2008 BCSC 1147 L.A.M. v. J.E.L.I.

Before: The Honourable Mr. Justice Truscott

Reasons for Judgment

Counsel for the plaintiff:	M.T. Kew
No one appeared for the defendant
Date and Place of Trial/Hearing:	August 11, 2008
	Rossland, B.C.

[1] The plaintiff claims against the defendant J.I. damages for breach of her privacy. The claim is brought on the basis of s. 1 of the Privacy Act, R.S.B.C. 1996 c. 373, which provides that it is a tort actionable without proof of damage for a person to wilfully and without a claim of right to violate the privacy of another.

[2] The plaintiff claims that the defendant violated her privacy by videotaping her and her young daughter in the bathroom of his house through a peep hole at the base of a wall that allowed a view into the bathroom from an area on steps beneath the bathroom. The view into the bathroom was enhanced with placed mirrors in the bathroom allowing a full view of those in the bathroom.

[3] Mr. J.I. filed his own statement of defence to the allegations together with a counterclaim that makes allegations against the plaintiff of slander. The counterclaim was discontinued by Mr. J.I. on September 20, 2006 through a filed notice of discontinuance.

[4] The defendant J.I. did not attend the trial to defend this claim even though proof was provided of service upon him at his address of the amended notice of trial setting the date for trial at August 11, 2008 in Rossland, British Columbia. The trial therefore proceeded in his absence with the only witness at trial being the plaintiff herself.

[5] The plaintiff is 35 years of age and works as a residential support worker at a group home. She obtained a social services worker’s certificate over a two year period of time prior to commencing work there in June 2004.

[6] The plaintiff has two children, a boy born in 1990 and a girl born in 1997. She began an intimate relationship with the defendant in the middle of 1998 and began living with him at his house around August 1998, taking her children with her. This was before she began her course for her social services certificate.

[7] The plaintiff and defendant broke up for the first time around one year later in August 1999 but reconciled for a short period of time thereafter before their cohabitation ended by September 1999. Thereafter they continued in an on and off relationship until they finally parted company for good in January 2002.

[8] The plaintiff owned her own residence in this time period before January 2002 but did not move into her own home until December 2001.

[9] In January 2002 while still seeing the defendant, the plaintiff went over to his house one day and saw a stack of videotapes on his coffee table. The parties had a verbal dispute over a sex tape they had made together and the plaintiff ended up taking a number of the videotapes back to her own place. There she played the tapes to see what was on them.

[10] The tapes showed different people in his bathroom at his house. One tape in particular was obviously a number of different tapes spliced together as it showed the plaintiff and her young daughter when her young daughter was still in diapers and showed her alone approximately a year later when her daughter knocked on the bathroom door.

[11] This videotape showed the plaintiff in different stages of undress, going to the bathroom, removing and reinserting a tampon, taking a diaper off her daughter leaving her daughter nude, preparing both she and her daughter for bathing and doing a number of bathroom functions.

[12] The plaintiff thinks the videotaping started around the summer of 1999. She says the defendant owned a video camera and had renovated his bathroom within months of her first moving in with him in 1998.

[13] Upon discovering the content of the videotapes the plaintiff called the police who took possession of the tapes and arrested the defendant.

[14] The defendant was subsequently charged and convicted of possessing child pornography because of the videotaping of children. Subsequently all those tapes were destroyed leaving only the tape spliced together that became an exhibit at this trial.

[15] Some of the defendant’s evidence from examination for discovery was read into the evidence at trial including his admissions that he owned a video camera, that videos were made through a four inch space underneath a built-in cabinet that he put in the bathroom that he was renovating, that the space could be looked through from stairs underneath, that the videotapes covered a number of days and showed the plaintiff and her daughter and that the particular tape exhibited at trial was made through that hole.

[16] The defendant never directly conceded that he made the videotapes but I am satisfied from the fact that they were made in his house, of the interior of his bathroom, through a hole that he knew existed below a built-in cabinet that he put in his bathroom, with the use of mirrors enabling a full view of the bathroom, that his liability for wilfully and without claim of right in violation of the privacy of the plaintiff has been proven to my satisfaction.

