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Torts - Appropriation of Personality. Del Giudice v. Thompson
In Del Giudice v. Thompson (Ont CA, 2023) the Court of Appeal considered whether various causes of action emanating from data hacking were made out, here in determining whether causes of action where pleaded in class certification purposes.
Here the court considers the tort of 'misappropriation of personality':ii. Misappropriation of personality
[36] The motion judge held that it was not appropriate to extend the tort of misappropriation of personality to the circumstances alleged. As developed in Ontario, misappropriation of personality protects against the usurpation of a plaintiff’s right to control or market his or her personality for commercial purposes: Wiseau Studios, LLC v. Harper, 2020 ONSC 2504, 174 C.P.R. (4th) 262, at paras. 212-13.
[37] Again, the interests protected by the tort do not arise from the facts as pleaded. No party is alleged to have lost any commercial interests in the exploitation of their own personality as a result of the alleged data misuse. What the appellants have proposed is not a principled extension to an existing tort, but rather the creation of an entirely new cause of action with entirely different elements. The motion judge was justified in not allowing the claim to proceed. . Hategan v. Frederiksen
In Hategan v. Frederiksen (Ont CA, 2022) the Court of Appeal briefly considered the rare tort of appropriation of personality:[48] The tort of appropriation of personality was recently discussed in Wiseau Studio, LLC et al. v. Harper et al., 2020 ONSC 2504, an authority relied upon by both the appellant and the respondent Frederiksen. In general, the tort is established when a person’s personality has been appropriated, “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”: Wiseau, at para. 212. ....
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