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.