Personal Information Protection Legislation
As of January 1, 2004 all private sector organizations in Canada are directly or indirectly affected by personal information protection legislation of general application [hereinafter “PIP Statutes”].
Canadian PIP Statutes include:
The federal Personal Information Protection And Electronic Documents Act came into force in Ontario, Manitoba, Saskatchewan, Newfoundland, Labrador, Nova Scotia, New Brunswick and Prince Edward Island on January 1, 2004.
In 2013, Manitoba enacted the Personal Information Protection and Identity Theft Protection Act, CCSM c. P33.7 but it has not yet come into force.
Roger D. McConchie has considerable experience advising clients concerning the steps required to become compliant with PIP legislation. Among other matters, he has advised clients with respect to the following matters: appointment of a privacy officer, creating the client privacy working group; identifying all relevant legal regimes; auditing existing collection, use and disclosure practices; identifying existing policies and procedures; creating or modifying policies and procedures which comply with legislated requirements; publicizing policies and procedures internally and externally; implementation; monitoring and enforcing policies and procedures; responding to complaints; responding the enforcement measures; risk assessment and insurance; and developing a privacy compliance manual.
Roger D. McConchie's litigation services have included defending federal court litigation under the Personal Information Protection and Electronic Documents Act.
Invasion of Privacy Tort
The Privacy Act, R.S.B.C.1996, c.373, provides: "It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another."
The Act further provides that the "nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others .… In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties .… Privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass .…" (s. 1). "Eavesdropping" and "surveillance" are not defined in the statute.
Although the Privacy Act does not specifically exempt persons engaged in newsgathering, it provides that publication is not a violation of privacy if the matter published was of public interest or was fair comment on a matter of public interest, or if the publication was privileged in accordance with the rules of law relating to defamation. (s. 2(3)).
The limitation period is two years. (s.3(2)(f), Limitation Act, R.S.B.C. 1996, c.266). Death extinguishes the cause of action. (s. 5, Privacy Act). The Privacy Act is silent about remedies, but it has been held that punitive damages may be awarded.
Similar legislation is in force in Manitoba, Saskatchewan and Newfoundland and Labrador.
Roger D. McConchie's advice and litigation services have included the defence and prosecution of claims under the British Columbia Privacy Act.
Misappropriation of Personality
The Privacy Act of British Columbia creates a separate tort for misappropriation of a person's name or portrait for the purpose of advertising or promoting the sale or other trading in property or services. R.S.B.C. 1996, c.373, s.3(2).
There is no breach of the Privacy Act in the publication of a plaintiff's portrait unless it is a recognizable likeness of the plaintiff.
Further, the plaintiff must prove there has been exploitation of his or her name or reputation.
The privacy statutes of Manitoba, Saskatchewan and Newfoundland and Labrador treat commercial appropriation of personality as an aspect of breach of privacy. C.C.S.M. 1970, c.P-125, s.3(c); R.S.S. 1978, c.P-24, s.3(c); R.S.N. 1990, c.P-22, s.4(c).
Under the B.C., Saskatchewan and Newfoundland and Labrador statutes, any claim for misappropriation is extinguished on death. R.S.B.C. 1996, c.373, s.5; R.S.S. 1978, c.P-24, s.10; R.S.N. 1990, c. P.22,s.11.
The Manitoba statute is silent on the issue of survival of the claim.
In British Columbia, in order to render a newspaper, other publication or a broadcaster liable for misappropriation of personality, the plaintiff must prove that his name or portrait was used specifically in connection with material relating to the readership, audience, circulation or other qualities of the newspaper, other publication or broadcaster. (s.3(4)(a)). Further, to render another liable for using his name or portrait for advertising or promoting the sale of a sponsor's goods or services in a radio or television program relating to current or historical events or affairs, or other matters of public interest, the plaintiff must prove that his name or portrait was used specifically in connection with material relating to those goods or services. (s.3(4)(b)).
These special safeguards for the media are not found in the Manitoba, Newfoundland or Saskatchewan privacy statutes and there are no cases indicating whether the courts in these provinces would recognize limitations similar to those found in the British Columbia Law.
Roger D. McConchie's advice and litigation services have included the defence and prosecution of claims under the British Columbia Privacy Act.
