In the case of Jane Doe 464533 versus M.D. [2016] O.J. No. 382, the Ontario Superior Court heard a case where the plaintiff brought a claim for damages because of the defendant releasing an intimate video online. The defendant convinced the plaintiff to record an intimate video then posted it online without the plaintiff’s consent. The plaintiff sued for psychological damages. Mirroring what an Edmonton court of law would do the Ontario Superior Court awarded $50,000 in general damages for unspecified psychological problems, sleep disturbance, emotional problems, and depression suffered by the plaintiff, plus $25,000 in aggravated damages, plus $25,000 in punitive damages for the outrageous and intentionally harmful conduct of the former lover in posting the video online – for a total award of $100,000.
This case highlights what general damages are for – general damages are for pain and suffering, loss of enjoyment of life, inconvenience, and any other physical or mental pain and suffering that results from the wrongdoing of another person. The amount is a judgment call based upon precedent cases of a similar situation. However, unless the precedent case is from a Court of Appeal in a province or the Supreme Court of Canada, then the trial judge is not bound by the decision but is merely offered guidance by the similar decision. Even with an appellate decision or Supreme Court of Canada decision on general damages, because no two injuries are ever alike, there is always room for the trial judge to “distinguish” the precedent case from the case before him or her and thus award a different amount for damages. This is what makes it difficult for accident injury lawyers to predict the outcome of a personal injury trial. Thus, in the present case of mental anguish caused by the unauthorized release of an intimate sex tape the amount of damages will vary significantly from victim to victim as this type of mental suffering will vary from victim to victim and detailed evidence of the damages suffered by the victim must be presented to the court by the victim’s injury lawyer.
Canadian courts are out of touch with an appropriate amount for general damages for pain and suffering whether that be physical, or in this case, mental suffering. Few people would think $50,000 is a fair sum for the humiliation, embarrassment, and mental suffering caused by a former lover posting a sex tape online without consent. True the Supreme Court of Canada in 1978 put a cap on general damages for pain and suffering – which in today’s dollars updated for inflation is over $375,000 .00 for the most severe injuries. But this case should have attracted at least half the cap on general damages in Canada.
As an illustration of how out of touch Canadian courts have become with general damages for pain and suffering, on March 18, 2016 a jury in Florida ordered Gawker Media to pay $115 million for publishing a sex tape showing Terry Bollea, also known as Hulk Hogan, having sex with his friend’s wife.
The stunning sum, which did not even include punitive damages which may be added to it is a wakeup call for this who think they can publish whatever they want on the internet with impunity. The final sum is even more than the $100 million Bollea was seeking. Bollea also sued Gawker founder Nick Denton and former editor Albert Daulerio, and the jury found those two men personally liable as well.
The sex tape was made about a decade ago, during a period in which the professional wrestler Hogan testified that he was going through a difficult phase with his then-wife. Todd Clem, a Florida radio personality, who later legally changed his name to Bubba the Love Sponge, encouraged Hogan to sleep with his wife, Heather, and taped the episode and sold it to Gawker who published it.
This may be the other end of the extreme as far as general damages for pain and suffering, but it was awarded by a jury and so presumably reflects public sentiment. Nevertheless, it does illustrate how awards in Canada today are very low for general pain and suffering damages.
Some courts in Canada have said in passing that the award in civil courts for unauthorized publication on the internet of a sex tape should be like the awards given to a victim of a sexual assault in a civil case as the damages are in one sense similar. It is nonconsensual and involves sex. With a video there is the added component of distribution of intimate images which has the potential to cause devastating and long lasting psychological damage to a person.
It should be noted that if the victim of the publication of a sex tape such as a teacher then loses his or her job then the civil case would also include an amount for loss of income in addition to the amount for general damage for pain and suffering. This would then make the award much larger and so perpetrators of publishing sex tapes online without consent should be aware that award against them for damages could easily be far more than $100,000.
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