Alberta justice declares new tort in 'appalling' civil action

Article content

An Alberta justice has declared a new tort in an “appalling” civil action involving an intimate partner who posted private images on pornographic websites without permission.

Article content

In the decision from Court of Queen’s Bench Justice Avril B. Inglis dated Sept. 19, the plaintiff, identified as E.S. and the defendant, Thomas Shillington, were in a relationship between 2005 and 2016. During this time, Shillington physically and sexually abused the plaintiff.

As part of her relationship with Shillington, the woman shared photographs of herself in various states of undress and engaging sexual activity. The photos were meant to be a private gift to Shillington, in part due to separation caused by his military deployment.

It was understood he would not share the images in any way. However, near the end of their relationship, Shillington told E.S. he had shared images of her online.

He admitted he had posted photos as early as 2006, and the woman has found images posted as late as 2018. As recently as early 2021, the woman has been able to find some of the images online.

Article content

“The availability of these photos, including the fact that the plaintiff is identifiable in some images, resulted in the plaintiff being recognized in them by a neighbour that spoke to her sexually, having seen her likeness on a website,” she said.

“She has experienced significant mental distress and embarrassment as a result of the postings. She suffers nervous shock, psychological and emotional suffering, depression, anxiety, sleep disturbances, embarrassment, humiliation, and other impacts to her wellbeing.”

The woman, along with her two children, fled New Brunswick in 2016 and moved to Alberta, living there ever since.

In the civil action, it was argued that the tort of Public Disclosure of Private Information should exist as a separate cause of action in Alberta.

Article content

A tort is the legal term for a wrongful act carrying civil liability.

It was argued Shillington committed the tort of public disclosure by publishing “private, deeply personal, and highly sexualized photos” of E.S. on the internet where they were publicly available. It was also argued the man committed the tort of breach of confidence by posting the images.

Inglis found Shillington is liable for the tort of Public Disclosure of Private Information. She stated the conduct of Shillington through his relationship with the plaintiff was “appalling and warrants a significant response from the court.”

“His physical and sexual abuse of the plaintiff destroyed his family unit and significantly damaged the mother of his children,” Inglis found.

Article content

“Those actions were traumatizing, humiliating and frightening to the plaintiff. Also significantly traumatizing were the breaches to her privacy. The defendant’s actions are inexplicable and inexcusable.”

Edmonton lawyer Avnish Nanda, who has no connection to the case, said the internet has changed the game with how people can harm others. The introduction of this new tort provides an additional avenue to hold people accountable for unlawful conduct.

“There’s a defamation law, but in some instances, for instance in this case, there’s nothing defamatory here, this is the posting of someone’s intimate images without their consent,” he said.

“As the court outlined, there was no way for the victim of this to hold the perpetrator responsible in the civil justice system and this new tort does.”

ajunker@postmedia.com