Public Sector Freedom of Information and Protection of Privacy Legislation
Roger D. McConchie has experience in the prosecution and defence of many applications and proceedings under the federal Privacy and Access to Information statutes and the British Columbia Freedom of Information and Protection of Privacy Act.
Roger D. McConchie was heavily involved in the government's consultation process leading up to the enactment in 1993 of the British Columbia Freedom of Information and Protection of Privacy Act.
This is a list of court decisions concerning the British Columbia Privacy Act.
This list is not exhaustive: (a) court rulings are not always reduced to writing; (b) the law reports and electronic databases do not contain all written court rulings; and (c) jury verdicts are not published in the law reports or in electronic legal databases.
The court decisions are listed in reverse chronological order (i.e. the most recent decision is listed first.
Wherever possible, a hypertext link is provided to the full text of the court decision. A link will in most cases lead to a free, publicly-accessible website.
McConchie Law Corporation makes this list available to clients, friends of the firm, legal researchers, and others interested in privacy tort law with the caveat that nothing on this website constitutes legal advice. Potential litigants should ensure that they obtain appropriate legal advice tailored to their specific circumstances.
McConchie Law Corporation cannot accept any responsibility for keeping information on this list up-to-date although it strives to do so. Cases of interest should be carefully up-dated before any reliance is placed on them.
McConchie Law Corporation does not express any view concerning the validity of the findings of fact made by the courts whose decisions are listed below. Findings of fact may be discussed, however, to the extent necessary to provide context for a court's decision.
2010 November 15
Nesbitt v Neufeld
The British Columbia Supreme Court awarded the defendant damages under the Privacy Act for emails sent to third parties by her estranged husband, a family physician, which published her private correspondence (including emails); for Internet postings including a YouTube video and a FaceBook postings. “It is no answer for [the plaintiff doctor] to say that the correspondence was in the computer that [the defendant] gave him. A brief scan of [the defendant’s] correspondence would show their personal nature, and ordinarily, one would return them to the author or owner...I find that [the defendant] had a reasonable expectation that her personal information and private correspondence would not be emailed or faxed to third parties or publicly posted on the Internet without her knowledge and consent.”
2010 July 5
B.C.T.F. v Thorne
The British Columbia Supreme Court held that the plaintiff was protected by absolute immunity relating to court-filed documents and rejected a counterclaim by the defendant for violation of her privacy based on the plaintiff’s conduct in attaching a sensitive medical report to the original statement of claim in this action. “At the pleadings stage ... there was no necessity to make public the detailed contents of the [medical] report. In my view, the attachment of the report to the statement of claim demonstrated poor judgment and either a careless or callous disregard for the privacy of the defendant.” The Court noted, however: “It has long been the law that pleadings filed in court, as well as statements made by witnesses and other participants in the judicial process, are immune from claims arising out of proceedings before court or quasi-judicial tribunal ... The fact that a pleading or document filed in court may not comply with procedural rules does not defeat the immunity.”
2010 June 29
Aschenbrenner v Yahemech
The British Columbia Supreme Court awarded the plaintiffs $1.00 damages for trespass and $5,000 general damages for nuisance but dismissed a claim for violation of privacy in a case involving a dispute between neighbours over a hot tub installed by the plaintiffs. “On one occasion each party took a photo of the other at the same time. This photographic exchange took place in the backyards of the parties. I am satisfied that the parties’ expectation of privacy would be low. The parties would not have the same expectations of privacy as they would inside their home. ... Given the nature, incidence and conduct of the two parties taking photos of each other at the same time on the one and only occasion, I am satisfied that there had been no violation of the plaintiffs’ or the defendants’ privacy.”
2009 November 16
Facilities Subsection Bargaining Association v. B.C.N.U.
The British Columbia Supreme Court held that a union cannot step into the shoes of its members to advance a claim in tort. The Privacy Act is concerned with the privacy rights of individuals. “Although unions do have the right to represent members’ rights generally in such matters as right to information applications and collective bargaining, the authorities cited do not support a union’s right to advance a claim in tort for the breach of privacy allegedly suffered by its members.” The plaintiff union had no right to bring an action based on the invasion of privacy rights of individuals.
