Law Times

Law Times • December 4, 2017 Page 5 www.lawtimesnews.com Plaintiff testified footage taken without permission Small Claims Court decision sets privacy precedent BY MALLORY HENDRY AND ALEX ROBINSON Law Times A damages award of $4,100 handed down for a short appearance in a promotional vid- eo seems out of line with what's historically been awarded for "light privacy invasions" in Canada, according to one pri- vacy lawyer. "This is the first time I've seen in common law Canada where you're seen as having some sort of seclusion in a public place," says David Fraser, partner at McInnes Cooper LLP. In Vanderveen v. Water- bridge Media Inc., Basia Vanderveen took the media company to the Ontario Superi- or Court of Justice Small Claims Court over her two-second ap- pearance in a two-minute sales video for a condo building in Ottawa. She made various claims against the defendant, including: breach of privacy or intrusion upon seclusion; pe- cuniary damages for appropria- tion of personality and punitive damages. Having worked previously with the Privacy Commis- sioner of Canada on resources for small businesses on how to protect personal information, Vanderveen disagreed with the company's position on the pri- vacy matter and decided to take the matter to court. She had been filmed jogging on a trail near the condo building some time in 2014, and the video was brought to her attention by a friend in 2015. The plaintiff reached out to Bridgeport, the real estate de- veloper that hired Waterbridge to make the video, and asked via email to be removed from the video. After a series of emails including Waterbridge were ex- changed, "some of which can be described as impolite, acerbic, and insulting," writes Deputy Judge Roger Leclaire in his de- cision, the video was removed from Bridgeport's website with- in the week and from YouTube within a few days. "There can be no doubt, on the evidence before me, that the defendant's conduct in taking her picture was intentional; that was admitted. There existed no legal justification for taking her image or filming her running," said Leclaire, in the ruling. "I find that a reasonable per- son . . . would regard the privacy invasion as highly offensive and the plaintiff testified as to the distress, humiliation or anguish that it caused her." Paul Champ, the lawyer who represented the plaintiff, says the decision is important from a privacy standpoint in an age when so many people have high-quality video recording devices on their phones. "I think respect for privacy has gone down . . . in so many ways with the expanded use of social media and it's a little bit of a wild west out there," he says. "I think this case will start to set a boundary that when you are walking in a public place or sitting in a park, you shouldn't have to worry that someone is videotaping you and using it for their own purposes." Leclaire referenced the Jones v. Tsige decision from the On- tario Court of Appeal, where Justice Robert Sharpe said "writing for a unanimous court sets out the question 'Does On- tario law recognize a right to bring a civil action for damages for the invasion of personal pri- vacy?' and proceeds to answer in the affirmative." Leclaire wrote that in analyz- ing whether Ontario law rec- ognized an action for invasion of privacy, Sharpe "canvassed scholarly articles, case law in Ontario and other provinces, Charter jurisprudence, Acts relating to private information, Provincial Privacy Acts, the state of the law in the USA and various commonwealth juris- dictions." In the Tsige case, the court "sort of imported United States privacy torts into Canada" in- cluding the intrusion upon se- clusion tort, which is the one relied upon in Vanderveen. The essential element of the tort is that your private life, or seclusion, has to be intruded upon and that intrusion has to be highly offensive to a reason- able person. "I found myself thinking, two seconds in a video? Is that highly offensive to a reasonable person when you're walking in a public place?" Fraser asks, not- ing that while Canada isn't the same as the United States, where whatever happens in public is fair game, Vanderveen was out in public and can't really be said to be secluded. "It seemed to be an unusual extension of the principles we're already seeing in privacy cases," he says. When you look at how Leclaire arrived at the dam- ages, Fraser says, in Tsige, the Ontario Court of Appeal ruled that the general damages range from nominal damages to $20,000, "so that sets a cap" where the high end "should be the most outrageous, f lagrant violation of your privacy that you could ever imagine." While he appreciates the vid- eo in question was a commercial use of Vanderveen's image and there is precedent for commer- cial appropriation of one's per- sonality or likeness, what was notable is that the judge award- ed $100 for commercial use of one's image and $4,000 for the invasion of privacy. "In the Jones v. Tsige case, where it was somebody's bank account being looked at dozens of times, the Ontario Court of Appeal said $10,000 is reason- able. Is this really 40 per cent of the outrageousness and the harm to an individual com- pared to somebody looking at your banking records for ma- levolent, unjustified purposes?" Fraser says. The Tsige decision held that "although the tort of intrusion upon exclusion has not been fully recognized in Ontario law, several cases award damages for invasion of privacy in conjunc- tion with, or under the head of, a traditional tort such as nuisance or trespass. These claims typi- cally involve intangible harm such as hurt feelings, embar- rassment or mental distress, rather than damages for pecu- niary losses." In Vanderveen, the plaintiff testified that the video was tak- en while she was jogging to lose weight following the birth of her two children. She said the video "blasted her image to the world without her consent or permission" and left her feeling self-conscious, uncomfortable and anxious. Vanderveen said she had since lost a significant amount of weight and did not want the version of herself that the video captured to be the one broad- cast. "It seemed a measure of the damages that the court recog- nized in the case had to do with the fact that the woman did not like the way she was portrayed," Fraser says. "What does that mean? What do we take away from that? If you're not looking your best, you're entitled to greater damag- es? There are a number of ques- tions that come up as a result of this that leave me wondering what's next." Champ says the case shows that the right to privacy is still not fully defined and could spur other cases to set further boundaries about when people can capture an individual's im- age for use in another context. Émilie Leblanc Lacasse, the lawyers representing the de- fendant, did not immediately respond to a request for com- ment. LT NEWS Paul Champ says a recent Ontario Superior Court of Justice Small Claims Court decision shows that the right to privacy is not fully defined. There existed no legal justification for taking her image or filming her running. Roger Leclaire ONTARIO LAWYER'S PHONE BOOK 2018 Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. You can depend on the accuracy of this trusted directory that includes the most up-to-date names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. More detail and a wider scope of legal contact information for Ontario: • Over 26,800 lawyers listed • Over 8,500 law firms and corporate offices listed • Fax and telephone numbers, e-mail addresses, office locations and postal codes Includes lists of: • Federal and provincial judges • Federal courts • Ontario courts and services • Small claims courts • The Institute of Law Clerks of Ontario Order your copy today. Visit www.store.thomsonreuters.ca or call 1-800-387-5164 for a 30-day, no risk evaluation Perfectbound Published December each year On subscription $85 One time purchase $88.50 L7798-7858 Multiple copy discounts available Plus applicable taxes and shipping & handling. (prices subject to change without notice) Your instant connection to ONTARIO'S LEGAL NETWORK Untitled-2 1 2017-11-28 2:17 PM 561-391-3344 f 561-948-4713 d 561-910-7861 Florida Probate and Tax Planning Services STEVEN Z. GARELLEK Florida Bar Board Certified in International Law Member of the Florida, Ontario, and New York Bar 200 East Palmetto Park Road, Suite 103, Boca Raton, FL 33432 ntitled-2 1 2017-09-13 1:45 PM

• Cover