ONTARIO

COURT FILE NO.: SC-22-8948

and SC-22-8948-D1

DATE: March 5, 2026

SUPERIOR COURT OF JUSTICE SMALL CLAIMS COURT

BETWEEN:

JOHN DOE

Plaintiff/Defendant by Defendant’s Claim

Molly Reynolds, Morag McGreevey and Michaela Hill (Articling Student) for John Doe

– and –

A.K.

Defendant/Plaintiff by Defendant’s Claim

Jahne Angelo Baboulas (Paralegal) for A.K.

HEARD at Toronto September 23, 25 and 26th 2025

REASONS FOR JUDGMENT

Deputy Judge L. Vicars

OVERVIEW

1This is not the typical case brought in the Small Claims Court. The parties, who were involved in an on-again off-again sometimes intimate relationship between June 2019 and August 2020, make serious allegations against each other.

2John Doe alleges A.K accessed his personal information without his consent and created fraudulent on-line profiles posing as John Doe, where he allegedly posted sexually explicit videos and other highly private sexual and health information.

3John Doe submits A.K. is liable for damages in the amount of $35,000.00 alleging A.K. has engaged in the following torts: Publication of Private Facts Without Consent; Placing a Person in False Light; Intrusion Upon Seclusion; Breach of Confidence; Defamation; and Intentional Infliction of Mental Suffering.

4John Doe also alleges A.K. tried to have him evicted from his apartments in Toronto and Vancouver and surreptitiously made a copy of the key to John Doe’s Toronto apartment and then stole his wallet and passport.

5John Doe alleges A.K.’s motive for all these alleged activities was retaliation for John Doe having cheated on A.K. and his refusal to marry A.K. to enable A.K. to remain in Canada.

6John Doe submits that A.K was the only person who had all the necessary information to create the fraudulent on-line profiles and attempt to have John Doe evicted.

7A.K. denies John Doe’s allegations and brings a Defendant’s Claim alleging John Doe sexually penetrated him without consent and sues in battery and sexual assault for $35,000.00 in general, non-pecuniary, aggravated and punitive damages.

8John Doe denies A.K.s allegation.

PROCEDURAL HISTORY and ANONYMITY AND SEALING ORDER

9On August 14, 2023 by order of Deputy Judge Hum the following Anonymity and Sealing Order was granted on an ex parte motion brought by John Doe:

1. with the exception of this order, all documents filed and to be filed in this proceeding, including all materials up to and including the first day of trial, and all documents appended to any pleadings, shall be treated as confidential, sealed, and not form part of the public record;

2. the plaintiff is granted leave to commence this action by way of pseudonym;

3. the parties shall use the pseudonym “John Doe”, followed by the number of the court file, in place of the plaintiff’s real name in any document filed with the Court;

4. the plaintiff shall provide a copy of this Order to the defendant with service of the Plaintiff’s Claim;

5. the plaintiff shall disclose their real legal name to the defendant at the time of service of this Order and Claim; and

6. the defendant shall be bound by this anonymity and sealing order, and not disclose:

i. the name of the plaintiff; and

ii. any facts that would tend to identify the plaintiff other than those

iii. disclosed in the Plaintiff’s Claim without leave of this Court.

10In her reasons Deputy Judge Hum concluded the Small Claims Court does not have the jurisdiction to issue a publication ban and John Doe’s request for such relief was denied.

11Trial was held in person over 3-days on September 23, 25 and 26th, 2025.

12The parties made closing submissions in writing on October 10, 2025 and submitted their replies on October 21, 2025.

DECISION

13For the reasons that follow: John Doe’s claim is dismissed and A.K. is entitled to damages in the amount of $35,000.00, plus prejudgment interest from June 13, 2023 under the Courts of Justice Act.

ISSUES IN DISPUTE

1. Did John Doe penetrate A.K.’s anus, without A.K.’s consent on or about June 13, 2019?

2. Did A.K. wrongfully access John Doe’s Personal Information?

3. Did A.K. post the fraudulent profiles as alleged by John Doe?

CREDIBILTY OF THE WITNESSES

14There were three witnesses at trial: the parties and one of John Doe’s doctors.

15As with many disputes this case required determinations as to the credibility of the witnesses. Assessing a person’s credibility is not a science. The Supreme Court of Canada has noted it is not always possible to"articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” R. c. Gagnon, 2006 SCC 17 (S.C.C.), para. 20. Credibility assessment, has been described as “a difficult and delicate matter that does not always lend itself to precise and complete verbalization.” R. v. M. (R.E.), 2008 SCC 51 (S.C.C.), para. 49.

16Although I have not recounted all the evidence heard over the three days of trial, I have considered the entirety of the evidence in making my assessments and have set out the specific evidence that is central to my conclusions.

17A.K. provided his testimony in a straightforward manner, largely consistent with text message conversations between the parties made contemporaneously during their relationship. His memory was not precise as to dates, and I have noted where he was flawed in his recollections, but I find him overall to be a sincere and credible witness. A.K. admitted under oath that he offered John Doe money to marry him to assist his Canadian immigration status. This serious admission against

A.K.s interest supports his credibility; it does not detract from it.

18John Doe provided testimony which was sometimes inconsistent with his affidavit evidence and text message conversations as I have outlined in these reasons. When faced with evidence

which was contrary to his version of events he would sometimes describe it as a joke, provide a rambling evasive answer, an implausible explanation or in once instance changed his testimony. In some instances, I found John Doe had been untruthful. I find John Doe was not credible witness.

19To the extent John Doe’s testimony differed in any substantial way from A.K.s testimony I accept A.K.s testimony as being the truth except where otherwise stated.