2009 September 28
Wasserman v Hall
The British Columbia Supreme Court described a privacy issue in this case in the following terms: “whether, and in what circumstances, the installation of privacy security cameras on one’s own property can result in an invasion of a neighbour’s privacy or a private nuisance.” The Court noted that s.2(2)(b) of the Privacy Act provides that an action or conduct is not a violation of privacy if it “was incidental to the exercise of a lawful right of defence of person or property.” In the circumstances of this case, which involved a dispute between neighbours relating to the location of fencing along the common boundary line, the Court held that the defendants had no reasonable expectation of privacy when working on or in the immediate area of the fence but did at all times have a “very high” expectation of privacy when inside their own home. The Court determined that at least one camera set up by the plaintiff to capture events along the dispute fence line and elsewhere on the plaintiff’s property “also caught [the defendants’] residence and parts of [their] yard in the background of the image.” This constituted a “significant intrusion” associated with full-time video surveillance conducted by the plaintiff over a substantial period of time.
The Court held that the plaintiff did not have a valid “claim of right” within the meaning of s. 1 of the Privacy Act because he did not have an honest belief in a state of fact which, if it existed, would be a legal justification or excuse.
Further, the intrusion was not incidental to the exercise of a lawful right of defence of property within the meaning of s 2(2)(b) of the Privacy Act because capturing images of the defendants residence was not necessary for that purpose.
The defendants were awarded $3,500 on their counterclaim against the plaintiff for violation of privacy and private nuisance. “The tort of nuisance is sufficiently broad to encompass [the plaintiff’s] video surveillance of the defendants’] residence as well. A private nuisance is established where a neighbour unreasonably and substantially interferes with another neighbour’s use and enjoyment of his or her property.”
The plaintiff was awarded $5,000 for a continuing trespass by the defendants (instead of nominal damages) because “the encroachment not only continued but worsened somewhat after it should have been apparent to the [defendants] that the fence needed to be removed.”
2009 July 8
Ross v British Columbia (Public Safety)
The British Columbia Supreme Court dismissed an application by the defendants for summary judgment against the self-represented plaintiff who appeared to allege that the RCMP had subjected him to a form of electronic surveillance which interfered with his mental or psychological integrity. “The defendants say that, although it is difficult to neatly characterize the nature of the claim advanced, it can safely be said to fall within one or more of four categorizations: injury to person; trespass; false imprisonment; and/or tort under the Privacy Act, RSBC 1996, c. 373” Because the plaintiff appeared to be alleging continuing surveillance, a Limitations Act defence could not be applied on the evidence before the court. Further, the strict requirements of the Summary Judgment rule (judgment can be granted if there is no triable issue) had not been satisfied.
2009 June 3
Mohl v. University of British Columbia2008 BCSC 1234
The BC Court of Appeal held that unless a judge orders a publication ban, matters that were once private cease to be so if they become evidence on public court proceedings. In this case, the Appeal Court affirmed a lower court decision striking out a Privacy Act claim brought by a student against the University of British Columbia over its disclosure to the news media that the student had failed a course. The student had “no reasonable claim” because that information had been released in litigation brought by the student for judicial review of his failing grade and was also publicly documented in several BC Court of Appeal decisions.
2008 November 27
Semeniuk v British Columbia (Financial Institutions Commission)
The British Columbia Supreme Court struck out a lawsuit which alleged, among other things, that an investigator employed by the defendant investigator had violated s.1 of the Privacy Act by holding himself out to be a peace officer in applying for an executing search warrants that ultimately lead to the plaintiff’s conviction of fraud and forgery in relation to transcripts obtained from a court reporting service. The Court noted that the trial judge had ruled in 2005 that the defendant was a peace officer and that ruling had been upheld by the British Columbia Court of Appeal.
2008 September 26
Heckert v 5470 Investments Ltd.
The plaintiff tenant sued in BC Supreme Court for breach of the Privacy Act after the defendant landlord installed three video surveillance cameras in the hallway of the top floor of the residential apartment building where she lived, ostensibly for security purposes. Cameras were also installed in the main lobby and entranceways to the building and in the underground parking lot.
