In RateMDs Inc. v. Bleuler, 2025 BCCA 329, the BC Court of Appeal overturned certification of a proposed privacy class action, finding that the plaintiff's novel claims that use of health professionals' names violated their privacy and amounted to commercial exploitation under provincial privacy statutes were bound to fail. This decision reaffirms the BC courts' commitment to screening out novel claims that are bound to fail at certification. There is no justification for engaging significant court and party resources to litigate claims that have no prospect of success simply because they are novel.
The plaintiff in RateMDs alleged that the defendant's use of health professionals' names and contact information to create profiles about them on its website, under which patients could post reviews, was a violation of the health professionals' privacy and an unauthorized use of their names for commercial purposes, giving rise to claims under ss. 1 and 3(2) of the BC Privacy Act and comparable privacy legislation in other provinces.
In finding that the claim had no prospect of success, the Court confirmed that the fact the defendant profited from its website was not in itself sufficient to make out the statutory tort of unauthorized use of a name for the purpose of advertising or promoting the sale of services. Here, the names were not being commercially exploited by the defendant for the purpose of increasing sales. Rather, the names were being used to provide information to the public. The Court confirmed that the tort under s. 3(2) of the BC Privacy Act "is not designed to capture any use of a plaintiff’s name or portrait by a defendant who expects to profit from that use" (emphasis original).
The Court also found that the plaintiff was advancing a novel violation of privacy claim premised on the notion that individuals have a right to control the use of their information even if they have no reasonable expectation of privacy in that information. This was not simply an extension of established law, and the claim was bound to fail. The fact that one objects to the use of one's professional and public information on a website "does not translate into a reasonable expectation of privacy". Here, the health professionals did not have a reasonable expectation that information about their services was private.
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- The plaintiff did not allege any privacy violations arising from the content of reviews on the website. She also conceded that it would not be a violation of privacy for patients to post their own individual reviews about health professionals on the internet.
- The Court clarified its decision in Insurance Corporation of British Columbia v. Ari, 2023 BCCA 331 and confirmed that the precondition to an individual’s right to control the use of their personal information is that the information itself attracts a reasonable expectation of privacy in the context of which the breach of privacy is said to arise.
- The decision follows the Supreme Court of Canada's guidance in Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, which held that the simple fact that a claim is novel and may include complex questions of law is not a reason to allow it to proceed to trial if the claim has no reasonable prospect of success.