20I accept entirely the evidence of Dr. Benjamin Baranek, John Doe’s medical doctor.

FACTS

The Sexual Battery

21A.K. is a pastry chef who came to Canada from Greece on an International Experience Canada (“IEC”) work permit in September 2018. He was 25-years old when he met John Doe.

22John Doe is a personal trainer and fitness instructor who resided in Toronto during the parties’ relationship. John Doe was 40 years old at the time of trial.

23The parties met on the Tinder dating app in May 2019 and started dating in June 2019. John Doe deposed in his affidavit sworn December 19, 2022 in this action, they “began dating in or around October 2019” but testified orally that dating began in June 2019. I find that the parties began dating in June 2019.

24There was some discrepancy in the testimony as to whether their first sexual activity was June 12 or June 13, 2019 but the date itself is not significant. There is no doubt that the parties were describing the same initial sexual encounter. I find the sexual activity in dispute took place on June 13, 2019.

25The parties both testified they went to John Doe’s bedroom, removed their clothing and engaged in consensual kissing and foreplay. From there their accounts diverge.

26John Doe testified that during this first sexual encounter on June 13, 2019 they talked about their sexual preferences and there were condoms on the bed. It was John Doe’s preference not to wear a condom.

27John Doe said he initially put on a condom, but the condom came off when he lost his erection.

28John Doe became erect again.

29He put on a second condom, but testified it also fell off when he got soft again.

30There is a dispute between the parties as to whether they had oral sex. John Doe testified they had oral sex. A.K. testified that they did not have oral sex. I accept A.K.’s testimony that the parties did not engage in oral sex during their initial sexual encounter.

31A.K. testified that during foreplay he was face down on the bed with his butt up and John Doe was teasing him with his penis when he felt a severe burn and pain in his anus. He immediately lied down on his chest causing John Doe’s penis to come out and then A.K. ran to the washroom because he feared he was bleeding.

32A.K. testified as follows:

1. “It wasn’t more than seconds, but I felt the tip go in”.

2. The burning and pain was caused when John Doe, “opened my butt-hole with his dick”.

3. There had been no discussion about condom use because he thought they would discuss that before intercourse.

4. He did not know they would go that far.

5. He expected John Doe would ask him before penetrating him and would have put on a condom.

6. John Doe never asked to penetrate A.K.

7. A.K. did not consent to having his anus opened.

8. He knew the burning was caused by penetration because he had done sex with other people so knew what it felt like to have his bum hole opened but he had never been penetrated without the person wearing a condom before.

33I find that A.K.’s oral testimony that there was no discussion about condom use was not accurate. In the contemporaneous text messages immediately following the assault A.K. said, “I asked you to wear a condom last night”. John Doe does not dispute A.K.s assertion in his text message responses to A.K.

34I find that condom use was discussed by the parties at some time prior to them engaging in sexual activity on June 13, 2019 and that is why John Doe had condoms on the bed and twice put on a condom despite his preference not to wear one.

35John Doe denies there was any penetration. He testified he teased A.K’s ,“bum hole with [his] dick” without a condom but that they did not have penetrative sex at that time. I find this testimony was untruthful.

36John Doe’s counsel suggests the contemporaneous text message exchange between the parties support John Doe’s testimony. I disagree. In the text messages immediately following the non- consensual penetration, John Doe denies penetration and tries, unsuccessfully, to convince A.K. there was no penetration. I find John Doe was being untruthful during these text messages because he knew that he did not have A.K’s consent to penetrate him without a condom and had penetrated

A.K.s anus with the tip of his penis.

37A.K. testified that when he returned from the bathroom John Doe was laughing at him. A.K. asked to stop what they were doing for the night and they did. A.K. slept over at John Doe’s place.

38John Doe denied he laughed at A.K. but on cross-examination said he may have chuckled.

39A.K testified that while waiting at the subway the next morning, which I find was June 14, 2019, A.K. asked John Doe whether there was anything to worry about and John Doe disclosed for the first time that he was HIV positive but his viral load was undetectable.

40A.K. attended the Hassle Free Clinic later that day to get information about HIV and other STD testing. He testified he completed STD testing and was told some of the STDs would take 2- 3 months to detect.

41A.K. testified it was a very bad summer for him because of how he was feeling and how worried he was that he might have caught something from John Doe. He returned to the clinic 3- months later for additional HIV testing.

42John Doe testified that he disclosed his HIV positive/undetectable status to A.K. during their sexual activity. This was implausible testimony and I find it was untruthful.

43I find John Doe disclosed his HIV status for the first time on June 14, 2019 after the penile penetration occurred.

44On the evening of June 14th, 2019 the parties had the following text message exchange (Ex 8):

John Doe: Are you upset with me because I am HIV positive? I hope all is ok with you

A.K. No it’s not that I’m just thinking all the time that you tried to go in without a condom. I never did that before. I asked you to wear a condom last night. It’s not that you’re positive. I never have done something without a condom :/ I feel so tired of thinking about it :(

John Doe: Well the reality is that you can. The way science and medicine are going these days.

A.K: What do you mean I can?

John Doe: Like it is safe to. It is okay to do so.

A.K. Okay that’s good to know but I don’t want to. And I wasn’t even prepared for that.

A.K. You’re an excellent guy I really enjoying [sic] my time with you.

John Doe: I know I’m great. You are too! Well knowledge is power (A.K. added a thumbs up to this statement)

A.K. You just should ask me if I want to do something without a condom and you didn’t.

John Doe: You’re right

45I do not accept John Doe’s testimony that his, “You’re right” comment was in response to his own, “Well knowledge is power”, comment. That is an illogical interpretation of their conversation. While not an admission of penetration, I find John Doe was agreeing with A.K. that he knew that A.K. had not consented to penetration without a condom.

