In a recent decision Phelan, J. of the Federal Court awarded a self –represented litigant $10,000 damages for breach of privacy and $10,000 exemplary damages, as well at $1,000 in costs against Bell TV. The application was made pursuant to ss. 14 (1) of the Personal Information Protection and Electronic Documents Act seeking $20,000 in damages for breach of privacy and Charter rights, aggravated damages for emotional pain, anguish, anxiety and humiliation and punitive damages in the amount of $15,000 for Bell TV's malicious and high-handed conduct and negligence. According to the judgement, Bell did not respond to the application – which seems odd and makes one wonder if it was properly served and aware of the application, although the judgment makes a point of confirming that Bell had been served.
Chitraker had ordered satellite television service from Bell. He was a first-time customer and did not have a credit history with Bell. At the time that the service was installed, Chitraker was required to provide his signature on what is known as a POD Machine (Proof of Delivery Device) – a 3" x 3" digital box which allows only for a signature. Chitraker's evidence was that he believed he was only confirming delivery of the satellite system.
Bell then appears to have embedded the signature it on its Bell TV Rental Agreement. Chitraker was not given a copy of the Rental Agreement at that time. There was a provision in the Rental Agreement which authorized Bell to perform credit checks on a customer and after service had been installed, Chitraker ordered his credit report and discovered that Bell had accessed his credit history. This access was before the service was installed and certainly before he had provided his signature on the POD Machine.
The Privacy Commissioner had previously investigated (although there does not appear to be any finding regarding this case on her website) and found that the type of credit check conducted was a "hard pull" where credit information is revealed. She reported that a concentration of a number of "hard pulls" within a certain time frame can negatively affect an individual's credit score. The Privacy Commissioner also found that everything that had happened to Chitraker was contrary to Bell's policies and procedures.
The Court accepted the findings of the Privacy Commissioner and found that Bell's conduct was a breach of Chitraker's privacy rights and that the consequences of the credit check, without his proper consent and authorization, were real and adverse. The Court found that Bell was not responsive to his complaints and made no effort to compensate him or adequately deal with his complaint.
The award of damages was also influenced by what it perceived to be Bell's failure to take the proceedings seriously, as evidenced by its failure to participate in the court proceeding. The lesson learned? Breaches need to be taken seriously and steps need to be taken to own up to privacy failures and take genuine, meaningful steps to address them. The Courts will otherwise not be amused!
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