B.C. Court docket Of Attraction Confirms There Is No “Federal Frequent Regulation” Privateness Tort, However Suggests The Existence Of A Provincial Privateness Tort Is An “Attention-grabbing Query” – Privateness

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B.C. Court Of Appeal Confirms There Is No “Federal Common Law” Privacy Tort, But Suggests The Existence Of A Provincial Privacy Tort Is An “Interesting Question”

23 September 2020

McCarthy Tétrault LLP

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Over the last two decades, British Columbia’s courts have
consistently held that there is no common law tort for breach of
privacy (or intrusion upon seclusion) in British Columbia because
of the similar statutory cause of action under the Privacy Act, R.S.B.C. 1996, c. 373.
In Tucci v. Peoples Trust Company, 2020
BCCA 246, the Court of Appeal confirmed that there is no separate
“federal common law” privacy tort, including intrusion on
seclusion. While noting the decades of cases rejecting the
existence of a provincial common law tort for breach of privacy,
the Court noted (in obiter) it was an “interesting
question” for a future case.

Tucci is a class action arising from a data breach. The
representative plaintiffs alleged various causes of action
including breach of contract, negligence, breach of privacy, and
intrusion upon seclusion. The statutory cause of action in the
Privacy Act did not apply.

Below, the chambers judge certified the
proceeding as a class proceeding. He determined that the tort
claims for breach of privacy and intrusion upon seclusion were
bound to fail under the law of British Columbia, but that the
plaintiffs may be able to advance them under “federal common
law”.

The Court of Appeal found that the chambers judge erred by
allowing the plaintiffs to proceed under “federal common
law”. The Court noted that privacy torts are not an exclusive
area of federal jurisdiction. There are not separate federal and
provincial common law regimes. And even if there were, a plaintiff
cannot choose which one applies to its claim.

The decision is significant because recognizing a federal common
law tort could have permitted plaintiffs to bring common law
privacy claims in jurisdictions like British Columbia with
legislation like the Privacy Act.

The Court went on, however, to comment that it was
“unfortunate” that the plaintiffs did not appeal the
chambers judge’s conclusion that the torts did not exist in
British Columbia because “the time may well have come for (the
court of appeal) to revisit” the issue (para. 55).

After reviewing the judgments for the proposition that the torts
do not exist, the Court commented that they were largely conclusory
and perhaps outdated (paras. 64 and 66-67):

The thread of cases in this Court that hold that there is no
tort of breach of privacy, in short, is a very thin one. There has
been little analysis in the cases, and, in all of them, the
appellants failed for multiple reasons.

Today, personal data has assumed a critical role in people’s
lives, and a failure to recognize at least some limited tort of
breach of privacy may be seen by some to be anachronistic.

For that reason, this Court may well wish to reconsider (to the
extent that its existing jurisprudence has already ruled upon) the
issue of whether a common law tort of breach of privacy exists in
British Columbia.

Because the Tucci plaintiffs did not appeal the
chambers judge’s conclusion, the Court of Appeal left the issue
unresolved. The comments are not binding on any future cases, but
will likely cause the issue to be litigated at the certification
stage of other privacy-based class actions in the near future.
 The decision is unlikely to spur filing of new cases, but may
change the causes of action plaintiffs plead.

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