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Nova Scotia court makes first damage award under the province’s revamped cyberbullying law

June 19, 2020

The Court sought guidance from defamation and privacy precedents in evaluating appropriate general damages award

The first assessment of damages under Nova Scotia’s revamped cyberbullying statute is reported at 2020 NSSC 177. The Court had previously found liability in favour of the complainant and requested further submissions on damages and costs.

The decision is notable because the Supreme Court of Nova Scotia determined that the evaluation of damages under the Intimate Images and Cyber-protection Act “should be determined with guidance from caselaw in related areas of tort law, including defamation and breach of privacy.”

The statute requires that the Court consider a list of factors at section 6(7):

(a) the content of the intimate image or cyber-bullying;

(b) the manner and repetition of the conduct;

(c) the nature and extent of the harm caused;

(d) the age and vulnerability of the person depicted in the intimate image distributed without consent or victim of cyber-bullying;

(e) the purpose or intention of the person responsible for the distribution of the intimate image without consent or the cyberbullying;

(f) the occasion, context and subject-matter of the conduct;

(g) the extent of the distribution of the intimate image or cyber-bullying;

(h) the truth or falsity of the communication;

(i) the conduct of the person responsible for the distribution of the intimate image or cyber-bullying, including any effort to minimize harm;

(j) the age and maturity of the person responsible for distribution of the intimate image without consent or cyber-bullying;

(k) the technical and operational practicalities and costs of carrying out the order;

(l) the Canadian Charter of Rights and Freedoms; and

(m) any other relevant factor or circumstance.

The Court determined that this must be evaluated in light of the purposes of the Act, set out in Section 2:

Purpose of Act

2 The purpose of this Act is to

(a) create civil remedies to deter, prevent and respond to the harms of non-consensual sharing of intimate images and cyber-bullying;

(b) uphold and protect the fundamental freedoms of thought, belief, opinion and expression, including freedom of the press and other media of communication; and

(c) provide assistance to Nova Scotians in responding to nonconsensual sharing of intimate images and cyber-bullying.

In the absence of previous damage awards under the Act, the Court reviewed a range of cases related to defamation, intrusion upon seclusion and false light publicity, and applied the principles for defamation damages set out in Hill v. Church of Scientology:

[19] The factors to be considered in determining general damages for defamation were considered in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130, where Cory J. said, for the majority:

182  The factors which should be taken into account in assessing general damages are clearly and concisely set out in Gatley on Libel and Slander (8th ed.), supra, at pp. 592‑93, in these words:

SECTION 1.  ASSESSMENT OF DAMAGES

1451.  Province of the jury.  In an action of libel "the assessment of damages does not depend on any legal rule."  The amount of damages is "peculiarly the province of the jury," who in assessing them will naturally be governed by all the circumstances of the particular case.  They are entitled to take into their consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology, and "the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict.  They may take into consideration the conduct of the defendant before action, after action, and in court at the trial of the action," and also, it is submitted, the conduct of his counsel, who cannot shelter his client by taking responsibility for the conduct of the case.  They should allow "for the sad truth that no apology, retraction or withdrawal can ever be guaranteed completely to undo the harm it has done or the hurt it has caused."  They should also take into account the evidence led in aggravation or mitigation of the damages..

In the result, the Court ordered the respondents to pay, jointly and severally, general damages in the amount of $50,000, punitive damages in the amount of $15,000 and aggravated damages of $20,000.

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