Revenge Porn Leads to $100,000 Award in First of its Kind Case in Canada

When a person shares sexually explicit images with another in confidence and has that confidence betrayed by the recipient posting the images publicly on line are there recognized grounds to sue for damages?  A recent case in Ontario considered this for what I believe to be the first time and  found that such actions indeed attract liability under the existing framework of Canadian tort law.

In the recent case ( Jane Doe464533 v. Doe h/t to the Globe and Mail’s Sean Fine for sharing the case) the court set out the following facts

Screenshot-caselaw

The video was on line for three weeks and the amount of views it received was unknown.  Justice Stinson awarded $50,000 in compensatory damages, $25,000 in aggravated damages and a further $25,000 in punitive damages along with interest and costs.

In finding this conduct to be tortious the court concluded that the torts of Breach of Confidence, Intentional Infliction of Mental Distress and Invasion of Privacy were all made out by such behavior.

GM Ignition Switch Compensation Fund Pays Out $594.5 million On 399 Claims, Final Report Says

Lawyers hired to compensate victims of General Motors’ faulty ignition switches have paid out $594.5 million to settle 399 eligible claims.

The numbers were released December 10, 2015 in a final report from compensation expert Kenneth Feinberg.

A total of 4,343 claims were filed with the GM fund. Only 9.2 per cent were deemed eligible for payments, including claims for 124 deaths and 275 injuries.

The fund says more than 90 per cent of the offers it made were accepted. Camille Biros, the compensation fund’s deputy director, has said that the claims that were rejected “couldn’t support any connection to the ignition switch.”

The switches in older model small cars such as the Chevy Cobalt can slip out of the “run” position and cut off the engine. They have been linked to crashes that caused at least 169 deaths.

The ignition switch scandal triggered a company-wide safety review that resulted in dozens of recalls of millions of vehicles. GM says it has made safety a priority and now is catching problems sooner to avoid large recalls. The company said in September that the recalls cost it over $5.3 billion. Since then, it has paid out another $1.6 billion to settle U.S. criminal charges and recall-related related lawsuits, bringing the total cost to about $6.9 billion.

The fund’s final report says that it paid 128 claims from crashes that happened before GM emerged from bankruptcy in July of 2009, which the company was not required to do. A bankruptcy judge has ruled that the new company that emerged from bankruptcy is shielded from such claims.

Despite the settlements, GM still faces costs from the recalls. In its most recent quarterly report filed with U.S. regulators the company said it still faces 217 wrongful death and injury lawsuits in the U.S. and Canada, as well as 122 lawsuits alleging that the recalls reduced values of owners’ cars.

GM spokesman Jim Cain said the Feinberg compensation fund was fair, compassionate and non-adversarial to crash victims and their families. “We faced the ignition switch issue with integrity, dignity and a clear determination to do the right thing both in the short and long term,” he said in a statement.

 

Expert Who “Did Not Meet With, Examine Or Interview” Plaintiff Given Zero Weight

erik-magraken

Erik Magraken: BC Injury Law Claims Blog

In the latest case  (Preston v. Kontzamanis) of courts having critical comments for medico-legal practices, reasons for judgement were released today by the BC Supreme Court, Quesnel Registry, rejecting the opinion of a defence retained doctor who “did not meet with, examine or interview” the Plaintiff but nonetheless authored a report opining on the Plaintiff’s injuries.

In criticizing this practice Mr. Justice Parrett provided the following comments:

[125]      The defendant provided and relied upon what purported to be an independent medical report (IME) by Dr. Boyle.

[126]     Dr. Boyle readily acknowledged that he was not asked to and did not meet with, examine or interview the plaintiff.

[127]     Dr. Boyle reviewed documents and information provided by counsel and wrote his report.

[128]     These documents and that information included clinical records of various medical professionals.

[129]     This is a process that is unlikely to assist the court in any material way.  The first concession is invariably, and was in this case, that interviewing, examining and getting a personal history is important to providing an accurate and complete assessment.

[130]     This is a trend that appears to have been of relatively recent origin.

