COURT FILE NO.: CV-19-59207
DATE: 2024-04-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.S.
Margaret Hoy, counsel for the Plaintiff
Plaintiff
- and -
H. Police Services Board and Sergeant A.A.
Defendants
Stephen Chisholm, counsel for the H. Police Services Board
A. Douglas Burns and Manmeet Dhaliwal for Sergeant A.A.
HEARD: October 23, 24, 25, 26, 27, 30, 31, and November 1, and 2, 2023
THE HONOURABLE JUSTICE M. J. DONOHUE
REASONS FOR JUDGMENT
OVERVIEW
[1] The plaintiff brought this action as an intrusion upon seclusion claim, based on a breach of privacy by the defendant, A.A. She sought to add to this claim torts of bullying, harassment, and internet harassment.
[2] The plaintiff claimed general damages for her suffering, plus various special damages for medical expenses and a claim arising out of the breakup of her relationship with her boyfriend, D.P. She also claimed punitive damages.
[3] The plaintiff argued that the defendant A.A.’s employer, the defendant police board, is vicariously liable for these damages.
[4] At the conclusion of trial, the parties were permitted to file written submissions. The plaintiff’s reply submissions were received on December 15, 2023.
BACKGROUND
[5] The defendant A.A., a police officer, had been separated from her spouse, D.P., for a number of years, but they remained living in the same house for the sake of their son, “H”, and daughter, “K”.
[6] D.P. moved out in 2015 and the children were parented equally in the two homes.
[7] D.P. and A.A. were each dating other people in 2016. In the fall of 2016, D.P. began dating the plaintiff, D.S.
[8] In February 2017, D.P. introduced his girlfriend, the plaintiff D.S., to his children H and K.
[9] D.P. and the plaintiff moved in together in November 2017. The plaintiff sold her home and purchased a house close to the defendant A.A.’s home. This allowed for D.P. and A.A.’s children to easily go back and forth between the two residences.
[10] The plaintiff had a teenaged son. To accommodate the blended family, the plaintiff renovated and enlarged the home. D.P. provided some financial assistance for her to do so.
[11] In March 2018, D.P. served a family law application on A.A. The original application included parenting issues, but ultimately it was only financial issues that were in dispute.
[12] The application included a number of conferences and was set for trial a year later, on April 4, 2019, at which point it settled.
[13] The contentious house sale to A.A. was completed on May 1, 2019.
[14] The plaintiff issued this lawsuit in September 2019. She decided to separate from D.P. in December 2019. He moved out in February 2020.
THE INTRUSION
Context of the Search
[15] The defendant A.A. had been a police detective with the H. Police Services Board for over 20 years.
[16] In early 2017, she was in the midst of a homicide investigation.
[17] A.A. testified that her children had spoken about daddy’s friend “D.S.” A.A. was concerned about who her children would be spending time with, and she looked up D.S. on social media.
[18] A.A. saw a post or conversation between the plaintiff D.S. and a man “M.R.” and that D.S.’s boyfriend was “excited to meet him.”
[19] A.A. recognized the name M.R. as being the brother of the murder suspect in her investigation. She spoke to D.P. and asked him not to mention that she was a police officer if he ever met M.R. and to tell the plaintiff D.S. as well.
[20] A.A. was concerned about such a connection being made and the safety of her children (the children do not share her surname).
[21] For these personal reasons, she used the police database on four dates to scan for names related to the plaintiff D.S. Some months later, she saw an unusual number on her daughter’s phone and found a new surname for the plaintiff D.S. She scanned further.
[22] The database contains records of any contact with police, such as witnesses, victims, accident reports, etcetera.
Nature of the Search
[23] The defendant A.A. testified that she was only scanning for names to see if there was a connection to her investigation and that she did not read any reports nor take any notes.
[24] The brevity of each search supports this statement. They were as follows:
February 16, 2017 – 17 seconds
February 24, 2017 – 28 seconds
March 17, 2017 – 67 seconds
March 30, 2017 – 25 seconds
Total – 2 minutes and 17 seconds
[25] On July 18, 2017, when she searched the phone number and found a new surname for the plaintiff, her search lasted five minutes and three seconds.
[26] The total time for all five searches amounted to seven minutes and 20 seconds. The searches were of the plaintiff’s current surname, her maiden name, and her prior married name.
[27] One of the admissions in the trial was that the searches did not return any results.
[28] The defendant A.A. did not use any information from the searches for any purpose nor did she disclose any information to any third party.
[29] The only information that the defendant A.A. learned about the plaintiff was that the plaintiff D.S. had had a different surname and she learned her phone number.
Discovery of the Search
[30] A year later, in March 2018, the defendant A.A. messaged D.P. accusing the plaintiff D.S. of having a fake Facebook account to follow A.A.’s private Facebook. A.A. was accusing D.S. of stalking her.
[31] A.A. falsely stated to D.P. that she had the police department trace the URL on the fake account to the plaintiff.
[32] A.A. testified that she had actually not asked the IT people at her work to do such a thing and in fact that it is not possible to trace a Facebook account from a URL.
[33] However, D.P. advised the plaintiff of A.A.’s false statement.
[34] The plaintiff promptly filed a complaint which was investigated by the OIRPD (Office of the Independent Police Review Directorate).
[35] The investigation uncovered the searches made the year before.
[36] Their report was finalized on August 14, 2018. The plaintiff D.S. requested a review and a year later it was confirmed on July 11, 2019.
[37] The defendant A.A. was disciplined and was issued an order that she was not to use police databases unless for bona fide police duties, and not for personal reasons.
Motive for the Search
[38] The plaintiff’s submission was that the searches were conducted simply to stalk the plaintiff and find out personal information about her; that they had nothing to do with the safety of the children.
[39] This submission ignores the OIRPD investigation wherein A.A.’s supervisor reported that A.A. had these very concerns and researched D.S.’s “friends” to see if there was anything to be concerned about.
[40] As noted above, the brevity of the searches supports that all A.A. was doing was scanning names to check for a connection with her murder investigation.
Result from the OIRPD Investigation Findings
[41] Following the review of the investigation, the plaintiff D.S. contacted a reporter at the local newspaper and gave an interview about how her personal records were accessed by the defendant A.A.
[42] A lengthy news article was published in the newspaper.
[43] The plaintiff posted the newspaper article to her Facebook, on which she has 750 to 800 followers.
[44] The plaintiff also put the newspaper article on Twitter.
[45] The defendant’s misconduct was thereby well broadcast.
[46] The OIRPD decision was that there were two allegations of insubordination which were substantiated; A.A. used the police database for personal concerns; and she attended a personal family court matter while wearing her firearm under her jacket.
[47] Both allegations substantiated as a breach of police policy were considered “less serious”.
