Absolute Privilege or Absolute Overreach: The Sex Tape That Broke Litigation Immunity

A hidden camera, a secret recording, and a courtroom showdown. 

Stephen Thiele and Gavin Tighe unpack a shocking case where a surreptitious sex tape made its way into a family law proceeding, raising serious legal and ethical questions. 

What begins as an acrimonious separation quickly escalates into a debate about privacy, voyeurism, and the limits of legal protection under the doctrine of absolute privilege. 

They explore whether lawyers can be held accountable for distributing deeply personal and arguably irrelevant material in court, and how the justice system balances open litigation with protecting individuals from harm. 

With sharp insights and candid commentary, this “spicy” episode dives into the intersection of family law, professional conduct, and privacy rights, leaving listeners questioning where legal immunity should end.

Listen For:

1:47 What is the doctrine of absolute privilege and how does it protect conduct in legal proceedings?

7:36 Why did the first instance judge refuse to strike the claim against the lawyers?

10:36 What makes this case so remarkable in terms of how the lawyers handled the evidence?

16:52 Can opposing lawyers ever owe a duty of care to the other side in a lawsuit?

19:48 Should personal cost awards against lawyers be the remedy when advocacy crosses the ethical line?

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Gardiner Roberts website | Gavin email | Stephen email  

Transcript

Gavin Tighe (00:00):

Lights, Camera, Action has a whole new meaning...

Stephen Thiele (00:02):

All right. Welcome to another episode of Beneath the Law, and I'm joined by my colleague and good friend, Gavin Tighe. Gavin, how are you doing?

Gavin Tighe (00:18):

Stephen Thiele, I am as good as can be expected on the ... Well, I'm actually really good. It's almost St. Patrick's Day, my favorite day of the year. And yeah, things are good.

Stephen Thiele (00:28):

That's because you're Irish.

Gavin Tighe (00:30):

Everybody's Irish on St. Patrick's.

Stephen Thiele (00:32):

We were all having green beer and green milkshakes

Gavin Tighe (00:36):

On

Stephen Thiele (00:36):

St.

Gavin Tighe (00:37):

Patty's Day. Not in that order because that can lead to a lot of trouble.

Stephen Thiele (00:40):

It can. Oh,

Gavin Tighe (00:41):

This is a spicy episode today, Stephen. I got to tell you, very spicy.

Stephen Thiele (00:45):

It's a story about a sex tape, but let's lead in first of all what this is really. A story

Gavin Tighe (00:51):

About a what?

Stephen Thiele (00:52):

About a sex tape. And how a sex tape landed in court and created a bit of a legal issue with respect to the doctrine of absolute privilege.

Gavin Tighe (01:04):

Interestingly, before we go, it's not your run of the mill sex tape though. This is a surreptitious sex tape in the sense that it's not the ones where we've seen in other instances where people actually do these things, like do their sex tapes voluntarily, knowingly, for whatever reason, but this was a sneaky sex tape.

Stephen Thiele (01:22):

It was a sneaky sex tape involving family or former family members and a new girlfriend. But let's talk first of all about the doctrine of absolute privilege. We have different episodes and this one is fairly legal. So the doctrine might be a little bit dry for folks.

Gavin Tighe (01:41):

Yeah, but it's in a good kind of spicy setting. It's dry and juicy all at the same time.

Stephen Thiele (01:47):

So the doctrine of absolute privilege protects dance in certain circumstances where defamatory words or conduct in a quasi-judicial or a judicial proceeding are made. And a defendant basically raises this doctrine as a form of immunity and can strike a claim. And so this sex tape was provided to the court in a mandatory case conference and the plaintiffs who were the subject of the sex tape, a man and a woman, decided to sue the lawyers who circulated this tape.

Gavin Tighe (02:33):

We should probably put that in context. It was what would apparently be described as an extraordinarily acrimonious family law dispute where husband and wife had separated, but still lived in the same house together.

Stephen Thiele (02:48):

Maybe they were saving money.

Gavin Tighe (02:50):

Well, they're definitely saving money, but with whatever money they saved, apparently the now ex- wife spent on secret video cameras, which she installed in the ex- husband's bedroom.

