Privacy Torts: Provinces “Think Different”

Back in 1997, Apple had an enormously successful ad campaign with the signature phrase “think different”.  You can see it here. A recent British Columbia decision illustrates the fact that Canada’s provinces do “think different” from time to time with respect to the shape of the common law, in this instance with respect to a common law tort concerning privacy. I’m not sure this BC decision is as negative a result as some might initially think although it does highlight the fact that we have conflicting views at the provincial level. 

The decision of Demcak v. Vo  is in stark contrast to last year’s Jones v Tsige decision in Ontario and rightly so given the facts of the case.

Demcak involved a residential tenancy case where a lessee gave a sub-lessee notice to vacate that was found to be valid in both a Residential Tenancy Branch hearing and a subsequent review. The sub-tenant (Mr. Demcak), representing himself,  then filed a civil claim against the property management firm that acts for the owner of the building, alleging, it appears, an invasion of privacy based on acts of trespass.

In dismissing the claim the court reaffirmed that there was no common law tort of invasion of privacy in BC and went on to conduct an analysis of the claim as if it were made under BC’s Privacy Act which provides a statutory tort of invasion of privacy. Since the City has statutory authority to enter and inspect property within City boundaries and the owners of a rented residential property may inspect their property under the Residential Tenancy Act, the court found that the inspections in question were outside the scope of the tort created by s. 1 of the Privacy Act. Mr. Demcak had at least one existing legal remedy available  – even if the facts didn’t appear to support a viable claim under that remedy.

In Ontario, I tend to think the decision in Jones reflected a situation where there was a gap in the law. PIPEDA applies in Ontario but not to the actions of people acting in an individual capacity. Ontario, unlike BC, also has no statutorily created tort of invasion of privacy. Ms. Jones had no apparent legal remedy available to her and thus argued that that the common law provided her with one. The Ontario Court of Appeal agreed. This is a far cry from what existed in Demcak.

If anything, Demcak serves as a cautionary tale that one should be careful about making privacy claims. Mr. Demcak appears to have thought that any “violation” of his property constituted a “violation of privacy” — a casual use of the concept of privacy if there ever was one.

The jurisdictional divide involves BC, Alberta and Ontario, Alberta’s  Martin v. General Teamsters, Local Union No. 362,  while noting the 2009 Mohl decision out of BC  (saying there’s no common law tort of invasion of privacy in that province), did not explicitly say that there was no such tort in Alberta. Given the facts and on close reading of Martin it seems that the the court rejected the claim based on the notion that a complaint should have been made under Alberta’s PIPA.

However, as noted in Martin, the 2010 Bank of Montreal v. Cochrane decision from Alberta did implicitly say there was no common law tort. BMO argued on the basis of Mohl that there was no such tort and the court simply stated that it agreed with BMO’s argument. However, both Mohl and Cochrane were less than fulsome in their analysis of the law. Added to this is the fact that Jones was the first instance of a higher court that confirmed the existence of a tort. But that only makes Demcak more problematic. I can understand why the tort claim was denied but given the publicity that Jones received in the legal press, one might be forgiven for thinking it’s existence might have been acknowledged and either distinguished or addressed.

When, or even if, the issue will ever get to the Supreme Court of Canada remains to be seen.  Courts in provinces without a statutory tort and absent a jurisdictional basis to file a complaint with a Privacy Commissioner will have to choose between Ontario’s or Alberta’s approach. For the moment, we’re left with the fact that provinces do from time to time “think different” when it comes to privacy torts.