Extraits pertinents :

1  The Court is seized of a “Requête en dommages pour atteinte à la vie privée” based upon the unauthorized use of a photograph of Petitioner, in a publicity brochure published by the Respondent Les Brasseurs du Nord Inc. (“Les Brasseurs”), the said brochure having been designed and prepared for the latter by the Co-Respondent, AB Communications.

4  The “tam-tam” sessions are said to attract hundreds of individuals on Sunday afternoons in the summer, some of whom play various musical instruments, others simply stroll and socialize.

5  A representative of AB Communications testified that once the photo selection was made, one of its representatives returned on a Sunday afternoon to the site where the photographs had been taken so as to locate the Petitioner with a view to obtaining his authorization for the use of the photograph. The Petitioner could not be found.

6  The brochure of Les Brasseurs is rather sophisticated in appearance, in that it is multi-coloured, printed on glossy paper and folded several times so that the offending photograph is to be found on the back outside page. To appreciate the relative proportions of the offending photograph and the brochure, the former comprises 4.5 square inches while the entire brochure (recto/verso)measures 320 square inches.

8  Evidence was adduced by Les Brasseurs to the effect that the promotion per se was unsuccessful in that the gross profit on the sale of the featured articles did not even cover the cost of production of the brochure.

10  Petitioner, who is 48, testified that he is the owner of a photography store serving primarily professional photographers and the advertising industry. He himself is also engaged in certain aspects of the advertising industry which include the preparation of brochures and catalogues for a variety of industries. In that capacity he often engages the services of professional models and isconsequently aware of the necessity of appropriate consent and release forms being obtained.

12  Petitioner testified that he was “choqué”, “ma conjointe m'a calmé”, “ça m'a dénaturé le moment”.

14 What seemed to be most hurtful was the fact that the appearance of his image in the brochure conveyed a message of some kind of relationship with, or endorsement of the sponsoring brewery, a notion he vigorously resented.

18 The uncontradicted evidence is to the effect that the cost of obtaining an appropriate photograph from or through a professionally operated “photo bank” would have been in the order of $540.00....

19 Among the relevant provisions of law are articles 35 and 36(5) of the Quebec Civil Code which provide as follows:

35. Toute personne a droit au respect de sa réputation et de sa vie privée.

Nulle atteinte ne peut être portée à la vie privée d'une personne sans que celle-ci ou ses héritiers y consentent ou sans que la loi l'autorise.

36. Peuvent être notamment considérés comme desatteintes à la vie privée d'une personne les actes suivants:

(1) Pénétrer chez elle ou y prendre quoi que ce soit;

(2) Intercepter ou utiliser volontairement une communication privée;

(3) Capter ou utiliser son image ou sa voix lorsqu'elle se trouve dans des lieux privés;

(4) Surveiller sa vie privée par quelque moyen que ce soit;

(5) Utiliser son nom, son image, sa ressemblance ou sa voix à toute autre fin que l'information légitime du public.

20  In addition, articles 4 and 5 of the Charte des droits et libertés de la personne (L.R.Q. Chap. C-12) provide:

4. Toute personne a droit à la sauvegarde de sa dignité, de son honneur et de sa réputation.

5. Toute personne a droit au respect de sa vie privée.

21  The wrongful nature of the acts of photographing and publishing the photo in question are not denied.

22. The Supreme Court of Canada case of Les Éditions Vice-Versa Inc. et Gilbert Duclos c. Pascale Claude Aubry et Canadian Broadcasting Corporation, ( 1998 CanLII 817 (SCC), [1998] 1 R.C.S. 591 ) dealt with the claim of a 17 year old girl who was photographed sitting on the steps of a building, the said photograph having been published without her consent. By a majority decision the court confirmed the twolower courts awards of moral damages in the amount of $2,000.00. The minority opinion would have dismissed the claim on the ground that the evidence was insufficient to conclude that the wrongful dissemination of the photograph caused the claimant moral prejudice.

23  At para. 54 the following observation is made distinguishing the notion of respect for one's private life and that of injury to one's honour and reputation in the following terms:

The right to respect for one's private life should not be confused with the right to one's honour and reputation under s. 4 of the Quebec Chartereven though, in certain cases, wrongful publication of an image may in itself result in an injury to one's honour and reputation. Since every person is entitled to protection of his or her privacy, and since the person's image is protectedaccordingly, it is possible for the rights inherent in the protection of privacy to be infringed even though the published image is in no way reprehensible and has in no way injured the person's reputation. (Emphasis added)

28  The present Petitioner has succeeded in establishing that the publication in question constitutes a failure on the part of the Co-Respondents to respect his private life while at the same time injuring his honour and reputation. In my respectful opinion Petitioner is entitled to moral damages in the amount of $2,500.00 for intrusion upon his private life and a further sum of $2,500.00 forinjury caused to his honour and reputation. Exemplary damages in the amount of $1,000.00 will be awarded to Petitioner.

29  The Co-Respondent Les Brasseurs was spared the expense of resorting to a photo bank for the selection of an appropriate photograph for its brochure and accordingly it enjoyed an unjustified enrichment in the amount of $540.00 which it will be condemned to pay Petitioner.

For the Foregoing Reasons:

30  Co-Respondents Les Brasseurs du Nord Inc. and AB. Communications are condemned jointly and severally to pay Petitioner the sum of $6,000.00;

31  CO-RESPONDENT Les Brasseurs du Nord Inc. is condemned to pay Petitioner a further sum of $540.00, with interest and costs.