Did The Court Of Appeal Open The Door For A "Breach Of Privacy Tort" In BC?

• Published date: 25 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Trials & Appeals & Compensation
• Law Firm: Lindsay Kenney LLP
• Author: Mr Matthew Stainsby and Jasmin Chohan

In Tucci v. Peoples Trust Company ("Peoples Trust"), the British Columbia Court of Appeal commented on the need to protect individual's right to privacy in an increasingly digital society.

The defendant, Peoples Trust Company, provided various financial services, and in turn their clients gave the company permission to use and store information in connection with the provision of services. Peoples Trust stored this information on an unencrypted database on its webserver and suffered a data breach as a result. Cyber-attackers obtained personal information including: names addresses, email addresses, telephone numbers, dates of birth social insurance numbers, and occupations.

At trial, the plaintiffs acknowledged that the common law tort of breach of privacy had not been recognized in British Columbia but argued that the choice of law clause "adopts federal common law". The plaintiffs also encouraged the Court to "keep in play" the intrusion upon seclusion claim in British Columbia. The significance of intrusion upon seclusion being recognized in British Columbia is that, while the B.C. Privacy Act prohibits intentional conduct, the tort of intrusion upon seclusion is broader because it includes reckless conduct within its definition of intention.

However, at paragraph 155 of the decision, the trial judge held that "defining the elements of the tort was a policy decision the legislature was entitled to make, and one which ought not to be undercut by this Court's development of a substantially identical but slightly broader common law tort. If, as the plaintiff argues, the B.C. Privacy Act requires updating to deal with societal changes, that is a task for the legislature".

No appeal was taken from the trial judge's ruling on this issue, yet the Court of Appeal decided to address the jurisprudence on the tort of breach of privacy. Specifically, the Court noted the lack of analysis in three separate cases that are commonly cited for the conclusion that no common law claim for breach of privacy exists in B.C.

• In Hung v. Gardiner, 2003 BCCA 257, the chambers judge dismissed the plaintiff's common law breach of privacy claim and held at paragraph 110 of the decision that the plaintiff did not provide any authorities that persuaded the court of such common law tort. However, the Court of Appeal in Peoples Trust clarifies that the decision does not stand for the proposition that no common law tort of breach of privacy tort exists because the case did not...