Canada: BC Court Of Appeal Rules Absolute Privilege Precludes Claim For Breach Of Privacy

Last Updated: March 13 2018
Article by Melanie J. Harmer

In British Columbia, alleged breaches of privacy are actionable in court only under the Privacy Act, R.S.B.C. 1996, c. 373. In a departure from the law of Ontario, there is no common law tort of invasion or breach of privacy available to plaintiffs in British Columbia. It is in this context that the British Columbia Court of Appeal recently ruled that British Columbia's statutory cause of action for breach of privacy does not apply to the disclosure of private information during judicial proceedings.

Background

The British Columbia Court of Appeal's decision in Duncan v. Lessing and Lessing Brandon Company LLP, 2018 BCCA 9 involved two claims against a lawyer for breach of privacy under British Columbia's Privacy Act. In the first alleged breach, the Appellant, Mr. Duncan, claimed that his former wife's lawyer had improperly served sensitive information about his finances in a family law proceeding on multiple non-party companies. In the second alleged breach, Mr. Duncan claimed that the lawyer had shared private information about his financial situation with another lawyer during a casual conversation and that this information had been traced back to him and subsequently caused him embarrassment.

Court Dismisses Claims

Both of Mr. Duncan's claims were dismissed.

For the second alleged breach, a finding of fact was made that there was no reasonable expectation of privacy in the circumstances. That was sufficient to dispose of that aspect of Mr. Duncan's claim.

For the first alleged breach, the Court of Appeal held that the effect of section 2(3)(b) of the Privacy Act is to incorporate the absolute privilege that applies in the law of defamation to breach of privacy claims by creating a statutory exemption. Section 2(3)(b) of the Privacy Act provides that "a publication of a matter is not a violation of privacy if the publication was privileged in accordance with the rules of law relating to defamation."

As a result, the question faced by the Court of Appeal in Duncan became: would the disclosure of documents in the case at hand be protected by absolute privilege if the claim were in defamation rather than under the Privacy Act? The Court of Appeal concluded that it would, "since, according to the rules of law relating to defamation, the occasion was one to which absolute privilege attached, the statutory exception in the Privacy Act applies. As such, there was no violation of privacy."1

The Doctrine of Absolute Privilege

In coming to its decision, the Court of Appeal addressed the following questions:

  1. How are privacy interests in the conduct of civil litigation addressed in the common law?
  2. What is the scope of the common law doctrine of absolute privilege?
  3. How does the common law doctrine of absolute privilege apply to claims under the Privacy Act?

On the first two questions, the Court of Appeal discussed the role that the implied undertaking plays in the litigation process, reviewed the scope of absolute privilege, and considered the interaction between the two. While both doctrines work to protect similar public policy interests:

[the] purpose of the implied undertaking is to limit the invasion of privacy interests in civil proceedings without impairing the efficiency of the proceedings. Absolute immunity on the other hand is designed to protect freedom of speech and communication in judicial proceedings.2

Mr. Duncan acknowledged the doctrine of absolute privilege but argued that the conduct of the lawyer should fall outside this immunity due to the fact that the lawyer had unnecessarily combined two separate applications into one, which led to the disclosure of personal information to non-parties upon service. However, the Court of Appeal rejected Mr. Duncan's arguments and stated that he had missed the overall point of the privilege. This is because "[it] is not the nature of the conduct which gives rise to the immunity, but the occasion on which the conduct is performed. A judicial proceeding is a protected occasion within the meaning of the rule."3

On the third question, the Court of Appeal considered how the doctrine of absolute privilege applies to the Privacy Act. In particular, the Court of Appeal diverged from the decision of the trial judge over the breadth of its application. Unlike the trial judge who based her decision on the operation of the doctrine of absolute privilege generally, the Court of Appeal limited their decision to the exemption created under the Privacy Act rather than base it on the doctrine as a whole. The Court of Appeal held that absolute privilege cannot shield a lawyer from any conduct related to a judicial proceeding as claims such as professional negligence and malicious prosecution are based on the conduct of lawyers during litigation and are not defeated by the absolute privilege doctrine.

Takeaways

A notable aspect of the Duncan decision is the clear role that policy considerations played in the Court of Appeal's reasoning. The Court of Appeal relied on passages that characterized the granting of absolute privilege to lawyers as a public benefit as it frees lawyers from the fear that they may be sued for something they did or said in the pursuit of their clients' interests. This public interest is ultimately given a greater weight than the personal interest of privacy. However, the Court of Appeal did acknowledge that the law relating to absolute privilege is not settled in relation to claims other than defamation and breach of privacy and was "reluctant to extend what is an extraordinary immunity unless it is necessary in order to protect the public interest considerations that underlie the immunity."4 

Footnotes

1 Duncan v. Lessing and Lessing Brandon Company LLP, 2018 BCCA 9 at para 62.

2 Duncan at para 55.

3 Duncan at para 53.

4 Duncan at para 8.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2018

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Melanie J. Harmer
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions