Guilty by Way of Default Judgment

Social media continues to provide challenges across many areas of Canada’s judicial system. One particularly troubling reality of our modern digital age is “revenge porn,” in which people release nude images or videos of former sexual partners.

On January 21, 2016, Justice Stinson of the Ontario Superior Court of Justice released a decision for Jane Doe 464533 vs. N.D. in which the Plaintiff’s ex-boyfriend uploaded an intimate video of her to a pornographic website. The Defendant had received the video from the Plaintiff while they were living apart and involved in an on-again-off-again relationship. The Defendant uploaded the video to a pornographic website the same day he received it from the Plaintiff. The video was removed from the original website after three weeks, but as the court noted, there is no way to determine how many time it was viewed, or many copies or partial copies may have been taken and stored on other computers.

The Plaintiff claimed a breach of confidence, intentional infliction of mental distress, and invasion of her privacy. After a few years of negotiation between her legal team and his (though he eventually acted as his own legal counsel), the Defendant failed to respond to her statement of claim, and as such, was noted in default. The Plaintiff sought both compensatory and punitive damages as well as a permanent injunction, preventing the Defendant from uploaded any further images of her to any other website.

In judgment, Justice Stinson held the Defendant liable for the breach of confidence, intentional infliction of mental distress, and invasion of her privacy. Justice Stinson awarded the Plaintiff $50,000 in general damages, $25,000 in aggravated damages and $25,000 in punitive damages as well as costs. Justice Stinson also issued an injunction ordering the Defendant to destroy any other images or recordings of the Plaintiff. In awarding these damages, Justice Stinson stated “This case involves much more than an invasion of a right to informational privacy; as I have observed, in many ways it is analogous to a sexual assault.”

The Overall Interest of Justice

Following this, the Defendant brought a motion to set aside the default judgment. On September 26, 2016, a second judge, Justice Dow, issued a ruling, Doe v N.D., 2016 ONSC 4920, In this decision, Justice Dow set aside the original judge’s findings of liability and assessment of damages upon the payment of $10,000 in costs. Justice Dow found that the “overall interest of justice” favoured giving the Defendant a chance to file a defense.

The Plaintiff brought a motion for leave to appeal Justice Dow’s decision, but it was dismissed, leaving the trial to start all over again.

Lessons Learned

While a new decision will ultimately determine how courts approach revenge porn cases, Justice Stinson’s original decision still holds weight in assessing the severity of the offense and damages stemming from revenge porn. Justice Dow’s decision addresses the more technical issue of whether Defendants can be found guilty by way of default judgment in such matters.

Contact Gelman & Associates if you are going through a separation or are worried about your rights regarding intimate images. We als offer our clients a free consultation with a psychological professional if required. In order to be accessible to clients and prospective clients, our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.

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