Stephen Thiele (03:04):

Yeah, in the house and started recording things that were taking place.

Gavin Tighe (03:09):

We all get them. What was taking place? Shortly after the demise of relationship one had relationship number two. And really, it's like, man, their girlfriend, "Hey, you want to come back to my place with my ex- wife and my kids?" Oh, I mean, anyways, apparently the answer to that question was yes, and in fact they went. Little did they know that eyes were watching and that the secret camera was videotaping-

Stephen Thiele (03:38):

Was rolling. Absolutely.

Gavin Tighe (03:40):

It was lights, camera action gives a whole new meaning. Anyways, I didn't really understand this point though. I mean, we kind of live in a no-fault divorce universe. So who cares if they're separated, spouses getting anonymous? What's it to you? Why was that relevant?

Stephen Thiele (04:01):

I think that's the entire point of why the plaintiff sued both the ex- wife or in the case of the girlfriend.

Gavin Tighe (04:08):

The ex- wife whose sneaky ex- wife who is planting cameras in bedrooms, that's kind of icky when you think about it.

Stephen Thiele (04:18):

Well, it's very creepy when you, as you say, think about it. We've got now in Ontario, we've got a janitor who's just been charged with multiple counts of voyeurism for setting up a hidden camera in a woman's washroom, right?

Gavin Tighe (04:36):

Yeah, but this is as creepy. Maybe it's not, that's pretty creepy. It's on the creep scale, let's put it that way. And I don't know what, I mean, what was she looking ... I guess she knew. I mean, the bedroom was in the house. She's living in the house. I mean, I don't think it's a big secret of what's happening in the bedroom, and I suppose she wanted to have a record of it for whatever reason.

Stephen Thiele (04:54):

But you're right. There's absolutely nothing to gain in family law if a spouse is having an affair and that causes the breakdown of the marriage because we live in a no-fault, a kind of divorce and family law universe now. And- Did

Gavin Tighe (05:07):

It go to a custody issue? Was there some argument about the kid? I don't know enough about the case, but I mean, was it relevant to the custody of the child?

Stephen Thiele (05:16):

Well, and that's what the plaintiffs argued, Gavin, that it was irrelevant, that there were parenting issues that this case conference was supposed to deal with. Perhaps the ex- wife was thinking, "Well, if he's having sex with some girlfriend

Gavin Tighe (05:30):

That- He's not watching the

Stephen Thiele (05:31):

Kids. No, that makes him a bad person in terms of being a parent." I mean, so it was a little bit not understandable. And even the court said that the sex tape being circulated and remarkably, the lawyers circulated that tape to the lawyers who acted for the kids in the family law proceeding.

Gavin Tighe (05:51):

The kids had their own lawyers?

Stephen Thiele (05:52):

The kids had their own lawyers.

Gavin Tighe (05:54):

Wow.

Stephen Thiele (05:55):

And so-

Gavin Tighe (05:56):

They would really be need to be saving money. And no wonder they were living in the same house. How many sets of lawyers do they have pay?

Stephen Thiele (06:02):

We know at least two or three.

Gavin Tighe (06:04):

And still have money to afford secret cameras. So yeah, maybe they would have been better off to save money on some lawyers and technical equipment, rent an apartment. But in any event, the issue, as I understand it, of absolute privilege, attaches to the fact that the tape was distributed by the lawyers within the confines of the legal proceeding. And that I think is the point, is that you cannot, generally speaking, sue in another lawsuit for what happened in one lawsuit, right? So I can't, for example, if somebody's testifying at a trial and they say something absolutely defamatory in their testimony about somebody, then they can't be sued for that because it's testimony within a court proceeding. They couldn't be sued for that defamation. The court could find that they're full of it and that they lied or that they perjured themselves, but that's an issue within the context of that lawsuit.

(07:08):

It's not a separate proceeding, is it?

Stephen Thiele (07:11):

Yeah. And while it's not, and oftentimes, Gavin, our affidavits are very aggressive and you'll raise issues with respect to the other side that will strike at the heart of their credibility or their reputation and file that within the court, and that's all protected.

