Krouse V. Chrysler Canada Ltd. - The Judgment Below

The Judgment Below

The claim that was presented was considered to consist of five distinct elements:

(i) invasion of privacy per se;

(ii) appropriation of the plaintiff ’s identity for commercial purposes;

(iii) breach of confidence;

(iv) breach of contract; and

(v) unjust enrichment.

In his opinion, Haines J. considered the first claim to be novel in principle, and accordingly declined to rule on it. The third and fourth claims were also dismissed. He then proceeded to what he regarded as the ‘guts’ of the case: the claim that ‘the plaintiff become identified with the products of the defendants and ...had ...his chances of advertising for other automobile manufacturers seriously affected’. Such a claim raised three key issues of fact and law:

• whether the plaintiff had a ‘saleable product advertising ability’;
• whether such an ability was a property right protected by law; and
• whether the defendant’s poster was an appropriation of such a right.

The first question was answered in the affirmative, and it was found that the second question could also be answered affirmatively, based on two ‘separate but closely related lines of cases’: passing off, and the right of an individual to the elements of his identity.

In his opinion, Haines J. found that Krouse did have a right to protect the commercial advertising power in his image. Along with marketing his athletic ability, Krouse also marketed his reputation and image. Both were a product of his work and effort, and so he should be entitled to protect it. As was noted in the opinion:

In examining the Spotter, the Court found that Chrysler was attempting to take advantage of Krouse's image to increase sales. Krouse was clearly identifiable within the picture and was the centre of focus. The Court found, however, that Krouse was unable to show that his ability to market his image was harmed, and he was granted $1,000 for general damages.