46On June 18, 2019 during another text message exchange, the parties said the following:

A.K. Also my question was clear. What you were thinking at this time and you didn’t tell me that you want to have sex without a condom …

John Doe: Well I only did tease your hole before you freaked out and ran to the bathroom. Of course I would have said I want to fuck raw before we kept going. [emphasis added]

47Despite whether or not A.K. specifically told John Doe to wear a condom on June 13, 2019, I find the parties had discussed condom use previously and that John Doe knew that he did not have consent to penetrate A.K.s anus unless he was wearing a condom.

48Although I find John Doe did not insert his entire penis into A.K.s colon on June 13, 2019, I accept A.K.s testimony that John Doe penetrated A.K.’s anus with the tip of his penis while not wearing a condom without A.K.s consent. This finding is supported by the burning sensation and pain experienced by A.K. whose evidence I accept entirely on this point.

49Dr. Benjamin Baranek testified that John Doe takes medication which prevents him from transmitting the HIV virus. Dr. Baranek reviewed his clinical notes and records (Ex 1 Tab 19) and testified that testing conducted on John Doe from February 2019 through October 2020 showed John Doe’s viral load was undetectable.

50Dr. Baranek opined there is virtually no chance of transmitting HIV when the viral load is undetectable.

The Parties Relationship

51A.K. testified his relationship with John Doe was the first real relationship that he had had with anyone in Canada. There were nice moments and a lot of bad moments - there were lots of fights.

52A.K. testified he was pushing John Doe away and they did not see each other for the full summer of 2019.

53In September 2019 A.K. went to Greece on vacation had discussions with John Doe about getting together when he returned to Canada.

54A. K described their relationship as really good between September 2019 and January 2020.

55In January 2020 the relationship started to break down.

56A.K went on a trip to Cuba and Grand Caymen with a friend from Greece on February 17, 2020 and returned on February 27, 2020.

57On February 29, 2020 A.K. went to John Doe’s place as John Doe was returning from a ski trip that day. A.K. became upset that John Doe was spending time with his friend Emily and did not want go to bed with him after they had been apart for 20 days so broke up with John Doe by email on March 1, 2020.

58On March 2, 2020 A.K. tried to make arrangements to pick up his stuff from John Doe who said he was not available.

59A.K. testified that the first time he became aware of the video in Exhibit 1 entitled, “March 2 2020….cheating on my boyfriend while he was on vacation in Cuba”, was when he was served with this law suit. It was at that point that A.K. surmised why John Doe had not been available on March 2, 2020.

60I find A.K. did not know John Doe had sexual intercourse with another person while A.K. was in Cuba until he was served with this lawsuit.

61A.K. picked up some of his belongings on March 4, 2020 and some time later apologized to John Doe for breaking up with him by email and they started seeing each other again.

62When the COVID19 pandemic hit, on or about March 15, 2020 the parties “bubbled” together at John Doe’s place and their relationship was largely platonic. A.K. testified he felt John Doe treated him as a maid.

63John Doe’s doctor recommended that he avoid going into stores or using public transit due to his potentially weaker immune system. A.K. carried the burden of doing the shopping and running errands for John Doe during this time.

64The parties argued frequently.

65During one such argument on April 12, 2020 John Doe asked A.K. to leave his place. A.K. testified he began gathering his things and told John Doe he needed to transfer the money he owed

A.K. As A.K. was trying to pack his kitchen appliances and his share of the groceries from the kitchen, John Doe touched A.K.s neck and forcefully grabbed him causing bruising to his arm and wrist. John Doe immediately apologized.

66John Doe’s version of this interaction on April 12, 2020 is A.K. was upset about his inability to find a new job and that he was trying to stop A.K. from “self-harming” when he grabbed A.K. I entirely reject John Doe’s version of this interaction for two reasons:

1. John Doe’s version does not align with the packing of groceries and personal items that was occurring during their argument; and the $460.00 e-transfer he sent to A.K. later that day; and

2. There is no evidence of A.K. engaging in self-harming other than John Doe’s testimony, which I have found to be not credible.

67On April 18, 2020 A.K asked John Doe for a break from their relationship.

68Sometime afterward they began seeing each other again but less frequently. A.K. testified he had to work on his immigration paperwork, collecting letters from past employers and documents from his college. He also had to study English. A.K. said it wasn’t easy to do everything at John Doe’s place as the demands on A.K. were piling up. He testified John Doe expected A.K. to do cooking and grocery shopping. A.K. decided to spend less time at John Doe’s place and more time at his own place.

69On July 18, 2020 A.K asked for another break.

70A.K. testified that John Doe had disclosed he had a Grindr account and A.K. was disappointed that John Doe wanted to have sex with other people.

71In August 2020 the parties agreed not to see each other anymore.

72I find that it was A.K. who suggested the breaks in the relationship and ultimately broke up with John Doe on or about August 23, 2020.

73After the final break-up A.K. testified John Doe continued to reach out to him telling him he missed him and asking A.K. why he was not reaching out to him. A.K.s testimony is supported by the documentary evidence. A.K. reached out to John Doe to wish him a happy birthday but otherwise I find A.K. did not initiate any further contact with John Doe. I find it was John Doe who continued to pursue A.K.

74John Doe reached out to A.K. on A.K.s birthday August 26, 2020 and continued to contact him by text, contrary to A.K.s request to respect his boundaries and not text him but to call instead if he wanted to speak to him.

75Sometime in August 2020 after the break-up. John Doe called A.K. to ask him if he would like to sub-let his apartment in Toronto for 6-months while John Doe was living in Vancouver.

