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Page 6 December 4, 2017 • Law Times www.lawtimesnews.com COMMENT u EDITORIAL OBITER By Gabrielle Giroday Public space precedent T he finding in a recent Ontario Superior Court of Justice Small Claims Court case, Vanderveen v. Waterbridge Media Inc., is worthy of note. The amount awarded to the plaintiff, Basia Vanderveen, was only $4,000 for breach of privacy and $100 for the appropriation of personality. However, the case is worthy of review due to an issue that will only become more prevalent in a world where the vast majority of people have a camera on their phone and can capture footage of people they encounter in public. The law is often criticized for evolving slowly, but the award signals a change in the way privacy and public space can be interpreted. In this case, Vanderveen's case for breach of privacy rested on the argument that she had not given her consent when foot- age of her jogging was used for a promotional video for a real estate developer, Bridgeport. "There existed no legal justification for taking her image or film- ing her running," said Justice Roger Leclaire in the ruling. "I find that a reasonable person . . . would regard the privacy invasion as highly offensive and the plaintiff testified as to the distress, humiliation or anguish that it caused her." Leclaire has even sharper words when images are used for com- mercial purposes, rejecting evidence that it was "impractical" to get consent from those photographed due to the small number who would appear in the final product. "In my view the important right to privacy pre- vails over any non-public interest, commercially motivated and deliberately invasive activity," says the ruling. In a world where digital content is exploding, those who create that content — and those that represent them — would be wise to mind Leclaire's words. LT ©2017 Thomson Reuters Canada Ltd. All rights reserved. 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Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Staff Writer . . . . . . . . . . . . . . . . . . . . .Alex Robinson Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . . . . .Catherine Giles Electronic Production Specialist . . . Derek Welford Attack on Patrick Brown is on BY IAN HARVEY L iberal strategists are scrambling to figure out how best to attack Ontario Progressive Conservative Leader Patrick Brown's Guaran- teed Promises platform. With next June's general election looming, the Conservatives have set their platform going into the new year and, ar- guably, jumped in front of the story. In media-speak, it means that instead of reacting to questions about their lack of policy, and in some cases, impugned policies, the Conservatives are on the front foot: He or she who drives the story owns the story. With the weight of electorate scorn pressing down on them, the Liberals have little choice but to attack Brown because their own record is so dismal. They've already had a little help, too, courtesy of their friends at Working Families Coalition, the union-funded, American-style Political Action Com- mittee, which rolled out an attack ad in October, painting Brown as a f lip-f lop- per who "will say anything to get elected." There's also an offshoot group, Work- ing Ontario Women, which aired ads claiming Brown is a closet anti abortionist who will take away women's reproduc- tive right, a theme the provincial Liberals themselves have also used. The PCO themselves have also aired some ads attack- ing Ontario Liberal Premier Kathleen Wynne as "un- trustworthy." So, why are these ads run- ning so far ahead of the elec- tion? Two reasons: a change to the Election Finances Act, 1990 and test polling to see which ads evoke what reac- tions from voters. The bigger issue, though, is that third-party spending. In the 2014 election, WFC spent $2.5 million on ads attacking Conservative Tim Hudak and it worked. Now, there's a $600,000 cap in the six months leading up to the general elec- tion and then only $100,000 during the six weeks prior to June 7. Political parties are also capped at $1 million in the six-month, pre-election period. To get around that, WFC has splin- tered off WOW, essentially doubling its spending cap, and there will probably be more "grassroots" groups springing up in the new year. Brown's response to those initial ads is intriguing, and it echoes one of the Conservative party's greatest leaders, Bill Davis, the former premier who governed from 1971 to 1985. Davis' big-tent strategy kept core Conservatives happy while also pulling voters from the centre and left of centre, the very same demographics that swept Wynne to office. Davis was also adept at stealing ideas from the Lib- erals and the NDP, and the PCO platform does just that. Every time the Liberals at- tacked Brown on an assumed or inferred position, he'd simply come out and make a policy an- nouncement, such as stating that abor- tion is not on the agenda or supporting a meaningless motion decrying Islamo- phobia designed to make him a target. Now, Brown has unveiled 147 prom- ises, five of them with a "People's Guar- antee." Brown promises $5 billion for transit and subways, a 12-per-cent cut in hydro bills, refunds of 75 per cent for child care up to $6,750 per child and 100,000 more child care spaces. "Pay less, get more" sounds like a slo- gan, but it's catchy and in today's head- line- and meme-driven world, it might just work. Still, it's sketchy on where the money is coming from. There's the ubiquitous unicorn prom- ise that targets a two-per-cent increase in efficiencies across total government spending that he says is worth $3 billion a year. He also promises to cut costs by scrapping the Climate Change Action Plan and withdrawing from the Western Climate Change Initiative, but the num- bers aren't all there yet. Still, there's something for nearly ev- eryone here, a platform to make mushy middle voters all warm and fuzzy. Well, not everyone. While the Red Tories are dancing in the aisles, fiscal Conservatives are not happy, but they know winning is every- thing at this stage. The challenge now is for the Liberals to formulate an attack plan beyond the $15 minimum wage, which Brown says will be delayed but not cancelled. Ironically, the initial attacks have been over where Brown will find the money to finance his promises. Pot? Kettle? In politics, everything is fair game, it seems, or simply put, do as we say, not as we do. LT uIan Harvey has been a journalist for more than 40 years, writing about a di- verse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. Queen's Park Ian Harvey

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