February 24, 2021
Racki v Racki 2021 NSSC 46

In an acrimonious divorce, the husband self-published a book disclosing that his former wife had been addicted to sleeping pills and attempted suicide twice.  She admitted these statements were true, but sued based on privacy.

Justice Coughlan reviewed the law and accepted that a tort exists in Nova Scotia for publication of private facts.  At paragraphs 25 and 26 he explains the basis and articulates the test:

[25]         Today a person’s privacy is a precious commodity which is becoming harder to protect. Modern life infringes on all aspects of personal privacy. Technology, which changes rapidly, has made it possible to track all aspects of a person’s life. We live in a world much different from just a decade or two ago. As society changes the law must evolve to meet changing circumstances. Existing causes of action, such as defamation with the defences available to such a claim, do not address the circumstances arising from the public disclosure of private facts. Considering all of the foregoing, it is appropriate to find the existence in Nova Scotia of the right of action for public disclosure of private facts of another.

[26]         The elements of the tort are: (a) There must be publicity of the facts communicated to the public at large to become a matter of public knowledge; (b) The facts are those to which there is a reasonable expectation of privacy; and (c) The publicity given to those private facts must be considered, viewed objectively, as highly offensive to a reasonable person causing distress, humiliation or anguish.

After canvassing the facts Justice Coughlan awarded the wife $18,000 in general damages, and rejected her punitive damages claim.