76John Doe testified that he was trying to help A.K. by offering him a safer place to stay during the pandemic as opposed to the shared accommodation A.K. was living in.

77A.K. testified he did not need a place to live, did not want to move again in 6-months and did not want to incur higher living costs. The call ended abruptly when John Doe became angry over an alleged insult about his furniture and said, “fuck you”, then hung up the phone.

78On September 7, 2020 John Doe texted A.K. saying, “I’m still sad and still miss you everyday and think about you all the time. Hope you are OK”. A.K responded. “My visa was refused. I’m leaving on the 23rd”, John Doe responded expressing sadness and shock and asked if he could call

A.K later.

79Later that evening the parties had the following text message exchange (Ex 8): John Doe: I’m still really sad and in shock.

A.K.: I’m sorry.

John Doe: I’m the one who’s so so sorry :( You have been trying so hard. You deserve to be here and stay.

A.K. Thanks. I guess people don’t always get what they deserve :/

John Doe: I don’t want you to go. That’s not fair. I am really sad. I don’t want you to see me crying. I am embarrassed I am crying.

A.K. I’m crying too with what you’re saying.

John Doe: I don’t want you to leave. [A.K.’s name] I can’t believe this…You should have told me. So you’re not going to tell me or see me before you go? That’s sad.

80A.K. testified he didn’t understand John Doe’s reaction because they were not together at that time and there was no reason for him to have reached out to tell John Doe he was leaving Canada.

81On September 28, 2020 John Doe texted A.K. again. It is clear from the conversation that

A.K. was trying to get John Doe to stay out of his business.

82On December 1, 2020 John Doe texted A.K again reminiscing about a trip to Barbados the parties had taken the previous year. A.K did not respond.

83A.K. testified that he did not understand why John Doe had messaged him again as he had been asked many, many times to stop.

84John Doe testified in his affidavit sworn December 19, 2022 in support of his ex parte motion, and orally during the trial, that he had a FaceTime call with A.K. on December 25, 2020. He was adamant that he remembered the call was on Christmas Day and repeated this evidence several times during his oral testimony.

85A.K. testified there was no such call.

86On December 31, 2020 John Doe initiated the following text message exchange: (Ex 8): John Doe: I wish you didn’t ignore me.

A.K.: I wish you could show some respect to what I said about video calls over messages.

John Doe: I have tried to call you. You didn’t answer. I tried to call you on Christmas. An audio call (not a video call.)

A.K.: I really didn’t get any call. Only on 1st of December the message about Barbados but there wasn’t anything to comment or a question that I had to answer.

87It is clear from this exchange of messages that there was no call on Christmas day because John Doe says he, “tried to call”.

88On cross-examination when John Doe was confronted with the inconsistency between this exchange and his previous testimony his response was, “So we definitely did speak. I thought it was on FaceTime, it could have been on Instagram video but I definitely do know that we did speak because I was in my apartment in Vancouver and I was making a dish to take to my friend’s house for the holiday”. I find John Doe was either being untruthful or demonstrated a very poor recollection. This is another example of the non-credibility of John Doe’s testimony.

89From January to June 2021, John Doe and A.K. were rarely in contact. I find when there was contact, John Doe was the instigator except on one occasion when A.K. wished John Doe a happy birthday.

90John Doe testified that when he messaged A.K. he was “playing nice” in an attempt to get

A.K. to, “admit what he had done”.

91A.K. testified he disabled his Instagram account at the end of 2020 and John Doe apparently believed he had been blocked.

92When A. K. re-enabled Instagram in June 2021 on a trip to Greece, he started receiving emojis and comments on his posts and messages from John Doe and he didn’t understand why.

93On June 16, 2021 after delivering pleasantries to A.K. in an Instagram direct message (“dm”) John Doe accused A.K. for the first time of trying to have him evicted from his apartment, posting a fake porn account and emailing someone he was seeing in BC.

94A.K. immediately denied these allegations, replying “I haven’t done any of this”. (Ex 8)

95Afterward John Doe called A.K. and said, I am recording you, will you admit what you did to me? A.K. hung up the call.

96After making these allegations John Doe continued to send friendly text messages or dm’s to

A.K. on June 17, June 19, June 20, June 22, June 24, June 26 and June 27, 2021. Some of these messages were in responses to stories A.K. had posted on his Instagram account. A.K. sometimes responded politely and other times did not respond at not at all.

97On June 22, 2021 after providing unsolicited immigration advice to which A.K. politely responded, “Ok, thanks for the notice”, John Doe wrote: “Of course you think I’m trying to be rude here (as always) but I’m actually just trying to look out for you. Anyway … I assume you would have preferred I said nothing.” When A.K. failed to respond to this message, John Doe texted again, “Hi again [name]. How are you doing?” (Ex 8)

98I find John Doe’s testimony that he was “playing nice” during this messaging is either an admission by John Doe that he was being clandestinely deceitful to A.K. or his testimony is not true and he was pursuing A.K. and upset at being rebuffed. Either way, John Doe’s credibility is negatively impacted.

99Based on the oral testimony and text message evidence I find that after their final break-up at the end of August 2020, A.K. was consistently trying to push John Doe away but John Doe continued to pursue A.K.

A.K.’s Immigration Status

100A.K. came to Canada from Greece on an IEC work permit in September 2018 and was sponsored by his employer, Marché Restaurant, for a second year, expiring September 2020.

101A.K. provided context for the following text message exchange between the parties on February 25, 2020. This was during the time A.K. was pondering what he would do when his IEC work permit expired in September 2020 and whether he would stay in Canada or not. (Plaintiff Exhibit F and A – Defendant Exhibit 8).

