Canada: A Problem On The Rise

Last Updated: January 12 2015
Article by Jill Jarvis-Tonus and Tamara Céline Winegust

Personality rights in Canada stem from an individual's publicity rights – which are proprietary in nature – and from the right to privacy, a personal interest. They are protected by common law and statute. Common law torts may be used to protect personality (outside Quebec): misappropriation of personality and passing off.

The tort of misappropriation of personality recognises an individual's proprietary right to commercially exploit his or her own name, image, voice and other components of personality that are associated with or identify him or her (Joseph v Daniels (1986), 11 CPR (3d) 544 (BCSC) at 549; Krouse v Chrysler Canada Ltd (1973), 13 CPR (2d) 28 (Ont CA) at 44; Athans v Canadian Adventure Camps Ltd (1977), 34 CPR (2d) 126 (Ont HCJ) at 136). Central to this tort is whether some component(s) of the claimant's personality have been used by the defendant and whether this use took place without permission and for the defendant's commercial gain. The defendant's intent is relevant, but not determinative.

This tort in Canada was first discussed in Krouse and endorsed five years later in Athans. Both cases involved sports figures whose likenesses were used on promotional materials distributed by the defendants. In Krouse the court found no misappropriation. The photograph in question showed only Krouse's back and jersey number amid a crowd of players. He himself was not identifiable and the use could not be seen to endorse the defendant's automobiles.

However, misappropriation was found in Athans, since a line drawing used of Athans, a professional water-skier, in his signature pose identified him. The court found that the use of the drawing in the defendant's summer camp promotional brochure could have impaired Athans' exclusive right to market his personality through endorsements.

Courts have suggested that personality rights survive death. Gould Estate v Stoddart Publishing Co ((1996), 74 CPR (3d) 206 (Ont Ct (Gen Div)), aff'd (1998), 80 CPR (3d) 161 (Ont CA), leave to appeal to SCC refused (1999), 236 NR 396 (note) (SCC)) contained an aside that since publicity rights are akin to intangible property, like copyright, they should be a descendible asset. The Gould court did not set a term of protection after death, but suggested something similar to copyright (ie, life of the person, plus 50 years). A 2004 Nova Scotia court similarly held that "property rights may attach to the goodwill generated by a celebrity's personality and that goodwill will survive that person's death" (Hapi Feet Promotions Inc v Martin (2004 NSSC 254)).

Permission to use one's personality may be explicit or implicit. The court in Horton v Tim Donut Ltd ((1997), 75 CPR (3d) 451 at 459–60 (Ont Ct (Gen Div))) held that a deceased famous hockey player implicitly assigned his publicity rights to Tim Donut Ltd during his lifetime by allowing it to use his personality in the development of a business, in which Horton was a partner. Further, the court found that Tim Donut could also own trademark registrations for Horton's name. Permission may also be implicitly revoked – for example, following termination of an employment contract.

The commercial nature of the unauthorised use is key. Courts distinguish between 'sales' and 'subject' use of personality in a new public interest work. This protects the balance between an individual's right to commercially exploit his or her personality and the public's right to learn more about a famous individual, such as jazz pianist Glenn Gould. The court in Horton similarly found that a painting of the hockey player created for a charity drive was in the public interest, with any commercial purpose being incidental.

Although most successful misappropriation of personality cases relate to famous individuals, fame is not a prerequisite. A 2012 Alberta court held that ordinary professionals can seek protection under this tort: "A professional's name and reputation is entitled to be protected from unauthorized commercial exploitation every bit as much as a celebrity's name and likeness" (Hay v Platimun Equities Inc, (2012 ABQB 204 at para 73)). The case involved a defendant company which forged a chartered accountant's signature on loan documents to secure financing.

There is no set formula for establishing damages. Actual damages may be granted where the misappropriation relates to an endorsement and are calculated according to the amount that the plaintiff would reasonably have received commercially for permission (Athans at 140 (C$500); Hays (C$18,000)), taking into account any corresponding benefit that he or she may have obtained from the misappropriation (Racine v CJRC Radio Capital Ltée (1977), 17 OR (2d) 370 (Ottawa Co Ct)). Plaintiffs may be granted nominal damages where no actual losses were suffered, although one court denied even nominal damages where other claims had already provided sufficient compensation (Trout Point Lodge Ltd v Handshoe (2014 NSSC 62 at paras 29–32)).

