Court File and Parties

COURT FILE NO.: FS-22-00028849-0000 DATE: 20240226 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MINGKE CHEN Applicant – and – VALERIIA HUANG Respondent

Counsel: Jake Sandler, for the Applicant A. Sam Zaslavsky, for the Respondent

HEARD: February 23, 2024

VELLA J.

REASONS: Motion for Declaration of Breach of the Tort of Intrusion Upon Seclusion

Introduction

[1] The Respondent Wife seeks a declaration pursuant to s. 97 of the Courts of Justice Act that the Applicant Husband committed the tort of the intrusion upon seclusion with respect to his interception of a number of emails and private Facebook postings made between her and third parties.

[2] This issue first came to the attention of the Wife when she received the Husband’s settlement conference brief attaching the subject “electronic communications”. The Settlement Conference judge, Justice Kristjanson, granted leave to the Wife to bring this motion seeking (only) declaratory relief.

[3] The Wife’s position is that the Husband “hacked” into her emails and Facebook postings through his computer history as she used this computer during the marital relationship.

[4] The Husband’s primary position is that, since the electronic communications were attached to his Settlement Conference Brief, therefore, they were not publicly distributed absolving him of any liability. Furthermore, he takes the position that since declaratory relief is a fact-driven process, this matter should be deferred to trial where the evidence can be tested by cross examination.

The Law – The Tort of Intrusion Upon Seclusion

[5] In Jones v. Tsige, 108 O.R. (3d) 241, 2012 ONCA 32, the Court of Appeal stated the elements of the tort of intrusion upon seclusion, at para. 71, as follows:

(a) The responding party’s conduct must be intentional, which includes reckless behaviour;

(b) The responding party must have invaded, without lawful justification, the moving party’s private affairs or concerns; and

(c) A reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish.

[6] With respect to the third element, “harm to a recognized economic interest is not an element of the cause of action” (Jones, at para. 71). Therefore, the quantum of damages will “ordinarily be measured by a modest conventional sum” (Jones at para 71). The Court of Appeal capped those non-pecuniary damages at $20,000 subject to inflationary increase, and subject also to enhancement through aggravated damages and the award of punitive damages, which it said will be rare.

[7] The Court of Appeal also cautioned that a claim “will arise only for deliberate and significant invasions of privacy”, including intrusion upon private correspondence, amongst other categories not relevant to this motion (Jones, para. 72). Furthermore, the nature of the invasion must be such that it is “highly offensive” when viewed objectively.

[8] Contextualizing the analysis, the Court of Appeal, at para. 66, noted the high value society places on the protection of privacy and that the “right to informational privacy closely tracks the same interest that would be protected by a cause of action for intrusion upon seclusion”. At para. 68, the Court wrote:

Technological changes pose a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order.

The Evidence and Analysis

[9] The Wife deposed the following:

(a) In advance of the settlement conference that took place on September 22, 2023, the Husband produced a number of text messages and Facebook correspondences between her and third parties;

(b) These communications were personal and private correspondences;

(c) She did not share any of these communications with the Husband;

(d) She attached 8 such communications as examples, all dated in 2021.

(e) The Husband admitted at the settlement conference that he effectively used his computer history to “hack” into her private accounts, because she had previously used his computer to access her accounts during the relationship;

(f) At no time did she consent or anticipate that the Husband would use her login information to access her private and confidential emails and Facebook messages.

[10] The Husband did not deny any of the above allegations in his responding affidavit. He was silent on these allegations.

[11] Rather, with respect to the tort, the Husband deposed that:

(a) Justice Kristjanson’s comments about the “tort of invasion of privacy” were obiter dicta;

(b) the subject communications were “only included in the settlement conference brief and were never provided to the Respondent [Wife] at any other time”; and

(c) he believed that all materials produced at the settlement conference were confidential and produced on a without prejudice basis, not forming part of the continuing record, and therefore, he cannot have breached any privacy rights belonging to the Wife.