[48] This court was not provided evidence as to what discipline was levied on the defendant A.A.
[49] In light of the investigation findings that it was “less serious”, it is reasonable to infer that the discipline was mild.
[50] The search was admittedly improper and against police policy.
[51] There is no evidence, I find, that it was done maliciously or with intent to harm.
[52] The search was kept private.
[53] The defendant A.A. gained nothing other than peace of mind that there seemed to be no connection between the plaintiff (who was spending time with A.A.’s children) and A.A.’s murder investigation.
[54] The plaintiff testified that she was “angry and frustrated” at this “complete invasion of her privacy.” The plaintiff submitted that “it was quite clear that nothing would stop” the defendant from doing these searches, including her superior telling her not to do them. The evidence, however, is that no further searches were done apart from July 2017 which was of an unknown phone number.
[55] D.P. also testified that the searches really upset the plaintiff. The plaintiff’s best friend, W.T., however, made no mention of the plaintiff complaining of being violated or upset by the police search.
THE LAW ON INTRUSION UPON SECLUSION
[56] The Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32, at para. 71, has stated the key features of the tort of intrusion as follows:
a. The defendant’s conduct must be intentional, including recklessness;
b. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
c. A reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish.
ANALYSIS OF THE INTRUSION UPON SECLUSION
[57] The defendant has admitted to doing the search intentionally, and knowing it was not permitted for personal reasons under police policy. The first part of the test is satisfied.
[58] It is less clear whether the second part of the test has been satisfied, being has it been shown that she invaded the plaintiff’s private affairs or concerns.
[59] The evidence of the defendant A.A. is that she only scanned names and did not read reports contained in the records. She did learn the plaintiff’s maiden surname and her phone number. Both have some privacy interest and so I find that the second part of the test is satisfied, albeit a modest invasion of private concerns.
[60] The third part of the test is where the plaintiff has the challenge. Would a reasonable person regard the invasion as highly offensive causing distress, humiliation, or anguish?
[61] The Court of Appeal in Jones noted limitation in such claims at para. 72, stating,
These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.
[62] In Jones, the defendant conducted searches on 174 occasions over a four-year period of the plaintiff’s bank account. The court considered it to be “shocking” and that “any person” would be “profoundly disturbed” by the “significant intrusion”.
[63] Here, I find the defendant’s use of police resources in this manner to be an abuse of her police powers but a de minimus one. The information learned was in the realm of neutral, biographical information that could be found in a number of public sources. The privacy breach was minimal, such that a reasonable person would not consider it “highly offensive”.
[64] The court does not condone the improper invasion of private records; however, the plaintiff has not satisfied the test to make out this tort, in order to claim damages.
OTHER CLAIMS OF INTRUSION (PUBLIC RECORDS)
[65] In early 2018 (January), the defendant A.A. and her spouse D.P. were engaged in a dispute over the financial issues that needed to be resolved in their separation. The defendant A.A. threatened to get a forensic audit of D.P.’s business income as he was seeking child support from her.
[66] In January 2018, the defendant A.A. viewed the plaintiff’s LinkedIn profile on one occasion. This is a professional networking website which any member may view. This is an open source, public platform for networking. D.S. had her resume posted there which allowed headhunters to review and contact her.
[67] I consider this a public posting and open to the defendant’s viewing on one occasion. It is not an intrusion on private affairs.
[68] The family litigation between D.P. and A.A. commenced in March 2018.
[69] The defendant A.A. testified that D.P. retained a new lawyer in June 2018, at which time she was told that D.P. would also be seeking a spousal support claim from her.
[70] The defendant A.A., representing herself, sought information on D.P. and the plaintiff’s joint household income. A.A. attended family court and accessed the plaintiff’s prior family law records, including financial information.
[71] These also are documents which are open to the public and anyone may access them.
[72] The plaintiff sought to add this evidence to her claim for intrusion upon seclusion, even though she posted on Facebook an acknowledgment that these are public records, and anyone can access them.
[73] Persons involved in family law litigation face a significant loss of privacy, particularly in their financial affairs. This includes subsequent spouses. Details of their incomes are commonly sought in s. 9 child support claims for assessing means and needs with shared parenting cases, as well as in spousal support claims.
[74] Plaintiff’s counsel submitted that the defendant A.A. could not have been aware of the new lawyer until that lawyer’s letter of July 17, 2018.
[75] I am not so persuaded.
[76] The letter of July 17, 2018 simply asked for an adjournment of the settlement conference. The settlement conference brief that was filed confirmed D.P.’s new counsel was retained in or about June 2018, just as stated by the defendant A.A.
[77] I do not find the defendant A.A.’s behaviour in accessing these public records to be improper, nor does such access bolster the plaintiff in her tort claim. Such review of these public documents does not shock the court, nor is it offensive.
[78] The plaintiff expressed that it was upsetting to have the defendant A.A. reading her posts on Facebook. The plaintiff had blocked her and felt that she had privacy settings on her account.
[79] Early on, the defendant A.A. told the plaintiff directly that she checked the social media because her two children were spending half their time with the plaintiff. The defendant A.A. continued to check the posts because she said the plaintiff kept discussing the family law litigation between the defendant and D.P. online and making comments about A.A.
[80] It does not appear that privacy settings were on the plaintiff’s Facebook because the defendant A.A. was able to ask others to go online and see what was posted. As well, friends could screenshot what was posted and send it to the defendant A.A.
[81] With a friend group online of 750 to 800 people, I do not find that the plaintiff could consider that what she posted could be considered private when she shared with so many.
THE PLEADINGS
[82] The plaintiff’s statement of claim was framed as a Charter breach of s. 7 rights to life, liberty, and security of the person.
[83] No evidence nor submissions were provided to the court on a Charter breach.
[84] The statement of claim referred to a breach of privacy claim. All counsel have treated this as a tort claim of intrusion upon seclusion, which I have dealt with above.
[85] At trial and in final submissions, the plaintiff pursued claims of harassment, bullying, hateful conduct, and cyber-bullying (or internet harassment).
[86] None of these claims were pled in the statement of claim.
HARASSMENT AND BULLYING
[87] The plaintiff sought a claim as against the defendant for harassing and bullying behaviour.
Direct Communications Between the Parties
[88] On review of the evidence, there is not much direct communication between the plaintiff and the defendant A.A.
[89] In the spring of 2017, each of these women were reading posts or receiving posts of the other’s Facebook/Instagram accounts. Each accused the other of stalking the other. Both parties testified to having friends share what the other posted.
[90] The defendant A.A. posted a photo of herself and D.P. and promptly heard from D.P. that the plaintiff had seen it.
