Friday, February 10, 2017

Nova Scotia Appeals Court: No privacy and defamation double-dip damages

The Nova Scotia Court of Appeal, in Marson v Nova Scotia, 2017 NSCA 17 has affirmed the decision of the NS Supreme Court, which found that you don't get to double-dip on damages if essentially the same is grounded in invasion of privacy and defamation. The unanimous Court reasoned:

[27] The trial judge was alive to the potential to award damages for “Breach of Privacy/Intrusion upon seclusion”. She discussed the issue of whether there was any need to rely upon an Ontario case, Jones v. Tsige, 2012 ONCA 32 (CanLII), which recognized the tort of intrusion upon seclusion. In Jones the Court made an award based on the tort of invasion of privacy, or intrusion upon seclusion. That case referenced the fact that one who intentionally intrudes upon the seclusion of another in his private affairs is subject to liability for invasion of privacy if the invasion would be highly offensive to a reasonable person. A reasonable person, in the context of that tort, would find it highly offensive to have records such as health records, or in the context of the present case, confidential policing/corrections information disseminated.

[28] The Jones case made it clear that the damages for such a tort were in the category of “symbolic” or “moral” damages where a plaintiff suffered no provable pecuniary loss. Here, the trial judge correctly pointed out that while in Trout Point Lodge Ltd. v. Handshoe, 2012 NSSC 245 (CanLII) it was made clear that the court could award damages for a tort of intrusion upon seclusion, it was not necessary in the present case. She said:

175 … I do not need to undertake that analysis. The actions complained of under this heading are, essentially, the same actions underpinning the defamation claim, for which I have already awarded complete damages. The factors noted in par. 87 of Jones have already been considered in that award. It would be inappropriate to make further awards. …

[29] I agree with the trial judge’s approach on this issue. The approach argued by the appellant would have resulted in double recovery for the same delict. The trial judge’s comments make it clear that the intrusion of seclusion was subsumed within the other heads of damages.

A claim can be both rooted in privacy and defamation, but your compensation is for the harm itself and not multiplied by the different torts you can claim.

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