Liability for breach of privacy claims in BC

The recent decision from the Ontario Court of Appeal in Jones v Tsige  has generated much attention from the media and legal observers heralding a new basis for recovery of damages for invasion of privacy. The Court of Appeal  has recognized under the common law in Ontario the  tort of  “intrusion upon  seclusion” which includes breach of an individual’s informational privacy.  Whether or not this decision will be followed in other provinces will depend on the statutory privacy protections in place in the province and the existence of a statutory right of recovery for damages for breach of privacy.  In B.C., both the Privacy Act and the Personal Information Protection Act create statutory causes of action for breach of privacy and therefore the B.C. courts may be reluctant to adopt the common law tort recognized in Ontario.

The B.C Privacy Act creates a statutory tort, actionable without proof of damages, for the unauthorized violation of  the privacy of a person. A violation of privacy under the Privacy Act specifically includes eavesdropping and surveillance, and also encompasses a breach of informational privacy as described in Jones v Tsige. The Personal Information Protection  Act (“PIPA”)  provides individuals a statutory right of action against an organization that has breached their rights under PIPA.  The cause of action does not arise unless and until the Commissioner had made an order under PIPA against the organization or the organization has been convicted of an offence under PIPA.  Individuals are limited to recovery of damages for actual harm suffered as a result of the breach of PIPA.  PIPA covers most private sector organizations in B.C., including corporations, unincorporated businesses, professionals, non-profit associations and unions.

Damage awards under the Privacy Act have generally ranged from $5000.00 to $35,000.00.  In Watts v Klaemt the Plaintiff was awarded $30,000.00 and an additional $5000.00 in punitive damages for the unauthorized interception and recording of private telephone conversations. In Heckert v 5470 Investments Ltd. a tenant was awarded $35,000.00 for an unauthorized surveillance camera in the building hallway outside of her apartment. In Poirier v Wal-Mart Canada Corp. an ex-employee was awarded $15,000.00 for the unauthorized use of his name and image in Wal-Mart advertisements. There have not yet been any decisions awarding damages under PIPA.

B.C. courts have consistently held that a  common law tort of invasion of privacy does not exist in B.C.  Recently, in Pearlman v Critchley, the B.C. Supreme Court confirmed that there was no free-standing tort of invasion of privacy in B.C.   In Mohl v University of British Columbia, the B.C. Court of Appeal held that there was no common law claim for breach of privacy and any claim the Plaintiff had must be based on the Privacy Act. Given this line of authority and the existence of the statutory rights of action in B.C. for damages for breach of privacy, it is not likely that B.C. courts will follow the Ontario Court of Appeal and recognize a common law tort of  “intrusion upon seclusion”.