[91] In April 2017, the plaintiff posted on her Facebook a meme of the character Squidward from the cartoon SpongeBob with the statement:
“Guess what nobody cares”
#nobodycares
#nobodyasks
#getoveryourself
#stayoffmylinkedin
#alwayssomegative [sic]
#alwayssoangry
#lol
[92] The defendant A.A. then wrote an Instagram message to the plaintiff. This is the first direct communication:
“Funny. People who don’t care don’t usually ask what the kids eat at their moms house and where all their mothers money goes. This is between me and [D.P.]. Grow up #thisis[A.A.] P.s. This is how you spell ‘negative’”
[93] The plaintiff replied:
“lmao [laughing my ass off] this is how you spell f--k off. I think you may have someone playing the go between. Get on the same page you have someone also saying things on our side. That’s what happens when a parent refuses to communicate. Kids do not need to be the messenger. She’s a 12 year old not your best friend. You grow up! And it’s my business when you continue to message him and include me in your drama BS!”
[94] I find this to be an argument between the parties in the context of separated families. It does not demonstrate the plaintiff was bullied or harassed.
[95] The second direct communication was May 7, 2017.
[96] The plaintiff posted on Facebook a reference to A.A.:
“I live it with my boyfriend’s ex.
She’s a disgusting bully mostly because she’s of law and feels entitled.
She’s a miserable unhappy narcissistic person.
It doesn’t stop for these losers.”
[97] In response, the defendant A.A. wrote on Facebook messenger:
“… you have no f---in idea what you are talking about.
I have let this sh-t go long enough.
Now you have outed me as a cop on facebook to all your friends and put mine and my children’s lives in danger.
You have no idea what you are doing …”
[98] The conversation then went on as follows:
The plaintiff wrote, “Let’s discuss as adults; this is ridiculous.”
The defendant A.A. wrote, “I have nothing to say to you …”
The plaintiff further wrote, “ I didn’t say you were a cop I said you were in law. Made sure not to say that”
Later, the plaintiff added, “I would never put the kids in jeopardy EVER!”
The defendant A.A. replied, “You ask [D.P.]. About my safety concerns. And ur friends on Facebook. It is not a f---ing game”
The plaintiff wrote, “Until last night you are posting I’m crazy etc.”
The defendant A.A. wrote, “ All I have ever said to anyone is that I think you would be good for the kids … Ask [D.P.] to see the texts.”
The plaintiff wrote, “Wow! I do appreciate that. Never saw those. Obviously things have gotten way out of hand … I never disregarded and always tried to be sensitive. Last night I was frustrated”
[99] These interchanges do not present as bullying but show the defendant A.A. trying to impress on the plaintiff her fears about these public posts.
[100] The third direct communication was initiated by the plaintiff, a year later on July 4, 2018, in a lengthy email of complaints against the defendant A.A.
[101] The defendant A.A. replied to each paragraph setting out her views, particularly as to her belief that the plaintiff D.S. was “driving the whole situation” and “airs everything on the internet”.
[102] The plaintiff then gave a lengthy and vigorous reply.
[103] Later, the plaintiff provided these email exchanges to the OIRPD investigators. She did not present them as bullying letters, rather she described them as “childish banter”.
[104] There was no other direct communication until the following year on May 1, 2019.
[105] Beginning in February 2019, the plaintiff began posting about May 1 when the “control ends” and the “dead weight will be gone.”
[106] The house, which D.P. and A.A. owned, was sold on May 1.
[107] The plaintiff again posted how she “loves May 1st”. One Facebook friend asked “why,” and she wrote,
“After almost 4 long years my boyfriends name will finally be off the house he hasn’t lived in and he will be free of his ex control …”
[108] In this fourth direct communication, the defendant A.A. initiated an email to the plaintiff asking, “What control is it that you keep referring to that you believe I hold??”
[109] The plaintiff replied, inter alia,
“Don’t you have a list of people’s names you should be running illegally? …
Also, as you have been told before multiple times if you don’t like what’s on my Facebook page as you complain about my posts which a lot of the time has nothing to do with you btw, but somehow you think they are which is kind of paranoid on your part …
… stop saying people send you things, no one sends you thinks you use a fake work account to creep me …
… you have been asked multiple times by myself and [D.P.] to leave me alone no direct or indirect contact …
… you have done enough running my name 21 times in the work database …
… repulsive and frightening …
… start conducting yourself as a police officer and not a jealous insane ex girlfriend …
… Your only concern is how I treat your kids other then that this ridiculous drama and stalking is done, I’ve put up with your crap for over 2 years now. All I have done is constantly defend myself against you accusations and angry outbursts. [D.P.] is getting what he deserves less the money you stole from him. But as of today this nonsense stops. Be an adult and move on, the kids are the main priority here myself, [D.P.] you and [R.] are not. Court is done house is taken care of everyone is happy let’s all live our lives and be happy!” [Emphasis added.]
[110] A.A. responded,
“Ok. I thought it was an simple question for something that seems to be such an important aspect of your life. I guess you felt you would rather provide a childish rant than answer like a mature person would do.”
[111] The plaintiff further replied,
“Rant shows how fed up I am with your antics you have messaged [D.P.] about me for years insults, name calling and accusations while I sit back and not say a word. Figured it was my opportunity to finally speak up hence the rant. As for control you have lived in a house [D.P.] name has been on for almost 4 years not Allowing him to move forward, I believe that’s control on your part. Thousands would have been saved if you just bought him out from the beginning and paid him back the money you ‘borrowed’. I know you don’t care, but you have no idea what you did to me when you accessed those files it’s a complete violation so me being upset is justified and warranted. The fact you minimize it is upsetting. There was your adult response, I hope it has cleared thing up for you, I’m being honest and forth coming. I’ve been to lawyers and they want me to sue you civilly after they read the report. I just want you to acknowledge your wrong doing and apologize.” [Emphasis added.]
[112] In this fourth communication, there is no bullying by the defendant A.A.
[113] Rather, the plaintiff vented her anger at the defendant’s searches of her name, at the defendant’s viewing of her Facebook posts, as well as her perception of how her boyfriend, D.P., suffered in the family law litigation.
Internet Communications by the Defendant
[114] The defendant had a Facebook page which was under a pseudonym. She believed she had about 60 “friends” or followers.
[115] The plaintiff submitted that she was harassed and bullied on social media by the defendant A.A.
[116] There is very little evidence to support this claim.
[117] As noted above, in the spring of 2017, the defendant A.A. posted a photo of herself and D.P. to prove that the plaintiff herself was looking at the defendant’s social media accounts. A.A. wrote in a conversation:
“I posted it for [D.P.’s] crazy girlfriend. It only took her 37 mins to call him. Lol. … She accused me of stalking her.”
[118] Two years later, in November 2019, the defendant A.A. bought some napkins and posted the photo which said, “Nothing for you, b*tch I saw your Facebook page…” The defendant stated this post was not in reference to the plaintiff.
