This page provides links to some recent court judgments and cases in progress that may interest those working on tort law and social equality. Most recent posts are at the top, and the page is updated frequently; so check back often!
Supreme Court of the United Kingdom extends tort of “misuse of private information” to criminal investigations
Bloomberg LP v ZXC [2022] UKSC 5
In a unanimous decision, the Supreme Court holds that a person under criminal investigation has a reasonable expectation of privacy in respect of information relating to that investigation prior to being charged. The Court upholds the trial judge’s ruling requiring Bloomberg to pay £25,000 in damages and preventing them from further publishing the information.
Relevant topics: Confidentiality, Misuse of Private Information, Criminal Investigation, Freedom of Expression, Journalism
Psychiatric injury claims by secondary victims in context of medical negligence receive permission to appeal Supreme Court of the United Kingdom
Polmear & Anor v Royal Cornwall Hospitals NHS Trust [2021] EWHC 196 (QB)
The High Court rejects an application to strike claims for psychiatric injury suffered by the plaintiffs after witnessing the sudden death of their daughter, which was caused by the defendant doctor’s admitted negligence. However, Master Cook grants permission for the defendant to appeal directly to the Court of Appeal.
The Court of Appeal hears the appeal along with two others concerning psychiatric injury to secondary victim resulting from medical negligence. The Court interprets the test for a finding of sufficient legal proximity of secondary victims in terms of medical negligence and finds that all three claims must fail, since the original negligence is separated in time from the horrific event causing the psychiatric harm in each case. All members of the Court agree to grant permission to appeal to the Supreme Court for further consideration.
Relevant Topics: Psychiatric Harm, Medical Negligence, Secondary Victims, Nervous Shock, Proximity
United States Supreme Court finds that the Federal Arbitration Act pre-empts California’s Private Attorneys General Act
Viking River Cruises, Inc. v. Moriana, 596 U.S. ___ (2022)
The US Supreme Court finds that parts of California’s Private Attorneys General Act (PAGA), which enabled workers with employment dispute to file class action lawsuits regardless of arbitration agreements, are invalid because they conflict with Federal Arbitration Act. The judgment allows employers to compel arbitration of individual claims and dismiss representative claims.
Relevant Topics: Labour and Employment Law, Arbitration, Federal Arbitration Act, Class Action, Private Attorneys General Act
Ontario Superior Court of Justice recognizes tort of family violence
Ahluwalia v Ahluwalia, 2022 ONSC 1303
Justice Mandhane of the Ontario Superior Court of Justice recognizes the tort of family violence for the first time in Ontario, awarding $150,000 in compensatory, aggravated, and punitive damages in addition to property equalization, child support, and spousal support. Although the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) recognizes and expansively defines family violence, Justice Mandhane finds that the legislation is unable to address all legal issues that arise from situations of family violence.
Relevant topics: Family Law, Feminism, Intentional Torts, Domestic Violence, Physical and Psychological Abuse, Damages, New Torts, Divorce Act (Canada)
Supreme Court of British Columbia creates potential for tort remedies for infringement of Aboriginal Rights
Thomas and Saik’uz First Nation v Rio Tinto Alcan Inc., 2022 BCSC 15
Justice Kent of the BC Supreme Court finds that sui generis Aboriginal rights and title can ground an action in nuisance in certain circumstances. While Constitutional claims only apply to government actions, such tort claims can also address the actions of private entities. The plaintiffs are unsuccessful in their claim in this case, as Rio Tinto Alcan’s actions are within the bounds of government authorization and protected by the defence of statutory authority.
Relevant topics: Aboriginal rights and title, Nuisance, Constitutional claims, Causation
Ontario Court rejects tort of intrusion on seclusion in case of data breach
Winder v Marriott International Inc., 2022 ONSC 390
Justice Perell of the Ontario Superior Court finds that there is no cause of action in the plaintiff’s claim against Marriott for the tort of intrusion on seclusion after the hotel chain’s reservation database was hacked. He maintains that this tort is only applicable against “intruders” and finds no reason to extend it further.
