Court of Appeal for Ontario

Date: 2018-02-06 Docket: C63053

Judges: LaForme, Rouleau and Paciocco JJ.A.

Between

Michael Zigomanis Plaintiff (Respondent)

and

2156775 Ontario Inc. o/a D'Angelo Brands Defendant (Appellant)

Counsel

Gregory N. Hemsworth, for the appellant

David A. Whitten and Simone Ostrowski, for the respondent

Heard: February 2, 2018

On appeal from: the judgment of Justice David G. Stinson of the Superior Court of Justice, dated November 14, 2016.

Reasons for Decision

[1] In May 2011, 2156775 Ontario Inc., carrying on business as D'Angelo Brands ("D'Angelo"), entered into a promotional contract with professional hockey player Michael Zigomanis. Mr. Zigomanis was on a two-way contract with the Toronto Maple Leafs at the time. The promotional contract provided that Mr. Zigomanis would receive periodic payments in the minimum amount of $200,000 over four years, provided he exercised unilateral extension options available to him.

[2] The contract contained a "morals clause". The morals clause, clause 10(b)(iii), read in material part that D'Angelo could terminate the contract if the "athlete commits any act which shocks, insults, or offends the community, or which has the effect of ridiculing public morals and decency".

[3] In February 2012, D'Angelo purported to terminate the contract. The basis for termination that is material to this appeal was the internet publication by persons unknown of nude photographs of Mr. Zigomanis that Mr. Zigomanis had sent his then girlfriend, prior to signing the contract. D'Angelo claimed that this event violated the morals clause and undermined Mr. Zigomanis's positive image as a "brand ambassador", depriving D'Angelo of what it had bargained for.

[4] Mr. Zigomanis sued successfully for wrongful termination of the contract. The trial judge held that according to the terms of the contract, Mr. Zigomanis agreed to promote D'Angelo's product, not serve as a brand ambassador. The trial judge also held that the morals clause was not offended by the private transmission of nude photographs within a relationship, and that, in any event, this act occurred before the contract was entered into and the morals clause is not retrospective.

[5] The trial judge also accepted Mr. Zigomanis's testimony that Mr. Zigomanis intended to exercise his option to continue with the contract for four years. The trial judge therefore awarded damages in the amount of $162,500, representing the outstanding periodic payments provided for over the four years of the contract.

[6] D'Angelo now appeals that decision. At the end of the oral hearing, the appeal was dismissed with reasons to follow. These are the reasons.

Analysis

[7] Although D'Angelo raised several grounds of appeal, its counsel agreed during the oral hearing that, given the overlap between issues, the appeal could not succeed unless the trial judge made a palpable and overriding error in failing to find that sharing nude photographs within an intimate relationship would shock the conscience of the community. We find no such error.

[8] We do not accept that the evidence identified by D'Angelo impelled the trial judge to accept that the community was shocked by Mr. Zigomanis's conduct. Mr. Zigomanis's understandable, subjective desire to suppress publication of the photographs and to distance himself from them is evidence only of his desire for privacy, not of the community's reaction. Meanwhile the widespread public interest that was generated when it became known that the photographs were online says nothing about the community reaction to Mr. Zigomanis's act in sharing those photos only with an intimate party.

[9] The trial judge's conclusion that the community conscience would not be shocked was his to make. It was rooted, appropriately, in the timeless human practice of sharing intimate information within relationships, the inherent expectation of privacy when doing so, and the public policy reflected in recent legislation protecting the privacy of such communications in the internet age. We would not interfere with that finding.

Disposition

[10] The appeal is therefore dismissed. As agreed between the parties, D'Angelo is ordered to pay costs on this appeal in the amount of $12,500 plus H.S.T.

"H.S. LaForme J.A."

"Paul Rouleau J.A."

"David M. Paciocco J.A."