1. John Doe: Babes. Do you want to stay in Canada. I think you just have to decide what you want. …

2. A.K. Of course I want to stay in Canada but if I can’t I will say it’s fine. I’m not going to die if I can’t. …

3. John Doe: Baby, I will marry you one day. You know this. Lol

4. A.K. Don’t say that. (to which John Doe responds with a question mark emoji).

5. John Doe: I already said that I would do that if you wanted it. Why not?

102John Doe testified that he was only “joking” when he told A.K. he would marry A.K. one day.

103A.K. lost his job in March 2020 when Marché Restaurant closed due to the COVID-19 pandemic and he was continuously looking for a new employer to sponsor him between March and September 2020.

104Both John Doe and A.K. testified that John Doe assisted A.K. with his resume and cover letters because A.K.’s needed help with his English.

105John Doe testified that during two phone calls in July 2020 and August 2020 A.K. called him and asked John Doe to marry him so he could stay in Canada.

106John Doe testified he thought the first call was a joke but during the second call A.K. offered him a total of $10,000 to marry him. John Doe responded that A.K. would need to add an additional zero, but testified he was merely joking and would only ever marry for love.

107A.K. testified he was following up with John Doe’s earlier suggestion that he would marry him to help him stay in Canada. A.K. said he offered John Doe the money because he knew that John Doe was not earning the money he wanted from his business and A.K. believed such an arrangement would benefit both of them.

108At the end of August 2020, A.K. received word that his work visa renewal was refused because his new work sponsor had only committed to a two-month trial period. A.K. booked a ticket to return to Greece leaving September 23, 2020.

109A.K. provided testimony, which I accept, that he had an excellent resume and remained optimistic that he would find a sponsor.

110A.K. received a new job offer and LMIA from a new employer in September 2020 such that he cancelled his flight to return to Greece and had no need of John’s assistance.

111A.K. received an invitation to apply for permanent residency on February 14, 2021 and received his permanent residency in October 2021 and no longer required a sponsorship.

112I find that A. K. did not need John Doe to marry him to stay in Canada and held no animosity to John Doe for refusing his marriage proposal.

Allegations of Wrongful Access to John Doe’s Personal Information

113It is not disputed that:

1. A.K. allowed John Doe to use his newer MacBook personal computer to build a website for John Doe’s fitness business because John Doe had an older MacBook not as well suited to the task; and

2. John Doe had his own password protected user profile on A.K.s computer.

114John Doe gave evidence, which I accept, that while logged in to A.K.’s computer, John Doe accessed his own Gmail account from within his own password protected user profile.

115John Doe could not recall whether the sexually explicit videos were in his Gmail account.

116I find there is no evidence to establish the videos were contained in the Gmail account.

117John Doe testified the sexually explicit videos were stored in his iCloud.

118John Doe testified that by plugging his iPhone into A.K.s computer and clicking, “trust this device”, that his iCloud data was available on A.K.’s computer. There was no expert evidence on this point. I do not accept this evidence for two reasons:

1. On cross-examination John Doe agreed that to upload photos to his website he first had to download them to A.K.’s computer from iCloud. If the iCloud data was already available on A.K.s computer, such downloading would not have been necessary.

2. A.K. testified that his newer MacBook had only USB-C ports such that John Doe could not have plugged in his older iPhone because he only had the older USB to Lightening cable which could not be plugged into A.K.s MacBook.

119I find John Doe was either lying or carelessly misremembering when he testified he plugged his iPhone into A.K.’s Computer. I find John Doe’s iPhone was never plugged into A.K.’s MacBook.

120I find there is no reliable evidence that the sexually explicit videos were stored on or accessible from A.K.s computer.

121Ex 1 Tab 7 is a screenshot of John Doe’s laptop which he says proves that A.K. had access to his email from March 29, 2020 to December 17, 2020.

122What Ex 1 Tab 7 actually says is: “MacBook-Pro-[A.K.s first name] Ontario, Canada Last activity: 17 December 2020 Signed out First sign-in 29 Mar 2020”.

123Based on the totality of the evidence I accept that John Doe signed into his email account on A.K.’s computer on March 29, 2020 within his password protected user profile but there is no reliable evidence that A.K. accessed the information stored within John Doe’s user profile or accessed John Doe’s email.

124I accept A. K.’s testimony he did not know John Doe’s email account was signed-in on his computer but he did know John Doe’s user account was still there after they broke up.

125I also accept A.K.’s testimony that he did not know whether or not an administrator can access information on a user profile, he only knew that an administrator can create and delete a user profile. I accept his evidence that he never accessed any information on John Doe’s user profile nor knew whether it was possible to do so.

126I accept A.K.’s testimony that he deleted John Doe’s user account on his computer in December 2020 in preparation to sell it. Based in the evidence I find it is more likely than not the deletion of John Doe’s user profile disconnected John Doe’s email account from A.K.s computer on December 17, 2020.

127There was no expert evidence called with respect to EX 1 Tab 7 and on cross-examination John Doe admitted he does not know how Google stores its information.

128There is insufficient evidence to establish on a balance of probabilities that A.K. accessed John Doe’s email at any time.

129A.K. gave evidence, which I accept, that he did not know John Doe’s user profile password and never accessed John Doe’s email or iCloud data.

130John Doe has not proven on a balance of probabilities that A.K. accessed his personal information.

Allegations of Posting Fake Profiles on Instagram, xHamster and Grindr

131A.K. denied knowing all of John Doe’s fetishes listed on the fake profiles. A.K. testified John Doe knew A.K. was more reserved and they did not talk about those things. A.K. testified he did not know the terms “split play” or “piggy play” at all.

