Krouse v Chrysler Canada Ltd

Krouse v. Chrysler Canada Ltd.
Court	Ontario Court of Appeal
Citation(s)	(1973) 40 D.L.R. (3d) 15 (Ont. C.A.), (1973) 13 C.P.R. (2d) 28
Case history
Appealed from	Ontario Superior Court of Justice, Krouse v. Chrysler Canada Ltd., (1971), 5 C.P.R. (2d) 30
Case opinions
Decision by	Estey J.A.

Krouse v. Chrysler Canada Ltd. is generally thought to be the first case to clearly acknowledge the existence in Canada of a tort of appropriation of personality.

Bob Krouse was a well-known professional football player with the Hamilton Tiger-cats who played as the number 14. Grant Advertising was an advertising firm whose clients included Chrysler Canada. In 1969, Grant had produced an advertising scheme for Chrysler which included a cardboard scorecard that was distributed to the public. The scorecard was known as the "Plymouth Pro Football Spotter" which allowed football fans to track scores. On the Spotter was an image of Krouse from behind with his number 14 clearly visible.

Krouse sued Chrysler for use of his image without his consent.

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

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 [had] 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:

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:

[o]ne would think that the wrongful appropriation of that which in the business world has commercial value and is traded daily must ipso facto involve a property right which the Courts protect. Property being an open-ended concept to protect the possession and use of that which has measurable commercial value, logic seems to impel such a result.

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.

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