BC vs Ontario: BC Supreme Court Confirms No Common Law Tort For Invasion Of Privacy

The Supreme Court of British Columbia recently confirmed that there is no common law tort of invasion of privacy in that province. This is in contrast to an earlier decision from the Ontario Court of Appeal which accepted such a cause of action.

Background

In January, 2012, the Ontario Court of Appeal released Jones v Tsige,1 in which it held that there is a tort of invasion of privacy in Ontario. Sharpe JA, writing for the court, canvassed jurisprudence from the US and Commonwealth countries and determined that, to reflect the technological changes of modern times, there must be a tort of invasion of privacy or "intrusion upon seclusion."2 Sharpe JA adopted the elements of the cause of action from The American Law Institute's Restatement (Second) of Torts (2010):

the defendant's conduct must be intentional or reckless; the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.3 Notably, proof of damage is not a necessary element of this intentional tort.4

[For more on the Ontario decision, see this article.]

In the more recent British Columbia case of Demcak v Vo,5 the plaintiff was the sub-tenant of a property and the defendants were the head-tenant, a management company acting as agent of the property owner, and the City of Richmond. The City had received a complaint about the use of the property and, after written notice, representatives of the City and the management company inspected the property. In particular, the plaintiff alleged that the City and the management company forced themselves into and inspected some recreational vehicles that were the subject of the complaint.6

The Decision in Demcak v Vo

In reasons dated May 22, 2013, the Supreme Court of British Columbia held that "No common law tort of invasion or breach of privacy exists in British Columbia."7 The court cited two decisions for this proposition: Hung v Gardiner8 and Bracken v Vancouver Police Board.9 In Hung v Gardiner, the Supreme Court of British Columbia held that the existing case law was insufficient to stand for the proposition that there is a generally recognized common law tort of invasion of privacy.10 In Bracken v Vancouver Police Board, the Supreme Court of British Columbia cited Hung v Gardiner and did not engage in any further analysis.11

It is worth noting that the plaintiff in Demcak v Vo was...