Damages for Privacy Violations Becoming More Common in Canada
November 21, 2013
By Tamara Céline Winegust and Catherine Lovrics
Canadian courts appear to be signaling greater willingness to award damages for privacy breaches. The Federal Court recently awarded $20,000 in damages against one of Canada’s leading cable companies, Bell TV for conducting an unauthorized credit check on a (now former) customer. Half the damage award was exemplary damages to penalize Bell TV for its conduct. A further $1000 was ordered for legal and other costs.
PIPEDA requires knowledge and consent by an individual whose personal information will be collected, used, or disclosed. In this case, Bell TV performed a “hard pull” credit check on the complainant, “Chitrakar” without his permission when he ordered Bell’s service. Chitrakar complained to Bell, who apologised on Chitraker’s voicemail and allowed Chitraker to cancel his service, but refused to take further action, eventually cutting off communication. Chitrakar filed a complaint with the Privacy Commissioner, who found the circumstances of the breach “troubling.”
In granting damages, the Court gave privacy rights a broad scope and recognized such rights as “important rights in an era where information on an individual is so readily available even without consent.” The Court emphasised meaningful compensation, deterrence, and vindication as driving damages awards in privacy-related cases, signalling the importance of protecting these rights even where there is no proof of a direct loss or proof of a particularly egregious breach.
The Court concluded Bell violated Chitraker’s rights in a “real sense.” The Court also emphasized that the power imbalance between Bell—a large company for whom a small damage award would have little material impact—and Chitraker—an individual user who spent a considerable period dealing with the Bell bureaucracy—suggested the damages award should not be token, or minimal.
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