Patel v. Sheth, 2016 CarswellOnt 21046
In this recent decision of the Superior Court of Justice, the court considers the appropriate amount of damages to award when there is been an invasion of privacy within a domestic relationship. Further, the Court considers the sum of damages to award when considering incidents of domestic violence. This case serves as a useful guideline for family law litigants and counsel who are considering pursuing such claims, and must be cognizant of the fact that the damages awarded will not likely be very significant. By making this decision, the Court is also sending a message of caution to spouses who may consider taking similar actions that those of the husband in this case, and that such actions are to be discouraged.
In 2012, the Ontario Court of Appeal developed a new tort called intrusion upon seclusion in the case Jones v. Tsige, 2012 ONCA 32. The court found that “one who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person”. The Court of Appeal proceeded to note that the key features of a claim for intrusion upon seclusion are:
- Intention, including recklessness
- The defendant invaded, without lawful justification the plaintiff’s private affairs or concerns
- A reasonable person would regard the invasion as highly offensive, causing distress, humiliation, or anguish.
In Patel v. Sheth, the parties were married on September 18, 2010, and separated on January 19, 2014. There is one child of the relationship. Shortly after separation, the parties commenced proceedings. The wife included in her claims a claim for damages for invasion of privacy, as well as damages in relation to an alleged assault which occurred.
The wife’s claim for damages stemmed from the husband’s actions when he covertly planted a camera in the parties’ bedroom, which captured both the bedroom and the bathroom. The husband’s initially explained that he planted the camera because the wife had previously accused him of assault, and he wanted evidence to prove that such claims were false. However, when the husband was questioned in these issues on discovery (under oath), he denied planting the camera on multiple occasions.
In considering the wife’s claims for damages for intrusion upon seclusion, the trial judge remarked that the husband’s explanation for planting the camera was not entirely satisfactory, given that if the husband wanted to protect himself from allegations of assault, he would have placed more cameras than just one which happened to record the bedroom and bathroom. The trial judge noted that the bedroom and bathroom and private rooms, and although there is no evidence before the Court that explicit contents were captured by the camera, there was a very real risk that it would have.
Given the above, the trial judge ultimately awarded $15,000 (given that Jones and Tsige set a strict limit on damages for such claims). As noted by the Court, awarding aggravated or punitive damages is not generally to be encouraged. To arrive at the damages amount, the trial judge in this case considered the following factors:
- The intrusion took place in a bathroom and a bedroom, where the privacy interests of the wife were substantial
- The instruction took place within a domestic relationship
- Although the wife was embarrassed, no evidence was filed to establish that there was any significant effect to her health and welfare
- The husband lied under oath about having planted the camera, and even tried to blame the wife, which demonstrates a lack of understanding that what he did was wrong
In determining the appropriate amount of damages for the domestic violence incident, the Court undertook a thorough analysis of the case law on point, and found that generally, such damages will fall into the $5,000.00 to $20,000.00 range. In the herein circumstances, the low-end range is sufficient, and $5,000.00 was awarded.