Gavin Tighe (07:30):

Well, it goes on in the arena of a lawsuit, remains in the arena of the lawsuit.

Stephen Thiele (07:36):

Now, this was an appeal decision. The judge at first instant, Gavin, did not strike the claim because the judge at first instance believed or found that there was an exception within this immunity defense that did not protect gratuitous or irrelevant conduct or evidence. And so that's what they found. They relied on another lower court decision that had found that there was this exception.

Gavin Tighe (08:09):

Well, that's an interesting issue right in and of itself to my mind, because number one is I can see what if you are simply using a frivolous lawsuit, for example, to build yourself a soapbox to defame somebody and then your lawsuit gets dismissed, whatever, but you've already done the harm. I mean, surely I think that would be an abusive process if it were found that there was no ... You never had any bonafide belief in the merits of the claim and you brought it purely to give yourself a platform to harm somebody. I mean, would that not get around this absolute privilege issue or would it in the sense that it's malicious?

Stephen Thiele (08:55):

Well, I don't think it would. We've seen defamation cases where people have acted with malice or even frivolous cases. I think in that context, Gavin, the person bringing that kind of lawsuit would be embarrassed by the judgment alone because that's-

Gavin Tighe (09:11):

Maybe they don't ... We see this ... I mean, I've seen it numerous times with plaintiffs who are maybe not going to the top floor in terms of ... They're slightly deranged and they're bringing crazy claims against all sorts of people all the time. And we've seen vexatious litigants, for example, declared vexations litigant who are suing people regularly for all sorts of crazy things. And they're allowed to say those things in the context of the lawsuit, but they're absolutely privileged. But what if they know they're not true and they don't care? They're just doing it to harass people.

Stephen Thiele (09:51):

Yeah, but you're going to get a cost award as a defendant in that kind of a case anyway. So in some respects, you're protected in that regard.

Gavin Tighe (10:00):

And the vexatious litigant rules would enable that. So just for our listeners who aren't familiar with that, the court can, in Ontario at least, you can bring an application to have somebody barred from issuing lawsuits if they are declared to be a vexatious litigant. And well, they can bring legitimate lawsuits, but what they need is permission. So they need leave of the court to sue people because we've had cases where people have literally issued dozens and dozens of lawsuits against all sorts of people just to cause them grief. And the court doesn't want to be used as a weapon of harassment.

Stephen Thiele (10:36):

No, and you have basically in a lot of those lawsuits too, Gavin, where those claims are basically repeats of judgments that have already been rendered. So people are trying to collaterally attack those judgments. But I just find this case quite remarkable in terms of here you are as a lawyer, you get a sex tape in a family law proceeding that really shouldn't have any bearing on the issues before the court, and then you distribute that tape knowing that it was surreptitiously taken in the privacy of somebody's bedroom. Why would you do that as a

Gavin Tighe (11:19):

Lawyer? Well, I mean, I hate to say this and I don't mean to cast aspersions, but in my experience, family law disputes can sometimes escalate to the point of having precious little to do with the actual merits of the proceeding. And it just turns into ... The domestic strife that led to the family law dispute just sort of is carried out through the legal proceedings. And it's just sort of this nasty, I always want to hurt the other person. So I don't know. I mean, I can't speak to this. I don't know the lawyers involved. I don't know the people involved, but it sounds like it was vitriolic in the sense of that they were just putting it out there to put it out there. And meanwhile, the girlfriend, of course, she wasn't even a party to the family law to speak.

Stephen Thiele (12:11):

No, she's really, to me, an innocent victim of the ex- wife's conduct in terms of making the tape and distributing it. And look, I think there was certainly some emotional harm that was suffered by both the ex- husband and the girlfriend, and that's the reason that they've sued. Look, we see it in Ontario. And Gavin, you've had cases involving people with cameras taking video of people in alleged private-

Gavin Tighe (12:42):

Supposedly. Right. Allegedly, and just so quick background, no names involved, but the hypothetical case that we're talking about involved, people will know that sometimes that they will have real estate marketing and they'll use drone footage of a property to market the property online or what have you. And in this particular instance, it was a condominium and there was a drone footage of the building flying around and

