Statutory Privacy and Reasonable Expectation of Privacy Statutory Privacy and Reasonable Expectation of Privacy

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• Moon v. International Alliance of Theatrical Stage Employees (Local 891), 2025 BCSC 2238

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Moon v. International Alliance of Theatrical Stage Employees (Local 891), 2025 BCSC 2238

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Facts

The plaintiff, Kelly Moon, held an elected, paid position with Local 891 of the International Alliance of Theatrical Stage Employees (Local 891). Ms. Moon was the subject of an audit report, which found she used her company credit card for personal expenses. All personal expenses were repaid and there was no suggestion that Ms. Moon misappropriated Local 891 funds.

The Local 891 Executive Board released the Audit Report on Local 891’s internal website in January 2019, where it was available to all members for approximately one week. A draft of the Audit Report was also illicitly leaked to various members before its official release. Ms. Moon lost her bid for re-election with Local 891, which she attributed to the disclosure of the Audit Report.

Ms. Moon brought a complaint to the Office of the Information and Privacy Commissioner (the Privacy Commissioner) under the Personal Information Protection Act, S.B.C. 2003, c. 63 (PIPA). The Privacy Commissioner upheld the legitimacy and lawfulness of the disclosure but found that: the unnecessary inclusion of specific transactions in the Audit Report violated PIPA; and Local 891 failed to take adequate security measures to prevent unauthorized leaks.

Ms. Moon brought an application seeking damages against Local 891 and several individual defendants who were members of the Executive Board, alleging breach of contract, violation of section 1 of the Privacy Act, R.S.B.C. 1996, c. 373 (the B.C. Privacy Act), the common law tort of public disclosure of private fact, negligence, conspiracy and a claim under section 57 of PIPA. The defendants applied for summary trial.

Decision

The Court found the matter was appropriate for summary trial and dismissed all of Ms. Moon’s claims, except as against a John Doe defendant.

On the breach of contract claim, the Court found the Executive Board did not breach the duty of good faith by releasing the Audit Report, finding that the Executive Board had a legitimate purpose in informing its membership about its officer’s financial transactions using company credit cards.

On the breach of privacy claim under the B.C. Privacy Act, the Court found that while the release of specific transactions in the Audit Report violated Ms. Moon’s objectively reasonable expectation of privacy, the breach was not “wilful” within the meaning of section 1 of the B.C. Privacy Act. Local 891 had obtained legal advice that releasing the detailed transactions was permissible under PIPA. Reliance on a legal opinion, even if incorrect, negates the suggestion of recklessness. The Court also held that unions are not vicariously liable for the actions of their members, and therefore the leak of the draft report by a member did not give rise to liability for the defendants.

The Court declined to recognize a new common law tort of public disclosure of private fact in British Columbia. The Court found that alternative remedies exist in the form of the B.C. Privacy Act and PIPA, and that creating a new nominate tort without the legislative limits of those statutory schemes would work an indeterminate and substantial change to the legal system. The Court concluded by deferring to the legislature to govern privacy matters: “In my view, it would be irresponsible of me to try to craft a cause of action for the protection of privacy without either political debate or expert assistance.”

On the negligence claim, the Court found that although Local 891 owed Ms. Moon a duty of care to protect her personal information, Local 891 had obtained legal advice about whether it could disclose the transactions consistent with PIPA and acted within the scope of that advice. Local 891 was therefore not negligent.

On the conspiracy claim, the Court found no evidence that the Executive Board was motivated by anything other than wanting to promote transparency. Even if the Board were motivated by political opposition to Ms. Moon’s re-election, it is not tortious to try to accomplish this by lawful means.

On the PIPA claim, the Court found that Ms. Moon had not established “actual harm” within the meaning of section 57 of PIPA. The PIPA violations did not cause Ms. Moon to lose the election. The Court considered the term “actual harm” ostensibly for the first time, concluding that the standard for “actual harm” is high and must be caused by a wilful or reckless breach of privacy. While her psychological distress was real, it was not attributable to the PIPA violations and was insufficient to meet the standard of “actual harm”.

Key takeaways

This case decides previously unsettled law as to whether a common law privacy tort for public disclosure of private fact exists in B.C. In so doing, the Court has further limited the scope of relief available for breach of privacy to the B.C. Privacy Act and PIPA.