An Outlier Or Sign Of The Future? BC Court Awards $15,000 Per Victim In Privacy Breach Class Action

On June 3, 2024, the Supreme Court of British Columbia (the Court) released its decision in Ari v Insurance Corporation of British Columbia, 2024 BCSC 964, finding that damages of $15,000 per class member fell within the category of a “modest or nominal award” in the circumstances.

In August 2023, the British Columbia Court of Appeal upheld the Court’s previous decision that Insurance Corporation of British Columbia (ICBC) was vicariously liable for its employee’s conduct wherein they improperly accessed and sold customers’ personal information, and this led to targeted arson and shooting attacks on several of the same customers (as previously reported in the E-TIPS® Newsletters here and here).

In assessing class-wide damages for the matter, the Court rejected ICBC’s position that non-pecuniary damages should be limited to $500 per class member.  The Court stated that ICBC’s position would “trivialize the privacy interest that was violated” and that public purpose and need for accountability was of particular importance, further noting that individuals who provide personal information to certain organizations often have no meaningful choice about whether to do so.

The Court found that this case was comparable to Jones v Tsige, 2012 ONCA 32 (Tsige), in which the Ontario Court of Appeal: (i) held that damages for breach of privacy where the plaintiff suffered no pecuniary loss are intended “to vindicate rights or symbolize recognition of their infringement” and should be “modest but sufficient to mark the wrong that has been done”; (ii) set a conventional range of such damages at “up to $20,000”; and (iii) awarded damages of $10,000 on the facts. However, the Court determined that the current breach of privacy was more serious than in Tsige because it was motivated by personal financial gain; resulted in distribution of information to third parties (including criminals); was not limited to a single individual; and the full extent of the distribution of information and the risks it created at the time will never be known.

Accordingly, the Court concluded that an award of $15,000 per class member appropriately constituted a modest or nominal award.

Summary By: Steffi Tran