At The Court of Appeal
The defendants appealed, arguing that there was no valid cause of action, since the use of the plaintiff’s image was not libellous, and since there was an absence of a common field of activity on which to found an action in passing off.
The Ontario Court of Appeal found for the defendants on the passing off claim, by maintaining the need to show a common field of activity. In a decision written by Estey J.A., it was held that while Canadian law may contemplate a tort of appropriation of personality, the elements of that cause of action were not made out in this case.
Estey, J.A. did not categorically dismiss the possibility of a tort that could broadly be read to encompass an individual’s right to control how his or her personality is used:
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he common law does contemplate a concept in the law of torts which may be broadly classified as an appropriation of one’s personality there may well be circumstances in which the Courts would be justified in holding a defendant liable in damages for appropriation of a plaintiff’s personality, amounting to an invasion of his right to exploit his personality by the use of his image, voice or otherwise with damage to the plaintiff. |
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The Court of Appeal did not elaborate on, or depart from, Haines J’s analysis of the law at first instance.
Read more about this topic: Krouse V. Chrysler Canada Ltd.
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