132John Doe gave evidence that his true email address received a Google Verification Code to recover an email address impersonating him (“the Fake Doe Email Address”). A.K. denied he created the Fake Doe Email Address or had any knowledge of it. I accept A.K.’s evidence. If someone else created the Fake Doe Email Address to impersonate John Doe, I find it was not A.K.

133John Doe gave evidence that someone posing as him on Grindr in July 2021 blocked his friend

T.L. who alerted him to the phoney Grindr profile.

134It is important to note that this “blocking” occurred after John Doe accused A.K. of creating fake on-line profiles the previous month. It is unlikely that anyone would continue such mischief after have being accused of it.

135There is no evidence the phoney Grindr profile was created by A.K. and A.K denies he created it. I believe A.K.

136Unless John Doe created the phoney profile himself, I find someone other than A.K. was posing as John Doe in July 2021 on Grindr.

137A.K. testified he did not post the videos, including the one entitled, “March 2 2020….cheating on my boyfriend while he was on vacation in Cuba”, screen shots of which are included as Exhibit 1, on xHamster or Grindr and I find that he did not.

138A.K. testified he did not create the XHamster or Instagram pages contained in exhibit 1 and I find that he did not.

139A.K. testified that he has never seen the videos that John Doe alleges he accessed and posted on-line. He has only seen the screen shots of them provided in this litigation. I believe A.K.

140John Doe has not proven on a balance of probabilities that A.K. had all the necessary knowledge and information to post the Fake Instagram, Grindr, or xHamster profiles.

141John Doe has not proven on a balance of probabilities that A.K. impersonated him or published any of his personal information on-line.

Allegations of Trying to Have John Doe Evicted

142Exhibit 1 Tab 9 - Exhibit O contains an email dated June 28, 2021 to John Doe’s apartment superintendent in Vancouver (the “Vancouver email”) from someone identifying themselves as

A.K. reporting that John Doe was “illegally subletting his unit” and asking to remain anonymous. The from line displays A.K.’s full name followed by the email address A[surname]2626@gmail.com (the “2626 Address”).

143A.K’s first initial and full surname are typed at the bottom of the email which is written in perfect English.

144A.K. was still learning English in June 2021. There was evidence that John Doe frequently corrected A.K’s English.

145A.K. denied sending the June 28, 2021 email, denied the 2626 Address was his and said that he does not sign correspondence using the first initial of his given name.

146On cross-examination John Doe admitted to using A.K.’s first initial as a pet name for him, calling him, “Mr. A”.

147John Doe testified the 2626 Address was not an email address he used to communicate with

A.K. but speculated that A.K. may have multiple email addresses.

148A.K. testified that he has had the same two email addresses “[name]k93@gmail.com” and “[name]k93@hotmail.com” for many years and uses only those email addresses.

149A.K. denies the 2626 Address is his and I believe A.K.

150It is not plausible that A.K. would create a fake email address and then use his real name. I find it is more likely that someone impersonating A.K. created the 2626 Address to make it appear as though the Vancouver email was being sent by A.K.

151I accept A.K.’s testimony that he did not know John Doe was subletting his Vancouver unit.

152John Doe claims a similar report was made in respect to his subletting of his Toronto apartment, but that report identified the subletting tenants.

153It is not disputed that A.K. knew John Doe was trying to sublet his Toronto unit in August 2020, however there is no evidence A.K. knew the identity of the subletting tenants.

154John Doe speculated that A.K. knew the identity of the subletting tenants through access to his email. I have already found that A.K. did not access John Doe’s email.

155I accept A.K.’s evidence that he did not make any report to John Doe’s superintendent in Toronto.

156John Doe accused A.K. on June 16, 2021 of trying to have him evicted from his apartment, which was 12 days before the email to the Vancouver superintendent was sent. It is highly implausible that A.K. would send an email to the Vancouver superintendent on June 28, 2021

using his own name after having been accused of trying to have John Doe evicted from his unit in Toronto.

157A.K. was on vacation in Greece at the time of the Vancouver email, enjoying his life with family and friends back home. I find he was not thinking about John Doe.

158On the other hand, I find the evidence shows John Doe seemed obsessed with A.K.

159The evidence shows more likely than not, if emails were sent to the superintendents at all, they were sent by someone other than A.K., who was posing as A.K. to implicate him.

160John Doe has not proven on a balance of probabilities that A.K. attempted to have him evicted from his apartment.

Allegations of Wrongful Entry to John Doe’s Apartment and Theft

161Without any reliable evidence and purely based on speculation, John Doe alleged that A.K. surreptitiously made a copy of his apartment key before returning the original to him after their break-up and then used it to enter his apartment on two occasions, one to steal his wallet and another time to steal his passport. John Doe alleged it must have been A.K. because A.K. knew he was away from his apartment at the times his items went missing.

162John Doe admitted that his friend Emily, who lived across the hall had a key to his Toronto apartment.

163John Doe testified A.K. knew that his aunt passed away on June 8th because he posted it on his Instagram. This testimony was supported by the messages in Ex 8. in which John Doe also disclosed to A.K. that he would be going to back to Sarnia from June 30th to July 4th, 2021 due to the passing of his aunt.

164A.K. testified he was in Greece from June 4th to July 8th, 2021 so could not possibly have entered John Doe’s apartment at any time during that period.

165I accept A.K.’s testimony that he did not take John Doe’s passport or wallet nor make a copy of John Doe’s key as imagined by John Doe.

166Due to the non-credibility of John Doe’s testimony, I have doubts as to whether his passport and wallet were stolen at all. If they were stolen, I find it was not by A.K.

167John Doe has not proven on a balance of probabilities that A.K. stole his wallet or passport or retained a key to his apartment.