[119] In December 2019, the defendant A.A. was having a Facebook conversation with a friend about not going to an event “in uniform” as that would be “too intimidating to some”. The defendant A.A. admitted this was about the plaintiff who had said that the defendant had tried to intimidate her.
[120] The only other social media post occurred long after all the events. In June 2020, the defendant A.A. posted, “It’s so peaceful now that the crazy bitch is out of the picture.”
[121] The evidence of anything hateful or harassing on social media by the defendant A.A. towards the plaintiff is mild at best. I do not find it to be harassing behaviour.
Internet Communications by the Plaintiff
[122] In contrast, the harassing, bullying, and name-calling behaviour on public forums was better documented in the evidence of the plaintiff’s posts. It was a frequent complaint by the defendant A.A. that the plaintiff was publicly posting things about her and that it was upsetting to her and D.P.’s daughter.
[123] In the posts, the plaintiff did not name the defendant A.A., but at times identified her as “my boyfriend’s ex”.
[124] In early 2017, the plaintiff was referring to the defendant A.A. when she posted,
“People hate when you show them how it feels to be treated the way they treat you.”
[125] Above was noted the post on May 7, 2017 about her “boyfriend’s ex” being:
• A disgusting bully
• Because she’s of the law and feels entitled
• She’s a miserable unhappy narcissistic person
• It doesn’t stop for these losers
[126] The plaintiff posted a meme in June 2017 saying,
“Apparently when you treat people the same way they treat you, they f---ing get offended.”
(The plaintiff could not remember if this referred to the defendant A.A. or to someone else.)
[127] Other posts by the plaintiff were identified as occurring in either 2018 or 2019. Some were:
When someone judges you it isn’t actually about you. It’s about them and their own insecurities, limitations, and needs”;
“Anyone can have a child and call themselves a parent. A real parent is someone who puts that child above their own selfish needs and wants”;
“You blocked and you stalk my page from a 2nd account … DUMBASS”; and
“Sometimes you just have to put on your big girl panties and deal with it … putting on big girl panties means being financially independent and not needing anyone to carry you.”
[128] Another post was:
“Mission accomplished!! Find out who is a mole is on Facebook post something intentionally!! (four happy face emojis)”
On this post, D.S. commented,
“LMAO. Process of elimination had a feeling and this morning it was confirmed (emoji) so easy walked right into it! (heart emoji)” She then commented, “Well somethings are public record (emoji) I had my privacy violated and my name ran over 19 times in a 3 month period and she’s concerned about my posts. More focus on your behaviour then mine.” and “Lol!!! (emoji) as what was once said to me family court documents are public record and anyone can access them so are public complaints public record. I’ve had enough of her playing the victim, reap what you sow!!”
[129] The plaintiff was of the view that her boyfriend D.P. was being unfairly treated in the family law litigation. She wrote on Facebook,
“1 of the many things my parents taught me was when your in need and someone helps you out financially. 1 appreciate it and 2 always pay them back. To later try and screw someone out of money is morally wrong and ethically disgusting! Why are people so disgusting and disappointing? Sometimes this is a sad world we live in …”
Her friend W.T. wrote,
“What are you talking about honey?”
D.S. wrote back,
“I can’t say in fact if I out them on Facebook I may get into trouble. Because well they may be undercover (three laughing emojis) Lmfao [laughing my f---ing ass off]!”
The comment thread continued with D.S. writing,
“ … very sad and evil is everywhere as are self entitled spoiled assholes”, “… manipulation and lying to get what you want and the acting like it was owed to them. [H.’s] Finest”.
Her friend J.K. wrote,
“Quiet or I will call the cop on you!!!”
D.S. replied,
“LMAO! Leave Ms. Gulch at home” [reference to the Wicked Witch in the Wizard of Oz].
[130] The plaintiff posted:
“You’re name is not on any of my posts dumb dumb stay off my Facebook loser!! (emoji)”
In the comments, she wrote,
“… not sure why she’s so paranoid and thinks everything is about her tranny ass. Pretty simple don’t like it stay off my page.”
The comment trail continued. D.S. wrote,
“She’s concerned about my posts with her name not on them and less about violating my privacy and running my name 21 times. She’s more concerned about her image than anything else. Don’t worry your reputation or lack thereof is not a concern lmao” to which a Facebook friend replied with laughing emojis and “tranny ass … omg”.
D.S. replied,
“lol what I find funnier is that she takes the time to message my bf to tell him. Like a) he doesn’t know and b) like he cares. Someone who files complaints and steals money from you and she thinks their buddies. Lmao! Thanks for taking the time out of your busy day to let me know that your annoyed along with constantly mentioning me every chance you get. I’m flattered I’m that important to (three tearful laughter emojis) lmao someone is paranoid.”
A friend replied,
“Did she get in trouble for running your name? Also, why would she do it 21 times?? Does she think she is bettering her chances of finding something out? It’s not like playing the lottery. The information doesn’t change based on the number of times she looks into you (three laughing emojis) Reminds me of [T.’s] ex, who found out where I worked and emailed me for days to my work email, from her work email (emoji).”
D.S. replied,
“That’s still in the works, it wasn’t just my name she ran it was many people associated with me as well. Which never have been notified to date. And I have the same question. It was like she was looking for something that wasn’t there. Apparently she was concerned that I was affiliated with people of the criminal element. Seriously? Just one of the many excuses she gave to justify what she did.”
[131] Another post by D.S. said:
“Don’t like what I post stay off my page. Simple logic! So sick of her playing the victim when she causes all kinds of drama. Hides behind her computer.”
[132] D.S. also posted a meme about A.A. that said:
“Say it face to face!!! Don’t hide behind your computer/phone. As we all interpret messages differently. Be courageous.!!”
[133] D.S. posted a meme about jealousy referring to A.A.:
“When someone can’t seem to stop bringing your name up or talking about you! Respect (heart emoji) LMAO!”
[134] D.S. posted another meme referring to A.A.:
“Sometimes we are just the collateral damage in someone else’s war against themselves” and in the comments wrote, “So true Dealing with a Narcissistic paranoid insecure person is ridiculous! They need therapy but everyone else in their mind is the problem.” A friend then asked if she is dealing with this now or in the past, and D.S. replied, “oh yes, I’m dealing with it now.”
[135] In February 2019, D.S. posted:
“Let go of the Things You Can’t Control and Move the F*CK on”.
In the comments, D.S. wrote,
“May 1st the control ends … LMAO!!” and “after May 1st all will be perfect in our world (heart emoji) dead weight will be gone.”
[136] In April 2019, the plaintiff D.S. posted about stealing, referring to A.A. not by name but calling her “No Integrity Trailer Trash”.
