Canada: 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):

1. the defendant's conduct must be intentional or reckless;
2. the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and
3. 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 a self-represented litigant whose two previous statements of claim connected to this matter had been struck out by Masters.¹² The plaintiff did not specifically argue invasion of privacy, the court's decision was very short, and one can be fairly certain that legal doctrine was not robustly argued at the hearing.

Significance

The decision in British Columbia appears to stand in stark contrast with the decision from Ontario. However, it should be noted that British Columbia is one of four provinces that have a statutory tort for invasion of privacy which is substantially similar to the Ontario common law tort¹³ (the other three provinces being Saskatchewan,¹⁴ Manitoba¹⁵ and Newfoundland and Labrador¹⁶). The court in Demcak v Vo considered the statutory tort and concluded that it did not apply since the defendants were lawfully entitled to enter the plaintiff's residence.¹⁷ It is possible that the existence of a statutory cause of action in British Columbia precluded the court from seriously considering the common law tort.

It is interesting to note that in a 2011 decision, the Alberta Court of Queen's Bench rejected the common law tort of invasion of privacy even though there is no statutory equivalent in Alberta; rather, the court held that if any damages could be awarded for invasion of privacy, the only recourse is under the Personal Information Protection Act¹⁸after the Privacy Commissioner finds that there was a breach of privacy.¹⁹

As Sharpe JA noted, "The question of whether the common law should recognize a cause of action in tort for invasion of privacy has been debated for the past one hundred and twenty years."²⁰ The debate in Canada is clearly far from over, and it will be interesting to see whether other jurisdictions adopt a common law cause of action (as in Ontario), enact a statutory cause of action (as in BC), or both.

* Ryan MacIssac is an Articling Student at McCarthy Tétrault.

Footnotes

^{1.Jones v Tsige, 2012 ONCA 32.}

^{2.Ibid at para 65.}

^{3.Ibid at para 71.}

^{4.Ibid at para 74.}

^{5.Demcak v Vo, 2013 BCSC 899.}

^{6.Ibid at para 7.}

^{7.Ibid at para 8.}

^{8.Hung v Gardiner, 2002 BCSC 1234 at para. 110 ,aff'd on other grounds 2003 BCCA 257.}

^{9.Bracken v Vancouver Police Board, 2006 BCSC 189.}

^{10.Hung v Gardiner, supra at para 110.}

^{11.Bracken v Vancouver Police Board, supra at para 28.}

^{12.Demcak v Vo, supra at para 4.}

^{13.Privacy Act, RSBC 1996, c 373, s 1.}

^{14.The Privacy Act, RSS 1978, c P-24, s 2.}

^{15.The Privacy Act, CCSM c P125, s 2.}

^{16.Privacy Act, RSNL 1990, c P-22, s 2.}

^{17.Demcak v Vo, supra at paras 9-12.}

^{18.Personal Information Protection Act, SA 2003, c P-6.5, s 60.}

^{19.Martin v General Teamsters, Local Union No 362, 2011 ABQB 412 at paras 43-48.}

^{20.Jones v Tsige, supra at para 15.}

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