The privacy violation in this case involved a claim of “intrusion upon a person’s seclusion or solitude, or into his private affairs” The Court held that the plaintiff tenant “enjoyed a reasonable expectation of privacy of her person and her movements into and out of her suite and in the hallway. As well, the defendant [landlord] had every right to be in the hallway at any time of the day. Yet, this right and the fact that the hallway is not truly private does not, in my view, matter in the context of this case. There is no legitimate reason for the close-up imaging of the ]plaintiff’s] person and her activities immediately outside her door. Further, while there may have been circumstances existing at one point in time justifying surveillance on the [top] floor generally, resulting in a reduced expectation of privacy for [the plaintiff] and any tenant residing on the 12th floor, they have come and gone. Further, the defendant’s right to protect its property and its obligation to provide for the security of its tenants did not justify the defendant’s view of [the plaintiff] as she enters and exits her unit.” The plaintiff was awarded damages of $3,500 for violation of privacy (including $500 for costs paid for chiropractic and acupuncture to address stress and anxiety).
2008 August 26
L.A.M. v J.E.L.I.
The BC Supreme Court awarded general damages of $20,000, punitive damages of $35,000 and special damages of $5,000 (loss of opportunity to earn income) to a 35-year old woman who was surreptitiously videotaped in the nude (with her young daughter) in the bathroom of a house she rented from the defendant, an ex-boyfriend. “The videotape showed the plaintiff in various stages of undress, going to the bathroom … taking a diaper off her daughter leaving her daughter nude, preparing both she (sic) and her daughter for bathing and doing a number of bathroom functions.” [Note that the defendant was also criminally charged and convicted of possessing child pornography in relation to tapes of other people in his bathroom at his house.]
2008 July 15
Griffin v Sullivan
The British Columbia Supreme Court awarded the plaintiff $25,000 general damages for violation of s. 1 of the Privacy Act for obtaining and publishing the plaintiff’s true name, address and photographs on the Internet including on a use net group concerning suicide in conjunction with defamatory statements about the plaintiff. “Having regard to the criteria in s. 1 of the Privacy Act, it is my opinion that the plaintiff was entitled to have his name, address and photographs kept private …the plaintiff had a reasonable expectation that any member of the [use net group] who obtained his personal information or photograph would not publish it on the Internet.” On the subject of damages, the Court noted that the defendant associated the plaintiff’s name with postings in which the plaintiff “revealed his deepest and innermost thoughts and feelings about his own psychological state and about the women in his life … Some of these writings by the plaintiff show that he was tormented by depression and thoughts of committing suicide.”
2007 July 31
Young v Lort
The B.C. Supreme Court dismissed an action brought by tenants against their former landlord for damages for invasion of privacy, trespass and infliction of nervous shock after other tenants complained about secondary marijuana smoke emanating from their apartment. The plaintiffs characterized this as an unlawful disclosure of “private medical information.” The claim was struck out in part because the plaintiffs failed to plead the claim properly by omitting essential material facts, including an assertion that the alleged violation of privacy was wilful. The information, moreover, was not private.
2007 May 10
Watts v Klaemt
The B.C. Supreme Court ordered that the plaintiff’s neighbour pay her $30,000 general damages and $5,000 punitive damages for invading her privacy by intercepting and recording her cordless telephone conversations with her daughter and sending them to the plaintiff’s employer. The result was that the plaintiff was suspended from her employment. The fact the conversations were not encrypted by the plaintiff to preclude reception by a scanner did not constitute a defence.
2007 April 27
C.T. v J.T. and B.A.S.
In a civil action brought by a grandparent seeking access to her grandchild, the British Columbia Provincial Court, referring to s. 1 of the Privacy Act, ordered: “Neither party shall record, by video or audio, the conversations or actions of the other without first informing the other that such conversations or actions are being recorded and any conversations or actions recorded without informing the other side shall be inadmissible as evidence in this matter.” The court rejected a request by the defendants, the parents of the child, that an order be made preventing the grandmother from recording any conversations with them, stating: “...recorded conversations accurately reflect what has been said and a party is likely to be more civil if they think that it is possible that their conversation is being recorded.”
2006 November 23
Hamouth v Canada (Attorney General)
The British Columbia Supreme Court struck out interrogatories delivered by the plaintiff which purported to “seek information from the defendants with respect to investigations of him by the police pursuant to applications made under the Privacy Act, RSBC 1996, c. 373, authorized or allegedly unauthorized.” The court held that the limitations and requirements prescribed for interrogatories by the Rules of Court had not been complied with.
