Commercial Litigation and Dispute Resolution Blog

Over the years, the courts have sought to protect the public interest in ascertaining the truth in civil litigation proceedings while at the same time affording protection to the privacy interests of the parties involved. The Court of Appeal for British Columbia recently addressed this issue in Duncan v. Lessing, 2018 BCCA 9, when affirming that the statutory tort of invasion of privacy created by British Columbia’s Privacy Act, R.S.B.C. 1996, c. 373 does not apply to activities that occur during judicial proceedings. In doing so, the court upheld the principle that the public interest in securing justice outweighs a litigant’s privacy interests, but that such privacy interests are entitled to reasonable protection as long as this does not interfere with the efficient conduct of litigation. Privacy legislation has been accorded quasi-constitutional status and the courts continue to emphasize the importance of privacy and its role in protecting individual autonomy: Douez v. Facebook, 2017 SCC 33 at para 59. However, the Duncan decision articulates a clear limit on an individual’s ability to seek redress for violations of privacy occurring in the context of civil litigation proceedings.

The Duncan case arises from a family law dispute where Mr. Lessing was counsel for Ms. Duncan. In the underlying proceeding, Mr. Lessing instructed one of his associates to prepare a notice of application and a supporting affidavit seeking orders for Mr. Duncan to produce certain records in connection with several companies in which he had an interest. The supporting affidavit, sworn by Ms. Duncan, contained three years of Mr. Duncan’s personal tax returns, financial information from some of these companies, and other sensitive information. These application materials were then sent out for service on Mr. Duncan as well as the seven companies named in the application. They were properly served on five of these companies, however in two cases, the service agent left the materials with companies unconnected to the litigation.  The delivery of the information in Ms. Duncan’s affidavit to parties not involved in the litigation was alleged to be one of two breaches of Mr. Duncan’s privacy. 

The second alleged breach of privacy, involved some “loose talk” by Mr. Lessing about Mr. and Ms. Duncan’s case with a lawyer that Mr. Lessing was opposite of in unrelated litigation. Mr. Lessing discussed aspects of Mr. Duncan’s case on an anonymous basis but with sufficient detail for the other lawyer’s client, who happened to know Mr. Duncan’s sister and who had met Mr. Duncan in the past, to be able to deduce who Mr. Lessing was talking about, which led to some embarrassment for Mr. Duncan.

Mr. Duncan brought an action against Mr. Lessing claiming that these alleged breaches of privacy were actionable pursuant to the statutory tort of invasion of privacy created by the Privacy Act. The trial judge dismissed Mr. Duncan’s claims, finding that his claim in connection with the first allegation was barred by the doctrine of absolute privilege, which is expressly incorporated as an exception from liability in the Privacy Act; and, that while his claim in relation to the second allegation did not arise from conduct in furtherance of litigation, it nevertheless did not amount to an invasion of Mr. Duncan’s privacy.

In the appeal decision, the court described how the privacy interests of those involved in civil proceedings have traditionally been addressed through a combination of the rules of court and the implied undertaking. The implied undertaking prohibits the use of information obtained through the discovery process for purposes outside of the litigation. In addition to the implied undertaking, parties can avail themselves of additional protections provided for by the rules of court and the court’s inherent jurisdiction, including sealing the file and requiring litigation advisors to execute express undertakings of confidentiality.

The appellate court in Duncan also discussed the common law doctrine of absolute privilege that developed out of the law of defamation. This doctrine holds that an absolute privilege attaches to statements made by lawyers, judges and witnesses in the course of judicial proceedings. The privilege extends to occasions where counsel are acting in the course of their duties to the client in the course of a judicial or quasi-judicial proceeding, and to all preparatory steps taken with a view to such proceedings.

The court found that the implied undertaking rule and the absolute privilege doctrine taken together “provide a coherent structure to ensure that privacy interests are protected in civil litigation to a limited extent, but not to the extent of interfering with the broad public interest in securing justice”. This is consistent with the ultimate importance traditionally placed by the courts on their truth finding function.

Mr. Duncan’s appeal in connection with his first allegation was dismissed on the basis that absolute privilege attaches to the serving of application materials containing private information in the furtherance of litigation and that, by reason of the statutory exception in the Privacy Act, there is no violation of privacy. While acknowledging that this finding was dispositive of the appeal in connection with his first allegation, the court went on to refer to s. 2(2)(c) of the Privacy Act which states that an act or conduct is not a violation of privacy if “the act or conduct was authorized or required under a law in force in British Columbia, by a court or by any process of court”. The court remarked that “the effect of this provision is to exclude from the operation of the Privacy Act any act taken in a judicial proceeding that was authorized by a law in force in British Columbia or any process of a court”.

The court also dismissed Mr. Duncan’s appeal in connection with his second allegation on the basis that violations of privacy are decided on the particular facts of each case, that the trial judge had made findings of fact that supported her decision and that these findings were properly supported by the evidence. However, the court did remark that “while it may not have been actionable, this case is a good illustration of the wisdom of lawyers not gossiping about any aspect of their cases that is not part of the public record”.

The Duncan decision illustrates that notwithstanding the quasi-constitutional status afforded to individual privacy rights, the current state of the law in British Columbia is that protection will only be afforded to such rights to the extent that those protections do not infringe upon the public interest in securing justice or the efficient conduct of civil litigation. Litigants concerned with the confidentiality of the information disclosed in the course of litigation must be satisfied with the protection afforded to them by the implied undertaking rule, the rules of court and the court’s inherent jurisdiction to control its own process.