[131]     It is also a trend which has drawn adverse comment from judges of this court.  Dhaliwal v. Bassi 2007 B.C.S.C. 549 (Burnyeat, J. at paras. 2-3); Ruscheinski v. Biln 2011 B.C.S.C. 1263 (Walker, J. at paras. 85-87);Rizotti v. Doe 2012 B.C.S.C. 1330 (Tindale, J. at para. 35).

[132]     To these I would add my own comments.  Where an expert chooses to prepare a report as he did here, expecting this court to accept and rely on it.  He is presenting a report in which he effectively asserts that he accepts as true and accurate the factual base on which his opinions are based.

[133]     Where he does so without seeing, examining or taking a personal history he chooses to offer his opinion on the basis of hearsay.  Worse still he chooses to offer it on the basis of his interpretation of hearsay recorded by others.

[134]     Another difficulty presents itself with respect to the report and evidence of Dr. Boyle and the report of Dr. Hawk.

[135]     The clinical records and other documents were admitted under the terms of a document agreement which was entered as Exhibit #1.

[136]     Under the terms of that agreement the use of documents in general, which includes clinical records, is limited.  Paragraph 2 and 5 of that document are particularly notable.

[137]     In my view, Dr. Boyle’s report should be afforded the weight it deserves and in this case where credibility and exaggeration are both asserted against the plaintiff by the defendant that is no weight at all.

[138]     It was not argued in this case that the report was inadmissible and Dr. Boyle’s qualifications to give an expert opinion on this case and in these circumstances was not addressed. I leave it then to another day and for full argument for this court to consider whether the requirements are met to allow the report to be received at all in these circumstances.

Priest who ‘took what he pleased’ from Detroit Area Church Gets 27 Month Prison Sentence

A Detroit-area Roman Catholic priest who said he “stained” his profession by embezzling more than $500,000 was sentenced Tuesday to 27 months in prison.

U.S. District Judge Arthur Tarnow rejected a light sentence sought by the Rev. Ed Belczak, but the punishment was shorter than the three years in prison recommended by prosecutors.

The government said Belczak “took what he pleased” from St. Thomas More Church in Troy to buy a Florida condominium from his parish manager and invest in stocks. Much of the $573,000 came from a deceased parishioner’s bequest to the church, which Belczak had led for nearly 30 years.

“Father Belczak’s crime was not an isolated incident or a momentary lapse of judgment, but an orchestrated scheme perpetrated over time to defraud the people he claimed to serve,” U.S. Attorney Barbara McQuade said.

Belczak and his supporters had hoped they could persuade the judge to keep him out of prison, saying his crime shouldn’t overshadow years of good work. Defence attorney Jerome Sabbota said running the large, prosperous parish was stressful.

“I have stained the reputation of being a priest,” Belczak said in court.

He said he wanted a lifestyle  “like the people I served,” adding that he gambled on the stock market, drank alcohol excessively and  “began to believe my own hype.”

Belczak was removed from St. Thomas More in 2013 after an audit raised questions about finances.

Church manager Janice Verschuren was charged with fraud and conspiracy. She pleaded guilty to a lesser charge in October, admitting she kept her divorced husband on the church’s health insurance at a cost of $26,000. She will be sentenced Jan. 21

 

Nanaimo, B.C., man nearly loses thousands of dollars in iTunes scam

Police in Nanaimo, B.C., are warning the public after a man was caught in an iTunes scam.

RCMP say the man received an email that appeared to be from Apple iTunes listing several transactions on his account, and asking him to click on a link if the charges were incorrect or fraudulent.

He opened the link and was prompted to enter his credit card number, the security code, his social insurance number, date of birth and his mother’s maiden name.

Mounties say the man’s bank called the next day asking if he was withdrawing $9,000 on his credit card and the man realized he had been scammed.

RCMP Const. Gary O’Brien says alarm bells should have been ringing when the man was asked for his credit card information and social insurance number.

O’Brien says such personal information should never be given out because it can be used to make purchases, or open fraudulent bank accounts.

