An Introduction to Canadian Tort Law, Intrusion Upon Seclusion, and Sexual Battery
What is Tort Law?
Often when individuals hear the term “tort” or “tort law” they are unaware what this realm of law consists of. A tort can be defined as a civil wrong resulting in injuries to a plaintiff where damages may be sought. It is also a means by which an individual may bring an action against another in court to recover damages, to compensate the individual for the injuries suffered as a result of the wrongdoer’s conduct.
Adding to this, a tort can also be classified as a breach of one's obligations or duty to another. A tort is also a private wrong, meaning it is individual against individual that focuses on the plaintiff’s loss. The main purpose of tort law is to restore the injured person to the position they were in prior to the wrongful act.
There are also two distinct categories of torts; intentional and unintentional. Intentional torts require a subjective desire to cause the consequences, (sometimes in terms of reputation), of one’s actions. While unintentional torts occur as a result of the other party's acts of carelessness or negligence.
It is important to note that tort law is constantly evolving. With changes in our country's political climate, and major technological advancements, new torts are introduced. A main area of growth in tort law has occurred in the tort of privacy.
Privacy
There are currently four categories of privacy torts in Canada. These four categories are:
Intrusion upon seclusion;
Appropriation of an individual's name or likeness;
Public disclosure of and individuals private facts; and
Publicity portraying a person in a false light.
There are also privacy tort claims that have been brought forward involving the use of technology such as the distribution of personal images via the internet also known as “revenge porn”, and the use of cameras for inappropriate or unlawful surveillance.
The tort of “intrusion upon seclusion” will be discussed further on this page.
Intrusion Upon Seclusion
The leading case dealing with the tort of intrusion upon seclusion is Jones v. Tsige (2012). In this case, the court defined the tort of intrusion upon seclusion as “intentionally intruding physically or otherwise, upon the seclusion of another or his private affairs or concerns”. It was established that if an individual commits this tort against another they are “subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person” (para 70). There is a test that establishes whether or not the defendant in question has committed the tort of intrusion upon seclusion.
This test consists of three elements that must be present in order to prove the tort of intrusion upon seclusion:
1. The defendant must have intentionally or recklessly intruded, physically or otherwise;
2. The defendant must have invaded, without lawful justification, upon the seclusion of another of his private affairs or concerns;
3. A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
In this case, Jones and Tsige worked for different branches of BMO. Tsige was in a relationship with Jones’ former husband. Tsige decided that she wanted to see what her boyfriend`s ex-wife (Jones) had been up to. Jones was suspicious that Tsige had seen her records, and had BMO to look into it. BMO found that Tsige had accessed Jones private records 174 times. This included records of Jones birthday, marital status, address, and account changes.
The court concluded that “Tsige committed the tort of intrusion upon seclusion when she repeatedly examined the private bank records of Jones. These acts satisfy the elements laid out above: the intrusion was intentional, it amounted to an unlawful invasion of Jones’ private affairs, it would be viewed as highly offensive to the reasonable person and caused distress, humiliation or anguish” (para 89). The court awarded Jones 10,000 in damages.
If you believe your privacy has been violated, you may have a claim and should consult with a lawyer.
Tort of Sexual Battery
Another category of tort law that has experienced development is the tort of sexual assault. In the past, the tort of sexual assault did not exist. Today, civil sexual assault claims are classified under the tort of sexual battery.
In tort law, the term battery is defined as a “direct and intentional bringing about of a physically harmful or socially offensive physical contact with the person of another.” This category of tort treats the body is “inviolate”, meaning, that one`s body ought to be free from any form of violation. In order to prove a tort of battery one must demonstrate that the defendant in question must have had the intent to bring about physical contact to the plaintiff, it does not need to be established whether the defendant had the intent to harm or offend the plaintiff.
The tort of sexual battery combines the basic aspects of the tort of battery and unconsentual sexual acts that have been committed against an individual.
Limitation Periods for Civil Proceedings
In Canada, the Limitations Act prevents the proceedings of an individual's case if the time it took for the claim to occur exceeds two years from the time of discovery. Section 4 of the Limitations Act reads:
4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
Currently, there are no longer limitation periods in place for sexual assault based proceedings in Canada.
Section 16 (1) ss (h) of the Limitations Act states that:
16. (1) There is no limitation period in respect of,
(h) a proceeding based on a sexual assault;
(h.1) a proceeding based on any other misconduct of a sexual nature if, at the time of the misconduct, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the misconduct:
(i) the other person had charge of the person with the claim,
(ii) the other person was in a position of trust or authority in relation to the person with the claim,
(iii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person.
The court's decision in M.(K.) v. M.(H.) (1992) was one of the first civil cases to recognize that when dealing with cases of sexual nature, limitation legislation should not begin until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant's acts. The court stated that this must be established because in many cases victims of sexual assault surpress their memories, do not grasp the acts being committed against them, and are initially too afraid or ashamed to tell someone.
In the case of M.(K.) v. M.(H.), the plaintiff had pleaded that she had been of unsound mind until she underwent therapy. The acts of sexual assault had taken place when the plaintiff was around the age of 10 and this court action was brought forward when the plaintiff was 28 years old. The plaintiff had started remembering the acts of sexual assault that had been committed against her after undergoing therapy sessions. The court's ruling in this case broadened the scope of limitations put on civil cases involving sexual assault.
The case of C.O. v. Williamson (2020) displays the use of section 16 of the Limitations Act, and how proceedings that deal with sexual assault are handeled today. The plaintiff in this case was sexually assaulted at the age of 16 by her highschool teacher in 1983. However, the plaintiff`s claim was brought forward in 2019; 36 years after the incidents of sexual assault took place. The court recognized that “The Limitations Act specifically states that there is no limitation period of proceedings that are based on sexual assault” (Para 34). Therefore, the Limitations Act did not apply in this case, the proceedings went forward, and the plaintiff was able to collect damages.
Classifications of Sexual Assault
In Canada, there are many different classifications of sexual assault.
1) Sexual assault is any act of sexual nature that violates the sexual integrity of the victim.
2) Unwanted sexual touching is any explicit touching that occurred without the consent of the recipient.
3) Aggravated sexual assault occurs when while committing an act of sexual assault, the perpetrator wounds, maims, disfigures, or endangers the life of the victim.
4) Sexual assault with a weapon occurs when a perpetrator of sexual assault uses, or threatens to use a weapon on the victim.
The case of Henderson v. Johnston emphasized that a "fiduciary and confidential" relationship “is the same relationship as that which exists in equity between a parent and his child, a man and his wife, an attorney and his client, a confessor and his penitent, and a guardian and his ward" (p.799).
This being said, it is important to know the different ways in which perpetrators of sexual assault can assert their position of authority or fiduciary relationship over vulnerable groups of individuals. Some include:
1) Sexual assault committed against minors
2) Sexual assault committed by physicians against their patients
3) Intimate partner sexual assault
4) Sexual exploitation of individuals by professionals
5) Sexual assault committed against individuals with a disabilities
Concluding Thoughts
In conclusion, tort law is a field of law that continues to evolve, and grow. Constantly, changes are being made to areas of tort law, and new torts are being developed. If you believe a tortious act has been committed against you, and wish to see if damages can be claimed, it would be in your best interest to consult with an experienced lawyer in this field.