[12] As stated, the Husband does not deny, either in his affidavit or through submissions, that he intentionally accessed the Wife’s emails and Facebook exchanges using the computer history on his computer. He further does not deny that he obtained the emails and Facebook exchanges without the knowledge or consent of the Wife. Finally, he does not deny that these communications were private and confidential to the Wife, and that she had a reasonable expectation of confidentiality in them.

[13] The Husband relied on Godin v. Godin, 2010 NSCC 365, for the general proposition that improperly obtained written communications, such as emails, cannot be used as evidence because the “probative value does not outweigh their prejudicial effect”.

[14] In Godin, at paras 20 – 24, Justice Lynch was dealing with the wife’s attempt to adduce into evidence certain emails that she surreptitiously obtained to challenge the credibility of the Husband within the context of a trial dealing with parenting issues. Her Honour states that in order for surreptitiously obtained emails to be admissible, the probative value must be substantial in order to outweigh the presumptive prejudice occasioned by surreptitiously obtaining emails.

[15] Ironically, if anything, this case supports the Wife’s position. The Wife has adduced emails and private Facebook postings that were surreptitiously obtained by the Husband to use against her in this family law proceeding. Godin does not assist the Husband, since the purpose of the Wife’s adducing the electronic communications is only for the fact that they were surreptitiously obtained without her permission to establish the tort of intrusion upon seclusion. They are not adduced for the truth of their content. They are admissible for this purpose as being relevant (logically probative to the material issue before the court), and any prejudice to the Husband has not been established. There is no bar to admission of these emails and Facebook exchanges.

[16] The Husband also submitted that he had only obtained a few such emails and Facebook exchanges, far less than the 1800 emails that were the subject of Justice Kiteley’s ruling in Dixon. Therefore, his intrusion did not reach the threshold of a violation. However, I find this argument unpersuasive. The number of violations of a privacy right is not determinative of whether a breach of the tort of intrusion upon seclusion has occurred. Rather the nature of the intrusion is such that it must be significant. The number of violations is a relevant consideration in assessment of damages as an aggravating factor to enhance the non-pecuniary general award or whether to assess punitive damages, beyond the cap set by Jones. The usual factors for assessment of aggravating damages and punitive damages for intentional torts apply to this tort. I find that the intrusion by the Husband was significant not only in terms of the number of intrusions but because the purpose of the surreptitious intrusion was to gain an advantage against the Wife in the family law proceedings.

[17] The surreptitious obtaining of a spouse’s private communications by the adverse spouse, with a view to using those private communications against the privacy holder’s interests within the context of family law proceedings, is not to be sanctioned and will, absent extraordinary circumstances, be highly offensive and cause distress, humiliation or anguish/mental distress to the privacy holding spouse from the objective perspective of the reasonable person. Persons in spousal relationships are particularly vulnerable to having their private and confidential communications intercepted by their partners who will often have enhanced access to them for reasons such as in the current motion, where the Wife routinely used the Husband’s home computer.

[18] The Wife has established the requisite elements of the tort of intrusion upon seclusion:

(a) The Husband intentionally accessed her private and confidential communications without her consent;

(b) The Husband accessed these communications without lawful justification for the purpose of advancing his interests against her in the family law litigation; and

(c) A reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish to the victim.

Is Declaratory Relief Appropriate?

[19] Section 97 of the Courts of Justice Act provides that the Superior Court of Justice “may make binding declarations of right, whether or not any consequential relief is or could be claimed”.

[20] The Husband submits that notwithstanding the merits of the tort claim, this motion raises an issue for trial, and declaratory relief is not appropriate. He submits that he would like to challenge the evidence at trial and have the opportunity to adduce further evidence. He relies on Bonnick v. Bonnick, 2016 ONSC 657, for the proposition that declaratory relief is “heavily fact driven”.

