For the past two decades, the courts of British Columbia have found time and again that British Columbia has a similar legal cause of action under the Privacy Act, RSBC 1996, c. 373. In Tucci v Peoples Trust Company, 2020 BCCA 246, the appellate court confirmed that there is no separate federal common law privacy offense, including seclusion. While the court found the decades-long cases of denial of the existence of a province tort for invasion of privacy, it noted (in obiter) that this was an “interesting question” for a future case.
Tucci is a class action lawsuit based on a data breach. The representative plaintiffs raised a variety of pleas including breach of contract, negligence, invasion of privacy, and invasion of seclusion. The legal cause of action of the Data Protection Act did not apply.
The chamber judge subsequently confirmed the procedure as a class procedure. He stated that the torts for invasion of privacy and seclusion were bound to fail under British Columbia law, but plaintiffs may be able to pursue them under “common federal law.”
The appeals court found that the chamber judge had committed a mistake in allowing plaintiffs to act under “federal customary law”. The Court found that data protection rules were not an exclusive federal competence. There are no separate common law regulations for federal and state levels. And even if that were the case, a plaintiff cannot decide which one applies to their claim.
The decision is important in that recognition of a federal tort under common law could have enabled plaintiffs to assert common law privacy claims in jurisdictions like British Columbia under laws like the Privacy Act.
The court went on to say, however, that it was “unfortunate” that plaintiffs did not appeal the judge’s conclusion that the British Columbia trials did not exist because “the time may have come [the court of appeal] to revisit the topic (para. 55).
After examining the judgments on the suggestion that the judicial procedures did not exist, the Court found that they were largely exhaustive and possibly out of date (paras 64 and 66-67):
In short, the thread of cases before this court that does not involve a tort of invasion of privacy is very thin. There was little analysis in the cases and in all cases the complainants failed for several reasons …
Today, personal information has played a vital role in people’s lives, and failure to acknowledge at least a limited tort for invasion of privacy may be viewed by some as anachronistic.
For this reason, the Court may wish to re-examine the question of whether there is a common law tort of invasion of privacy in British Columbia (if its existing case law has already determined it).
Since the Tucci plaintiffs did not appeal the judge’s conclusion, the appeals court left the matter unresolved. The comments are not binding for future cases, but are likely to result in the issue being tried in the certification phase of other privacy-based class action lawsuits in the near future. The decision is unlikely to stimulate the filing of new cases, but it may change the grounds for the plaintiffs’ action.