It's Been A Privilege: Recent Decision Highlights Need For Regulators To Not Trample Over Privilege

The recent decision of the British Columbia Court of Appeal, Lamarche v. British Columbia (Securities Commission),¹  confirms that a regulator may face civil liability if it does not appropriately protect privilege during an investigation. Although the decision concerns the British Columbia Privacy Act, which creates a tort for intentional breach of privacy,²  it has broader implications given similar statutory privacy torts in other provinces³  and similarities to the common law privacy tort.⁴

Background

The British Columbia Securities Commission compelled the email records of Jean Andre Lamarche from a third party as part of its investigation into alleged unregistered trading and advising. Lamarche sued the Commission, alleging that the Commission knew or ought to have known that their investigation would capture solicitor-client privileged information and they took no steps to protect that privilege. Among other things, he sought damages under the Privacy Act