[17] The defendant was never criminally charged with videotaping the plaintiff or having tapes showing her in the nude because s. 162 of the Criminal Code that makes it an offence to make a visual recording of a person nude in circumstances giving rise to a reasonable expectation of privacy was not included in the Criminal Code until 2005. As a consequence this civil action is the only legal recourse open to the plaintiff against the defendant.

[18] The plaintiff says this invasion of her privacy has had a devastating effect on her. She says she cried continuously for approximately three weeks after the discovery of these tapes and felt it necessary to send her daughter away to her parents’ place to live for awhile because she felt so guilty about exposing her daughter to this violation of her privacy.

[19] She knew that the police viewed the tapes, including the tapes of her, and she was humiliated and she says she was not able to function for the first three weeks, not eating nor sleeping properly nor showering. She says when she did shower she wore clothes in the shower and left the lights off in her house out of fear that she might be watched.

[20] She was scared to go out, concerned that people would think that she had voluntarily participated in these tapes of her or of the children shown on the tapes. She says she has had no intimate relationships since the discovery of these tapes out of fear that the surreptitious taping of her would happen again and she is not comfortable in other people’s bathrooms.

[21] The plaintiff attended a general practitioner in February and April 2002 and was prescribed Ativan and advised to take counselling and antidepressants. She says she took the antidepressants for awhile but they tended to make her groggy. She did go to see a counsellor in February 2002 who thought her symptoms fit the parameters of a post traumatic stress disorder and who encouraged her to continue under the supervision of her physician for monitoring of clinical depression and administration of any antidepressants.

[22] The plaintiff says she did not find her contact with the counsellor to be particularly helpful and it does not appear that she continued under the supervision of her family doctor nor took any further counselling nor continued taking any antidepressant medication.

[23] The plaintiff’s goal appears to have been to have the defendant punished as she says she was obsessed with trying to find a criminal recourse against him.

[24] She says that she was unable to work for about one year afterwards because of her ongoing depression even though by then she had her certificate, as she was afraid to go out and did not want to see anyone.

[25] There were only two cases provided to me by counsel dealing with similar claims under the Privacy Act. In Lee v. Jacobson (1992), 87 D.L.R. (4^th) 401, Hutchison J. dealt with a situation of a peep hole and a two way mirror located in a wall of a bedroom occupied by two successive female tenants who allegedly were being watched by the landlord defendant. The trial judge awarded $5,000 general damages to one plaintiff for the shock of discovery of the hole, and her upset and preoccupation for some months as well as her turmoil of confronting the defendant. The other plaintiff was awarded $2,000 for what was stated to be insult and subsequent uneasy feelings.

[26] In addition the trial judge awarded punitive damages for what was termed reprehensible conduct of a pernicious nature that merited condemnation. He made reference to a number of factors to be considered including the fact that the privacy violated was to the room in the home where the most intimate acts could be expected to occur, the defendant had made elaborate arrangements that required considerable premeditation and planning, and it was not an offence that could be punished by criminal prosecution at that time.

[27] He awarded $25,000 under the heading of punitive damages as a figure that he determined would in some measure reflect society’s abhorrence of this conduct and deterrence to the defendant.

[28] The trial decision was overturned on appeal on the issue of liability and a new trial ordered. The issue of damages was not discussed on appeal.

[29] Subsequently in Malcolm v. Fleming, [2000] B.C.J. 2400, Downs J. dealt with a situation of a video camera installed in a bathroom recording the plaintiff, another tenant, using the toilet and in various stages of undress.

[30] The plaintiff was very emotional for a long time afterwards and found herself crying with little provocation. She came to rely heavily on the support of friends and family. She had trouble sleeping and was depressed, also suffering weight loss. She found herself always looking for cameras in places where they might be hidden and always thought she was being watched. She could not undress until the last moment before entering a shower and she never walked around in her underwear. Two years later she still had a general lack of trust of people.