Relevant Topics: Class Action, Privacy, Intrusion on Seclusion, Data Security, Technology
Alberta Court grants injunction for the removal of a “smart doorbell”
Lupuliak v Condominium Plan No 8211689, 2022 ABQB 65
The Court of the Queen’s Bench of Alberta finds that the Condominium Corporation acted reasonably in seeking an injunction of a “smart doorbell” that captures video and sound when motion is sensed. The court finds that the surveillance impairs the use and enjoyment of the common property by other residents but declines to determine whether a claim of nuisance is made out, since the installation of the doorbell already violates the Corporation’s By-Laws.
Relevant Topics: Privacy-Related Torts, Nuisance, Surveillance, Technology
UK High Court of Justice dismisses claims regarding sale of new mother’s personal information
Underwood & Anor v Bounty UK Ltd & Anor, [2022] EWHC 888 (QB)
Justice Nicklin addresses claims of misuse of private information and violation of the Data Protection Act 1998 (DPA) brought by a new mother against Bounty (a pregnancy and parenting support club) and the Hampshire Hospitals NHS Foundation. The defendants had an agreement allowing Bounty to access new and expecting mothers in the hospital to gather personal information, which was sold to third parties for marketing purposes. Justice Nicklin finds that the hospital is not liable for misuse of private information or violation of the DPA for providing Bounty access to the claimant for the purpose of gathering her personal information while she was in hospital. Bounty did not participate in the proceedings as it was under administration for bankruptcy.
Relevant Topics: Privacy Torts, Misuse of Personal Information, Data Protection Act (UK)
Courts in the United Kingdom, New Zealand, and Australia rule on the application of common law to climate change
UK environmental organization “Friends of the Earth” challenges the decision of UK Export Finance (UKEF) to fund a natural gas project in Mozambique, claiming that it is incompatible with the country’s commitments under the Paris Climate Change Agreement. The two presiding justices of the High Court disagree on whether the UKEF failed to fulfil its duty to measure greenhouse gas emissions and an appeal is allowed.
Smith v Fonterra, [2021] NZCA 552
Māori elder Smith brings several tort actions against New Zealand companies for greenhouse gas emissions, including public nuisance, negligence, and a new tort of “breach of duty.” Although the lower court allowed the breach of duty claim to move forward, the Court of Appeal strikes all three claims and holds that common law tort claims are not an appropriate vehicle for addressing climate change.
A group of children in Australia brings an action in negligence against the Minister for the Environment, claiming that she breached her duty of care by approving the operation of a new coal mine. Although Justice Bromberg finds that the Minister does have a duty of care, the full court overturns this decision in a unanimous ruling.
Relevant topics: Environmental law, Administrative law, Public Nuisance, Negligence, Breach of Duty, Climate Change
Lake Mary Jane files case in Florida court after passing of Right to Clean Water Initiative
https://www.newyorker.com/magazine/2022/04/18/a-lake-in-florida-suing-to-protect-itself
The New Yorker reports on a case filed by Lake Mary Jane and several others requesting standing to defend their rights in court. This case is the first of its kind in the United States and follows the passing of the Right to Clean Water Initiative in Orange County, Florida, which recognizes the “rights of nature” and empowers residents to defend those rights.
Relevant Topics: Environmental Protection, Rights of Nature, Non-Human Parties
Ontario Supreme Court introduces tort of internet harassment
After decades of systematic online harassment and defamation of dozens of victims, the defendant is found libel for the new tort of online harassment. Justice Corbett introduces the tort in response to the specific facts of the case, including the outrageousness of the defendant’s conduct, and the broader societal problem of online abuse. The Court issues an injunction to allow the plaintiffs to remove the offensive content and to prevent further harassing behaviour from the defendant.
Relevant Topics: Defamation, Online Harassment, Cyber-Stalking, Technology, Freedom of Expression, Vexatious Litigant, Permanent Injunction
Nova Scotia Supreme Court recognizes the new tort of publication of private facts
This case addresses a book published by the plaintiff’s ex-husband, which includes true but harmful facts about her addiction to sleeping pills and suicide attempts. Justice Coughlan accepts the new tort of publication of private facts and awards the plaintiff damages and an injunction. Aggravated damages are awarded based on a finding that the inclusion of the facts was motivated by actual malice.
