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Case Summary: Yenovkian v Gullian
Defence + Indemnity

The Ontario Superior Court of Justice has recognized the privacy tort of placing the plaintiff in a false light, awarding both compensatory and punitive damages for same. 

Yenovkian v. Gulian, 2019 ONSC 7279, per Kristjanson, J.

Facts + Issues

Mr. Yenovkian and Ms. Gulian were married in October 2000. They had two children; a daughter (A.B.) who was almost 12 years old and a son (C.D.) who was almost 9 years old. The daughter suffered from a neurological disorder and was on the autism spectrum. Yenovkian was found to have been abusive during the marriage. The marriage ended on September 19, 2019 when Yenovkian asked for a divorce.

Yenovkian claimed for a divorce, with family remedies such as access and custody of the children. Gulian cross-claimed for spousal maintenance and damages (compensatory and punitive) for the torts of nuisance, harassment, intentional infliction of mental suffering (nervous shock) and invasion of privacy, seeking $150,000 in compensatory damages and $300,000 in punitive damages.

Yenovkian was a dual Canadian-U.S. citizen and Gulian was a UK citizen. During their marriage the family lived in various places in the U.S., the UK and Ontario, moving about for Yenovkian’s work.

In October 2016 Gulian moved to the UK with her children to live with her parents, advising Yenovkian of their whereabouts. Throughout, she always said it was important that her children should have time with their father and allowed access (in person and via Skype) notwithstanding Yenovkian’s conduct. Yenovkian commenced proceedings for return of the children to Ontario. In June 2018, the High Court of Justice Family Division in the U.K. ordered the children returned to Ontario. Gulian and the children returned to Ontario, by which time Yenovkian was living in Los Angeles, California. On September 11, 2018, the Ontario Court of Justice granted Gulian temporary sole custody of the children, permitted her to move back to the U.K. with them and granted Yenovkian both in person and Skype access.

Yenovkian then created two websites and, along with emails, entered upon a campaign of cyberbullying of Gulian, the children and her parents and an Ontario judge who had ruled against him (the “Named Justice”):

19   Mr. Yenovkian has created two main websites which contain embedded links to many videos involving the children. One website is focused on Ms. Gulian, her parents and their family business. The other is a website for a campaign to “unseat” a justice of the Ontario Superior Court of Justice (the “Named Justice”) for her rulings in this case. The court viewed the content on both websites, which contain links to other content created by Mr. Yenovkian. On top of the websites, the court viewed ten videos posted on Mr. Yenovkian’s YouTube channel, his Facebook page, his GoFundMe page to “save an abducted autistic girl from captivity”, and two online petitions to remove the Named Justice from the bench.

...

21   The material posted online by Mr. Yenovkian contains photographs and videos of the children, personal identifying information, and comments about the children. Both main websites include links to YouTube videos of Mr. Yenovkian’s court-ordered parenting time with children, both in person and Skype access. Ms. Gulian testified that the children do not know that they are being recorded. Mr. Yenovkian did not tell Ms. Gulian that he intended to post the videos. Ms. Gulian never consented to Mr. Yenovkian’s posting of the children’s images and videos, which was done contrary to a court order of June 26, 2018. Mr. Yenovkian has refused to remove the videos and images contrary to an order of this court of April 18, 2019.

22   The court spent hours viewing the videos, websites, petitions and internet posts during the trial. A few examples will suffice. In one video, he states that his daughter is “stuttering” because her violent and abusive grandmother “kidnapped” and “drugged” his daughter. He specifically contrasts pictures of his daughter “before” and “after”, with the clear inference that his daughter has declined. He calls his daughter “autistic” in the internet postings, even though Ms. Gulian testifies that they try to avoid labelling. He writes that his “autistic daughter” has been drugged with “opiates and other tranquilizers.” In his posts he states he has documented the “mental degradation” of his child; the “before and after’s” which show A.B.’s “broken” mind, that A.B.’s mental health is “incredibly damaged.” Another online video depicts C.D. cowering under a table during a court-ordered access Skype call with Mr. Yenovkian and his mother, Sylvia Yenovkian, with Mr. Yenovkian loudly haranguing his son for not getting out from under the table.

