BCSC dismisses privacy claim against lawyer

28 Jul

On July 26th, the Supreme Court of British Columbia dismissed a claim against a lawyer based in part on his service of application materials and based in part his conveyance of information about the plaintiff in a casual conversation with another lawyer.

The application that became the subject of the claim was made in an earlier family law proceeding. It was for production of financial documentation from the plaintiff relating to seven companies in which he had an interest.

The defendant represented the plaintiff’s wife. He served the companies with application materials (a notice plus affidavit) without redaction and in an unsealed envelope. Apparently his process server left the materials with two unrelated companies in an attempt to affect service.

The Court dismissed this claim because the lawyer was at all times acting as counsel in furtherance of his client’s interest and was protected by absolute privilege. Justice Griffin commented favorably on the lawyer’s conduct in any event, declining to give effect to the plaintiff’s argument about the need for redaction and sealed envelopes and giving wide berth to counsel’s judgement. She said:

As a matter of ethics, professionalism and good practice generally, I do agree that lawyers should consider the privacy of litigants and not unnecessarily reveal the private information of the opposite party nor should they seek to embarrass the opposite party… But that does not mean that an action lies for a lawyer’s steps in the conduct of litigation if the opposite party does not like how the lawyer exercised his or her judgment in bringing and serving applications which disclose private information.

The “casual conversation claim” arose from a discussion the lawyer had with another lawyer during a break in discovery in another case. The lawyer said he represented a woman whose former husband had sold a business in Alberta for $15 million and that the couple had three young children. Another person who was present came to believe the lawyer was speaking about the defendant.

The Court dismissed the claim because the plaintiff had not proven the fact of $15 million sale was private. More notable is Justice Wilson’s obiter finding that the lawyer’s disclosure was not “wilful” because he could not reasonably have expected the plaintiff to be identified. She said:

I have found the question of whether Mr. Lessing was wilful in violating Mr. Duncan’s privacy to be a difficult one. On balance, however, because the information he stated was very innocuous; he did not reveal names of the persons or the companies; and there is no evidence that he ought to have known someone in the room would know Mr. Duncan, I find that it cannot be said that he “knew or should have known” that what he said would breach Mr. Duncan’s privacy. I therefore find that if Mr. Lessing did breach Mr. Duncan’s privacy it was not a wilful violation of privacy within the meaning of the Privacy Act.

Duncan v Lessing, 2016 BCSC 1386 (CanLII).

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