[137] The defendant A.A. said that after each family court conference or step, there would be an upsetting post of some kind by the plaintiff.
[138] On May 1, 2019, the plaintiff posted financial information about the defendant A.A. and identified her as her boyfriend’s ex:
“Oh how I love May 1st”
When one friend asks why, D.S. replied,
“After 4 long years my boyfriends name will finally be off the house he hasn’t lived in and he will be free of his ex control. She borrowed $5000 plus $40,000 of her debt rolled in the house which she refused to pay him back like honourable people would do but he says it’s a small price to pay to be rid of her. She’s trailer trash. So today is a exciting day.”
[139] It is to be remembered that the plaintiff had 750 to 800 friends on her Facebook. I would describe this as being akin to broadcasting news to a village.
[140] Yet, the plaintiff wrote in her May 1, 2019 email that she had “not said a word”.
[141] On May 1, 2019, when the house deal closed, the plaintiff testified that she thought everything would be great. She thought that “tensions would stop being so high, everybody would like, start relaxing.”
[142] Although there was no further communication by the defendant A.A., the next event to occur was the plaintiff giving an interview to the newspaper and posting it on Facebook and Twitter. She then launched this lawsuit in September 2019.
[143] It is not difficult to conclude how this would have negatively affected D.P. and A.A.’s children.
Private Correspondence by the Defendant A.A. to D.P.
[144] The plaintiff claimed she was subjected to harassment and name calling in the defendant A.A.’s private correspondence to the plaintiff’s boyfriend D.P.
[145] There were two sets of communications provided to the court as evidence where the defendant A.A. mentioned the plaintiff in her private messages to D.P.
[146] Six were related to parenting their daughter K and son H; A.A. wrote:
i) December 27, 2017 – “I would appreciate if you and [D.S.] would stop having conversations with my kids about my finances … I am sick of [D.S.] stepping into things that are none of her business. It is very inappropriate for her to make comments to my kids about anything that has to do with me or my kids. I am sick of you guys trying to make the kids think badly of me. [H] shud not be telling me that I make so much money and that parents shouldn’t be borrowing money from their kids … He is so disrespectful when he comes from your place and then I hear what [D.S.] says. This is not a competition between us. I never have said anything bad about you in front of the kids. And I find it disgusting that [D.S.] has the balls to! … I am so sick of you guys. You are both f--ked.”
ii) January 5, 2018 – “What I do should not concern you or [D.S.] … Why don’t you move on and leave me alone in mine … [K] is upset about the lies [D.S.] is posting on Instagram. I do not use her as a go between and never a messenger. I constantly tell her to tell u guys that this mess is between the adults and should not include her. I have never refused to communicate. And never will. You are the source of all this drama.”
iii) January 11, 2018 – A.A. and D.P. discuss who will take their son to hockey practice; D.P. offered that D.S. would and A.A. said no that she would take him. D.P. asked what is wrong with D.S. doing it and A.A. said, “I don’t want her to. I will do it”
iv) February 28, 2018 – “[K] is fighting again with [friends] can you please ask [D.S.] not to get involved this time. [K] needs to work this out on her own. It is between kids. [D.S.] isn’t helping when she tells [friend’s] mother and gets [friend] in trouble. The girls are talking about [K] being a rat. She is going to have to figure out how to deal with these types of issues on her own. They will always be there. [Friend] has been causing problems since kindergarten.”
v) March 13, 2018 – “Reminder to you and [D.S.]. [K] is not a messenger. Pls deal with me directly.” to which D.P. replied, “What now” and A.A. wrote back that [K] called for [D.S.] who wanted to know dates regarding vacation and, “According to [D.S.] I use [K] as a messenger. I never do. FYI. This is another example of you guys using her. It is not her responsibility to work out custody issues. That is the parents. Me and you. Not her. Not H. Not [D.S.].”
vi) August 23, 2018 – “Your daughter is really impressed with [D.S.’s] level of maturity. Just another example of [D.S.] identifying me as a cop on Facebook today. I guess you didn’t explain the judges speech to her last court date after you told the judge that [D.S.] doesn’t post things like this (image attached but not identified in evidence).”
[147] Although not kindly worded, I do not find these private parenting messages by the defendant A.A. to her children’s father to be bullying, harassing, or disparaging of the plaintiff.
[148] There are six private messages to D.P. by the defendant A.A. which displayed her anger at the plaintiff.
i) January 19, 2018 – “You are such a coward. Having [D.S.] run your life. You can assure her that yes this will be a long process and thank her in the end. This is exactly what she did to [her ex-husband’s] ex-wife and that is coming from her and not him. I don’t know what I did to make you want to run me into the ground. But you can rest assure that I am done being nice to you. I send u pics of the kids and am civil to you. I saved u a seat at the confirmation. I promised not to sent those texts to that f---king bitch but I am done. I hope u are enjoying ur holiday. Rest up. I will be bringing lots of people to court to prove my case when our relationship ended including that cow you went out with. I am sending all those messages to [D.S.]. and this is because YOU want money. We’ll get a forensic audit started at ur business. You’re going to need it. And your kids will be front row centre to watch the show.” [Emphasis added.]
ii) March 23, 2018 – A.A. said there was a fake account on her Facebook and she thought it was D.S.; “Had IT check it I am sick of her obsessing over me you should see what she posts daily.” D.P. said, “No one is obsessing over you except you.” A.A. replied, “OK [D.S.]. You will see in the end [D.P.]. D.P. replied, “You know it all You and your friends can all f—k off.” A.A. then replied, “Ok. Why are you so angry??? I just wanted to tell you I am sick of your gf stalking me. It has nothing to do with who my friends are. Stop being so paranoid.”
iii) March 24, 2018 – A.A. emailed D.P. after being served with the family court application and said he put lies in the document: “You or [D.S.] or [her son] will not come on my property again. If you are picking up the kids or dropping them off, you will stay on the street. This includes the garage. I will have you charged with break and entering if you do.”
iv) November 3, 2018 – A.A. wrote to D.P saying that he was not on title with D.S. and she hoped he had something on paper from a lawyer. D.P. then asked A.A. to “mind her own business” and he wrote “I’m too busy carrying your financial messes because you can’t get a mortgage on your own.” A.A. believed this was the plaintiff writing and not D.P. A.A. wrote, “Ha. Thx [D.S.]. I made my point. And for both your information I got both of the last two mortgages on my own. [D.P.’s] name is on title only… You two should really get your facts straight.”
v) November 3, 2018 – There was discussion of the house sale and how A.A. was willing to pay D.P. $100,000: “Don’t you have anything else to do with your time than converse with me [D.S.]??? You wonder why I am so focused on you?? Do you think it has anything to do with you constantly immersing yourself in [D.P.] and my affairs??? It’s hard to avoid you when you are front and center of everything. Does [D.P.] know that you are still making that go on??? You weren’t satisfied with the outcome and have asked for a review?? This has everything to do with how evil a person you are and how fixated you are on destroying me. Everyone but [D.P.] sees that…” [Emphasis added.]
vi) February 5, 2019 – D.P. wrote to A.A. saying, “I think it is funny how you just blame her an you so innocent.” A.A responded to this with, “And as for blaming [D.S.] for everything.. I place blame where it lies. She is the one who sent the letter to the orthodontist accusing me of not providing receipts. After she was told that there weren’t any and she was full aware that I sent one. She is the one who told your lawyer that I have disclosed personal information in the past.. when that is not the truth. She is the one who posted on Facebook that I have invaded the privacy of her friends and family and associates, when that is not the truth. And the list goes on. I just want to get through this horror of family court without all the drama and her interfering. This whole situation is hard enough on everyone. The side show doesn’t help matters.”