 

$120,000 Non-Pecuniary Assessment for Soft Tissue Injuries with Disabling “Pain Disorder”

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic pain disorder caused by two vehicle collisions.

In today’s case (Litt v. Guo) the Plaintiff was involved in two collisions, the first in 2003, the second in 2010.  The Plaintiff was not at fault for either.  The Court found both collisions caused various soft tissue injuries which went on to form a chronic pain disorder which was largely disabling for the Plaintiff.  In assessing non-pecuniary damages at $120,000 Mr. Justice Schultes provided the following reasons:

[371]     In summary, I will make the following findings on causation and the current state of Ms. Litt’s injuries:

·                 Ms. Litt suffered moderate soft tissue injuries to her neck, shoulders and back in the 2003 and 2010 accidents, which would not have been significantly disabling in themselves.

·                 Her physical injuries from the 2003 accident had receded to a manageable level by the time of the 2010 accident, but those injuries were aggravated by the 2010 accident.

·                 Ms. Litt developed a pain disorder as a result of the 2010 accident.

·                 Ms. Litt’s pre-existing anorexia nervosa and depression made her more vulnerable to developing depression and other psychological difficulties after the 2003 accident and to developing a pain disorder after the 2010 accident.

·                 Despite the other stressors in her life, Ms. Litt would not have suffered any disabling reappearance of her pre-existing conditions if the accidents had not occurred.

·                 There is a possibility of a continued improvement to her functioning and her capacity for employment, based on her self-described improvements to her outlook after beginning to follow a regime of healthy diet, exercise and counselling…

[378]     Keeping in mind the need to tailor the award to the particular circumstances of the case, but to consider outcomes in similar cases to ensure the overall fairness of the amount, I conclude that damages of $120,000 are appropriate under this heading.

Also of note are the Court’s critical comments of two defence expert witnesses in the case.

The first, a defence expert in ‘spine pain’ testified that soft tissue injuries would certainly have healed within 12-16 weeks of each accident and that this was “scientific fact”.  In rejecting this assertion the Court commented as follows –

[349]     Turning to the evidence dealing with the extent of Ms. Litt’s physical injuries, I find first of all that I am unable to accept Dr. Bishop’s categorical assertion that the outside limit of the duration of her actual physical injuries is 16 weeks. A comprehensive study that he accepted as authoritative shows that there is a greater variation in that recovery period, before even considering the influence of any psychological problems on the experience of pain. In addition, though through no fault of his own, he has no records and therefore no real evidentiary basis to critique the medical findings that were made by others in relation to Ms. Litt’s 2010 accident. While, as I will discuss, there is a good argument that Ms. Litt’s psychological condition has overtaken any physical causes of her pain, I am not convinced that any contribution by her physical injuries ended as quickly as he contends.

Next, the Court heard from a defence hired psychiatrist who minimized the connection between the Plaintiff’s chronic pain condition and the collisions.  In rejecting this evidence Mr. Justice Shultz provided the following critical comments-

[355]     I will start by saying that I find I cannot attach any weight to Dr. Levin’s opinion. He conflates the routine nature of the accidents with the requirement for a diagnosis of pain disorder under the DSM-V that the patient experiences the injuries as “significant, catastrophic or life threatening”. Their objective severity aside, Ms. Litt certainly perceives her injuries as being significant. His assertion that there can be no PTSD here because the accidents were not traumatic also ignores that fact that Dr. Lu does not rely on PTSD to support his diagnosis of pain disorder. PTSD is most prominent in Dr. Lee’s records, and I would not give as much weight to his diagnoses in psychiatric matters in any event.

[356]     More importantly, Dr. Levin made assumptions that are not borne out by the evidence, such as that Ms. Litt’s function was “seemingly unimpaired” in the years following the accidents, which he seems to have based largely on her continuing ability to take family vacations that involved air travel.

[357]     Worst of all in my view, he overlooked or ignored numerous entries in Dr. Lee’s clinical records that had the potential to undermine his opinions. My overall impression was that the primary purpose of his report was to counteract Dr. Lu’s opinion, rather than to address the evidence objectively, and that it was not prepared carefully.

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