2006 July 7
Jamieson v Stavros
The British Columbia Supreme Court dismissed an application by a plaintiff to amend her statement of claim to allege a violation of her privacy by surveillance and to join the Insurance Corporation of British Columbia as a defendant in her motor vehicle damages action. “These proceedings as presently constituted represent a relatively straightforward claim for damages arising out of a motor vehicle accident. Liability has already been determined in separate proceedings. The Trial has already been adjourned twice, and the time allocated is only sufficient for the determination of the assessment of damages arising out of the motor vehicle accident.” The Court concluded the defendant would be prejudiced by further delay. [Note that the proposed new defendant, I.C.B.C., filed affidavits disputing its involvement with the allegedly damaging surveillance]
2006 March 2
Cam v Hood
The BC Supreme Court held that a video tape made surreptitiously of the personal injury plaintiff playing volleyball was admissible. There was no entry on private property, and there was no disturbance of curtains or windows or insertion of recording devices within private property. Even if the plaintiff’s right to privacy had been infringed, the Privacy Act did not include an exclusionary rule with respect to video or other evidence.
2006 February 10
St. Pierre v. Pacific Newspapers Group Inc.
The BC Supreme Court dismissed a Privacy Act claim where the defendant newspaper made an honest mistake and published a photograph of the lawyer (instead of his client) which identified him as an alleged leader of a terrorist organization. However, although the newspaper had a sufficient “claim of right” under the Privacy Act to defeat a claim for invasion of privacy, the newspaper was found liable to the plaintiff in damages for defamation and ordered to pay the plaintiff $35,000.
2006 February 3
Bracken v Vancouver Police Board
The British Columbia Supreme Court dismissed a claim by the plaintiff that police and the BC Ministry of Employment and Income Assistance violated her privacy in circumstances where the police sought and obtained her address from the Ministry. The plaintiff was a complainant in an internal police investigation and the police justified obtaining her address from confidential records on the basis they were required by s. 57.1 of the Police Act, RSBC 1996, c. 367, to send the plaintiff a letter within 10 business days of concluding their investigation of her complaint. The Court held that the disclosure was authorized by s. 33(n)(j) of the Freedom of Information and Protection of Privacy Act, RSBC 1996, s. 165 (“FOIPPA”) which permits a public body to disclose information to a public body or law enforcement agency in Canada to assist in an investigation undertaken with a view to a “law enforcement proceeding” which means, among other things, “investigations or proceedings that lead or could lead to a penalty or sanction being imposed”. On the basis of this finding, the disclosure was “authorized by law,” triggering the application of s. 2(2)(c) of the Privacy Act, which provides that an act or conduct is not a violation of privacy “if … the act or conduct was authorized or required by or under a law in force in British Columbia….” The Court also held that the police were “engaged in an investigation in the course of ….duty” under the Police Act, which triggered an exemption in s. 2(2)(d)(ii) of the Privacy Act.
2005 November 28
Milner v Manufacturers Life Insurance Co.
The B.C. Supreme Court dismissed an action for invasion of privacy arising from surveillance videotapes of the plaintiff’s daughter showing her removing her upper outer garment in the dining room of the family home, with the curtains open and a light on in the room. The Court held that the plaintiff should have anticipated video surveillance because the defendant insurer was investigating her claim and the plaintiff therefore was not entitled to a reasonable expectation of privacy. The daughter was not a named plaintiff in this action so she could not be awarded damages. The Court stated that it would only have assessed her damages at $500 if she had been a plaintiff.
2005 April 15
Reischer v Love
The British Columbia Supreme Court granted a defence application in a personal injury case for production of third party medical records, noting that “when a plaintiff puts his or her medical condition in issue, there is no longer any privacy or confidentiality attached to the plaintiff’s medical records.” “A claim of confidentiality, by a third party witness, such as a doctor or hospital official is not protected by any legally recognized privilege.” “The Privacy Act, RSBC 1996, c.373, creates a civil cause of action for (sic) anyone that violates the privacy of another person: s. 1(1). However, it is not a violation of a person’s privacy is the act or conduct is authorized by law or by any process of a court: s. 2(2). In this case, Rule 26(11) authorizes the production of third party documents to the defendant.”