[149] On the evidence of this private communication, the defendant A.A. referred to the plaintiff as a “f---king bitch” and said she was “evil”.
[150] The plaintiff submitted that the defendant A.A. also referred to her as a cow. Reading the message in context, I find that A.A. was referring to a different girlfriend of D.P.’s at the time of their separation in 2015.
[151] The two instances of name calling by A.A. in this private correspondence pales in comparison to the public, online attacks and name calling by the plaintiff calling A.A. names such as:
• narcissistic;
• loser;
• dead weight;
• no integrity trailer trash;
• dumbass;
• asshole; and
• tranny ass.
Threats
[152] The plaintiff submitted that the defendant A.A. behaved in a threatening way towards the plaintiff. She cited five incidents for this:
i) May 7, 2017 – In their angry message chain after the plaintiff wrote on Facebook that the defendant was “of the law”, the defendant A.A. wrote, “I am not about to play your childish games … but the time has come.” [Emphasis added.]
The plaintiff testified that she thought it was a threat and included it as a complaint to the police services board.
The investigation concluded it was not a threat.
At trial, the plaintiff testified that she did not know what the defendant A.A. meant by the phrase, “the time has come.”
The defendant A.A. testified that what she meant was that she was going to tell the plaintiff something.
I find that this statement, in context, was not intended, or received, as a threat.
ii) March 23, 2018 – this is the private message to D.P. where A.A. falsely stated that her IT department traced a fake Facebook account URL.
It is reasonable for this message, when shown to the plaintiff, to unsettle her and disturb her. For this reason, she lodged the complaint which led to the police investigation.
I do not consider it a threat however.
iii) March 24, 2018 – After receiving the family court application, the defendant A.A. wrote the private email to D.P. saying, “you or [D.S.] or [her son] will not come on my property again. If you are picking up the kids or dropping them off, you will stay on the street. This includes the garage. I will have you charged with break and entering it you do.”
I find this reads as a warning to D.P. rather than the plaintiff. The evidence of D.P. was that both he and the plaintiff thought it was “silly”.
iv) May 29, 2018 – In the middle of her workday, the defendant A.A. attended a family court conference in the proceeding she had with D.P. The defendant A.A. believed it was police policy for her to always wear her firearm during her workday.
D.P. and the plaintiff observed her firearm under the defendant A.A.’s suit jacket at the courthouse.
The plaintiff included this as a complaint to police services. The defendant A.A. was then made aware of police policy that they were not to wear their firearm on personal court matters, and she was disciplined.
I do not find this to be a threat to the plaintiff for the following reasons:
• The family conference was only for the parties (D.P. and A.A.), so there was no reason to expect the plaintiff D.S. to be present;
• In her testimony, the plaintiff said when she observed the firearm she thought it was “odd”;
• There is no evidence that the defendant A.A. intended to threaten the plaintiff nor that the plaintiff felt threatened.
v) June 2022 – The submission was that the defendant A.A. followed the plaintiff at a hockey game.
The evidence was that the defendant A.A. was working a security overtime shift and was in uniform. The two women saw each other and at one point the defendant A.A. walked past the plaintiff where she was seated. They did not speak. The plaintiff did not see the defendant the rest of the night.
The plaintiff said she inferred that the defendant had followed her. The defendant denied that she followed the plaintiff. The plaintiff did not testify that she was threatened, intimidated, nor that she was distressed by this.
[153] The most compelling evidence is the plaintiff’s own online posts and her correspondence directly to the defendant A.A. which make it very clear she was not intimidated at all by A.A.
[154] In conclusion, the evidence does not support a threatening behaviour by the defendant A.A.
THE LAW ON TORTS OF HARASSMENT
[155] The Ontario Court of Appeal stated in Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494, at paras. 27-36, that the Canadian legal authorities do not support the recognition of a tort of harassment.
[156] As in Merrifield, at para. 40, the plaintiff in this case did not provide any academic authority or compelling policy rationale for recognizing a new tort and its requisite elements.
[157] In reply submissions, the plaintiff cited the case of Caplan v. Atas, 2021 ONSC 670. Corbett J. defined a tort of internet harassment at para. 171:
[T]he tort of harassment in internet communications: where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.
[158] More recently, the Superior Courts in Alberta have recognized a tort of harassment in Alberta Health Services v. Johnston, 2023 ABKB 209, at paras. 107-108, defined as follows:
(1) engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through other means;
(2) that he knew or ought to have known was unwelcome;
(3) which impugn the dignity of the plaintiff, would cause a reasonable person to fear for her safety or the safety of her loved ones, or could foreseeably cause emotional distress; and
(4) caused harm.
[159] The plaintiff provided no authority for a tort of bullying.
ANALYSIS OF THE HARASSMENT IN INTERNET COMMUNICATIONS CLAIM
[160] Has the defendant A.A. “maliciously or recklessly engaged in communications/conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with intent to cause fear, anxiety, emotional upset, or to impugn the dignity of the plaintiff and the plaintiff suffers such harm?”
[161] On the review of the evidence above, there are just three communications initiated by the defendant A.A. directly to the plaintiff and such communications related to the plaintiff’s public, online posts.
[162] Similarly, the defendant’s rare posts on her Facebook over a three-year period are mild, particularly when compared to the plaintiff’s more frequent, more vulgar, and nastier posts.
[163] The emails and messages privately sent online to D.P. are far from being outrageous. As noted, six of the messages related to parenting issues. The other six were angry discussions during a family law litigation with just two instances of name calling. I find they do not go “beyond all possible bounds of decency.”
[164] The plaintiff did not establish that the defendant A.A. by any of her communications intended to cause fear or anxiety or impugn the plaintiff’s dignity.
[165] What the messages expressed was the defendant A.A.’s wish that the plaintiff would stop the public, online postings and to not be involved in the family law litigation between D.P. and A.A.
