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for the proposition that the torts do not exist, the Court commented that they were largely conclusory and perhaps outdated (paras. 64 and 66-67):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.
By Patrick Williams
McCarthy Tétrault LLP
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