(13:11):

Pretty slick looking production. And somebody claimed that the drone footage included a vignette of them in Flagrante delicto. And try as we may and try as we might, we couldn't find it, but they swore it was there. Anyways, and they sued for invasion of privacy on the same basis. I mean, that would be the typical type of claim. Just parenthetically, I do find it ironic in this case, the names of the parties aren't sealed. The sex tape issue, I would've thought the harm of it was in its existence and its promulgation and sort of being publicized. We now have a reported case with the names, the actual names of the people involved. So everybody who wants to know ... Online, you can find it. It's an Alberta case and it can be found by anybody who wants to search the names, one of them, which is a little unusual and probably quite searchable, the actual court case in a sense, hasn't it achieved exactly the harm that the plaintiff was seeking to avoid?

Stephen Thiele (14:21):

They're

Gavin Tighe (14:21):

More famous. We're talking about them. They're on a podcast, we're talking about them. They're a reported case. There's lots of people are going to be talking. Whereas if the idea here was to keep this quiet and sort of minimize the harm done, I mean, now everybody knows there's a sex tape and basically the circumstances of it, other than not seeing it, but we can think much of an imagination. We all know what happened.

Stephen Thiele (14:44):

Yeah. Well, but we're all subject to the open court principle anyway. The plaintiff sued. Which

Gavin Tighe (14:48):

Is exactly my point. So I think the things that people need to think about, and I have to think about it and hear about it in defamation cases as well, because you got to be careful sometimes that you don't give the other side exactly what they wanted in the first place by suing them. I mean, hasn't the girlfriend given ... Hasn't the wife got her what she was after, which is the notoriety and the revenge porn kind of attack? She's got it. She's made it famous. Now the girlfriend, they, oh yeah, there's a sex tape of you. I mean, the girlfriend kind of ironically gave the wife what she wanted or you're not convinced.

Stephen Thiele (15:26):

No, I'm not convinced, Gavin, because at the end of the day, it's still an invasion of privacy.

Gavin Tighe (15:30):

Invision of privacy.

Stephen Thiele (15:32):

And so- But now

Gavin Tighe (15:32):

It's a very public

Stephen Thiele (15:33):

One. But I'm going to raise this issue. Was the wife's conduct to such an extent that she's actually committed a criminal act? Is there not a voyeurism aspect to this? I don't know if she's been charged in Alberta- I see any

Gavin Tighe (15:47):

Difference than the janitor.

Stephen Thiele (15:48):

Well, exactly, right? You're setting up a hidden camera in, let's face it, isn't the bedroom the most private place? There used to be the statement that keep everything private, leave things in the bedroom. Why are we bringing things out into the public on the political side?

Gavin Tighe (16:06):

Yeah. Well, it was Pierre Trudeau, wasn't it, that the state has no place in the bedrooms

Stephen Thiele (16:10):

In the national.

Gavin Tighe (16:12):

Yeah. Oh, 100%. And I mean, the reality of it is it's an interesting ... I mean, it was clearly intended to invade privacy. There was a clear intention there. And as I understand matters, the girlfriend's claim against the wife is proceeding. Is that not true?

Stephen Thiele (16:28):

Yeah. The claims against the wife are proceeding because it was only the wife's lawyers who sought to strike the claim. Now, the other theory that the lawyers used to strike the claim was they owed no duty of care to the ex- husband and the girlfriend and the court agreed with that. And we've seen that in a number of cases that the opposing lawyers do not owe a duty of care to the opposing party.

Gavin Tighe (16:52):

And we've argued that in a number of cases that there's no duty owed to the other side in a lawsuit. And when you step back and think about it, and the argument we've made, which has been accepted on many occasions, is that if there were, you'd be in a conflict of interest on every case. If I owe a duty to the other side, I'm in a conflict to my own client.

Stephen Thiele (17:12):

Yeah. And look, the lawyers, although they're successful here, the one question that I have, and again, I haven't seen it and I don't know what's going on, but did they breach the rules of conduct under the Law Society rules in Alberta?