Relevant Topics: New Privacy Torts, Expectation of Privacy, Public Interest, Freedom of Expression, Internet Harassment, Social Media
United States Supreme Court finds no jurisdiction based on facts of class action against Nestlé and Cargill
Nestlé USA, Inc. v. Doe, 593 U. S. ___ (2021)
Former enslaved children bring a case against Nestlé and Cargill under the Alien Tort Statute (ATS) for aiding and abetting child slavery by purchasing cocoa from producers in Côte d’Ivoire that use child labour. In an 8-1 decision, the Supreme Court finds that an extraterritorial connection under the ATS was not sufficiently established since most of the conduct in question occurred outside of the United States.
Relevant Topics: Corporate Liability and Accountability, Human Rights, International Law, Slavery, Class Action, Alien Tort Statue (ATS)
Ontario and Saskatchewan Courts refuse to certify class action suits against Facebook
Kish v Facebook Canada Ltd., 2021 SKQB 198
The Court of Queen's Bench for Saskatchewan dismisses an application for class certification in a privacy suit alleging that Facebook shared Canadian users’ personal data with the firm Cambridge Analytica during the 2016 United States election. Justice Keene strikes out all evidence presented for inadmissibility and rejects the application for failing to demonstrate some “basis in fact”.
Simpson v. Facebook, 2021 ONSC 968
The Ontario Superior Court of Justice upholds the decision to reject a class certification in an action against Facebook for the tort of intrusion on seclusion. This application also addresses the disclosure of users’ personal information to Cambridge Analytica. The Court finds insufficient evidence showing that the information was actually shared, resulting in a failure to establish a common issue.
Relevant Topics: Class Action, Invasion of Privacy, Intrusion on Seclusion, Data Security, Technology, Social Media
The BC Supreme Court awards $800,000 in damages for battery in domestic violence case
Schuetze v Pyper, 2021 BCSC 2209
The Court in Schuetze v Pyper illustrates the stark disparity between the treatment of domestic violence in civil and criminal trials. In Schuetze v Pyper, Justice Fleming considers Ms. Scheutze’s story closely and awards significant damages for the assault: $795,029 in total, including $100,000 in non-pecuniary damages, $664,000 in loss of income, and $20,000 for cost of future care for injuries. In the criminal trial, Mr. Pyper received an absolute discharge for the assaults, with the incident and Ms. Schetuze’s story receiving only passing mention.
Relevant Topics: Domestic Violence, Battery, Damages, Feminism, Criminal vs. Civil Proceedings, Intentional Torts
Alberta Court of Queen's Bench recognizes tort of “Public Disclosure of Private Facts”
ES v Shillington, 2021 ABQB 739
Following the lead of Ontario and Nova Scotia, Justice Inglis creates the tort of Public Disclosure of Private Facts in Alberta. The new Protecting Victims of Non-Consensual Distribution of Intimate Images Act, RSA 2017, c P-26.9, which contains a civil action for the distribution of intimate images without consent, is not available to the plaintiff as it cannot be applied retroactively. The new tort is more broadly framed than the statutory civil action and is not limited to intimate images. The court awards $155,000 in general, aggravated, and punitive damages for the plaintiff’s suffering resulting from the publishing of explicit pictures on the internet.
Relevant topics: Sexual Violence, Physical and Psychological Harm, Feminism, Revenge Porn, New Torts, Protecting Victims of Non-Consensual Distribution of Intimate Images Act (Alberta)
High Court of England and Wales finds in favour of the plaintiff in wrongful birth case
Toombes v Mitchell [2020] EWHC 3506 (QB)
Lambert J finds that the disabled plaintiff is able to bring a claim of wrongful conception and birth on her own behalf under the Congenital Disability (Civil Liability) Act 1976.
Toombes v Mitchell [2021] EWHC 3234 (QB)
Coe J finds the defendant doctor liable for the tort of wrongful birth for failing to sufficiently advise the plaintiff’s mother on folic acid supplements during a pre-conception consultation. The Court holds that sufficient causal connection exists between circumstances of the sexual intercourse that led to conception and the plaintiff’s disability.
Relevant Topics: Prenatal Torts, Reproductive Harms, Wrongful Life, Disabilities, Congenital Disability (Civil Liability) Act 1976, Duty of Care, Causation