[31] One of the videos showed her removing a tampon and the humiliation of it still caused her to cry by the time of trial. She always wondered if more copies of the tapes were still in existence and perhaps disseminated to others.

[32] The trial judge likened the effects on the plaintiff before her to the effects of a victim of a sexual assault and accepted that the plaintiff was still suffering some continued embarrassment by the fact that she was present when counsel viewed a number of the tapes for the purpose of the litigation, and by the fact she had to deal with the litigation.

[33] The trial judge discussed and adopted the factors used by Hutchison J. in assessing punitive damages and said that a bathroom was also a place where the most intimate acts could be expected to appear, that elaborate arrangements had also been made by the defendant in the case before her, that the plaintiff had been put through a trial, and in addition that this form of invasion of privacy by videotape was a sort of permanent or continuing invasion because of the fact that it was recorded and could be revisited time and again. In addition before her as well the offence was not punishable by criminal prosecution.

[34] She awarded the plaintiff before her compensatory damages of $15,000. On a claim for punitive damages she said the following:

I agree entirely with that comment by Mr. Justice Hutchinson. I also note that this award for punitive damages will reflect the fact that there has been or was an effort to make a permanent record of this invasion of privacy. In my respectful view, this takes the matter far beyond the situation of a peeping Tom; it exposes the victim to the potential of being viewed by a number of individuals and having her privacy continuously invaded. There is no evidence before me that that was indeed the case, but the circumstances represent a potential for that, and the award for punitive damages, in my view, should reflect the ongoing nature of that invasion and the possibility of it being disseminated to other persons.

[35] The trial judge fixed punitive damages for the plaintiff in the amount of $35,000.

[36] Counsel before me seeks general damages for the plaintiff in the range of $20,000, punitive damages in the range of $40,000 and loss of capacity to earn income damages for approximately one year in the range of $10,000 - $20,000.

Discussion

[37] I accept all the plaintiff’s evidence of the devastating effect that these incidents have had on her. The plaintiff was still very emotionally distraught when giving evidence before me at trial approximately six years later.

[38] I find the circumstances before me to be somewhat similar to the circumstances before Madam Justice Downs in Malcolm v. Fleming and I award the plaintiff compensatory general damages of $20,000 for her pain and suffering as she has described.

[39] For loss of capacity to earn income for the approximate one year period of time after the discovery of the tapes I am only able to award the plaintiff a nominal amount of $5,000 because of the evidence of the counsellor and the general practitioner through their reports that they had suggested longer term counselling for depression and administration of antidepressants which the plaintiff apparently did not pursue. That course may have reduced the plaintiff’s depression and allowed her to return to work at an earlier time.

[40] For the claim of punitive damages I again find the decision of Madam Justice Downs in Malcolm v. Fleming to be particularly helpful. The same factors that were applied there to support the claim for punitive damages exist here, particularly the invasion of privacy in a bathroom where the most intimate acts could be expected to occur and did occur, the elaborate arrangements that the defendant made for the videotaping including the positioning of mirrors, and the requirement of the plaintiff to go through this trial without any admission of liability by the defendant despite the fact that he was already criminally convicted for some of the tapes. It may also be the case that a copy of the subject tape entered as an exhibit still exists in the hands of the defendant because it was a source of dispute between the parties that he made a copy of their sex tape surreptitiously.

[41] In addition, as before Madam Justice Downs, the invasion of privacy here was through a sort of permanent or continuing invasion by way of videotape that the defendant could revisit time and again.

[42] In the circumstances I award punitive damages to the plaintiff against the defendant of the sum of $35,000.

[43] In summary I award general damages of $20,000, loss of income earning opportunity of $5,000 and punitive damages of $35,000.

[44] The plaintiff will have her costs at scale B.

[45] The Rossland Registry is directed to return the tape filed as an exhibit to the plaintiff upon the expiry of the appeal period if no appeal is filed.

[46] I also direct that if these reasons are published the name of the plaintiff and defendant be identified only by initials in order to protect the privacy of the plaintiff.

“Truscott J.”

Citation:	*L.A.M. v. J.E.L.I.,*
	2008 BCSC 1147