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Peeping Tom Must Pay Damages

If you are the victim of a “peeping tom” can you sue them for damages?

In last week’s case of T.K.L. v. T.M.P. (2016 BCSC 789) the defendant was ordered to pay over $93,000 in damages, including $85,000 in pain and suffering, for video recording his step-daughter while she was undressed and showering on a number of occasions.  In finding that the defendant violated the Privacy Act, Justice Thompson made the following observations:

[20]         By spying on and video-recording the plaintiff as described above, the defendant committed disturbing violations of the plaintiff’s personal privacy. Subsection 1(1) of the Privacy Act provides that it is a tort for a person, wilfully and without a claim of right, to violate the privacy of another. Little analysis is necessary on the facts of this case to reach the conclusion that the defendant has committed this statutory tort. The defendant acted wilfully. The plaintiff was entitled to the highest degree of privacy when showering with the bathroom door closed, and changing her clothes in her bedroom with the door closed. The nature and occasions of the defendant’s conduct make it apparent that his actions violated the plaintiff’s privacy. The defendant’s liability for the statutory tort is beyond question.

In assessing her claim for damages, Justice Thompson reviewed the psychological effect that discovery of the recordings had on the plaintiff. She had previously been a healthy individual and the discovery that she had been spied on and video-recorded was deeply disturbing to her, which is why significant damages were justified:

[36]         J.F. and her mother were both excellent witnesses. I accept their evidence. It corroborates the plaintiff’s evidence that she was deeply disturbed by the discovery that she had been spied on and video-recorded by her stepfather. The plaintiff described many psychological and emotional problems, including depression, anxiety, mood swings, panic attacks, flashbacks, hypervigilance, irrational fears, loss of confidence and self-esteem, and suicidal ideation. I accept that she has suffered all of these symptoms and that they were caused by the defendant’s wrongdoing in 2011. There have also been physical manifestations of the harm done by the defendant. The plaintiff has suffered from abdominal distress and night sweats. She scratched up her own arms with pins. At one point she had lost about 20% of her body weight. 

[37]          In June 2013, the plaintiff was directed by her counsel to Dr. Maura Beattie, a registered psychologist, for assessment of the degree of psychological harm suffered by the plaintiff and her opinion on treatment recommendations. Dr. Beattie’s report describes the plaintiff as a young woman with a “generally well-balanced and psychologically healthy core.” Dr. Beattie puts the development of the plaintiff’s anxiety disorder and depression down to the “impact of chronic stress/anxiety on physical functioning (including sleep and appetite disturbance), and due to the resultant restriction in activities that occurs when individuals no longer feel safe in their environment.”

[38]         I understand Dr. Beattie’s opinion to be that the discovery of the videos was the primary causative factor in the development of this anxiety disorder and depression. I find on the whole of the evidence, however, that the anxiety disorder and depression can be traced entirely to the plaintiff’s discovery of the videos. I do not accept Dr. Beattie’s evidence to the extent that it suggests that the onset of the plaintiff’s difficulties pre-date the 2011 events. In the language used in the causation framework established by the Supreme Court of Canada, the plaintiff’s “original position” — both psychological and physical — was very sound indeed before the defendant’s wrongdoing in 2011. See Blackwater v. Plint, 2005 SCC 58 at para. 78.

[39]         Dr. Beattie concluded that the plaintiff would benefit from 30 to 40 hours of psychotherapy and from seeing her doctor about some sleep medication. Dr. Beattie’s opinion is that the plaintiff’s strong core of psychological well-being, her strengths that remain evident despite the anxiety and depression, and the good emotional support she enjoys from family and friends, all bode well for a “relatively good recovery, at least close to her pre-injury level.” I accept Dr. Beattie’s evidence as to prognosis and treatment recommendations.

[40]         The impression I gained from the plaintiff’s evidence, and the evidence of J.F. and J.F.’s mother, is that the plaintiff’s recovery is now well under way. She is seeing the benefits of the anti-depressant medication regime she is on and she is willing to take the recommended psychotherapy that I think will result in further gains. I accept the evidence of Dr. Beattie that with additional treatment she will rebound to very near her “original position.”

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