APPLICABLE LAW and ANALYSIS

The Plaintiff’s Claim

168It is not necessary to enumerate the tests for the breach of privacy torts alleged by John Doe because each of them requires as a starting point, proof on a balance of probabilities that A.K.

impersonated John Doe, accessed John Doe’s personal information or published John Doe’s personal information as alleged.

169John Doe provided no direct evidence of A.K. doing any of these activities. Instead, he asks this court to draw inferences based on alleged motive and opportunity.

170John Doe alleges A.K.’s motive for posting the fake profiles was retaliation for John Doe cheating on A.K. and John Doe’s rejection of A.K.’s marriage proposal for immigration purposes.

171I find that A.K. was unaware of John Doe’s infidelity at the time the fake profiles were posted. The discovery of John Doe’s cheating therefore cannot be a motive.

172While it is true A.K. offered John Doe money to marry him to help him stay in Canada, I accept A.K.s evidence that he was able to secure a new work visa in September 2020, without any assistance from John Doe.

173I find John Doe’s rejection of his proposal was not a motive for A.K. to have done any of the things for which he has been accused because A.K. did not need John Doe to marry him to stay in Canada and A.K. was prepared to return to his friends and family in Greece if he had been unable to obtain a new Canadian work visa.

174John Doe’s position is A.K. was the only person who had access to all three videos and knowledge of all the information on the fake xHamster, Grindr and Instagram Profiles including: his business website, his fetishes that he speaks Spanish, his college education, his occupation as a personal trainer and his star sign. It is trite to point out John Doe himself knows all this information.

175The evidence shows John Doe left his Gmail account logged-in to computer in the possession of a person with whom he no longer had a relationship and did he not realize this until his account was signed-out in December 2020. I find this demonstrates John Doe is careless with respect to the protection of his personal information.

176Some of the information contained on the fake profiles is publicly available, such as John Doe’s occupation as a personal trainer or easily deduced such as his star sign.

177Some of the most sensitive information disclosed on the fake profiles was information A.K. did not know at all, for instance John Doe’s fetishes.

178I accept A.K.s evidence that he has never seen the sexually explicit videos, referred to in the plaintiff’s claim, and was not even aware of their existence until John Doe made accusations against him.

179I find that A.K. did not have all the information necessary to create the fake profiles on xHamster, Grindr and Instagram because he did not have access to John Doe’s Gmail account or or his iCloud.

180I believe A.K.’s testimony that he did not do any of the things alleged by John Doe.

181John Doe has not proven on a balance of probabilities that A.K. accessed his personal information or posted any of the fake on-line profiles.

182The Plaintiff’s Claim must be dismissed.

The Defendant’s Claim

183John Doe submits that sexual assault is not a civil cause of action. Although sexual battery was not expressly pleaded by A.K. it was not necessary for him to do so see Smith v. Nagy, 2025 ONSC 4629 at para. 92.

184The leading decision relating to battery, and sexual battery in particular, is Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551. Writing for the court, Justice McLachlin, as she then was, determined:

The law of battery protects the fundamental principle that every person’s body is inviolate, “… it is for those who violate the physical integrity of others to justify their actions” at para 2.

“Consent, express or implied, is a defence to battery … the burden lies on the defendant to prove consent” at para. 6

185The Superior Court, upheld on appeal, set out the following considerations with respect to whether a complainant has consented to the sexual activity [R. v. Othman, 2025 ONCA 449 at para. 34]:

1. Consent to sexual activity must be given for each and every act that occurred;

2. The consent must be communicated by words or conduct;

3. There is no consent unless the complainant agreed in their mind to the sexual activity at the time when it was occurring;

4. There is no obligation to express a lack or consent and

5. Silence, submission or lack or resistance are not consent.

186A.K. did not consent to anal penetration without a condom by words or conduct. A.K. was not expecting John Doe to penetrate him.

187I accept that John Doe could not transmit HIV on June 13, 2019.

188I do not accept John Doe’s testimony that he disclosed his HIV status in advance of engaging in sexual activity with A.K. on June 13, 2019.

189I make no finding as to whether there was a legal requirement to do so given John Doe could not transmit HIV.

190I find on a balance of probabilities that John Doe’s statement, “Of course I would have said I want to fuck raw before we kept going”, together with his denials of penetration, show he was aware of A.K.s lack of consent to penetration without a condom.

191The leading case on whether consent to sex with a condom is also consent to sex without a condom is R. v. Kirkpatrick, 2022 SCC 33, [2022] 2 SCR 480. The majority decision written by Justice Martin determined at para. 2, “that when consent to intercourse is conditioned on condom use, the only analytical framework consistent with the text, context and purpose of the prohibition against sexual assault is that there is no agreement to the physical act of intercourse without a condom. Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching. A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom … Since only yes means yes and no means no, it cannot be that “no, not without a condom” means “yes, without a condom”. If a complainant’s partner ignores their stipulation, the sexual intercourse is non-consensual and their sexual autonomy and equal sexual agency have been violated” see also paras 52, 53 and 54. Though this decision was in the criminal law context the reasoning of the court applies equally in the tort law context.

192The court also held that the complainant’s reasons for insisting on a condom are not relevant. See at para 51.

193John Doe emphasized his HIV status was non-detectible and non-transmissible as the reason

A.K. should not have been worried about having sex with him without a condom.

194John Doe’s HIV status is not relevant to the analysis of whether or not it was necessary for John Doe to wear a condom. John Doe was required to ask A.K. whether he could penetrate him without a condom regardless of the reason A.K. wanted him to wear a condom.

195It was not necessary for A.K. to specifically ask John Doe to put on a condom in the heat of the moment. The law required John Doe to ask A.K. if he could penetrate him. Had he done so I find that A.K. would have either insisted on a condom or refused consent to penetration.