2004 July 26
Young v. McLellan
The British Columbia Supreme Court reviewed a statement of claim which alleged an invasion of privacy arising out of the transmission of certain medical information by the defendant to police following an alleged bomb threat by the plaintiff. The Court held that the invasion of privacy plea was defective because it did not allege that the violation was “wilfully and without a claim of right.” The Court also held that the self-represented plaintiffs were obliged to clearly identify the private information that was allegedly transferred to the police. The Court ordered: “The pleading alleging an invasion of privacy will be amended to plead the statutory elements and state clearly the material facts relied upon by the plaintiffs to support this plea”.
2003 May 6
Hung v Gardiner
The Court of Appeal dismissed the plaintiff’s appeal from a decision of the BC Supreme Court on the basis that all causes of action including the claim based on the Privacy Act were subject to the defence of absolute privilege: The B.C. Supreme Court had ruled that disclosure of the plaintiff’s professional conduct enquiry report by the defendant Institute of Chartered Accountant Association of British Columbia (a professional organization) to two professional bodies having statutory duties of supervision did not constitute a violation of her rights under the Privacy Act. Disclosure was reasonable in the circumstances given the professional bodies’ statutory duties of supervision and obligation to determine whether any breach of professional conduct had taken place under their respective rules. Further, the Court concluded that the disclosure was made upon an occasion of privilege and therefore exempt from the Privacy Act pursuant to s.2(3).
2003 April 11
Zanetti v Bonniehon Enterprises Ltd., 2003 BCCA 231
The British Columbia Court of Appeal sustained a lower court decision striking out claims by tenants against their landlord that it breached the Privacy Act by filing certain documents at a hearing before an arbitrator appointed under the Residential Tenancy Act, R.S.B.C. 1996, c. 406. The filings were protected by a defence of absolute privilege.
2003 February 19
Petrov v. British Columbia Ferry Corp
The BC Supreme Court struck out a claim by an ex-employee under s. 1(1) and (4) of the Privacy Act because it failed to “set out any specific act or conduct that could constitute an invasion of privacy.” The Court noted that by operation of s. 4, the BC Supreme Court has exclusive jurisdiction to hear the claim for violation of s. 1(1) of the Privacy Act.
2001 June 6
Getejanc v. Brentwood College Assn.
The British Columbia Supreme Court awarded $2,500 general damages to a high school student over the defendant school-master’s entry into his home while the plaintiff was away at a school sports related event. The Court noted that the sanctity of a person’s home is well established in Canadian jurisprudence, and held that a person’s entitlement to privacy is highest where the expectation of privacy would be greatest.
The B.C. Supreme Court awarded an adult female plaintiff $15,000 general damages and $35,000 punitive damages against a landlord who concealed a video camera behind a washroom room. She was extremely embarrassed when the videotaping was discovered. The court held the videotapes were tantamount to a continuous invasion of privacy because of the opportunity for others to view the tapes and for the defendant to watch them repeatedly.
1999 December 6
Pacific Northwest Herb Corp. v. Thompson
The B.C. Supreme Court refused an interlocutory injunction sought by an ex-officer of the plaintiff company to prohibit the plaintiff from accessing family documents (family correspondence, children’s correspondence, school assignments) which were saved to the hard drive of a company-owned computer used by the defendant at his home. Although the defendant had a reasonable expectation of privacy in family documents, the balance of convenience favoured the plaintiff which needed to access the computer hard drive to recover business documents.
1999 February 19
Lord v. McGregor
The B.C. Court of Appeal unanimously ruled that a cause of action under the Privacy Act must be filed within the 2-year limitation period prescribed for “tort under the Privacy Act” by virtue of the Limitation Act, RSBC 1996, c.266, ss.3(2)(a)(f). The Court of Appeal ruled, however, that insofar as the plaintiff’s claim for invasion of privacy was allegedly based on common law, it would only be barred after the expiry of six years under s.3(4) of the Limitations Act. The Court of Appeal did not rule, however, whether a privacy action lies at common law, noting the issue was not before the Court. The plaintiff, who had been involved in altercations with the staff of a penitentiary during visits to his incarcerated son, sued the warden both under the statute and at common law over the Warden’s release to the news media of a videotape depicting his confrontational and abusive conduct.
