The British Columbia Court of Appeal recently confirmed an aggregate damages award under the Privacy Act of $15,000 per class member, without proof of individualized harm. The decision Insurance Corporation of British Columbia v. Ari, 2025 BCCA 131 establishes that in actions for breaches of privacy, courts may award more than nominal damages even where the plaintiff does not prove they suffered any harm beyond the privacy breach itself.
Background
An employee of the Insurance Corporation of British Columbia (ICBC) intentionally accessed the private information of 78 ICBC policy holders, and sold the information of at least 45 policy holders to criminals. Some of these policy holders were later targeted in arson and shooting attacks.
The affected policy holders sued ICBC in a class action. After ICBC was found liable for its employee's wrongful acts, the court held a summary trial to determine aggregate damages for the class as a whole. The plaintiffs did not adduce evidence relating to particular harms experienced by individual class members: the issue was what damages were appropriate for the breach of privacy itself.
The plaintiffs sought general non-pecuniary damages of $25,000 per class member, while ICBC argued the plaintiffs were limited to nominal damages—here, $500—"for the mere fact" of the privacy violation, and that further damages required individual proof of harm The summary trial judge agreed with the plaintiffs but awarded each class member $15,000, "based on the severity of the breach." ICBC appealed the decision.
Appeal Decision
The Court of Appeal's decision addressed one issue: can more than nominal damages be awarded for a breach of s. 1 of the Privacy Act without proof of consequential harm to the plaintiff? The Court of Appeal answered this in the affirmative.
Nominal and General Damages
Nominal damages, typically $1, are generally awarded where a plaintiff establishes the breach of a right, but fails to establish a loss caused by the wrong (e.g., a technical violation of a contract that does not cause harm). The purpose of nominal damages is merely to affirm the infraction of a legal right.
However, the Court of Appeal made clear that courts are not restricted to nominal damages when breach of a right is established without proof of harm. General damages may also be awarded, such as in Vancouver (City) v. Ward, 2010 SCC 27 where the plaintiff was awarded general damages for being subjected to a strip search that breached his s. 8 Charter rights, but suffered no psychological or physical injury. General damages in that case served to compensate plaintiff for harm to the "intangible interests in his dignity and autonomy, and to respond to the intrinsic harms inherent in the violation of his right to privacy under s. 8."
The Court of Appeal held that privacy rights under the Privacy Act protect similarly intangible interests, and deserve similar protections given their quasi-constitutional status. Thus, general damages are available following a breach of the privacy interests protected by s. 1 of the Privacy Act, even where no consequential harm or loss is proven. Limiting the award to nominal damages, regardless of the seriousness of the breach, would reduce the privacy tort "to mere symbolism".
Assessing General Damages Under s. 1 of the Privacy Act
Section 1 of the Privacy Act creates a tort, actionable without proof of harm, for the willful violation of another's privacy.
Assessing the appropriate level of general damages flowing from breach of the right in s. 1, the Court of Appeal held that harm arises from the mere fact that a person's privacy is violated. For this reason, the damages assessment should be "modest or nominal", but not trivial. The general damages award also serves the purposes of deterrence and vindication of the privacy right violated.
The Court of Appeal highlighted that the amount of general damages will depend on the circumstances. ICBC's proposed $500 award trivialized the privacy interest that was violated and was therefore inadequate, given the "flagrant and deliberate violation of the class members' privacy rights". But where the breach is innocuous and due to an organization's innocent mistake, the award may be lower.
The Court of Appeal concluded that the summary trial judge appropriately awarded more than nominal damages to deter the defendant's behaviour, compensate the class members, and vindicate the privacy breach, even though there was no proof of specific harms caused by the breach.
Key Takeaways
- A privacy breach is an independent wrong in its own right, and it may give rise to more than nominal damages.
- Awarding general damages may not always be appropriate in privacy breach cases where the breach is "inadvertent, superficial, transient, or otherwise trivial." However, where the breach is "serious, deliberate, and for an improper purpose," the court may award general damages for the intrinsic damage to the plaintiff's privacy rights.
- Regardless of the nominal or general damages award, plaintiffs who suffered additional losses resulting from the privacy breach may also be awarded compensatory damages, but courts must be careful not to "double compensate" such plaintiffs.
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