196John Doe does not allege he had consent to penetrate A.K. with or without a condom. He argues there was no penetration at all. I have already found there was penetration.

197By inserting the tip of his bare penis into A.K.’s anus without A.K’s consent John Doe committed sexual battery.

DAMAGES

Non-Pecuniary, General and Aggravated Damages

198The purpose of a non-pecuniary damages award in a sexual battery claim, as described in Nova Scotia (Attorney General) v . B.M.G., 2007 NSCA 120 at para. 120 and adopted by the Ontario Court of Appeal in Zando v. Ali, 2018 ONCA 680 at para. 11 is to: “provide solace for the victim, to vindicate the victim’s physical autonomy and dignity and ... to take account of the humiliating and degrading nature of the conduct”.

[199] The tort of sexual battery is an intentional tort actionable without proof of causation or damage: Barreto v. Salema, 2024 ONSC 4972, at para 354, citing Reibl v. Hughes, [1980] 2 S.C.R. 880, at p. 890 and Norberg v. Wynrib, [1992] 2 S.C.R. 226, at para. 54.

200John Doe’s violation of A.K.s physical and sexual autonomy gives rise to presumptive damages.

201The amount of an award for non-pecuniary damages is not dependent solely on the seriousness of the injury, but must take into account its ability to ameliorate the condition of the victim given their particular circumstances. Lindal v. Lindal, [1981] 2 S.C.R. 629 at page 637.

202In Barreto at para. 433 Justice Vella citing B.M.G sets out the factors to be considered in determining the appropriate quantum as follows.

1. The circumstances of the victim at the time of the events, including factors such as age and vulnerability;

2. The circumstances of the assaults, including their number, frequency, and how violent, invasive and degrading they were;

3. The circumstances of the perpetrator, including age and whether they were in a position of trust; and

4. The consequences for the victim of the wrongful behaviour, including ongoing psychological injuries.

203At the time of the sexual battery A.K. was relatively new to Canada, was still learning to speak English, had never had penetrative sex without a condom and was almost 10-years younger than John Doe. I find A.K. was vulnerable. However, this was a single instance of sexual battery between two adults and A.K. provided no evidence of ongoing psychological injury. In the circumstances of this case and considering the factors relevant to an assessment of damages I find non-pecuniary damages at the low end of the range for sexual assault and battery are warranted.

204The court in Barreto recognized the low-end of the range for non-pecuniary general damages arising from the civil torts of sexual assault and battery is over $100,000 (adjusted annually). Barreto at para. 352.

205Justice Vella described the function of aggravated damages as follows: “Aggravated damages may be awarded to recognize the circumstances or manner in which the abuse was committed (e.g., humiliating, undignified, or involving a betrayal of trust). They are not a separate species of damages. Rather, aggravating circumstances are additional factors to consider when assessing general non-pecuniary damages. In other words, aggravating circumstances may enhance the award of general damages that would otherwise be awarded.”: Barreto at para. 434

206After he was sexually assaulted A.K. described the anxiety he felt in not knowing whether John Doe had any STDs that he may have transmitted to A.K. and having to wait for months to

get test results. He felt betrayed by John Doe for penetrating him without his consent, without a condom and then for laughing at him when he ran from the bed in pain.

207Considering presumptive damages and the aggravating factors I have identified, I award non- pecuniary, general and aggravated damages in the amount of $35,000 to A.K.

Punitive Damages

208The purpose of punitive damages is to punish the perpetrator and deter others from engaging in similar conduct. They bear no relation to what the victim should receive by way of compensation. They should only be awarded where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence. Hill v. Church of Scientology of Toronto at para. 196.

209The monetary jurisdiction of the Small Claims Court at the time of trial was $35,000. I find

$35,000 is insufficient to achieve the goal of punishment and deterrence. Were it not for the monetary limit on the court’s jurisdiction I would have awarded an additional amount of $25,000 in punitive damages.

LATE REQUEST FOR ANONYMITY by A. K

210In his closing submissions A.K. asked for anonymity for the first time. His full name was used throughout the trial and that cannot be undone although as noted, this matter is already subject to a sealing order.

211John Doe objects to A.K. receiving anonymity and cites purely procedural reasons, including the lateness of the request.

212John Doe alleges A.K. was required to redact John Doe’s name from his materials pursuant to the order of Deputy Judge Hum but failed to do so.

213I find there was no requirement specified in the order that A.K.s documents be redacted.

214A.K. is a victim of sexual battery. John Doe is the perpetrator. The reasons given by Deputy Judge Hum for providing John Doe anonymity and the balancing with the public interest she conducted, apply to A.K.

215Going forward the Defendant / Plaintiff by Defendant’s name shall be anonymized to A.K.

216The parties shall use the initials A.K., followed by the court file number, in place of the Defendant / Plaintiff by Defendant’s name in any future document filed with the court.

217John Doe shall be bound by this anonymity order and shall not disclose the name of the Defendant / Plaintiff by Defendant or any facts that would tend to identify A.K. without leave of this court.

COSTS

218The parties are encouraged to come to an agreement on costs. If they cannot agree they may provide brief written costs submissions of no more than three pages, double spaced, by March 20, 2026 at 4PM in the case of A.K. and by March 27, 2026 at 4PM in the case of John Doe. Any submissions should be sent to the opposing party and the trial coordinator’s office by email with “SC-22-8948+D1 Cost Submissions" in the subject line.

Released to Parties - March 5, 2026

Supplemental Endorsement issued March 23, 2026

The judgment has been restated removing identifying information from paragraph 22 on the consent of the parties and the original judgment shall be sealed.