Docket: T-1739-12
Citation:
2014 FC 555
Toronto, Ontario, June 10, 2014
PRESENT: Prothonotary
Kevin R. Aalto
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BETWEEN:
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MIKE HENRY
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Plaintiff
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and
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BELL MOBILITY
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Defendant
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
In this action Mr. Henry seeks damages because
Bell Mobility revealed certain information about Mr. Henry’s mobile telephone
account (Account) to an unauthorized third person. The release of the
information amounted to a breach of the Personal Information Protection and
Electronic Documents Act, (S.C. 2000, c. 5) (PIPEDA). Mr. Henry
claims that he suffered losses arising from this information being divulged.
The claimed damages amount to $49,500.00 including compensatory damages of
$35,500.00; punitive damages of $5,000.00; general damages of $5,000.00 and
legal costs of $4,000.00.
[2]
Although damages for breach of privacy and
breach of PIPEDA are usually assessed by way of application, this claim
was commenced as a simplified action. While Bell Mobility defended the action,
at the opening of trial, liability was conceded and the only issue for
determination was the quantum of damages.
II.
EVIDENCE
[3]
The evidence at trial consisted of Mr. Henry’s
affidavits sworn November 1, 2012 which included as an exhibit the report of
findings of the Office of the Privacy Commissioner of Canada (Privacy Commissioner) and the cross-examination of Mr. Henry. The affidavit of an
individual named Ray Beavis sworn May 1, 2013 had also been served and filed.
However, at the opening of trial, Mr. Henry provided the Court with a copy of
an email from Mr. Beavis advising that he would be unable to attend the
hearing. Mr. Henry submitted that notwithstanding Mr. Beavis’ unavailability
his affidavit should be accepted. However, counsel for Bell Mobility objected
to the affidavit as Mr. Beavis was not available for cross-examination and the
evidence was therefore inadmissible.
[4]
In large part the facts giving rise to this
action are found in the report of findings of the Privacy Commissioner.
[5]
In essence, a woman unrelated to Mr. Henry
contacted Bell Mobility on October 14, 2010 and sought information regarding
Mr. Henry’s account. The woman placed the call to Bell Mobility and proceeded
to persuade the Customer Service Representative (CSR) that she should have
access to the Account. The call lasted approximately 10 minutes. The CSR
allowed her access even though the woman did not know the PIN number nor other
pertinent information relating to the Account. She said her name was Michea-l
Henry. She persuaded the CSR to change the PIN Number relating to the account
and the name on the account to Michea-l Henry. The woman knew the phone number
and the address to which Mr. Henry’s bills were sent but that is all. The
transcript of the conversation between the woman and the CSR was also an exhibit
to Mr. Henry’s affidavit.
[6]
During the call, the CSR provided the woman with
the following information regarding the Account:
(a)
The correct PIN for the account;
(b)
The latest billing date;
(c)
The latest payment date;
(d)
The latest bill amounts;
(e)
The latest payment amounts;
(f)
The number of minutes used;
(g)
The type of cell phone plan Mr. Henry subscribed
to;
(h)
The numbers for which Mr. Henry requested
directory assistance; and,
(i)
The most recently dialled seven numbers.
[7]
The Privacy Commissioner determined that the
release of the information to the woman caller was a breach of PIPEDA. The
Privacy Commissioner made the following findings regarding the disclosure of this
personal information:
Disclosure
30. The complainant’s [Mr. Henry] personal
information was disclosed to the imposter who called Bell on October 14, 2010,
and claimed to be the account holder. This event is not disputed by either the
complainant or Bell. The personal information disclosed included the
complainant’s PIN as well as payment and calling history information for his
cellular telephone account.
31. Principle 4.3 requires the knowledge
and consent of the individual for the collection, use or disclosure of personal
information, except where inappropriate. Since the complainant had not
provided his consent for the disclosure of his information to the caller,
Principle 4.3 was contravened.
[8]
The Privacy Commissioner also made findings
regarding Mr. Henry’s complaint to Bell Mobility and the timing within which Bell
Mobility responded to Mr. Henry. Those findings are as follows:
Access
32. At issue is also whether Bell provided the complainant with access to his personal information and, in so doing,
respected its obligations under the Act.
33. Principle 4.9 of the Act requires
that individuals be given access to their personal information. Subsequent 8(3)
specifies that an organization shall respond to a request for access to
personal information with due diligence and in any case not later than thirty
days after receipt of the request. Subsequent 8(4) provides for the
possibility of an extension under certain circumstances. Subsequent 8(5) adds
that if the organization fails to respond within the time limit, the
organization is deemed to have refused the request.
34. The complainant’s request for access
to his personal information was dated November 8, 2010. However, he did not
receive a response from Bell until December 21, 2010. The intervening period
is more than thirty days, longer than that allowed by subsection 8(3) to
respond. The organization did not attempt to extend the time limit by invoking
any of the reasons from subsection 8(4). Therefore, pursuant to subsection 8(5),
we are of the view that Bell refused the request since it did not respect the
thirty-day limit allowed. The organization, by not providing access within the
time limit, was thus in contravention of Principle 4.9.
