How to Get It Right on Wrongs

Ontario’s Superior Court has created a new tort. But should it have, in the circumstances?

In Doe 464533, 2016 ONSC 541, a delivered a couple of weeks ago, Ontario’s Superior Court of Justice awarded substantial damages to a person whose ex-boyfriend posted an intimate video of her online, in addition to showing it to some mutual acquaintances. He had previously coaxed her into making the video, promising that he would be the only one to see it. The promise was a lie, since he shared the video as soon as she had sent it to him. Justice Stinson finds the defendant liable for breach of confidence, intentional infliction of emotional distress, and public disclosure of private facts. The latter ground of liability had never before been recognized in Canadian common law, prompting David Fraser, at the Canadian Privacy Law Blog, to write that “[t]his is a huge deal.” It may indeed, as Mr. Fraser implies, be a hugely positive development. Certainly in Doe the Court was able to give the plaintiff redress for a blatant and vicious injustice that the defendant had done to her. Nevertheless, I want to ask whether, in the circumstances, recognizing or creating this new cause of action was the right thing to do. I hasten to add that, in asking the question, I do not mean to suggest that it must be answered in the negative ― only that it is worth thinking about.

One reason why I wonder whether Justice Stinson was right to develop the common law of privacy in this case is that, as David Canton has pointed out over at Slaw,

[t]he defendant did not file a statement of defence, and this decision was based on a motion for default judgment. So while the decision is well reasoned, there was no contrary position presented. 

Courts are normally dependent on hearing arguments from both sides of a case. Indeed, Jeremy Waldron has argued compellingly that the clash of competing arguments is an essential component of what law is, at a conceptual level. Needless to say, if one the parties chooses to forego his or her right to make an argument, as the defendant did here, this should not stop a court from ruling and, where appropriate, making an order against that party. But I wonder whether the absence of one of the parties from the litigation is not a reason, a very good reason even, for a court to be reluctant to make its ruling a precedent-setting one.

Now, this concern should probably be heavily discounted if not ignored if the question on which a precedent may be set is unavoidable on the path to a decision on the facts of the case. However, this is not the case in Doe. As I note above, Justice Stinson found the defendant liable for three different torts arising out of the same set of facts. The first two are familiar, although I take it that they had not previously been applied to similar circumstances. Had Justice Stinson “only” concluded that the defendant had committed a breach of confidence and deliberately inflicted emotional distress on the defendant, he could and surely would have awarded the same damages against him. So there was no pressing need for the judge to address the question of whether public disclosure of private facts should be a distinct ground of liability. Of course, we can imagine circumstances where the other causes of action would not be made out, and the new tort would be the only conceivable ground of liability. It is arguable that Justice Stinson’s thoughtful analysis is a service to future litigants. But again, the value of that analysis is lessened by the fact that it does not rest on a full, contradictory argument by the parties.

And then, quite apart from the unusual circumstances of this case, there is the perennial question of the relative roles of courts and legislatures in developing the law and creating new causes of action. Justice Stinson notes, early on in his reasons, that Parliament has criminalized the “publication of an intimate image without consent,” and that one province, Manitoba, has passed legislation to make it tortious. Should the law of other provinces move in the same direction by way of common law development, or should the courts wait for the legislatures ― which presumably are well aware of the problem ― to act? There are certainly good reasons for the courts not to wait. At least so long as any new causes of action are carefully circumscribed, there is probably something approaching a social consensus in favour of granting the victims of cruelty such as that suffered by the plaintiff in Doe a civil remedy. The issues involved are not ideologically controversial, and do not concern complex policy questions on which courts might lack expertise. Indeed, one could go so far as to say that, seeing how clumsy and pernicious legislative attempts to deal with online miscreants can be, courts would do well to act first, so as to remove the temptation to act that legislators would otherwise feel. All the same, it might have been useful for the court to address the question. Justice Stinson’s reasons do not.

To repeat, all that is not to say that Justice Stinson was wrong to develop the law in the way he did, or that his reasoning on the substantive issue of whether to create a tort of public disclosure of private facts could or should not be endorsed by a court considering the matter in a subsequent case. My point is only that we should take his decision as an occasion for a reflection on the courts’ when faced with novel legal issues.

A Forecast on Suing the Weatherman

First of all, apologies for my disappearance. The last two weeks have been hectic, and I have been most neglectful of the blogging duties. I hope to resume them now.

My first comeback post will be a lighthearted one though. The New York Times Magazine has an entertaining piece―actually, an adaption of a excerpt from a book on prognostication by Nate Silver―on the science and art (there is, still, a good deal of art) of the weather forecast. Whatever we might think in our more cynical days, Mr. Silver says that the accuracy of these forecasts has increased a great deal over the last few decades:

In 1972, the  [National Weather S]ervice’s high-temperature forecast missed by an average of six degrees [Farenheit] when made three days in advance. Now it’s down to three degrees. … Perhaps the most impressive gains have been in hurricane forecasting. Just 25 years ago, when the National Hurricane Center tried to predict where a hurricane would hit three days in advance of landfall, it missed by an average of 350 miles. If Hurricane Isaac, which made its unpredictable path through the Gulf of Mexico last month, had occurred in the late 1980s, the center might have projected landfall anywhere from Houston to Tallahassee, canceling untold thousands of business deals, flights and picnics in between — and damaging its reputation when the hurricane zeroed in hundreds of miles away. Now the average miss is only about 100 miles.

Now 100 miles still seems like a lot to me. (It’s comparable with the radius of a hurricane itself.) Still the accuracy of the forecasts is improving – fast. Now to the legal part of the post.

For the moment, even if I rely on a negligently prepared forecast (and is Mr. Silver notes, it is not “unheard-of for a careless forecaster to send in a 50-degree reading as 500 degrees”―with all the consequences imaginable, if the error is not caught before the figure is fed into the computer and wrecks all the forecasts it produces) and have a miserable day as a result, or even suffer material losses, I cannot sue the weatherman. Technically, that is because he owes no duty of care to the general public. But then the manufacturer of ginger ale in Donoghue v. Stevenson also thought he owed no duty of care to those who drank his snail-infested brew.

It is said that courts quietly subsidized the industrial revolution by employing all manner of legal doctrines to deny compensation to its victims―workers, consumers, and bystanders alike. But as the revolution became the new normal, the subsidy was no longer necessary, and so it was withdrawn, sometimes by legislation, and sometimes by courts themselves. One way of seeing the Donoghue v. Stevenson case is that it was an indication that thenceforth, manufacturers would be held to a duty of care towards consumers, where none was imposed before―not only, because of the injustice of denying compensation to the consumer, but also because manufacturing was no longer a new, and therefore inherently uncertain, process that could never really be trusted to deliver consistently reliable results.

So here’s my question. As the accuracy and reliability of the forecasts increases, will there come a point at which courts impose a duty of care on forecasters, so that suing the weatherman will no longer be impossible?