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
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