23   Mr. Yenovkian has posted images and videos of Ms. Gulian and her parents with written and oral commentary accusing them of various illegal acts including kidnapping, child abuse, stealing money from the UK government, multiple “felonies” against the UK, U.S. and Canadian governments, assault, drugging the children, slapping the children, death threats, “breaking countless laws,” forging documents, fraud and abusing the children. Both Ms. Gulian and Shahe Gulian denied the allegations, and I accept their evidence. One of his online petitions, entitled “Demand an End to Corruption in Family Law — Investigate the Gulian Family for Kidnapping, Fraud, and Child Abuse” has several online supporters who have signed the petition, many from the UK, one of whom posted that a young man gave her a flyer at the Armenian Church in the UK, others of whom said they knew the family personally.

His emails were abusive, making egregious allegations against Gulian, including allegations of criminal conduct.

Yenovkian further attacked “the administration of justice through his attacks on the Named Justice, one of Ms. Gulian’s lawyers, and some of Ms. Gulian’s witnesses including those who provided evidence to this court”.

Yenovkian filed numerous unsubstantiated complaints against Gulian and her family to law enforcement and social welfare agencies in the U.S., Canada and the UK, prompting several visits by such entities to their homes.

Yenovkian had also breached several court orders, including Ontario court orders not to intimidate or harass Gulian; not to film or record his children during his parental access visits; to remove all postings about Gulian, her family and the children from the internet and to “stop harassing or speaking ill of Gulian and her family”.

HELD: For the Respondent Gulian; granting divorce and family remedies, plus $150.000 in compensatory damages plus $150,000 in punitive damages.

The Court admitted into evidence the Yenovkian websites and videos, not as proof of the truth of their contents but as evidence of the allegations he had made against Gulian and her family:

20   Those websites and videos are hearsay. They are not admitted for the truth of the allegations made by Mr. Yenovkian against Ms. Gulian, her parents and other family members, her lawyer, her witnesses, or the Named Justice. That said, I admit the websites, postings and videos as evidence of the allegations that Mr. Yenovkian has made against the above individuals. They are evidence of the fact that he has recorded his Skype access and parenting time with the children in breach of the court order of June 26, 2018, evidence of his comments about the children online, and evidence of the lengths Mr. Yenovkian has gone to cyberbully and harass Ms. Gulian, her family, her witnesses, her lawyer, and a judge of the Superior Court of Justice.

The Court made several findings against Yenovkian:

88   I make these findings:

...

2.   There is a high level of conflict between the parties which has not declined post-separation. Indeed, Mr. Yenovkian has taken many actions which fan the flames of conflict. Because of the conflict, attributable to Mr. Yenovkian, the parties cannot make decisions together jointly and cannot communicate or discuss parenting issues.

3.   Mr. Yenovkian focuses on himself and his interests; he does not focus on the needs of the children. Mr. Yenovkian intrudes on the privacy of the children in his cyberbullying campaign, without considering the effect on the children of the intrusion on their privacy. He does not consider the likely harm if they discover, when conducting internet searches of their mother, their grandparents or the family business, both the intrusion on their privacy and the effect of internet attacks on those whom they love.

4.   Ms. Gulian has a well-founded fear of Mr. Yenovkian’s anger and threats, which undermines her sense of physical and psychological safety.

5.   Mr. Yenovkian has not shown insight into the effect of the conflict and his behaviour and choices on the children.

...

10.   Mr. Yenovkian’s plan does not recognize A.B.’s special needs, and he does not provide any consideration of means to ensure dignity, promote self-reliance and facilitate A.B.’s active participation in the community.

...

13.   Mr. Yenovkian is unable to put the children’s needs first. The children must be protected on the internet, and their mother and grandparents, whom they love, must also be protected from internet attacks. Mr. Yenovkian must rise above his anger at Ms. Gulian to put the interests of the children first.

The Court granted a divorce and several family law remedies in favour of Gulian, including a permanent restraining order, spousal support and sole custody of the children with access to Yenovkian, including supervised telephone or online access once he had removed the offending material from the internet.

The Court held Yenovkian liable for intentional infliction of nervous suffering:

164   The test for intentional infliction of mental suffering as set out by the Court of Appeal in Piresferreira v. Ayotte, 2010 ONCA 384 (Ont. C.A.), para. 27 is:

  1. flagrant or outrageous conduct;
  2. calculated to produce harm; and
  3. resulting in a visible and provable illness.

165   I find that Mr. Yenovkian’s conduct was calculated to produce the kind of harm suffered by Ms. Gulian, or he knew that it was substantially certain to follow: Piresferreira v. Ayotte, 2010 ONCA 384 (Ont. C.A.) at para 78.

