



COURT OF APPEAL FOR ONTARIO

CITATION: Zigomanis v. 2156775 Ontario
    Inc. (D'Angelo Brands), 2018 ONCA 116

DATE: 20180206

DOCKET: C63053

LaForme, Rouleau and Paciocco JJ.A.

BETWEEN

Michael Zigomanis

Plaintiff (Respondent)

and

2156775 Ontario Inc. o/a DAngelo Brands

Defendant (Appellant)

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 DAngelo
    Brands (DAngelo), 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 DAngelo 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, DAngelo 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. DAngelo
    claimed that this event violated the morals clause and undermined Mr. Zigomaniss
    positive image as a brand ambassador, depriving DAngelo 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 DAngelos 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. Zigomaniss 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]

DAngelo now appeals that decision. At the end of the oral hearing, the
    appeal was dismissed with reasons to follow. These are the reasons.

[7]

Although DAngelo 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 DAngelo impelled the
    trial judge to accept that the community was shocked by Mr. Zigomaniss
    conduct. Mr. Zigomaniss 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 communitys 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.
    Zigomaniss act in sharing those photos only with an intimate party.

[9]

The trial judges 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.

[10]

The
    appeal is therefore dismissed. As agreed between the parties, DAngelo 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.