1999 January 22
Allan Estate v. Co-operators Life Insurance Co.
The B.C. Court of Appeal unanimously ruled on a point of law that neither the estate of a deceased woman (who committed suicide after reading the report of a psychiatrist retained by her disability insurer), nor her dependants, were entitled to claim punitive damages in relation to an alleged breach of the Privacy Act. In obiter dicta, Lambert J.A., also suggested that an invasion of the deceased’s privacy, which had preceded and triggered the death, would simply not be actionable at all, either at the instance of the estate or the deceased’s dependants, paras. 72, 79.
1998 October 6
Hollinsworth v. BCTV1996 CanLII 2379 (BC S.C.)
The B.C. Court of Appeal affirmed a trial judge’s dismissal of a Privacy Act lawsuit brought against a television station which broadcast a videotape showing the plaintiff undergoing tunnel graft surgery to correct baldness. At trial, the court determined that the defendant’s broadcast was of public interest, thereby triggering the exemption under s. 2(3). Further, because the source of the tape had assured the television station that the plaintiff consented to its use, the trial judge held there was no “wilful” violation of privacy. The Court of Appeal found it unnecessary to determine whether the s.2 (3) exemption applied, simply ruling that the plaintiff had failed to prove the defendant had “wilfully” breached his privacy. The court held that “wilfully” does not apply broadly to any intentional act that had the effect of violating privacy but more narrowly to an intention to do an act which the defendant knew or should have known would violate the plaintiff’s privacy. Note that it is unclear whether the honest belief must be a reasonable one. See the decision of Lambert J.A. at para. 31.
J.M.F. v. Chappell and News Publishing Company Ltd. ((1998)
The B.C. Court of Appeal increased the damages awarded to the plaintiff in a civil case by adding the further sum of $18,000 assessed by the jury for breach of privacy. The plaintiff alleged that her privacy had been violated by a newspaper which published her identity contrary to a publication ban made a judge under s. 486(3) of the federal Criminal Code during criminal proceedings against the accused attacker. The civil jury hearing her damages claim ruled that publication constituted a breach of privacy and awarded the plaintiff general damages of $3,000 and punitive damages of $15,000. However, the jury verdict was set aside by the trial judge because s. 3(10) of British Columbia’s Libel and Slander Act, R.S.B.C.1996, c.263, provides that a “fair and accurate report in a public newspaper of proceedings publicly heard before a court exercising judicial authority if published contemporaneously with the proceedings, is privileged.” The trial judge held that publication of the plaintiff’s name was part of a fair and accurate report of court proceedings “publicly heard.” The Court of Appeal disagreed, a three-judge panel ruling unanimously that the name of the crime victim was not “publicly heard” as a matter of law and accordingly the defendants could not rely on the statutory defence.
1997 April 21
Richardson v. Davis Wire Industries Ltd. (1997), 33 B.C.L.R. (3d) 224
The British Columbia Supreme Court ruled that a videotape of plaintiff’s activities in the defendant employer’s lunchroom did not constitute a violation of his right to privacy under the Privacy Act. The court held that the plaintiff could not reasonably expect to have the protection of privacy when he was sleeping on company time, on company property, and in circumstances where he could be expected to be contacted if needed. The court further held that even if the plaintiff had an expectation of privacy, “. . . a breach of privacy does not necessarily lead to the exclusion of evidence. The Privacy Act merely provides the foundation for a claim in tort and does not prohibit the admission of evidence, even if it were gathered contrary to the Act.”
1997 February 19
Walker v. British Columbia (College of Dental Surgeons)
The British Columbia Supreme Court dismissed claims by a dentist that the defendant College (a professional organization) and CU&C Health Services Society Ltd. (“CU&C”) had invaded his privacy and unlawfully conspired to interfere with his contractual relations with his patients and with his right to privacy by investigating and evaluating his treatment and billing practices. The claims for benefits submitted by the plaintiff to CU&C were the latter’s “property” pursuant to the dental insurance plan. In view of CU&C’s consent to disclosure of the claims to the defendant College, there was no invasion of the plaintiff’s privacy. The Privacy Act provides that acts or conduct that are “. . . consented to by some person entitled to consent” or that are “. . . authorized or required by or under a law in force in the Province . . .” are not violations of privacy. See Privacy Act, ss. 2(2)(a) and (c).