[166] If claims for harassment in internet communications are permitted in this province, this is not one such claim that can succeed.
ANALYSIS OF THE HARASSMENT CLAIM
[167] It is not established in this province that there is a tort of harassment on its own.
[168] If there is authority for such a tort, and I look to the definition proposed by the Alberta Court in Alberta Health Services, I find this case does not satisfy the test:
• There were not repeated communications of harassing behaviour, insults or threats;
• The plaintiff did not have cause to fear for her safety;
• As discussed below, the plaintiff was not so harmed.
[169] Furthermore, for hateful conduct and unkind communications, the plaintiff gave as good or better than she got.
DAMAGES
[170] If I have erred in my finding that the plaintiff has failed to prove the claims of intrusion upon seclusion, internet harassment, or harassment, I assess damages as follows.
SUMMARY OF DAMAGES
[171] In submissions, the plaintiff claimed as follows:
a. General damages:
i. For anxiety, sleep difficulties, depression,
mental distress, anguish, and loss of relationship: $60,000
b. Damages for intrusion upon seclusion: $25,000
OR
(Later in submissions the request was for:) $75,000
c. Punitive damages: $30,000
d. Special Damages:
i. Psychotherapy: $1,665
ii. Massage Therapy: $855
iii. House addition: $69,765
General Damages
Mental Distress
[172] At trial, there was no medical diagnosis or opinion of the claimed anxiety, sleep difficulties, depression, mental distress, or anguish. The family doctor did not testify, nor did any other medical doctor.
[173] The plaintiff attended a psychotherapist, Ms. Born, in December 2019 who provided talk therapy. Ms. Born provided a letter in 2021 stating that the invasion of the plaintiff’s privacy has given her ongoing anxiety and depression.
[174] This was on the plaintiff’s self-report.
[175] The notes of their 15 sessions together mentioned the invasion of privacy only tangentially. There were initial notes on her anger against the defendant A.A. and later, in 2021, a discussion of how unpleasant the discovery was, and this lawsuit.
[176] The bulk of the therapy dealt with other relationships; with D.P., with her son, her two ex-husbands, and her unhappy childhood. She discussed her financial worries in separating from D.P.
[177] I am not persuaded that the evidence establishes a medical or mental distress claim for damages.
Loss of Relationship
[178] The claim was made that the separation from D.P. was caused by the constant bickering, threats, and harassment from the defendant A.A.
[179] The plaintiff decided to separate from D.P. in December 2019. On the evidence, at that time, there had been no communication by the defendant A.A. in seven months.
[180] After the plaintiff first met with Ms. Born in December 2019, she decided to separate from D.P.
[181] Ms. Born’s notes on that visit were that:
• The plaintiff resented D.P. for not protecting her;
• That D.P. was passive and would not stand up to A.A.;
• His family treated her like she was an affair partner and D.P. does not communicate with his stepmother or father and he has very little contact with his siblings;
• She was not in love with him;
• She stated, “I don’t have connection with his kids.”
[182] The plaintiff’s best friend W.T. testified and said that the plaintiff and D.P. were arguing and fighting and that D.P.’s children were unhappy.
[183] Relationships are complicated and the evidence does not support that the defendant A.A. caused the rift.
[184] I do not find that a general damage claim is supported and would award nothing.
Intrusion Upon Seclusion Damages
[185] I am satisfied that the plaintiff was upset, angered, and disturbed by searches done of her name.
[186] The investigation provided her with confirmation that nothing had been learned on the searches.
[187] The brevity of the searches of less than eight minutes of scanning names is of the most mild of intrusions.
[188] In Jones, the court stated at para. 87 that damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest, but sufficient to mark the wrong that has been done.
[189] In Jones, the defendant accessed the plaintiff’s financial records 174 times over a four-year period. The court analyzed the damages at para. 90:
In determining damages, there are a number of factors to consider. Favoring a higher award is the fact that Tsige’s actions were deliberate and repeated and arose from a complex web of domestic arrangements likely to provoke strong feelings and animosity. Jones was understandably very upset by the intrusion into her private financial affairs. On the other hand, Jones suffered no public embarrassment or harm to her health, welfare, social, business, or financial position and Tsige has apologized for her conduct and made genuine attempts to make amends. On balance, I would place this case at the mid-point of the range I have identified and award damages in the amount of $10,000.
[190] At trial, at the opening of her evidence, the defendant A.A. provided a very late apology:
“I would like to apologize and say I am sorry to [D.S.] for running her name and to the court for this whole situation for bringing us here today.”
[191] The defendant A.A. briefly accessed records relating to the plaintiff on five occasions over a six-month period. The plaintiff suffered no public embarrassment or harm to her health, welfare, social, business, or financial position. The defendant has apologized, although very late.
[192] The most modest of damages is appropriate for the cursory search of the plaintiff’s records. I would assess damages at $1,000.
Punitive Damages
[193] This court infers that the defendant A.A. received a mild form of discipline from the OIRPD investigation, as her misconduct was not considered “serious”.
[194] The court in Jones noted the benchmark for punitive damages in such privacy cases was Malcolm v. Fleming, 2000 CarswellBC 1316, where a defendant landlord installed a video camera in the plaintiff’s apartment and recorded her in various stages of undress. The court ordered $35,000 in punitive damages, noting such factors as the intimate location of the invasion, the high expectation of privacy between landlord and tenant, and the substantial premeditation and planning.
[195] The Court of Appeal in Jones determined the intrusion in that case did not “exhibit any exceptional quality calling for an award of aggravated or punitive damages.”
[196] Although wrong behaviour, I find the wrong done in this case was not of an exceptional quality to warrant punitive damages.
[197] In this regard, the plaintiff herself, before issuing this lawsuit, had already further punished the defendant A.A. by:
• Reporting the misconduct to the newspaper;
• Giving an interview to the reporter;
• Posting the article on Facebook and on Twitter to broadcast the defendant A.A.’s misconduct to a wider audience.
[198] I would award no punitive damages.
Special Damages
Psychotherapy Costs
[199] The plaintiff claimed the costs of her psychotherapy in the amount of $1,665. The referral was not made by a doctor. There is barely a causal link between the complaints and concerns that were treated, and the intrusion upon seclusion claim. She discussed it primarily after the discovery and the anticipated request by her lawyer for her records.
[200] Evidence before the court included that the plaintiff had a high stress job. I note that in 2019 she made her highest income including commissions for a total of $104,364. During her treatments with the psychotherapist in 2021, the plaintiff had lost her job and was looking for other work. She discussed difficulties she had with her son and her separation from D.P.
[201] I am not satisfied that these treatments were needed due to the intrusion upon seclusion claim, rather than due to other multiple stressors and therefore would award no damages for psychotherapy costs incurred.
