Privacy is important. It is a matter of much current debate as
changes in technology and the law arguably makes it more difficult
to maintain and protect. Does the internet make privacy impossible?
Is the passage of Bill C-51 a threat to individual privacy? Is the
escalating use of drones a privacy concern? The answers to these
questions are varied and uncertain. But how does the law treat
To begin, there is no common-law claim for breach of privacy. As
a result, in B.C. the Legislature enacted the Privacy Act
which came into force in December 2007. The Privacy Act is
short, running to only five sections. It creates a
"statutory tort" making it unlawful for anyone
"wilfully and without a claim of right, to violate the privacy
of another." However, the nature and degree of privacy a
person is entitled to is only "that which is reasonable in the
circumstances, giving due regard to the lawful interests of
others." Further, in determining if there has been a breach of
privacy, the court will look at "the nature, incidence and
occasion of the act or conduct and to any domestic or other
relationship between the parties." This seems simple enough
but, in practice, is very difficult to assess given the myriad
situations and the individual sensitivities that could give rise to
a privacy concern.
As with many areas of the law, assessing whether a breach of
privacy has taken place often involves looking at past cases and
how the courts dealt with them. Of particular importance are
decisions from appeal courts which define the law and its
application. The Privacy Act has not had a lot of
appellate consideration to date. However, a recent appellate
decision, Fouad v. Wijayanayagam, does provide
some guidance. The decision establishes that a person's motive
in seeking information will not turn an otherwise lawful
information request into a breach of privacy. Put another way, if
the impugned conduct was not itself a privacy breach, the fact it
was undertaken for "nefarious" motives is irrelevant.
In this case, Dr. Fouad sued Dr. Wijay for invasion of privacy
relying on the Privacy Act. Within the context of a wider
dispute among a number of doctors, Dr. Wijay called the local
hospital and sought information about Dr. Fouad's
qualifications. This was done, in part, to sow doubt about Dr.
Fouad. The trial judge found this conduct to be a violation of the
Privacy Act. He reasoned that simply asking for access to
private information about Dr. Fouad with such a motive was a breach
of privacy. The Court of Appeal disagreed on two grounds.
First, an unfulfilled request for private information does not
amount to a privacy breach. In other words, simply asking for
information which you are not given is not a privacy breach.
Second, a lawful request for otherwise publicly available
information, whatever the motive of the person asking, cannot be
turned into a breach of privacy.
If you are seeking sensitive personal information about someone,
you should be mindful of the limits imposed by the Privacy
Act. Before you go too far, it may be wise to consider what a
court would make of your request. If there is any doubt about it,
you would be better not to make the request and invite a
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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