1994 November 3
Lee v. Jacobson
The BC Court of Appeal set aside damage awards to two tenants for invasion of privacy on the basis that the trial judge’s finding that the defendant landlord used a peephole to spy on the plaintiff tenant was based on speculation, not evidence. The trial judge which was set aside had awarded one plaintiff $5,000 for her emotional shock on discovering the peephole and the other plaintiff $2,000 for insult and subsequent uneasy feelings. The trial judge had also awarded punitive damages of $25,000 peep hole was located in the tenant’s bedroom. The appeal court decision was silent on the quantum of damages.
1993 November 12
Milton v. Savinkoff
The British Columbia Supreme Court dismissed a Privacy Act claim where the female plaintiff showed the defendant topless photographs she had taken of her by a girlfriend in Hawaii and then placed the photographs in the defendant’s jacket and later forgot to retrieve them. The Court concluded that the defendant later showed a number of the topless photos to a male friend. In reasons for rejecting the claim, the Court stated: “It strikes me as significant that the plaintiff had little concern about the development of her photograph in a semi-nude condition by an unknown film developer in Hawaii, and further, that she carelessly left the same photograph in the defendant’s jacket...In all the circumstances, I am unable to conclude that the defendant published the photographs out of malevolence or spite towards the plaintiff as alleged in the pleadings ...”
1993 September 20
(1993) 86 B.C.L.R. (2d) 216
The British Columbia Supreme Court refused to continue an ex parte interlocutory injunction to restrain television broadcast of “jump interview” videotapes, holding that the plaintiff’s interest in suppressing private facts did not outweigh the public’s interest in ensuring the integrity of the news-gathering process. The court ruled that it was not in the public’s interest for the court to control the process by which news is gathered, analyzed and edited. To the contrary, the news-gathering process is one which deserves the court’s protection. An application by the plaintiff to the Court of Appeal for a stay to restrain the broadcast pending an appeal was dismissed.
1985 December 16
Silber v. British Columbia Television Broadcasting Systems Ltd.
The B.C. Supreme Court dismissed an action for breach of privacy where the defendant television station had videotaped events occurring in a furniture store’s parking lot that was visible to the general public passing by. The court held that the events were not private in the sense of being sheltered from public observation and that they related to a labour strike which was a matter of public interest. The Court stated that “…the character of the property where the act or conduct complained of took place is highly relevant to the question of what constitutes a reasonable expectation of privacy.”
The plaintiff unsuccessfully sued under the Privacy Act after the defendant broadcast photographs of the exterior of the plaintiff’s mansion, which was for sale for a significant (then) price of $2.5 million. The lawsuit failed in part because a photograph of the residence, albeit without the owner’s name or the address, had previously been published with the plaintiff’s consent in a local real estate magazine.
The trial judge noted that the term “privacy” is not defined in the Privacy Act and therefore looked to American law which was the inspiration for this 1968 statute. He referred to the decision of the Court of Appeal of Louisiana in Hamilton v. Lumbermen’s Mutual Casualty Co. (1955), 82 So. 2d 61, where the term “privacy” was defined at 63 as: “the right to be let alone” and as the “right to live one’s life in seclusion, without being subjected to unwarranted and undesired publicity.” “It is like the right not to be maliciously prosecuted, the right not to be defamed.” It is the right to an “inviolate personality”.
Although the Court of Appeal reversed the trial judge’s finding an actionable violation of the statute had occurred, it also approved an American definition found in Black’s Law Dictionary, 4th ed. as “largely consonant with the provisions of s. 2 of the Privacy Act, and particularly with those of s.-s(2)”; namely “The right to be let alone, the right of a person to be free from unwarranted publicity…The right of an individual (or corporation) to withhold himself and his property from public scrutiny, if he so chooses.”
With respect to the legal test whether a violation has occurred, the Court of Appeal stated that “it is plain that whether there has been a violation of the privacy of another must be decided on the particular facts of each case. As the learned Judge below said in his reasons for judgment…: ‘It is necessary to consider all of the circumstances before determining ‘The nature and degree of privacy to which a person is entitled,’ s. 2(2).”