A damages award of $4,100 handed down for a short appearance in a promotional video seems out of line with what’s historically been awarded for “light privacy invasions” in Canada, according to one privacy 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.
Having worked previously with the Privacy Commissioner of Canada on resources for small businesses on how to protect personal information, Vanderveen disagreed with the company's position on the privacy 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 developer 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 exchanged, “some of which can be described as impolite, acerbic, and insulting,” writes Deputy Judge Roger Leclaire in his decision, the video was removed from Bridgeport’s website within the week and from YouTube within a few days.
Leclaire references the Jones v. Tsige decision from the Ontario Court of Appeal, where Justice Robert Sharpe said “writing for a unanimous court sets out the question ‘Does Ontario law recognize a right to bring a civil action for damages for the invasion of personal privacy?’ and proceeds to answer in the affirmative.”
Leclaire wrote that in analyzing whether Ontario law recognized 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 jurisdictions.”
In the Tsige case, the court “sort of imported United States privacy torts into Canada” including the intrusion upon seclusion 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 reasonable 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, noting that while Canada isn’t the same as the U.S. 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.”
When you look at how Leclaire arrived at the damages, Fraser says, in Tsige, the Ontario Court of Appeal ruled the general damages range from nominal damages to $20,000, “so that sets a cap” where the high end “should be the most outrageous, flagrant violation of your privacy that you could ever imagine.”
While he appreciates the video in question was a commercial use of Vanderveen’s image and there is precedent for commercial appropriation of one’s personality or likeness, what was notable is that the judge awarded $100 for commercial use of one’s image and $4,000 for the invasion of privacy.
“In the Jones and Tsige case where it was somebody’s bank account being looked at dozens of times, the Ontario Court of Appeal said $10,000 is reasonable. Is this really 40 per cent of the outrageousness and the harm to an individual compared to somebody looking at your banking records for malevolent, unjustified purposes?” Fraser says.
The Tsiage decision reads 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 conjunction with, or under the head of, a traditional tort such as nuisance or trespass. These claims typically involve intangible harm such as hurt feelings, embarrassment or mental distress, rather than damages for pecuniary losses.”
In Vanderveen, the plaintiff testified that the video was taken 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 the video captured to be the one broadcast.
“It seemed a measure of the damages that the court recognized 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 damages? There are a number of questions that come up as a result of this that leave me wondering what’s next.”
Fraser says he often takes a step back and places these decisions in a wider context, and He says one thing that concerns him about the decision is society’s long tradition of street photography, where people take photographs of public places, and journalism that takes place on the streets.
At the same time, Fraser notes that damages awarded by small claims courts vary province to province.
“It’s a small claims case, which may suggest this is not going to set a significant precedent, but you never know,” he says, adding that Vanderveen likely spent more than the $4,100 in legal fees bringing the case to court and that, therefore, while the damages awarded are more than what was expected, the amount isn’t “going to open the floodgates necessarily.”