As society changes, courts struggle to adapt. Trial courts (through the advocacy efforts of counsel) will sometimes create a new tort in their written decision in a civil litigation case. Usually they will do that in conjunction with their decision regarding other, well established torts.
For example, a trial court a few years ago, created a “tort of harassment.”
Recently, however, an appellate court shut down that tort, saying there was no need for it yet, as other well established torts, like “intentional infliction of mental suffering” could deal with harassment fact situations.
Now an Ontario Superior Court, trial court has created a new tort, that is somewhat like defamation and somewhat like the relatively new tort of “intrusion upon seclusion.” that tort is sometimes called “invasion of privacy.”
The fact pattern before the court was unusual and disturbing, and it involved a family law matter being heard at the same time as a related civil litigation suit was being heard. The court found that the husband/father, who was a producer in the entertainment industry, had put various things on the internet regarding his estranged wife and their children.
The court found the husband/father to be liable for the tort of invasion of privacy and the tort of intentional infliction of mental suffering as well as for various family law remedies and punitive damages.
The court looked at the various ways that the tort of “invasion of privacy” can be found to be an appropriate remedy by a court, and then decided to create the new tort as essentially an adjunct to that tort.
The new tort is called “publicly placing a person in a false light.”
It sounds a lot like “defamation.” Defamation law can be tricky because there are some special notice provisions and or limitation periods that may apply and thus sometimes because of those traps, a plaintiff will not be able to bring forward a defamation case. This new tort would seem to be a nice alternative.
Other Ontario Superior Court judges do not have to follow this decision.
However, it will be binding on Small Claims court judges.