A recent decision of the Civil Resolution Tribunal applied the Intimate Images Act, awarding the Claimant $5,000 in damages. The Tribunal used the findings in the from the protection order, leaving the only issue to be decided being quantum of damages. The respondent failed to participate in the proceeding and was found in default.
The Civil Resolution Tribunal has jurisdiction under section 6 of the Intimate Images Protection Act, which creates a statutory tort for the nonconsensual sharing or threatened sharing of intimate images. Under the Act, the tribunal may order compensatory, aggravated and punitive damages up to the CRT's $5,000 monetary limit. Protection orders had previously been issued and the only issue before the tribunal in this hearing was whether the applicant was entitled to damages, and if so, how much. The respondent had accessed the applicant's phone and sent himself the intimate images of the applicant which he found on her phone. When the applicant confronted him about this, he offered to send intimate images of himself and also threatened to post the applicant's photos all over social media. In the protection order proceedings, the Tribunal concluded that the images were "intimate images" as defined in the act and also that they had been shared without the applicant's consent and that the respondent had threatened to share them. The CRT adjudicator made the following findings:
20. I find the respondent flagrantly ignored the applicant's right to personal privacy and autonomy in sharing her intimate images. I further find their behavior after the applicant discovered the sharing was egregious, both in their offers for reciprocal intimate images and their explanation for their use of the photos. Finally, I find the respondent's behavior in threatening to share the images further reprehensible.
21. As noted in prior CRT damages decisions under the IIPA, most Canadian court awards for non-pecuniary damages for the non-consensual disclosure of intimate images far exceed the CRT's small claims monetary limit of $5,000. Here, I find the applicant is entitled to at least that amount, but I am bound by the limit. If not for the limit, I also would have found that the applicant is entitled to punitive damages to punish the respondent for their reprehensible and disgusting conduct, and to express society's disapproval of their actions. I order the respondent to pay the applicant $5,000 in damages.
The protection order issued by the CRT is pursuant to section 5 of the Act. A protection order involves the decision maker doing any or all of the following:
- Determining that the intimate image was distributed without consent;
- Order the person who distributed the image to delete or destroy all copies and make every reasonable effort to ensure that the image is unavailable to others including by having it removed from any platform and de indexed;
- Order an internet intermediary to remove the intimate image, delete or destroy it and de index it;
- Make any other orders that the decision maker deems necessary to further the objectives or removal, deletion, destruction or de indexing.
The Act allows an applicant to seek a protection order without notice to the other party and in the adjudication of the protection order, the decision maker will make a determination of whether the image is an "intimate image" as defined by the Act, and that there was either a distribution or a threat to distribute. The protection order findings can then be relied upon by the adjudicator in a damages application, as they did in this case, necessitating only a determination of the quantum of damages in that portion of the proceedings.
We are early days with the Intimate Images Protection Act but this decision and the ones that have preceded it demonstrate the Tribunal's willingness to provide the protections under the Act.
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