The British Columbia Supreme Court confirmed in Demcak v
Vo, 2013 BCSC 899 that there is no common law tort for breach
of privacy in BC and that privacy claims are limited to the
statutory remedies found under BC's Privacy
Act.1 Moreover, where statutes expressly provide
for powers of inspection, privacy claims will typically not
succeed. The new common law cause of action for "intrusion
upon seclusion" which has been recognized in other Canadian
jurisdictions continues to be unrecognized in BC in favour of
existing statutory remedies.
The Plaintiffs were two sub-tenants of a residential property in
Richmond. A complaint was filed with the City of Richmond
concerning the use of the property, and after an inspection the
City ordered the removal of recreational vehicles owned by the
Plaintiffs and stored on the property. The vehicles were not
removed, leading to the head tenant issuing a notice to end tenancy
and a hearing before the Residential Tenancy Branch between the
Plaintiffs and the landlord of the building. This hearing resulted
in an order that the sub-tenants vacate the property.
The sub-tenants then launched an action against a number of
parties including the landlord, the property management firm that
acted on behalf of the property owner, and the City of Richmond.
The plaintiffs alleged, among other things, that the inspection of
the property including entry into the impugned vehicles,
photographs taken of the vehicles, and searching through the
vehicles was in violation of their privacy rights. The Plaintiffs
did not specifically make any claims for remedies under the
Privacy Act, leading the Court to have to consider whether
other common law torts of breach of privacy or "intrusion upon
seclusion" could exist in BC, in addition to the statutory
tort created by the Privacy Act.
The Court decision
The Court quickly dismissed this claim, holding that a common
law tort for breach of privacy, or "intrusion upon
seclusion," in British Columbia does not exist. The Court
referenced earlier decisions in Hung v
Gardiner2and Bracken v Vancouver Police
Board3to support this assertion. Hung v
Gardiner directly rejected the argument that a common law tort
of invasion of privacy exists in addition to the tort created by
the Privacy Act. Bracken v Vancouver Police
Board4similarly stated that the "common law
does not include a tort of invasion of privacy." These two
decisions predated the 2012 Ontario decision which did recognize
the new common law tort of breach of privacy in that jurisdiction.
The Court in Demcak v Vo expressly rejected the newer
approach taken in Ontario.
In the present case, the Court emphasized the presence of a
statutory tort for breach of privacy under the Privacy
Act,5 and concluded that the correct course in
determining whether there was an actionable violation of privacy
was to consider whether the inspections conducted by City officials
were within the scope of the statutory tort. Ultimately the
impugned inspections were found to be authorized by s. 16 of the
Community Charter,6 which provides statutory
authorization for the City to enter and inspect property. This
trumped any claim for breach of privacy.
The claims against the landlord were similarly dismissed by
reference to s. 29(1) of the ResidentialTenancy
Act,7 which authorizes the owner or landlord of a
rented residential property to inspect the property with notice
being given at least 24 hours ahead of time. In this case, both the
City and the landlord gave written notice of inspection in
compliance with statutory requirements, meaning that the
inspections were authorized by law.
The claims of the plaintiffs failed first on the grounds that a
common law tort of breach of privacy does not exist in British
Columbia, and then on the grounds that the alleged breach was
statutorily authorized and therefore not in the scope of the
statutory tort for breach of privacy. It is plain that parties
hoping to expand the available claims for privacy breaches will be
unlikely to find any judicial support in British Columbia any time
1Privacy Act, RSBC 1996, c.
2 Hung v Gardiner,
2002 BCSC 1234 at para 110 aff'd 2003 BCCA 257
3 Bracken v Vancouver Police
Board, 2006 BCSC 189 at para 28
4 Bracken, supra note
5 Privacy Act, RSBC
1996, c 373 s 1.
6 Community Charter,
SBC 2003, c 26.
7 Residential Tenancy
Act, SBC 2002, c 78.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
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