[21] I will deal first with the submission that the issue on the motion raises a triable issue. First, this is not a motion for summary judgment. Second, and in any event, the Husband knew the allegations made against him, had the benefit of the Wife’s affidavit and Justice Kristjanson’s settlement conference endorsement, and filed his own responding affidavit. There was no request for an adjournment and the Husband did, in fact, respond to the Wife’s allegations under the heading in his affidavit “Tort of Invasion of Privacy”. In my view, the Husband had every opportunity to respond to the specific allegations, having regard to the elements of this tort. I am entitled to assume that the evidentiary record is complete, there is no conflict in the affidavits that requires an assessment of credibility at all, much less one that could not be resolved on the basis of the written record.

[22] With respect to the second submission, in Bonnick, the court was considering a motion for the sale of the matrimonial home under the Partition Act, R.S.O. 1990, c. P.4. At para. 19, Justice Timms noted that the issue before his Honour, namely, a determination of costs for future care and whether it should be included in the calculation of family property (an issue identified to be, as of the date of this decision, undetermined) and left to trial because it will be heavily fact-driven. This case is entirely distinguishable from the case before me which is neither factually complex nor are the material facts in dispute.

[23] The resolution of this motion at this stage of the proceedings will result in a fair and expeditious determination of a substantive issue that would otherwise have to be determined at trial. As stated earlier, the issue of damages and other consequential relief will not be complicated given the constraints on damages imposed in Jones. However, for what it is worth, had the Wife sought damages in her Notice of Motion (she sought only declaratory relief), I would have been inclined to assess those damages. Furthermore, had the Wife sought other consequential relief such as an undertaking not to intercept or access the Wife’s emails and private Facebook postings (as per Dixon v. Lindsay, 2021 ONSC 1360 at para. 65), or an undertaking to destroy all copies of the Wife’s electronic communications, I would have entertained that relief.

[24] While the Wife suggested at the motion (after I queried the lack of consequential relief being sought) that I might award such relief now, it is clear that it was not pleaded and not addressed in the facta. It is incumbent on counsel to ensure their notices of motion reflects all the material facts, grounds for relief, and forms of relief they wish the court to adjudicate upon. This is a matter of fundamental procedural fairness.

[25] The issuing of a declaration is a discretionary one. I must be satisfied that issuing a declaration will:

(a) The court has jurisdiction to hear the issue;

(b) The dispute is real and not theoretical;

(c) The party raising the issue has a genuine interest in its resolution; and

(d) The responding party has an interest in opposing the declaration being sought.

[26] While the Family Law Rules do not specifically address declaratory relief, this court has jurisdiction to make declarations within the context of family law proceedings under the Courts of Justice Act. This dispute arises with the context of an application under the Divorce Act. The dispute is real, and both parties have a genuine interest in the declaration being sought. This specific tort claim however is ancillary to the Divorce Act proceedings. Nonetheless it will be determined within the context of the family law proceedings and this court has jurisdiction to resolve domestic tort claims within these proceedings.

[27] Therefore, I have jurisdiction, and am persuaded, that declaratory relief is warranted in this motion. This declaration is timely and sends a message to the Husband that such interceptions into the Wife’s personal, private, and confidential electronic communications will not be tolerated. It will also shorten the issues for trial and save of the court’s, and parties’ time and resources which are laudable objectives given the scarcity of judicial resources and the expense to the parties of pursuing these proceedings.

[28] Accordingly, the requested declaration will issue.

Disposition

[29] This court declares that the Applicant Husband committed the tort of intrusion upon seclusion with respect to the emails and Facebook communications he attached to his Settlement Conference Brief. All ancillary remedies, including damages and admissibility rulings, are reserved to the trial judge.

Costs

[30] The parties agreed that regardless of the outcome of this motion, there would be no costs. Accordingly, there are no costs.

[31] The parties were able to settle other outstanding matters on a temporary basis and I have signed that order on consent.

Justice S. Vella Released: February 26, 2024

COURT FILE NO.: FS-22-00028849-0000 DATE: 20240226 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MINGKE CHEN Applicant – and – VALERIIA HUANG Respondent

REASONS FOR DECISION Vella J. Released: February 26, 2024