No common law tort of invasion of privacy in British Columbia, judge finds

This probably shouldn't be too surprising for lawyers practicing in this area, but a judge of the British Columbia Supreme Court has stated that there is no common law tort of invasion of privacy in the province. In Demcak v. Vo, 2013 BCSC 899, the plaintiffs were suing the City of Richmond (among others) related to an inspection of the property carried out under provincial law and municipal authority:

[10] The City has a statutory authorization to enter and inspect property including residences and uses of property within the City boundaries. That statutory authorization is provided for in s. 16 of the Community Charter, S.B.C. 2003, c. 26. The City may also attend pursuant to relevant enacted bylaws. The consent of the occupants is not required where valid written notice of the inspection is given. This occurred in the case at bar.

The inspectors entered the premises and took photos. The plaintiff claimed for trespass and some sort of "invasion of privacy". The plaintiff, notably, did not make any claims under the British Columbia Privacy Act, which creates a statutory right of action for invasion of privacy. The Court found that there was no common law tort of invasion of privacy and struck the claim from the plaintiff's pleadings.

[8] The issue which arises from these allegations is whether there is a tort for breach of privacy in British Columbia. No common law tort of invasion or breach of privacy exists in British Columbia: Hung v. Gardiner, 2002 BCSC 1234 (CanLII), 2002 BCSC 1234 at para. 110 aff’d 2003 BCCA 257 (CanLII), 2003 BCCA 257 and Bracken v. Vancouver Police Board, 2006 BCSC 189 (CanLII), 2006 BCSC 189 at para. 28. The plaintiffs are not represented by counsel, and notwithstanding they appear to have received legal advice, the claim as filed is ill founded.

[9] A breach of privacy is actionable under statue in British Columbia pursuant to the Privacy Act, R.S.B.C. 1996, c. 373 (“Privacy Act”). The plaintiffs made no pleadings regarding the Privacy Act. The pertinent sections to the case at bar are:

Violation of privacy actionable

1 (1) 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.

(2) 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.

(3) 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.

(4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.

Exceptions

2 (1) In this section:

"court" includes a person authorized by law to administer an oath for taking evidence when acting for the purpose for which the person is authorized to take evidence;

"crime" includes an offence against a law of British Columbia.

(2) An act or conduct is not a violation of privacy if any of the following applies:

(a) it is consented to by some person entitled to consent;

(b) the act or conduct was incidental to the exercise of a lawful right of defence of person or property;

(c) 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;

(d) the act or conduct was that of

(i) a peace officer acting in the course of his or her duty to prevent, discover or investigate crime or to discover or apprehend the perpetrators of a crime, or

(ii) a public officer engaged in an investigation in the course of his or her duty under a law in force in British Columbia,

and was neither disproportionate to the gravity of the crime or matter subject to investigation nor committed in the course of a trespass.

...

[10] The City has a statutory authorization to enter and inspect property including residences and uses of property within the City boundaries. That statutory authorization is provided for in s. 16 of the Community Charter, S.B.C. 2003, c. 26. The City may also attend pursuant to relevant enacted bylaws. The consent of the occupants is not required where valid written notice of the inspection is given. This occurred in the case at bar.

[11] The owner of a rented residential property or landlord has the right to inspect that property as provided in s. 29(1) of the Residential Tenancy Act, S.B.C. 2002, c. 78. Again, clear written notice of the inspection was given to the plaintiffs more than 24 hours before the inspection according to the filed documents.

[12] On the facts of the case now before me, the inspections of the property, including the residences or vehicles thereon, were authorized by law. These inspections are outside the scope of the tort created by s. 1 of the Privacy Act. As there is no common law tort of privacy in BC, the claims contained in para. 13 of the present notice of civil claim are without legal foundation and cannot hope to succeed. The claims in that paragraph are dismissed.

It is worth noting that the Court didn't go into any detailed analysis of the issue, but it is clear to me that what was complained-of did not fit within the tort set out in the Privacy Act, nor would it be actionable as an intrusion upon seclusion under the Jones v Tsige tort.