Teresa Scassa - Blog

Displaying items by tag: intrusion upon seclusion

An Ontario small claims court judge has found in favour of a plaintiff who argued that her privacy rights were violated when a two-second video clip of her jogging on a public path was used by the defendant media company in a sales video for a real-estate development client. The plaintiff testified that she had been jogging so as to lose the weight that she had gained after having children. She became aware of the video when a friend drew her attention to it on YouTube, and the image “caused her discomfort and anxiety” (para 5). Judge Leclaire noted that the “image of herself in the video is clearly not the image she wished portrayed publicly”.

At the time of the filming, the defendant’s practice was to seek consent to appear in its videos from people who were filmed in private spaces, but not to do so where people were in public places. The defendant’s managing associate testified that if people in public places “see the camera and continue moving, consent is implied.” (at para 9) The judge noted that it was not established how it could be known whether individuals saw the camera. The plaintiff testified that she had seen the camera, and had attempted to shield her face from view; she believed that this demonstrated that she did not wish to be filmed.

Although the defendant indicated that the goal was to capture the landscape and not the people, the judge found that “people are present and central to the location and the picture.” (at para 10) The judge found that the photographer deliberately sought to include an image of someone engaging in the activity of jogging alongside the river. Although the defendant argued that it would not be practical to seek consent from the hundreds of people who might be captured in a video of a public space, the judge noted that in the last two years, the defendant company had “tightened up” its approach to seeking consent, and now approached people in public areas prior to filming to seek their consent to appear in any resulting video.

The plaintiff argued that there had been a breach of the tort of intrusion upon seclusion, which was first recognized in Ontario by the Ontario Court of Appeal in Jones v. Tsige in 2012. Judge Leclaire stated that the elements of the tort require 1) that the defendant’s actions are intentional or reckless; 2) that there is no lawful justification for the invasion of the plaintiff’s private affairs or concerns; and 3) that the invasion is one that a reasonable person would consider to be “highly offensive causing distress, humiliation or anguish.” (Jones at para 71) Judge Leclaire found that these elements of the tort were made out on the facts before him. The defendant’s conduct in filming the video was clearly intentional. He also found that a reasonable person “would regard the privacy invasion as highly offensive”, noting that “the plaintiff testified as to the distress, humiliation or anguish that it caused her.” (at para 16)

Judge Leclaire clearly felt that the defendant had crossed a line in exploiting the plaintiff’s image for its own commercial purposes. Nevertheless, there are several problems with his application of the tort of intrusion upon seclusion. Not only does he meld the objective “reasonable person” test with a subjective test of the plaintiff’s own feelings about what happened, his decision that capturing the image of a person jogging on a public pathway is an intrusion upon seclusion is in marked contrast to the statement of the Ontario Court of Appeal in Jones v. Tsige, that the tort is relatively narrow in scope:


A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one's financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive. (at para 72)


Judge Leclaire provides relatively little discussion about how to address the capture of images of individuals carrying out activities in public spaces. Some have suggested that there is simply no privacy in public space, while others have called for a more contextual inquiry. Such an inquiry was absent in this case. Instead, Judge Leclaire relied upon Aubry v. Vice-Versa a decision of the Supreme Court of Canada, even though that decision was squarely based on provisions of Quebec law which have no real equivalent in common law Canada. The right to one’s image is specifically protected by art. 36 of the Quebec Civil Code, which provides that it is an invasion of privacy to use a person’s “name, image, likeness or voice for a purpose other than the legitimate information of the public”. There is no comparable provision in Ontario law, although the use of one’s name, image or likeness in an advertisement might amount to the tort of misappropriation of personality. In fact, with almost no discussion, Judge Leclaire also found that this tort was made out on the facts and awarded $100 for the use of the plaintiff’s image without permission. It is worth noting that the tort of misappropriation of personality has typically required that a person have acquired some sort of marketable value in their personality in order for there to be a misappropriation of that value.

Judge Leclair awarded $4000 in damages for the breach of privacy which seems to be an exorbitant amount given the range of damages normally awarded in privacy cases in common law Canada. In this case, the plaintiff was featured in a 2 second clip in a 2 minute video that was taken down within a week of being posted. While there might be some basis to argue that other damage awards to have been too low, this one seems surprisingly high.

It is also worth noting that the facts of this case might constitute a breach of the Personal Information Protection and Electronic Documents Act (PIPEDA) which governs the collection, use or disclosure of personal information in the course of commercial activity. PIPEDA also provides recourse in damages, although the road to the Federal Court is a longer one, and that court has been parsimonious in its awards of damages. Nevertheless, given that Judge Leclaire’s preoccupation seems to be with the unconsented-to use of the plaintiff’s image for commercial purposes, PIPEDA seems like a better fit than the tort of intrusion upon seclusion.

Ultimately, this is a surprising decision and seems out of line with a growing body of case law on the tort of intrusion upon seclusion. As a small claims court decision, it will carry little precedential value. The case is therefore perhaps best understood as one involving a person who was jogging at the wrong place at the wrong time, but who sued in the right court at the right time. Nevertheless, it should serve as a warning to those who make commercial use of footage filmed in public spaces; as it reflects a perspective that not all activities in public spaces are ‘public’ in the fullest sense of the word. It highlights as well the increasingly chaotic privacy legal landscape in Canada.


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