Courts have also granted injunctions based on the "loss of control over whom or what [the plaintiff's] image is associated with", which can cause irreparable harm (Salé v Barr, 2003 ABQB 431 at para 14). In Salé the court granted an interlocutory injunction to stop a photographer who took unauthorised photographs of a famous Canadian Olympic skating duo from selling posters with those images. The court indicated that injunctions may be more appropriate than damages in misappropriation cases, since "the Court cannot put a price on one's reputation" (Salé at para 12).

The tort of passing off – and its statutory counterpart at Section 7(b) of the Trademarks Act (RSC 1985, c T-13) – protects against misrepresentations stemming from the unauthorised use of a person's name or likeness, rather than with misappropriations. It may be used to prevent a person from misrepresenting his or her goods and services as those of another, or from suggesting that those goods and services are sponsored by or associated with that individual (Asbjorn Horgard A/S v Gibbs/Nortac Industries Ltd (1987), 14 CPR (3d) 314 at 327 (FCA)).

The Supreme Court of Canada in Ciba- Geigy Canada Ltd v Apotex Inc ([1992] 3 SCR 120) set out the three passing-off components:

  • the existence of goodwill in the mark;
  • deception of the public due to a misrepresentation; and
  • potential or actual damage to the plaintiff.

Historically, it was difficult for individuals to meet this test unless both parties shared a common field of activity. However, the tort has been expanded and the defendant's product or business need only be seen as "approved, authorized or endorsed by the plaintiff" (National Hockey League v Pepsi-Cola Canada Ltd (1992), 42 CPR (3d) 390 at 401 (BCSC); Salé, supra). The public must still be able to distinguish the individual in the defendant's materials. A deceptive misrepresentation can occur only if there is an association between the individual and the defendant's unauthorised use.

The Privacy Acts for Manitoba, British Columbia, Saskatchewan and Newfoundland each create statutory actions similar to the misappropriation of personality tort, but which are both broader and narrower. For example, the statutes make access to relief easier by making misappropriations "actionable without proof of damage". Under the British Columbia statute, a former Wal-Mart employee was granted C$15,000 in damages after Wal-Mart used his photograph in its advertising without permission. Further, British Columbia's statute does not require that the individual be identifiable. Other aspects of the statutes restrict the action. Intent is needed, which raises the required level of culpability. Protected aspects of personality are enumerated and restricted to "name or portrait" (British Columbia) and "name or likeness or voice" (other provinces). Death extinguishes the right, except in Manitoba.

In Quebec, personality rights are protected through privacy principles in the Civil Code of Quebec (SQ 1991, c 64). Section 36 relates to invasion of privacy caused by use of a person's "name, image, likeness or voice for a purpose other than the legitimate information of the public". A second, broader action based on Section 5 of the Quebec Charter of Human Rights and Freedoms (RSQ c C-12) provides that "every person has a right to respect for his private life". The nexus between privacy and personality under Section 5 was described by the Supreme Court of Canada in Aubry v Éditions Vice-Versa Inc ((1998), 78 CPR (3d) 289 (SCC)): "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" (Aubry at 307). In Aubry a non-celebrity objected to the use of her photograph in a magazine that was taken without permission while she sat in a public place.

In addition to Section 7(b), Section 9 of the Trademarks Act contains prohibitions against:

  • the adoption, in connection with a business, of any marks that falsely suggest a connection with any living individual (Section 9(1)(k)); or
  • marks that are, or may be mistaken for, the portrait or signature of any individual who is living or has died within the preceding 30 years (Section 9(1)(l)), without his or her consent.

Even with consent, Section 12 prohibits trademark registrations comprising the "name or surname of an individual who is living or had died within the preceding thirty years", unless that name has become distinctive of the applicant.

With the growth of internet-based services such as Twitter and Instagram, online advertising and cloud-based services storing personal information, misappropriation of identity or personality cases may become more common. The legal ramifications of these new services and practices are already being felt. In May, a British Columbia Court certified a class action lawsuit against Facebook under that province's Privacy Act, seeking damages for the unauthorised use of Facebook users' names and images as part of the site's Sponsored Stories feature, which creates ads containing a Facebook user's name and image, and targets that advertisement to other users (Douez v Facebook, Inc, 2014 BCSC 953). This is a case to watch, as it may be just the tip of the iceberg.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Jill Jarvis-Tonus
Tamara Céline Winegust
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.