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Case Summary: Vanderveen v Waterbridge Media Inc.
Defence + Indemnity

A. Employing a video shot of a person jogging on a public jogging path for a commercial sales-pitch video was found to establish the privacy tort of intrusion upon seclusion.  

Vanderveen v Waterbridge Media Inc., 2017 CanLII 77435 (Ont.S.C. Small Claims), per LeClaire, D.J.  [4257] 

I. FACTS AND ISSUES

The Defendant Waterbridge Media “Waterbridge” was commissioned to produce a sales video for a real estate developer to market an unbuilt residential condominium project in an Ottawa neighbourhood. The video showcased the local area including restaurants, coffee shops, public transit points, cycling paths, jogging trails and other local amenities. Waterbridge described the real estate developer in question as a “'hands-on' client which [would] choose how and where to shoot in Westboro, which coordinated most locations".
 
In the summer or fall of 2014, the Plaintiff Vanderveen was video recorded while jogging on a walking trail. After editing, she appeared in the resulting publicity video for two seconds on the right third of a split screen. The left third contained an action shot of a male cyclist on a bicycle. The middle third was an action shot of a male holding a coffee cup with a coffee shop in the background.
 
In the fall of 2015, one of Vanderveen’s friends saw the video and recognized Vanderveen. She brought it to the attention of Vanderveen who immediately contacted Waterbridge with respect to her objection to having been video recorded. She insisted that her image be removed from the video recording.
 
There followed “a series of e-mail exchanges between Vanderveen and Waterbridge some of which can be described as impolite, acerbic, and insulting", which was the basis of Vanderveen's claim for punitive damages.
 
Vanderveen was distraught at discovering that her image was being employed in this video without her consent. She testified that she began jogging after having gained weight following childbirth. When she saw the video she claimed to have “immediately felt shock and confusion". She “described herself as being self-conscious and said that the overweight pictures of her caused her discomfort and anxiety and that the jogging outfit that she was wearing in the video would now fall off given the weight loss obtained as a result of training for and participating in Ironman triathlons". The Court found that the “image of herself in the video is clearly not the image she wished portrayed publicly".
 
The video was removed from the real estate developer's website within a week of it being brought to Waterbridge’s attention and was removed from YouTube within a few days.
 
Counsel for Waterbridge argued that it believed that there is no expectation of privacy with respect to people participating in activities in public locations. Waterbridge’s officer also testified that the focus of the video was on the “environment, river and geography and not the people". Waterbridge argued that it was impractical to obtain consents from people being video recorded when a number of people are recorded and only a very few end up in the ultimate video after editing. Waterbridge acknowledged that since the event in question people are now approached ahead of time to be advised of their role in the making of the video.
 
Vanderveen claimed for breach of privacy (intrusion upon seclusion), appropriation of personality, seeking pecuniary and punitive damages.

II. HELD: For Vanderveen; compensatory damages of $4,100 dollars awarded; no award for punitive damages.

1. The Court recognized the Tort of intrusion upon seclusion as recognized in Jones v. Tsige, 2012 ONCA 32. The Court summarized the elements of the cause of action, as had been set out in the Jones case: [15]     Sharpe, J. went on to set out the elements of the action for intrusion upon seclusion in the following terms:

“I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:
 
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
  
The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, Vanderveen's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.”

2. The Court held that it had “no hesitation” in finding that the elements of the tort of intrusion upon seclusion had been established. The Defendant’s conduct in video recording Vanderveen was intentional and there was no legal justification for recording her while running. The Court found that “a reasonable person, this legally fictitious person who plays an important role in legal determinations would regard the privacy invasion as highly offensive and Vanderveen testified as to the distress, humiliation or anguish that it caused her" (paragraph 16). The Court held that the elements of the tort “would apply to capturing the persona or likeness of an individual and using it for commercial purposes without consent" (paragraph 17).

a. The Court rejected the defence argument that the focus of the recording was on the environment, and not the people, noting that “people are present and central to the location and the picture” and that the “photographer was not just filming a moving river, he or she was waiting for a runner to jog along the adjacent jogging trail to advertise the possibility of the particular activity in Westboro" (paragraph 10).
 
b. The Court rejected the argument that recording Vanderveen in a public place was not a violation of privacy: 

[18]     While recognizing that the decision in the Aubry v. Vice-Versa [Aubry v. Les Editions Vice-Versa [1998] 1 S.C.R. 591] is not binding upon me for reason’s stated above, I am entirely in agreement with the comments and sentiments of Lamer C.J., writing in dissent for other reasons, when he wrote:

In the case at bar, I am of the view that the dissemination of the respondent’s image constituted a violation of her privacy and of her right to her image. In the abstract, to appropriate another person’s image without his or her consent to include it in a publication constitutes a fault. I am of the view that a reasonable person would have been more diligent and would at least have tried to obtain the respondent’s consent to the publication of her photograph. The appellants did not do everything necessary to avoid infringing the respondent’s rights.

