surrounding executors, joint account disputes, etc.
For more information on this subject or specific legal advice, contact James Steele at 1 306 933 1338.
The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations.