Case Summary: Vanderveen v Waterbridge Media Inc.

2. LIABILITY ISSUES

   1. 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]

1. 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 neighborhood. 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...