[9]
In his evidence, apart from his references to
the findings of the Privacy Commissioner, Mr. Henry gave evidence regarding a
business opportunity which he alleged he lost. The business opportunity
related to the production of a documentary film on the environment. Mr. Henry
described himself as being involved in a number of occupations although most recently
in the construction/oil industry in Northern Alberta. He indicated he had a
number of other occupations but conceded he had not previously been involved in
film production.
[10]
Apparently, Mr. Henry tried to produce a
documentary dealing with oil/water/air pollution of the “Michael Moore” type to
quote Mr. Henry. His evidence is that he was in the course of producing and
preparing the documentary and had obtained financing from Ray Beavis. He says
that Ray Beavis withdrew the financing because an unidentified woman called him
and suggested that Mr. Henry was unreliable and untrustworthy. All of the
evidence relating to the alleged phone call to Mr. Beavis was hearsay. I give
it little weight.
[11]
While Mr. Henry may believe that Mr. Beavis
declined to finance the documentary because of some phone call from a woman,
there is no direct, compelling nor admissible evidence before the Court
regarding any call to Mr. Beavis which resulted in putting the financing of Mr.
Henry’s documentary in jeopardy. There is no direct evidence which correlates the
divulging of Mr. Henry’s Account to any phone call to Mr. Beavis.
[12]
When asked in cross-examination what amounts of
money had been spent in respect of the documentary and whether there was any
paper work regarding the documentary, Mr. Henry admitted there was nothing. He
had no receipts, no invoices, no business plan, no financing agreement nor
anything else which would indicate that any form of financing was in place.
There was in evidence a DVD which Mr. Henry said was the opening sequence of
the documentary. The Court has reviewed this DVD and while there are some
opening credits referring to Mr. Henry as being the producer and others as
being involved in the production, the thrust of the documentary relates to Mr.
Henry trying to gain access to some facility to take photographs of alleged
environmental infractions. While Mr. Henry’s efforts to develop a documentary
regarding the environment is laudable, unfortunately the evidence before the
Court is scant at best that a real documentary which would be distributed
commercially was being made.
[13]
No evidence was led by Mr. Henry relating to any
medical issues, including stress, which he says he suffered arising from the
release of his private information.
III.
POSITIONS OF THE PARTIES
[14]
Mr. Henry argues that his privacy has been
invaded by the release of private information to the unknown woman. He argues
that the release of the information has caused him stress, consumed a
substantial amount of his time, and resulted in the loss of his business
opportunity relating to his documentary. He seeks damages of $49,500.00.
[15]
Bell Mobility, for its part, does not dispute
that Mr. Henry’s privacy was invaded by a woman who had no authority to access
his Account. It argues that damages, however, at best, fall within a limited
range and that there is no evidence to support the claim for compensatory
damages asserted by Mr. Henry relating to the documentary. It argues that the
damages claimed relating to the documentary is neither foreseeable nor is there
any causal connection that has been proved between the breach of privacy and
the alleged interference with the financing of the documentary.
IV.
ANALYSIS
[16]
Based on the evidence of Mr. Henry and the
positions taken at the outset at trial, I find that there has been an
infringement of Mr. Henry’s privacy rights relating to his Account. This
finding is in accord with the findings of the Privacy Commissioner and is based
primarily on the Privacy Commissioner’s Report and the recognition by Bell
Mobility that an unwarranted invasion of privacy took occurred.
[17]
I also find that there is no basis to award
compensatory damages. I make this finding for several reasons. First, there
is a complete paucity of evidence as to the development and funding for the
documentary. Second, there is no basis on the scant evidence before me, to
demonstrate a causal connection between the alleged loss of financing of the
documentary and the release of the private information of Mr. Henry. Third, the
unknown woman who called Bell Mobility obtained the last seven phone numbers
which Mr. Henry had called. Mr. Henry admits that none of them were the phone
number of Mr. Beavis. Mr. Henry did give some evidence about somebody being
able to find Mr. Beavis’ phone number but it was mere speculation that it was the
same woman and there was no evidence that the two women were the same person.
Fourth, Mr. Henry did not have a single cheque, invoice, exchange of e-mails, a
business plan or any other document relating to his documentary. Fifth, the
DVD containing a portion of the documentary is insufficient to support a claim
of the magnitude made by Mr. Henry. Sixth, the evidence of Mr. Beavis
regarding the phone call and his refusal to fund the documentary is hearsay for
purposes of this trial as he was not available for cross-examination and is
inadmissible and is given no weight. Even if one were to accept Mr. Beavis’
affidavit in evidence, it does not provide a sufficient nexus between the woman
who obtained Mr. Henry’s information and the allegations made on the phone
call. Thus, no compensatory damages can be awarded for the documentary.