The Court noted that Ontario courts had already recognized three of four privacy torts long recognized in the U.S.:

  1. Intrusion upon seclusion per Jones v. Tsige, 2012 ONCA 32 (Ont. C.A.), outlining the elements of that tort in Canada:

166   The Ontario Court of Appeal recognized one aspect of tortious invasion of privacy in the form of intrusion upon seclusion in Jones v. Tsige, 2012 ONCA 32 (Ont. C.A.) (CanLII), (2012), 108 O.R. (3d) 241 (Ont. C.A.). Sharpe, J.A. also referred to other forms of invasion of privacy described in the seminal article of William L. Prosser, “Privacy” (1960), 48 Cal. L. Rev. 383, and adopted by the American Law Society in the Restatement (Second) of Torts (2010). Prosser’s “four-tort catalogue”, as Sharpe, J.A. called it, is as follows:

  1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.
  2. Public disclosure of embarrassing private facts about the plaintiff.
  3. Publicity which places the plaintiff in a false light in the public eye.
  4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. (Jones v. Tsige at para. 18)

167   The Court of Appeal held that the first was the tort most relevant to the facts before it and went on, as I have mentioned, to recognize the tort of intrusion on seclusion as part of Ontario law. The Court also noted that the fourth form of invasion of privacy, that is, appropriation of the plaintiff’s name or likeness, was already actionable in Ontario: Jones v. Tsige at paras. 24, 27, citing Athans v. Canadian Adventure Camps Ltd., [1977] O.J. No. 2417 (Ont. H.C.).

  1. Public disclosure of private facts per Jane Doe 464533 v. D. (N.) [2016 CarswellOnt 911 (Ont. S.C.J.)] (”Jane Doe 2016”) and Jane Doe 72511 v. Morgan, 2018 ONSC 6607, [2018] O.J. No. 5741 (Ont. S.C.J.) (“Jane Doe 2018”):

168   Since Jones v. Tsige, this Court has recognized the second form of invasion of privacy, that is, public disclosure of private facts. The two principal cases that have dealt with this are Jane Doe 464533 v. D. (N.) [2016 CarswellOnt 911 (Ont. S.C.J.)] (”Jane Doe 2016”) and Jane Doe 72511 v. Morgan, 2018 ONSC 6607, [2018] O.J. No. 5741 (Ont. S.C.J.) (”Jane Doe 2018”). (In both instances, there was default judgment for the plaintiff; because the default judgment was set aside in Jane Doe 2016, the cause of action was recognized anew in Jane Doe 2018.) In each of these cases, the defendant had published intimate videos of his partner on internet pornography sites. The elements of the cause of action, as set out in Jane Doe 2018, at para. 99, are as follows:

  1. the defendant publicized an aspect of the plaintiff’s private life;
  2. the plaintiff did not consent to the publication;
  3. the matter publicized or its publication would be highly offensive to a reasonable person; and
  4. the publication was not of legitimate concern to the public.

169   In so describing the elements of the tort, this Court has followed the American Restatement, with a subtle but important modification. It need not be the matter itself that is highly offensive to a reasonable person: it is enough if the fact of its publication is offensive: Jane Doe 2016 at para. 46, Jane Doe 2018 at paras. 81, 98-99.

Of note, the Court went on to recognize the only as-yet unrecognized tort of placing the plaintiff in a false light:

170   With these three torts all recognized in Ontario law, the remaining item in the “four-tort catalogue” of causes of action for invasion of privacy is the third, that is, publicity placing the plaintiff in a false light. I hold that this is the case in which this cause of action should be recognized. It is described in § 652E of the Restatement as follows:

Publicity Placing Person in False Light

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

  1. the false light in which the other was placed would be highly offensive to a reasonable person, and
  2. the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

171   I adopt this statement of the elements of the tort. I also note the clarification in the Restatement’s commentary on this passage to the effect that, while the publicity giving rise to this cause of action will often be defamatory, defamation is not required. It is enough for the plaintiff to show that a reasonable person would find it highly offensive to be publicly misrepresented as they have been. The wrong is in publicly representing someone, not as worse than they are, but as other than they are. The value at stake is respect for a person’s privacy right to control the way they present themselves to the world.

