Monthly Archives: June 2020

Publicity Placing Person in False Light

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To successfully sue someone, you need to have a legally-recognised basis for suing them.  These legally-recognised bases for suing someone are called “causes of action”.  Many of them are obvious and well known: where the evidence justifies it, you can sue someone for breach of contract, wrongful dismissal, or defamation.  Other causes of action are less well known, but nevertheless well-established, such as certiorari or mandamus.

Notably, the list of legally-recognised causes of action is not a closed list.  Where the right conditions are met, new causes of action can be “discovered” by the courts. 

False Light

Late last year, the Ontario Superior Court of Justice “discovered” another new cause of action in the family law case of Yenovkian v Gulian. 

There was a trial to determine the issues of custody, access, and spousal support.  At the trial, the wife put forward evidence of websites written and published by the husband which alleged that the wife and her parents were involved in kidnapping, child abuse, assault, and making death threats (among other things). 

The husband’s websites (which are still up, in violation of court orders to take them down) are written by someone who is clearly unhinged, and the allegations they contains against his ex-wife are outrageous.  The judge decided to give Ms. Gulian a remedy for the injury she suffered in having these things written about her on the Internet. 

Rather than give the wife a judgment which was based on an already-recognised cause of action, the judge decided to base the ruling on a cause of action which had never previously been recognised in Ontario law.  The Judge held that the cause of action by which Ms. Gulian was entitled to a remedy was “publicity placing a person in a false light”, and she awarded Ms. Gulian $100,000.00.

This ruling creates a situation of significant uncertainty in Ontario law.  First, it is not at all clear from this ruling how “publicity placing a person in a false light” is different from good old-fashioned defamation.  I don’t see how accusing your ex-wife of kidnapping and child abuse could possibly be anything other than defamatory so, in my personal view, the judge did not need to recognise a new cause of action in order to give Ms. Gulian a remedy: she could have simply awarded Ms. Gulian damages based on defamation. 

Second, because this case was decided by the Superior Court and not by the Court of Appeal, it is not binding on other courts in Ontario.  My own suggestion would be that the job of introducing new causes of action into Ontario law should be left to the Court of Appeal, whose decisions are binding on all the courts in the province.  The last time a new cause of action was discovered in Ontario (“intrusion upon seclusion”), it was done by the Court of Appeal.  The last time the Superior Court attempted to discover a new cause of action (the “tort of harassment”), the ruling was overturned by the Court of Appeal.

The Court of Appeal did not have the opportunity, in this case, to weigh in on the “false light” cause of action because the husband did not appeal.  One judge of the Superior Court was convinced that the cause of action of “publicity placing a person in a false light” exists in Ontario; another judge hearing a similar case may not be similarly convinced.  This creates the possibility of inconsistent legal rulings in the Ontario courts, which in turn could potentially erode public confidence in the justice system. Until the Court of Appeal rules on the “false light” cause of action, it will remain a big question mark in Ontario law. 

When will we next see a new cause of action recognised in Ontario?  I suspect it will not be for some time.  A new cause of action is supposed to fill a gap in the existing law, and where it is not immediately obvious that there is a gap in the law which needs to be filled, it will be less likely that any potential new cause of action will be recognised. 

Quick, Good, Cheap – Pick Two

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Her Honour Madam Rosalie Abella, a Justice of the Supreme Court of Canada, recently penned an opinion column in The Globe and Mail titled, “Our Civil Justice System needs to be Brought into the 21st Century” (subscription required). 

While I came to agree with Justice Abella’s conclusion, she actually made two arguments in order to get there.  And while I agree with her second argument, I cannot bring myself to agree with her first.

Her first argument is basically just “Change for change’s sake.”  She notes that the adversarial system of civil litigation we use today is pretty similar to the one used at the turn of the (last) century.  She then goes on to argue that, since the airplane and the Internet have been invented in that time, we should similarly change the way we resolve civil disputes. 

The flip side to the sentiment that “we should change with the times” is “if it ain’t broke, don’t fix it.”  And of course, our adversarial system of civil litigation has a lot of things to commend it.  It is a system which has been honed and refined over centuries and it does a fairly good job of serving its objectives.  While other systems of dispute resolution have been conceived and tried our adversarial system remains, to paraphrase Churchill, the worst system except for all the others which have been tried from time to time.  So I would disagree with the suggestion that we ought to make any substantial changes to our civil litigation system solely on the basis that it is an old system.  We should not tear down a fence unless we know why it was put up in the first place. 

That being said, Justice Abella’s second argument really lays bare the biggest shortcoming of our “least bad” system.  She persuasively argues that the system is just too inaccessible for regular people, for the dual reasons that (i) it is too expensive and (ii) it takes too long.  One cannot really disagree with her assertion that it should not take litigants “forever and thousands of dollars to decide where their children live, whether their employer should have fired them, or whether their accident was compensable.” 

The gap between reality and expectation for participants in the civil litigation system can be profound.  I blogged last week about an employment case in Ontario which took eleven (11) years to go from start to completion at the Court of Appeal.  By comparison, a few years ago I represented an employee in an employment case that was decided by the Court of Appeal eleven months after the employee was fired.  And do you know what they told me after it was over?  They said, “If I knew it would have taken this long, I never would have done it.”  And that was in a case which, by the usual standards, was resolved quickly.

In my own practice, I have seen a fair number of clients walk away from good, promising cases—cases worth tens or even hundreds of thousands of dollars—because they are not willing to wait 1, 2, or 3 years before seeing the inside of a courtroom, or because they are no longer willing to continue funding litigation which will go on for another 1, 2, or 3 years. 

The people who are most likely to be caught on the outside are those who can’t or won’t sink thousands of dollars, and years of their lives, into fighting a legal dispute – even though their case may be just.  Justice Abella perspicaciously identifies this problem when she says, “They want their day in court, not their years.”

Normally, this is where I would criticize the author for identifying the problem but not identifying any solutions.  But I can’t criticize Justice Abella here, because I don’t have any answers at the moment either.  The civil justice system serves multiple goals, among them efficiency, truth-seeking, and justice.  Major reforms to improve the outcomes in one area are almost certain to be at the expense of the other goals of the justice system.  The legal system finds itself stuck in the classic consumer quandary of “Quick, cheap, good – pick two”. 

What should we do?  Eliminate or severely curtail pre-trial discovery?  That would certainly get us to trial more efficiently.  It would also bring back the old days of “trial by ambush”, which the profession definitely wants to avoid.  Getting rid of “trial by ambush” was a major reason for the significant expansion of pre-trial discovery in the first place.  We can make our civil litigation system quicker and cheaper, but it won’t be as good.

While I can’t say what we should do, I can make a suggestion about what we should not do.  We should not do mandatory mediation.

In my opinion, the experiment of mandatory mediation is a failure and should be abandoned.  For a number of years now, any civil lawsuit in Ottawa, Toronto, or Windsor has been required to go to mandatory mediation as a necessary pre-condition to going to trial.  And why is this such a bad a idea?  Simply put, if you want to make the process of a lawsuit quicker and cheaper, you should not add additional procedural hurdles to the lawsuit.  Mandatory mediation adds both time and expense and makes the overall lawsuit take even longer.  I cannot understand why anyone thought that the system would be made more efficient by adding an extra step to civil lawsuits: it is impossible to make a journey quicker by adding pit stops.  If we want to make the process of civil lawsuit a little bit quicker and a little bit less expensive without sacrificing quality, we can start by eliminating the costly and time-consuming step of mandatory mediation.