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
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
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