[19]     Along the same line of legal reasoning L’Heureux‑Dubé J. and Bastarache J., writing for the majority, wrote the following:

Since the right to one’s image is included in the right to respect for one’s private life, it is axiomatic that every person possesses a protected right to his or her image. This right arises when the subject is recognizable. There is, thus, an infringement of the person’s right to his or her image, and therefore fault, as soon as the image is published without consent and enables the person to be identified. See Field v. United Amusement Corp., [1971] C.S. 283.

[20]     In my view, none of the limitations or defences that Sharpe J. discusses applies in this case. The filming of Mme Vanderveen’s likeness was a deliberate and significant invasion of her privacy given its use in a commercial video intended to be part of a public marketing campaign for condominiums in Westboro or as a “sales tool” as Mr. Topolovec put it. While Mme Vanderveen is concerned about the persona that she presents and about her personal privacy I find that she is not unusually concerned or unduly sensitive about this.

c. The Court rejected Waterbridge’s argument that it would have been impractical to obtain consents from people being video recorded in public places:

[21]     The defendant, through its witnesses advanced a few defences. Mr. Topolovec wrote in an e-mail to Vanderveen that individuals in public places and settings could be photographed without their consent and Mr. Dybka stated in evidence that obtaining a “consent” on such situations was “impractical” given the high number of people who would be photographed compared to the greatly reduced number that would appear in the edited final product. I reject any such attempts at exoneration. In my view the important right to privacy prevails over any non-public interest, commercially motivated and deliberately invasive activity. On this point, the authors of the majority opinion in Aubry v. Vice Versa put it this way: 

None of the exceptions mentioned earlier based on the public’s right to information is applicable here. Accordingly, there appears to be no justification for giving precedence to the appellants other than their submission that it would be very difficult in practice for a photographer to obtain the consent of all those he or she photographs in public places before publishing their photographs. To accept such an exception would, in fact, amount to accepting that the photographer’s right is unlimited, provided that the photograph is taken in a public place, thereby extending the photographer’s freedom at the expense of that of others. We reject this point of view. In the case at bar, the respondent’s right to protection of her image is more important than the appellants’ right to publish the photograph of the respondent without first obtaining her permission.

3. In assessing damages, the Court noted the factors that were to be taken into account, as set out in Jones v. Tsige:

[22]     On the question of damages, Sharpe J. in Jones v. Tsige spent time discussing this issue and appended a 4 page listing of privacy related cases and the damages awarded in each case. It is clear that proof of actual loss is not required in a cause of action for intrusion upon seclusion. Sharpe, J. writing for the court in Jones v. Tsige wrote the following in determining the question of damages:

“In my view, damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. I would fix the range at up to $20,000. The factors identified in the Manitoba Privacy Act, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist in determining where in the range the case falls:

1. the nature, incidence and occasion of the defendant's wrongful act;
 
2. the effect of the wrong on the plaintiff's health, welfare, social, business or financial position;
 
3. any relationship, whether domestic or otherwise, between the parties;
 
4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
 
5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

I would neither exclude nor encourage awards of aggravated and punitive damages. I would not exclude such awards as there are bound to be exceptional cases calling for exceptional remedies. However, I would not encourage such awards as, in my view, predictability and consistency are paramount values in an area where symbolic or moral damages are awarded and absent truly exceptional circumstances, plaintiffs should be held to the range I have identified.”

4. Applying those factors in this case, the Court concluded that a $4,000 amount for breach of privacy should be awarded and a further $100 for appropriation of personality. The Court noted that Vanderveen was “on the screen for two seconds”, that publication of her image had been “imposed upon her” in the context of a “ for-profit commercial enterprise”. Court also noted that the video was discontinued and removed completely from the internet within a week. Keeping in mind that the court in Jones indicated an upper limit of $20,000 for damages in such a case, and awarded $10,000 in that case, $4,000 was justified here.
 
5. The Court declined to award punitive damages with respect to the exchange of emails between Vanderveen and Waterbridge when Vanderveen initially insisted that her image be removed. The Court held that the exchange of emails was a mutual “misunderstanding and miscommunication" between the parties and did not justify punitive damages per Whiten v. Pilot Insurance Co., 2002 SCC 18.

III. COMMENTARY: 

I note that the Court also awarded $100 in damages for the Tort of appropriation of personality, which appears to be the fourth of the privacy Torts recognized in the United States and summarized in the article that has been seen as properly defining these privacy Torts: WL Prosser privacy (1960) 48 California Law Review, 385. Unfortunately, there was no discussion of the law with respect to that particular tort but suggests that it has been recognized by the Court.
 
With respect, the Court’s conclusion that a reasonable person would find the Defendant’s conduct in this case to be highly offensive, which is an element of the tort which Vanderveen must prove is questionable. That conclusion would be even more suspect if the recording and dissemination of the video were not part of a commercial activity. The Court relied heavily on a civil law precedent from Quebec (Aubry v. Vice-Versa [Aubry v. Les Editions Vice-Versa [1998] 1 S.C.R. 591) which is not binding in the other common law Canadian jurisdictions. Vanderveen was carrying on her run in public for the world to see. In our view, this case may not be followed in a common law province, especially where the Defendant’s conduct was not part of a commercial activity.

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