It has long been settled that in civil actions, the public interest in getting at the truth will, absent special circumstances, trump the litigants’ right to privacy. In fact, the introduction of legal proceedings allows the parties, at the discovery stage, to probe into each other’s files and force the disclosure of otherwise confidential information, including private information, for the purpose of verifying the allegations of the parties. Relevant evidence thusly compelled is a permissible invasion of privacy based on the condition that it is solely used in the ongoing matter, for instance, as evidence at trial.

But what about a litigant’s private information acquired by an opponent outside pre-trial discovery? Would the disclosure of this information by the opponent in support of their pleadings amount to an actionable breach of privacy against themselves or their counsel? Not under the Privacy Act of British Columbia, according to the BC Court of Appeal in Duncan v. Lessing, 2018 BCCA 9.

Facts

In the course of a family law dispute, the wife applied for the disclosure of information regarding the husband’s ties in a number of companies. Included in the application materials were copies of the husband’s personal tax returns. The application materials were filed and sent out for service on the husband’ counsel and the companies named in the application. Five of the companies were properly served, but in two cases, the service agent left the materials with another company wholly unconnected with the litigation. The husband took issue with the disclosure of his financial information to these non-parties, alleging a violation of his privacy, and moved to sue his wife’s counsel under the BC Privacy Act’s statutory tort.

Both the trial judge and the Court of Appeal dismissed the claim, concluding that the disclosure fell outside the purview of the BC Privacy Act’s statutory tort.

Incorporation of Lawyers’ Absolute Privilege into the BC Privacy Act

The Court of Appeal found that the disclosure of private information by a lawyer in the course of judicial proceedings is specifically carved out from the statutory tort of privacy. It based its finding on subsection 2(3)(b) of the Privacy Act, which 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.”

To the extent that the law of defamation attaches an absolute privilege to all statements made by lawyers in the course of judicial proceedings, the Court found that the disclosure of the husband’s private financial information by the wife’s counsel was privileged and, therefore, excluded from the Privacy Act.

As explained by the Court:

[59] The effect of s. 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 exception to the tort.

[60] Whether the exception applies in this case depends on the answer to the following question: would the publication at issue be protected by absolute privilege if the claim were in defamation?

[61] In this case, there is no dispute the respondents were acting in the course of their duties to their client as part of a judicial proceeding when the alleged violation of privacy occurred. The alleged violation was serving the materials that contained Mr. Duncan’s private information on the companies.

[62] In my opinion, absolute privilege would have protected the respondents from suit had the materials contained defamatory statements because the occasion was protected. Since, according to the rules of law relating to defamation, the occasion was one to which absolute privilege attaches, the statutory exception in the Privacy Act applies. As such, there was no violation of privacy.

The Court of Appeal left for another day the question of whether absolute privilege, were it not for its incorporation in the Privacy Act, applies to breaches of privacy generally. Without closing the door to the application of absolute privilege to causes of action other than in defamation, the Court stressed that it cannot apply “to shelter counsel from all causes of action arising out of the conduct of judicial proceedings” (para. 68, emphasis from the Court), such as an action for professional negligence or malicious prosecution.

Exemption of Judicial Proceedings from the BC Privacy Act

Moreover, the Court of Appeal found that any act taken in a judicial proceeding, whether by counsel or not, was excluded from the operation of the BC Privacy Act. It based this conclusion on subpara. 2(2)(c) of the Act, which states that there is no violation of privacy when “the act or conduct was authorized or required under a law in force in British Columbia, by a court or by any process of a court”. The Court also hinted that other provisions in the Act support the conclusion that the statutory privacy tort was not intended to apply to disclosure of private information during the litigation process.

Implications

The immediate implication of Duncan is to relieve counsels and litigants, at least in BC, from the fear that, in advocating their cause and mounting their case, they expose themselves to privacy breach claims from their opponent or third parties. Although not binding in the rest of the country, Duncan will most likely be taken into account in jurisdictions whose privacy legislation contains similar provisions or jurisdictions like Québec that already witness a trend towards limiting the scope of application of privacy legislation and confidentiality obligations in the context of judicial proceedings.[1] Behind this trend is the rationale that privacy and confidentiality interests in the context of judicial proceedings are best handled by courts, which retain the power to cloak certain pieces of evidence with confidentiality orders where doing so would not unreasonably impinge upon the interest of the public in the publicity of the matter or in the search for the truth.