172   It also bears noting this cause of action has much in common with the tort of public disclosure of private facts. They share the common elements of 1) publicity, which is 2) highly offensive to a reasonable person. The principal difference between the two is that public disclosure of private facts involves true statements, while “false light” publicity involves false or misleading claims. (Two further elements also distinguish the two causes of action: “false light” invasion of privacy requires that the defendant know or be reckless to the falsity of the information, while public disclosure of private facts involves a requirement that there be no legitimate public concern justifying the disclosure.)

173   It follows that one who subjects another to highly offensive publicity can be held responsible whether the publicity is true or false. This indeed, is precisely why the tort of publicity placing a person in a false light should be recognized. It would be absurd if a defendant could escape liability for invasion of privacy simply because the statements they have made about another person are false.

174   Moreover, it is likely that in the course of creating publicity placing a person in a false light, the wrongdoer will happen to include true, but private, facts about the person whose privacy is invaded. In this case, for instance, the defendant has publicized falsehoods about the plaintiff, but he has also publicly aired private facts about her present living situation with the children and her parents (including videos of their home) and details of access visits which is a true, but private matter.

Yenovkian was found liable for the torts of placing the plaintiff in a false light and public disclosure of private fact. The Court held that although some of what Yenovkian had posted about Gulian and her family was true, this did not amount to a defence. The Court held as follows:

177   Mr. Yenovkian’s conduct has caused a visible and provable illness. Ms. Gulian testified that she has sought medical assistance from her family doctor as a result of Mr. Yenovkian’s conduct. She saw Dr. Rajpal because she was having nightmares, feeling ill and was undergoing mental stress.

178   In addition, Ms. Gulian reports feeling hyper-vigilant. She feels like someone could be following her. She is concerned that someone could do her or her parents harm or could take the children away from her. She fears that the children could search her name, their names, her parents’ names or her brother’s name and obtain access to the material that Mr. Yenovkian has posted.

179   Ms. Gulian explained that the posting of the videos online about the children, and the flyers distributed in London, England, including at the Armenian Church were particularly threatening, and she feels as if there is no safe haven for her. The videos made her want to throw up. They made her sick. As a result, Ms. Gulian was prescribed medication for her sleep.

180   As a direct result of Mr. Yenovkian’s conduct, Ms. Gulian is concerned that one of the anonymous people on the internet who have expressed support for Mr. Yenovkian on his online petition could find the address of her parents’ business online and track down her family. This prospect is terrifying to Ms. Gulian. She worries about the safety of her children. Ms. Gulian is waking up full of dread in the morning not knowing if someone who has viewed Mr. Yenovkian’s postings and who believes Mr. Yenovkian’s false claims will do something to Ms. Gulian or take her children.

181   The police and child welfare authorities in both Toronto and London have visited her home several times because of Mr. Yenovkian’s unfounded complaints. Mr. Yenovkian is not only interfering with Ms. Gulian’s use of her home, but also her use of her computer and the internet, where Mr. Yenovkian’s allegations are posted.

182   Mr. Yenovkian has actively sought an audience for a website that portrays Ms. Gulian as criminally abusive of A.B. and C.D. In his vindictive pursuit of his own perceived interest, he has been, at the very least, reckless of the false light in which his campaign would place her.

183   I also find that, to the extent that Mr. Yenovkian happens to have included true statements about Ms. Gulian in the publicity he has created around their dispute, he is liable to her for public disclosure of private facts. The parties’ parenting dispute is not a matter of legitimate concern to the public (save, of course, to the extent that it is the subject of a public judicial proceeding) and a reasonable person would find it highly offensive that the dispute has become the subject of a website and an online petition.

184   Mr. Yenovkian’s conduct as detailed above is intentional; flagrant and outrageous; calculated to produce the harm that it has; highly offensive, causing distress and humiliation, and the tort of intentional infliction of mental suffering has been established. He has been explicit about his intent: to “ensure that the damage done is irreparable” to Ms. Gulian and her family. I find that the invasion of privacy was intentional, subjectively intended to cause harm, and without lawful justification.

185   Ms. Gulian has met the burden of proving Mr. Yenovkian’s tortious conduct in respect of the tort of invasion of privacy (both public disclosure of private facts, and publicity placing a person before the public in a false light) on the facts as I have set out in this decision.

For compensatory damages, the Court distinguished the torts of placing the plaintiff in a false light and publication of private facts from the tort of inclusion upon seclusion.

