Canada: The Tort Of Invasion Of Privacy – Is The Law Changing In BC?

A recent decision from British Columbia has highlighted the uncertainty around the existence of the common law tort of invasion of privacy, at least in that province.  In Tucci v. Peoples Trust Company, 2015 BCSC 987, an action under the Class Proceedings Act, R.S.B.C. 1996, c. 50, the plaintiff alleges that the defendant, the People's Trust Company ("PTC"), allowed its confidential financial information to be illegally accessed by "cybercriminals". The action seeks to hold PTC liable for the breach of privacy of the hundreds of individuals who provided their personal information to PTC.

Even before there had been a certification hearing in the action, PTC sought leave to bring an application to dismiss it, alleging that the pleadings did not disclose a cause of action and should therefore be struck.  As the general rule is that the certification hearing must proceed before such a procedural application, PTC had the onus to provide a "compelling reason" or show "exceptional circumstances" to show that its application should be heard before the certification.  The motions judge declined PTC's application, and his reasoning indicates that changes may be afoot on the issue of whether the tort of invasion of privacy is available to plaintiffs in the province.

A line of case law in British Columbia has held that there is no common law tort of invasion of privacy in British Columbia, with the two most recent decisions being Ari v. Insurance Corporation of British Columbia, and Cook v. The Insurance Corporation of British Columbia.  PTC relied on these decisions as "exceptional circumstances" which justified allowing its application to strike the action prior to the certification hearing.  However, Masuhara J. noted that both of these decisions are currently under appeal, with the appeal in Ari to be heard in October of 2015.  Given that the existence of a cause of action is one of the issues to be decided at the certification hearing, the judge preferred to leave the issue, noting that "the appeal decisions could very well be available by the time of the hearing."

The appeal decisions in Ari and Cook could well provide some clarity on the question of whether the tort of breach of privacy will become available to plaintiffs in British Columbia.

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