Intrusion upon seclusion may exist in federal law
We have previously commented on the growing number of privacy class actions in Canada over the past five years and the coinciding recognition by courts of the common law tort of intrusion upon seclusion.
Recently in Tucci v Peoples Trust Company, the Supreme Court of British Columbia certified a proposed class action against Peoples Trust Company following a hacking incident where cybercriminals stole website users’ personal information. The action was brought on behalf of an estimated 11,000-13,000 individuals.
The claim alleged that proposed class members were put at risk of identity theft, cybercrime, and phishing because the Company failed to adequately secure personal information collected and stored online. The Court certified three of the causes of action plead, including the tort of intrusion upon seclusion.
Although BC is an “opt-in” jurisdiction for non-residents, the Court found that by agreeing to the Choice of Law provision, non-resident class members were deemed to have opted into the class, but could opt out within a certain time period.
Intrusion upon seclusion
The tort of intrusion upon seclusion was established in the seminal Ontario Court of Appeal decision of Jones v Tsige and continues to be applied by Ontario courts.
In contrast, BC courts have declined to recognize the tort given that the provincial Privacy Act provides a statutory mechanism for affected individuals to seek remedies for breach of privacy issues and hence precludes an action in tort for the same.
Federal common law and the Choice of Law provision
In Tucci, the Company argued that BC common law barred the claim in intrusion upon seclusion. Although agreeing the claim could not be brought under BC common law, the Court held that the wording of the Choice of Law provision which references “the laws of British Columbia and applicable federal laws of Canada,” was broad enough to include federal common law.
The Court noted it was a “novel claim involving the resolution of complex and undecided questions of constitutional law” and that the relatively new tort “should be allowed to develop through full decisions.”
“Opt-out” versus “opt-in” for non-residents
British Columbia’s Class Proceedings Act is unique in Canada as it provides for an “opt-in” regime for non-resident class members. There have been some exceptions, including Lee v Direct Credit West Inc where the BC Supreme Court found non-residents had attorned to the jurisdiction through the application of a Choice of Law clause, which effectively precluded them from bringing class proceedings in any other province.
In allowing non-residents to participate on an “opt-out” basis, the Court weighed the policy goals of the Act against the broad discretion granted to the Court to control its own procedure. In Tucci, the Court followed the reasoning in Lee and concluded the non-resident class should be included on an “opt-out” basis.
Take-aways from Tucci
Outside of Ontario and BC, the tort of intrusion upon seclusion has been cited in Alberta and Manitoba courts, but has not yet been explicitly recognized.
As Tucci progresses, the tort could be recognized in federal common law, allowing claims to be brought in jurisdictions such as BC with legislation precluding common law actions for privacy breaches.
Tucci also serves as an important reminder to draft Choice of Law clauses carefully in order to avoid unexpected litigation.