Gavin Tighe (17:26):

I think to me, it's smacks of sharp practice. It's not dissimilar to you got something by accident, like an email was sent to you by accident or something that enclosed some privileged communication, and then you seek to take advantage of that slip on the other side and use it against them. That's sharp practice. This is even worse because you've set it up. You've set up the surreptitious recording for whatever purpose. And I mean, look, the wife may have said to the lawyers, "I don't care. You use every weapon you've got. I want to hurt this guy. I hate his guts." But lawyers have a duty to kind of be the brakes on this kind of thing sometimes. "Oh, you know what? Yo may hate your husband all you want, but I'm not going to step over that ethical boundary and I'm going to conduct this in a reasonable way.

(18:17):

"I mean, I think as a lawyer, you have a duty to pull the client back. I think unfortunately in the world we live in right now, we have a competitive environment for lawyers as much as anybody else and lawyers seem to be, some lawyers seem to be prepared to do whatever their clients tell them to do and that's not appropriate. Lawyers have a duty to sometimes say," You know what? I know you want to do that. It's a bad idea for the following reasons. This was clearly a bad idea. It didn't help her and helped the wife's case and it's created this whole frackus, but I think they needed to say, You know what? You may want to do that, but if you want to do that, get another lawyer. I'm not going to do it.

Stephen Thiele (18:59):

"Well, no. And look, I take to heart the comments of the appellate court judge who said that it was basically ill considered to have distributed this tape of the ex- husband and the girlfriend. The case doesn't tell us what happened at the case conference, so that's not clear. We know that the plaintiff sued and tried, I guess, to raise the code of conduct as part of the plaintiff's claim. In general, a breach of a code of conduct does not lead to a liability, but it certainly does potentially lead to discipline of the lawyers. And it seems to be very close to the line, if not crossing the line, of raising a vigorous defense or vigorous advocacy, right?

Gavin Tighe (19:48):

Yeah. I mean, we've talked about that before as well. I mean, in terms of costs can be awarded against the lawyer personally when they cross that line being a vigorous advocate to being an unethical advocate and/or that they cause costs to be incurred unnecessarily. I will say that would, to me, have been the more appropriate remedy because what you would say is, you know what? All of this kefuffle about this tape was completely a waste of time and money. This motion should never have been necessary to exclude this evidence because you should never have sought to admit it. And therefore you have caused costs to be incurred unnecessarily through what is borderline, if not borderline and over the line of unethical conduct. So lawyer, guess what? You're going to pay for it and I'm going to make an order that the costs associated with the striking of this evidence are the personal responsibility of the lawyer and/or that they're shared with the client personally.

(20:52):

That I think would have been an appropriate remedy.

Stephen Thiele (20:54):

Yeah, that certainly would have been an option available, I suppose, to the plaintiffs, for sure.

Gavin Tighe (20:59):

And I think that would have had a salutary effect because I think that while I at the same time am a no fan of costs against lawyers being granted too easily, because I think lawyers do have to sometimes stick their neck out a bit and stand up for clients and take on popular positions and do all of those things. And I think the court should be very guarded in terms of making those words. But when you know what, when they do step over that line, when they do cause costs to be incurred unnecessarily because of going way too far on the pit bull routine, then I don't think there's anything inappropriate with that. I think that you know what? You follow the money and if the cause of the cost being incurred is the lawyer should pay for it.

Stephen Thiele (21:43):

Well, look, the rules exist exactly for that purpose. We don't know in terms of whether there's any disciplinary complaint that has been made against the lawyers. We're just speculating and talking about things, options that could happen, but that's why we have a podcast that if you're not above the law, then everybody's beneath it, right?

Gavin Tighe (22:05):

These are the issues we talk about. I won't say that one just as a final epilogue, the damages as I've seen for breach of privacy are pretty slim, small. I mean, there was the one where the ex- wife was going through the girlfriend's bank statements because she was a bank ... I think it was a bank enough Scotia case. And I think the damages in that instance were somewhere in the neighborhood of $25,000, which is peanuts. So we'll see where this one ends up, but as you say, if no one is above the law, everyone is beneath it, please rate us and subscribe anywhere you get your podcasts.