Monday, July 29, 2013

B.C. Supreme Court re-affirms: No Common Law Tort of Invasion of B.C.

On July 22, 2013, Madame Justice Russell of the Supreme Court of British Columbia struck out a plaintiff’s claim alleging breach of the common law right to privacy. In Ari v. Insurance Corporation of British Columbia, the Defendant ICBC, a provincial crown corporation, made an application to strike out the Plaintiffs' claims for breach of privacy. 

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The Plaintiffs (a class comprising over 60 individuals) claim that an employee of ICBC accessed their information “wilfully and without a claim of right” for an unauthorized purpose. As a result of this breach of their privacy, the Plaintiff’s claim that they had their homes and vehicles broken into and became the victims of shootings and arson. 

The class action was built on a cocktail of legal bases: Common law tort, the Privacy Act, and the Freedom of Information and Protection of Privacy Act (FIPPA). While the Court allowed the action to precede based on violation of the Privacy Act, it stuck the claims based on FIPPA and tort. 

With reference to the claim under the common law, the Court was nothing if not blunt:

[63]        There is no common law tort of invasion or breach of privacy in British Columbia: Hung v. Gardiner, 2002 BCSC 1234 (CanLII), 2002 BCSC 1234 (affirmed 2003 BCCA 257 (CanLII), 2003 BCCA 257) at para. 110; Bracken v. Vancouver Police Board, 2006 BCSC 189 (CanLII), 2006 BCSC 189 at para. 28
Justice Russell did not find the recent decision of the Ontario Court of Appeal in Jones v. Tsieg persuasive enough to import the newly crafted tort of intrusion upon seclusion into the law of British Columbia. In her ruling, she distinguished the case based on the type of information that was taken in that case and the case before her. In Jones, the Plaintiff’s banking information was taken whereas in Ari, it was the Plaintiffs’ names and home addresses. 

I found it somewhat curious that Justice Russell explicitly accorded a lower degree of protection for information such as a person’s name and address compared with their banking information. While banking information is of a highly confidential nature, so too is ones name and home address. In this very case, the lives and property of the Plaintiffs were put in immense danger as a result of the employee’s conduct. 

It is worth noting that the Plaintiffs have not yet proven the veracity of the facts upon which their claim is based. However, on a motion or application to strike out a pleading, the claim is only to be struck if, assuming all the facts plead are true, there is no reasonable cause of action. I would think that if it is true that these 60 plus people were shot at, robbed, and had their cars and homes burned, the conclusion that citizens should enjoy a lesser degree of privacy in information like their name and address is patently absurd. 

In one sense I understand Justice Russell’s position. Given the fact that a person’s name and address are more easily accessible to the public than their banking information, misconduct involving the latter is more egregious than misconduct involving the former. There is a higher standard of confidentiality associated with one's finances than their name and address. Still, a person’s name and address are “information about an identifiable individual” which is the definition of personal information utilized by a number of privacy statutes at the federal and provincial levels, including the Privacy Act. In that regard, the fact that a person’s banking information is “more secret” than their name and address is irrelevant. 

The Plaintiffs still have time to appeal this decision. Given the fact that Justice Russell made an unequivocal statement of law that that there exists no common law cause of action for breach of privacy, it is not inconceivable that the B.C. Court of Appeal may like to weigh in.

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