The British Columbia Supreme Court confirmed in Demcak v Vo, 2013 BCSC 899 that there is no common law tort for breach of privacy in BC and that privacy claims are limited to the statutory remedies found under BC's Privacy Act.1 Moreover, where statutes expressly provide for powers of inspection, privacy claims will typically not succeed. The new common law cause of action for "intrusion upon seclusion" which has been recognized in other Canadian jurisdictions continues to be unrecognized in BC in favour of existing statutory remedies.
The Plaintiffs were two sub-tenants of a residential property in Richmond. A complaint was filed with the City of Richmond concerning the use of the property, and after an inspection the City ordered the removal of recreational vehicles owned by the Plaintiffs and stored on the property. The vehicles were not removed, leading to the head tenant issuing a notice to end tenancy and a hearing before the Residential Tenancy Branch between the Plaintiffs and the landlord of the building. This hearing resulted in an order that the sub-tenants vacate the property.
The sub-tenants then launched an action against a number of parties including the landlord, the property management firm that acted on behalf of the property owner, and the City of Richmond. The plaintiffs alleged, among other things, that the inspection of the property including entry into the impugned vehicles, photographs taken of the vehicles, and searching through the vehicles was in violation of their privacy rights. The Plaintiffs did not specifically make any claims for remedies under the Privacy Act, leading the Court to have to consider whether other common law torts of breach of privacy or "intrusion upon seclusion" could exist in BC, in addition to the statutory tort created by the Privacy Act.
the Court decision
The Court quickly dismissed this claim, holding that a common law tort for breach of privacy, or "intrusion upon seclusion," in British Columbia does not exist. The Court referenced earlier decisions in Hung v Gardiner2and Bracken v Vancouver Police Board3to support this assertion. Hung v Gardiner directly rejected the argument that a common law tort of invasion of privacy exists in addition to the tort created by the Privacy Act. Bracken v Vancouver Police Board4similarly stated that the "common law does not include a tort of invasion of privacy." These two decisions predated the 2012 Ontario decision which did recognize the new common law tort of breach of privacy in that jurisdiction. The Court in Demcak v Vo expressly rejected the newer approach taken in Ontario.
In the present case, the Court emphasized the presence of a statutory tort for breach of privacy under the Privacy Act,5 and concluded that the correct course in determining whether there was an actionable violation of privacy was to consider whether the inspections conducted by City officials were within the scope of the statutory tort. Ultimately the impugned inspections were found to be authorized by s. 16 of the Community Charter,6 which provides statutory authorization for the City to enter and inspect property. This trumped any claim for breach of privacy.
The claims against the landlord were similarly dismissed by reference to s. 29(1) of the ResidentialTenancy Act,7 which authorizes the owner or landlord of a rented residential property to inspect the property with notice being given at least 24 hours ahead of time. In this case, both the City and the landlord gave written notice of inspection in compliance with statutory requirements, meaning that the inspections were authorized by law.
The claims of the plaintiffs failed first on the grounds that a common law tort of breach of privacy does not exist in British Columbia, and then on the grounds that the alleged breach was statutorily authorized and therefore not in the scope of the statutory tort for breach of privacy. It is plain that parties hoping to expand the available claims for privacy breaches will be unlikely to find any judicial support in British Columbia any time soon.
This article was co-authored by Sasa Pudar, summer law student.