Canada: Damages Granted For Privacy Violations Are On The Rise

Last Updated: November 5 2013
Article by Éloïse Gratton

Last week, the Honourable Mr. Justice Phelan of the Federal Court awarded over $20,000 in damages following a privacy violation in Chitrakar v Bell TV, 2013 FC 1103.

On December 1, 2010, Chitraker, a first-time Bell Customer with no credit history with Bell ordered a satellite television service. The service was installed on December 31, 2010 at which time Chitraker was required to provide his signature on a Proof of Delivery Device. After the service was installed, Chitraker eventually ordered his credit report at which time he learned that Bell had accessed his credit history on December 1, 2010, without his consent. The type of credit check done by Bell was a "hard pull", and a concentration of a number of these "hard pulls" within a certain time frame may negatively affect an individual's credit score.

After Chitraker unsuccessfully contacted Bell on many occasions to obtain clarifications, he filed a complaint with the Office of the Privacy Commissioner of Canada ("OPC"). It appears that during the OPC's investigation, Bell could not locate any relevant records concerning this case, that it could not confirm the identity of the Bell customer service representative who took Chitraker's order, and that it could not confirm whether this representative had taken the privacy training that dealt with Bell's policies and procedures. The Privacy Commissioner found that Chitraker's complaint was well founded and Chitraker then applied to the Federal Court under s. 16 of the Personal Information Protection Electronic Documents Act ("PIPEDA"), seeking damages for a breach of privacy, aggravated damages for emotional pain, anguish, anxiety and humiliation, as well as punitive damages for Bell TV's malicious and high-handed conduct and negligence.

recent claims for privacy violations

A few recent other cases illustrate that while the awarding of damages is discretionary, the extent of the privacy invasion usually had to be quite important in order for damages to be granted by the Federal Court. In a couple of relatively recent cases, damages were claimed by employees following an illegal disclosure of their personal information which (potentially) led to their dismissal. While these claims originated from findings by the OPC confirming the illegality of the said disclosures, these claims in damages were nonetheless rejected by the Federal Court:

  • In Stevens v SNF Maritime Metal Inc., 2010 FC 1137 (CanLII) the application seeking damages was rejected for the main reason that: "To the extent (if any) that privacy is involved, it is minimal and the Applicant has put forward no other evidence of impact on his standing or community perception or similar features of a breach of privacy claim."
  • In Randall v Nubodys Fitness Centres, 2010 FC 681 (CanLII) the Federal Court articulated the view that "(...) an award of damages is not be made lightly. Such an award should only be made in the most egregious situations."

The "egregious" test dropped: Privacy damages more easily granted

According to the Federal Court in Chitrakar v Bell TV, Bell's conduct in this matter was reprehensible in respect to Chitraker's privacy rights and Bell violated Chitraker's privacy rights under PIPEDA (particularly Article 4.3) by conducting a credit check without his prior consent. In terms of the effect of this violation, the Court mentions that a "hard check" has adverse consequences as it may trigger the lowering of a person's credit score. The Court, on the issue of determining the amount of damages that should be granted following a violation of privacy rights, stated:

"[24] The fixing of damages for privacy rights' violations is a difficult matter absent evidence of direct loss. However, there is no reason to require that the violation be egregious before damages will be awarded. To do so would undermine the legislative intent of paragraph 16(c) which provides that damages be awarded for privacy violations including but not limited to damages for humiliation." (Our emphasis)

Interestingly, the Federal Court articulates the view that "Privacy rights are being more broadly recognized as important rights in an era where information on an individual is so readily available even without consent. It is important that violations of those rights be recognized as properly compensable." (par. 25) The Court mentions that in determining the amount of damages to grant in this case, it had to bear in mind factors such as meaningful compensation, deterrence and vindication (see Vancouver (City) v Ward, 2010 SCC 27, [2010] 2 SCR 28). Given that Chitraker had his rights violated in a real sense with potentially adverse consequences, that Bell is a large company for whom a small damages award would have little material impact, and that Chitraker spent a considerable period dealing with the Bell bureaucracy and in pursuing his claim, the Federal Court awarded damages of $10,000 and exemplary damages of $10,000 for Bell's conduct at the time of the breach of the privacy rights and thereafter.

This decision, read together with the May 2013 Privacy Commissioner of Canada Jennifer Stoddart's report "The Case for Reforming the Personal Information Protection and Electronic Documents Act" which outlines her proposals for modernizing PIPEDA by, amongst other things, providing the OPC with stronger enforcement powers, is sending a clear message that private-sector organizations should be taking data protection laws (such as PIPEDA) more seriously.

takeaways for businesses

The lessons to be learned from this decision are that businesses should:

  • ensure that privacy compliant business practices are in place. This means that they have to ensure that they are being transparent about the type of personal information that they may be collecting (especially if such collection practices may have adverse consequences such as triggering the lowering of a person's credit score), ensure that they have obtained the proper consent from customers and ensure that such consent are properly documented; 
  • invest in preventive measures such as conducting privacy training for their customer services staff which may have to deal with and respond to customer complaints. These employees should be trained to deal with customers' complaints promptly, responsively, and to document each exchange taking place with the complainant; and
  • take privacy complaints from customers seriously and participate in any OPC's investigation. As a matter of fact, this case indicates that the Federal Court will take into account the conduct of the business at the time of the violation of the privacy rights and thereafter, when deciding on whether to grant exemplary damages in such claims.

A breach of privacy may trigger damage to the reputation of a business, bad publicity, loss of trust or public confidence, loss of prestige as well as loss of future business. Chitrakar v Bell TV confirms that on top of these types of damages (as well as the hard costs of responding to a privacy breach), the business' financial exposure following a claim for damages in connection with a violation of privacy rights should also be taken into account, especially if damages granted by the courts in these types of matters are on the rise.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2013 McMillan LLP

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.