  1. While intrusion upon seclusion usually attracts only modest damages up to $20,000.00 per Jones v. Tsige, the other two involve publicity to the outside world:

187   On damages for intrusion on seclusion, the Court of Appeal in Jones v. Tsige held at paragraphs 87-88 that damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest, in a range up to $20,000. The important distinction with the two invasion of privacy torts in issue here, however, is that intrusion on seclusion does not involve publicity to the outside world: they are damages meant to represent an invasion of the plaintiff’s privacy by the defendant, not the separate and significant harm occasioned by publicity.

188   The two Jane Doe cases have recognized that the cap on damages for intrusion upon seclusion may not apply to the other forms of invasion of privacy: Jane Doe 2016 at para. 58; Jane Doe 2018 at paras. 127-132. In this case, as is in those, the “modest conventional sum” that might vindicate the “intangible” interest at stake in Jones v. Tsige, para. 71, would not do justice to the harm the plaintiff has suffered.

  1. It was held that for placing a plaintiff in a false light and publication of private facts, damages should be calculated by considering the same factors employed in setting damages for defamation”

190   I likewise adopt the method of looking to the factors applied to decide damage awards for a tort causing harms analogous to those the present plaintiff has suffered for invasion of privacy. The harm arising from the invasion of privacy in the present case is akin to defamation. Accordingly, in arriving at an award of non-pecuniary damages, I am guided by the factors described by Cory J. in Hill v. Church of Scientology of Toronto [1995 CarswellOnt 396 (S.C.C.)], at para. 187, which I am adapting to the tort of publicity placing a person a false light:

  1. the nature of the false publicity and the circumstances in which it was made,
  2. the nature and position of the victim of the false publicity,
  3. the possible effects of the false publicity statement upon the life of the plaintiff, and
  4. the actions and motivations of the defendant.

In this case, compensatory damages were awarded: $50,000 for intentional infliction of mental suffering plus $100,000 for the two privacy torts:

192   The damages for intentional infliction of mental suffering are intended to be compensatory. I award $50,000 compensatory damages for intentional infliction of mental suffering, relying on Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (Ont. C.A.) (CanLII).

193   On the tort of invasion of privacy (false light and public disclosure of private facts), I award damages of $100,000, considering the conduct here and the range in the cases identified in Rutman v. Rabinowitz, 2018 ONCA 80 (Ont. C.A.) and Mina Mar Group Inc. v. Divine, 2011 ONSC 1172 (Ont. S.C.J.), and the increased potential for harm given that the publicity is by way of the internet, which is “instantaneous, seamless, interactive, blunt, borderless and far-reaching”: Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (Ont. C.A.) at para. 31. I find that third parties have commented on the websites and signed the petitions in both the UK and the U.S., and that Mr. Yenovkian has sent targeting emails and caused the distribution of flyers in the UK driving people to the websites in addition to the mere fact of publication.

The Court summarized the law with respect to punitive damages:

194   Ms. Gulian seeks $300,000.00 in punitive damages from Mr. Yenovkian. As stated by Laskin J.A. in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (Ont. C.A.) at para. 79:

To obtain an award of punitive damages, a plaintiff must meet two basic requirements. First, the plaintiff must show that the defendant’s conduct is reprehensible: in the words of Binnie J. in Whiten, “malicious, oppressive and high-handed” and “a marked departure from ordinary standards of decent behaviour”: see Whiten, at para. 36. Second, the plaintiff must show that a punitive damages award, when added to any compensatory award, is rationally required to punish the defendant and to meet the objectives of retribution, deterrence and denunciation.

195   The following guiding principles governing punitive damages are drawn from Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 (S.C.C.):

  1. the court must rationally determine circumstances that warrant adding punishment to compensation in a civil action, and it is in the nature of the remedy that punitive damages will largely be restricted to intentional torts and breach of fiduciary duty (para. 67). In promoting rationality, the court should relate the facts of the particular case to the purposes of punitive damages and ask itself how, in particular, an award would further one or other of the objectives of the law, and what is the lowest award that would serve the purpose, i.e., because any higher award would be irrational (para. 71)
  2. the general objectives of punitive damages are punishment (in the sense of retribution), deterrence of the wrongdoer and others, and denunciation (or, as Cory J. put it . . . they are “the means by which the jury or judge expresses its outrage at the egregious conduct”) (para. 68)
  3. punitive damages should be resorted to only in exceptional cases and with restraint, particularly when there has been a prior penalty imposed in a criminal or regulatory proceeding (para. 69)
  4. the governing rule for quantum is proportionality. The overall award, that is to say compensatory damages plus punitive damages plus any other punishment related to the same misconduct, should be rationally related to the objectives for which the punitive damages are awarded (retribution, deterrence and denunciation) (para. 74)