Massage Therapy Costs
[202] The plaintiff claimed the costs of her massage therapy totalling $855.
[203] The evidence is that the massage therapy treatment began in July 2017, before the plaintiff had moved in with D.P., and before she was aware of the intrusion upon seclusion claim (August 2018).
[204] In 2017, she complained to the therapist of stress, headaches, pain down her shoulders, back and neck, and of not sleeping well.
[205] The massage therapist was unable to testify as to what stressors were causing the plaintiff’s complaints. In 2021, she had notes that the plaintiff lost her job. The therapist was also treating the plaintiff’s TMJ (temporomandibular joint) in 2021.
[206] The plaintiff had told Ms. Born that she suffered from chronic back and neck pain. She continued to get the massages.
[207] I am not persuaded that there is a causal link between the actions of the defendant A.A. and these treatments and would not award the costs of massage treatment.
House Addition Costs
[208] The plaintiff claimed from the defendant A.A. the $69,765 which it cost her to pay back D.P. after they separated.
[209] D.P. had loaned her $60,000 to help with the cost of putting the 800 square foot addition on the plaintiff’s house in November 2017. To pay him back, the plaintiff had to cash some RRSPs in, which added tax costs to her in 2020.
[210] The plaintiff submitted that she should be compensated for this because the defendant A.A. caused the loss of the relationship with D.P.
[211] This claim fails for a number of reasons:
• I found above that the separation was not caused by the defendant A.A.
• The plaintiff has always owned the house in her name alone and so benefitted from the $60,000 investment in her property;
• The plaintiff and D.P. had agreed at the outset in a cohabitation agreement that he would be repaid if and when he moved out and he would not share in the increased value of her home;
• The plaintiff in essence enjoyed an interest-free loan for over two years.
[212] I find no juridical or evidentiary basis to award this claim and deny it.
VICARIOUS LIABILITY OF THE DEFENDANT POLICE SERVICES BOARD
[213] Although I have concluded that the plaintiff has not succeeded in her claim for intrusion upon seclusion, I will address the claim made for the vicarious liability on the defendant A.A.’s employer.
[214] It is noted that pursuant to s. 31 of the Police Services Act, the police services board is liable for torts committed by officers in the course of their duties. The evidence is that these searches were not done in the course of the defendant A.A.’s duties.
[215] The common law analysis of vicarious liability is set out in the Supreme Court of Canada decision of Bazley v. Curry, 1999 CanLII 692 (SCC), [1999] 2 S.C.R. 534:
Underlying the cases holding employers vicariously liable for the unauthorized acts of employees is the idea that employers may justly be held liable where the act falls within the ambit of the risk that the employer’s enterprise creates or exacerbates. Similarly, the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.
[216] At para. 40, the court explained,
On the other hand, this analysis’s focus on what might be called “general cause”, while broader than specific foreseeability, in no way implies a simple “but-for” test: but for the enterprise and employment, this harm would not have happened. This is because reduced to formalistic premises, any employment can be seen to provide the causation of an employee’s tort. Therefore, “mere opportunity” to commit a tort, in the common “but-for” understanding of that phrase, does not suffice: Morris v. C. W. Martin & Sons Ltd., [1966] 1 Q.B. 716 (C.A.) (per Diplock L.J.). The enterprise and employment must not only provide the locale or the bare opportunity for the employee to commit his or her wrong, it must materially enhance the risk, in the sense of significantly contributing to it, before it is fair to hold the employer vicariously liable. Of course, opportunity to commit a tort can be “mere” or significant. Consequently, the emphasis must be on the strength of the causal link between the opportunity and the wrongful act, and not blanket catch-phrases. When the opportunity is nothing more than a but-for predicate, it provides no anchor for liability.
[217] This was revisited by the Supreme Court in B.(K.L.) v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403, looking at the vicarious liability of the Crown in cases of sexual abuse of foster children.
[218] A succinct statement of the law by Arbour J. is set out at para. 67:
The law provides two requirements for the imposition of vicarious liability which ensure that such liability is imposed so as to further its policy objectives. First, the relationship between the tortfeasor and the principal must be sufficiently close that the tortfeasor’s activities can properly be regarded as a part of the defendant’s enterprise. Second, the wrongful act must be sufficiently connected to the tortfeasor’s assigned tasks that it can fairly be said that the defendant is the one who created the risk of harm. Each of these requirements helps ensure that people are only held liable for risks that they introduce into the community and that vicarious liability is imposed in circumstances where there is a real possibility for the defendant to take effective measures to deter harm.
[219] I consider the potential for vicarious liability in such a situation as the case before me, however, no one testified on behalf of the defendant police board.
[220] There was no evidentiary base before the court to establish that the employer materially enhanced the risk or that the wrongful act was a task sufficiently connected to the defendant A.A.’s assigned tasks. There was no evidence as to the level of control which the police employer had over the defendant A.A.’s actions.
[221] I find that the plaintiff did not establish a claim for vicarious liability.
[222] The other claims of internet harassment and harassment cannot be seen to have any connection to the employer. The defendant A.A. wrote from her personal email and on personal messaging platforms that were unrelated to her employer.
CONCLUSION
[223] Accordingly, I find the plaintiff has failed to establish a tort claim for intrusion upon seclusion, internet harassment, or harassment.
[224] If she had established a claim for intrusion upon seclusion, I would have assessed damages at $1,000 in the circumstances of this case.
[225] The plaintiff and the defendant A.A. are both bright, capable, successful women who have lost their dignity in acting on their animosity toward one another. Both have behaved shamefully in their own way.
[226] Regrettably, family litigation can breed this type of hostility. I expect that since then each has learned to moderate their behaviour and treatment of others.
COSTS
[227] If the parties are unable to resolve costs, submissions may be served and filed by the defendants by April 12, 2024.
[228] The plaintiff may serve and file responding submissions by April 26, 2024.
[229] Reply submissions, if needed, may be served and filed by the defendants by May 3, 2024.
[230] Costs submissions are not to exceed three pages of narrative but may attach offers to settle and bills of costs.
[231] Submissions may be filed by email to St.Catharines.SCJJA@ontario.ca.
[232] Although not requested by the parties, I have initialized the participants in this case. I have done so in light of the highly personal and sensitive communications involved, including both the plaintiff’s and the defendant’s children.
[233] The parties and/or the media are free to seek to vary this provision of my order if they wish to do so.
[234] The court has redacted some of the foul language in the parties’ communications.
M. J. Donohue, J.
Date Released: April 2, 2024
COURT FILE NO.: CV-19-59207
DATE: 2024-04-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
D.S.
Plaintiff
- and -
H. Police Services Board and Sergeant A.A.
Defendants
REASONS FOR JUDGMENT
M. J. Donohue, J.
Date Released: April 2, 2024