On February 7, 2022, the Supreme Court of British Columbia recognized the tort of false light as a potentially legally tenable claim for the first time in the decision of Durkin v. Marlan, 2022 BCSC 193. As discussed below, the Durkin decision shows that the trend across provincial jurisdictions towards the increased adoption and recognition of novel privacy torts remains strong. Further, this case suggests that both the scope of the false light tort and the contexts within which such a claim may be advanced have broadened.
Background on the Tort of False Light
The Ontario Superior Court recognized the fourth and most recent privacy tort in Ontario of “placing a person in a false light” in the 2019 decision of Yenovkian v. Gulian, 2019 ONSC 9279. The tort provides a cause of action when a plaintiff has been placed in a false light before the public, if this representation would be “highly offensive to a reasonable person,” and if the defendant had “knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”
The representation in question could defame the plaintiff, but defamation is not required. The key issue is whether the representation is found to be highly offensive. As discussed in recent academic commentary published in the Dalhousie Law Journal:
“False light also differs from defamation by protecting privacy interests rather than reputation, although this point is contested. . . the action’s similarity to defamation has been a focal point of criticism. . .”
Since the tort’s recognition Ontario, there has been significant judicial and scholarly debate over whether it should be imported into other provincial jurisdictions due, in part, to the tort’s similarity to defamation. However, more recently, it appears that courts in other jurisdictions are increasingly willing to follow in Ontario’s footsteps by recognizing novel and nuanced privacy torts.
The Durkin Decision
In Durkin, the plaintiff advanced claims of defamation and invasion of privacy torts, including the false light tort, against an online newspaper, the author of an article written about the plaintiff, and other defendants. The article, titled “The man who stole a hotel: How Timothy Durkin took control of Sooke Harbour House”, described the plaintiff’s shady dealings with the former long-time owners of a hotel, wherein the former owners’ equity in the hotel was “entirely dissipated” following “a six-year odyssey of lies, excuses, threats, and intimidation and bullying” by the plaintiff and his business partner.
The Court considered an application by the defendants for an order dismissing the action, brought under the BC Protection of Public Participation Act. The defendants contended that the article was an expression that related to a matter of public interest and that the plaintiff had not established the three statutory conditions under the Act that would permit the proceeding to continue. The Court ultimately granted the defendants’ application and dismissed the action.
With respect to the viability of the plaintiff’s false light claim, Justice Thompson remarked that “there is real controversy over the reception of this false light privacy tort.” His Honour noted that, 35 years ago, the BCSC had expressed doubt about whether the false light tort could coincide and operate within with the privacy framework set out in the BC Privacy Act. The Court also acknowledged recent academic commentary questioning the need to adopt this tort in Canada and suggesting that doing so may unduly hamper the work of the media.
Justice Thompson nevertheless found that in light of the Ontario Yenovkian case favouring the reception of the false light tort, and because the only judicial commentary in British Columbia against the tort’s reception was made in obiter over three decades ago, the plaintiff’s false light claim may be legally tenable.
On the facts of the case, however, the Court held that the plaintiff’s false light claim could not be made out as the key elements of the tort could not be established. The Court concluded there was “no substance whatsoever to the plaintiff’s allegations that the defendants published statements that they knew to be untrue or that they acted with reckless disregard”.
The Durkin decision represents a significant development in the Canadian common law towards the more widespread acceptance of novel and nuanced privacy torts across the provinces. The case further suggests that the contexts in which a false light claim may be made have expanded.
The false light tort was first recognized in the family law context and involved the cyberbullying of an ex-spouse. The Durkin decision suggests that false light claims could be established in other contexts as well. While in Durkin the plaintiff failed to establish the elements of the tort, implicit in Justice Thompson’s finding that the plaintiff could have had a legally tenable claim is the suggestion that there may be cases where an individual could successfully establish a false light claim against media companies, publishers, authors, and other entities.
 Yenovkian v. Gulian, 2019 ONSC 9279, at paras. 168-171.
 Fraser Duncan, “Illuminating False Light: Assessing the Case for the False Light Tort in Canada” (2020) 43-2 Dal. L.J. 605.
 Durkin v. Marlan, 2022 BCSC 193, citing SHH Management Limited v. Philip, 2020 BCSC 1411, at para. 2.
 I.e., that (1) his allegations have substantial merit; (2) there are no valid defences; and (3) the harm to the plaintiff as a result of the expression is serious enough that the public interest in the action continuing outweighs the public interest in protecting what is communicated in the Article.
 Durkin, at para. 22.
 The Privacy Act creates a statutory tort of invasion of privacy, but includes the caveat that a publication does not constitute a violation of privacy if the matter published was of public interest.
 Durkin at paras. 20 – 22.
 Durkin, at para. 24.