196   In considering proportionality, the court must consider:

  1. proportionality in accordance with the blameworthiness of the defendant’s conduct, including whether the misconduct was planned and deliberate; the intent and motive of the defendant; whether the defendant persisted in the outrageous conduct over a long period; whether the defendant concealed or tried to cover up its misconduct; the defendant’s awareness that what they were doing was wrong: whether the defendant profited from its misconduct; whether the interest violated by the misconduct was known to be deeply personal to the plaintiff (paras. 112-113)
  2. proportionality to the degree of vulnerability of the plaintiff (para. 114)
  3. proportionality to the harm or potential harm directed specifically at the plaintiff (para. 117)
  4. proportionality to the need for deterrence (para. 118)
  5. proportionality after taking into account the other penalties, civil and criminal, which have been or are likely to be inflicted on the defendant for the same conduct. Punitive damages are awarded “if, but only if” all other penalties have been considered and found to be inadequate to accomplish the objectives of retribution, deterrence and denunciation
  6. proportionality to the advantage wrongfully gained by a defendant.

The Court had no hesitation in finding that punitive damages were warranted in this case and awarded $50,000 in addition to the amounts awarded for compensatory damages:

197   I have no hesitation in finding that the long campaign of cyberbullying of Ms. Gulian is outrageous and egregious conduct at the extreme of reprehensibility, including:

  • attacks on Ms. Gulian, including posting Ms. Gulian’s image and those of her parents and children online. He has accused her of abusing the children, drugging the children, slapping the children, of defrauding the government, of forging documents, and other criminal offences
  • publicizing these attacks to members of her church, friends, her parents and their business associates, and the general public on the internet,
  • attacks on the administration of justice in this case involving Ms. Gulian, including on a judge, her lawyer and her witnesses at this trial
  • public attacks on her parents, whom she loves
  • publicly exposing her children to harm and ridicule on the internet
  • reporting unfounded allegations to the police, the school, government authorities and Children’s Aid Societies, in Canada, the U.S. and the UK, and
  • the continued flouting of court orders directed at stopping the conduct.

198   As a spouse and parent of their children, a stay-at-home mother dependent on Mr. Yenovkian until the attacks began, Ms. Gulian was and remains a vulnerable plaintiff. There are no other penalties Mr. Yenovkian is likely to face for this conduct. Mr. Yenovkian knew the conduct was wrong; had been informed by the court that it was wrong; but he persisted in the conduct. The harm of such publicly distributed invective to Ms. Gulian and to the system of administration of justice, through attacks on a judge, a lawyer and witnesses in litigation, is severe.

199   This is the exceptional case. Mr. Yenovkian’s conduct is reprehensible. The damage that he has inflicted upon Ms. Gulian is purposeful and pre-mediated. On December 27, 2015, he threatened that if Ms. Gulian attempted to “take the children from [him]” or limit the time that he spends with the children he would “ensure that the damage done is irreparable” to Ms. Gulian and her family. Mr. Yenovkian has been undeterred by court orders regarding online content that is abusive of Ms. Gulian.

200   Mr. Yenovkian’s conduct must not only be punished but it should be denounced, and it should be deterred. A significant award of punitive damages may serve to deter Mr. Yenovkian, since the court orders have had no effect in deterring his conduct. It will also serve to warn other litigants, both represented and self-represented, that cyberbullying another party online, in family law proceedings where the interests of children are in issue, will not be tolerated.

201   I have considered the range of punitive damages and conduct in Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669 (Ont. C.A.), and in Rutman v. Rabinowitz, 2018 ONCA 80 (Ont. C.A.), and cases cited therein.

202   I consider the damages of $50,000 and $100,000 already awarded. As a result, I set the punitive damages at $150,000, having considered all the applicable factors, and having determined that an additional punitive damages award is required in this case to express the court’s denunciation, deterrence, and punishment, and finding that this punitive damages award is proportional in light of the total award and the conduct in issue.

Commentary

Thus all four of Prosser’s American privacy torts have now been accepted in Canada, with significant damages, both compensatory and punitive, being available for placing the plaintiff in a false light and publication of private facts.

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