[18]
However, damages are an appropriate remedy for
breach of privacy as contemplated by PIPEDA. There are a series of
cases in this Court which have dealt with the issue of awarding damages for
breach of privacy. In particular, in Nammo v. TransUnion of Canada,
2010 FC 1284, Justice Russell Zinn set out certain non-exhaustive factors to be
considered in assessing damages in cases such as this. Those principles are
usefully summarized in Girao v. Zarek Taylor Grossman Hanrahan LLP, 2011
FC 1070 by Justice Richard Mosley at paragraph 46 and following as follows:
46. At paragraph 76 of Nammo
Justice Zinn sets out certain non-exhaustive factors that could be applied to PIPEDA
applications for damages before this Court:
▪
Whether awarding damages would further the
general objects of PIPEDA and uphold the values it embodies;
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Whether damages should be awarded to deter
future breaches; and
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The seriousness or egregious of the breach.
47. In assessing the seriousness of the
breach in question, Justice Zinn took into account the following considerations
in his analysis at paragraphs 68-78 of Nammo:
▪
The impact of the breach on the health, welfare,
social, business or financial position of the applicant;
▪
The conduct of the respondent before and after
the breach;
▪
Whether the respondent benefited from the
breach.
48. Other factors that may be relevant to
the seriousness of the breach include:
▪
The nature of the information at stake;
▪
The nature of the relationship between the
parties;
▪
Prior breaches by the respondent indicating a
lack of respect for privacy interests.
49. In the case, the information was
personal but not highly sensitive. I accept that the breach here was an isolated
incident. There is nothing on the record that suggests the documents were
posted maliciously or with the intent to cause harm. See Hill v. Church of
Scientology of Toronto, [1995] 2 S.C.R. 1130 at para 196. Nor is there any
evidence of repeated violations of privacy interests by the respondents.
However, the disclosure was in a form that implicates the statutory scheme
itself in that it related to a PCC investigation and report of findings.
[19]
In considering these various factors, damages
should be awarded to Mr. Henry to further the general objects of PIPEDA.
However, the evidence was scant at best regarding any adverse effects on Mr.
Henry’s health, welfare, social, business or financial position. There was no
medical evidence regarding any stress or health issues suffered by Mr. Henry.
In addition, as noted, the evidence regarding the financial position of Mr.
Henry and the documentary is simply not persuasive nor supportive of any losses.
Further, this was a case where Bell Mobility did not benefit from the breach
and tried to make reparation to Mr. Henry by way of adjustments to the Account.
Finally, the nature of the information released is not as significant as
medical information or specific financial information which may adversely
affect a person’s credit.
[20]
In response to the findings of the Privacy
Commissioner, Bell Mobility took remedial action with respect to the CSR
involved and has implemented better training. The objectives of PIPEDA
have been met.
[21]
In general, damages for breach of the provisions
of PIPEDA range on average from zero to $5.000.00. There is one case,
discussed further below, which is an anomaly as damages of $21,000 were
awarded.
[22]
The following chart provides a summary of the
cases decided in this Court dealing with breach of privacy:
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AUTHORITY
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NATURE OF BREACH
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DAMAGES
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Stevens v. SNF
Maritime Metal Inc., 2010 FC 1137
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Disclosure
of financial information
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NIL
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Randall v.
Nubodys Fitness Centres, 2010 FC 681
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Disclosure
of usage of fitness facility to employer
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NIL
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Biron v. RBC
Royal Bank, 2012 FC 1095
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Disclosure
of credit card statements in divorce proceeding
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$2,500
+ costs
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Townsend v. SunLife
Financial, 2012 FC 550
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Disclosure
of medical information to a third party
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NIL
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Girao v Zarek
Taylor Grossman Hanrahan LLP, 2011 FC 1070
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Disclosure
of personal information relating to medical conditions
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$1,500
+ $500 for costs
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Landry v. Royal
Bank of Canada, 2011 FC 687
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Disclosure
of financial information in a divorce proceeding
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$4,500
+ costs
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Nammo v.
TransUnion of Canada Inc., 2010 FC 1284
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Disclosure
of inaccurate personal information to a bank causing credit issues
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$5,000
+ $1,000 for costs
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[23]
The one case which is significantly outside of
this range of damages is Chitrakar v. Bell TV, 2013 FC 1103. Mr. Henry
argues that this case should be followed in assessing his damages.
[24]
Chitrakar was a
claim of damages for breach of privacy. In that case, Bell TV had made a “hard
check” on the Mr. Chitrakar’s credit prior to installing satellite service.
One month later when the service was installed Mr. Chitrakar was required to
provide his signature on a “POD Machine” (proof of delivery device). This
document was not simply a confirmation of delivery of the satellite system but
was in fact the Bell TV rental agreement which had an authorization to conduct
a credit check. The Privacy Commissioner found there to be a breach of the
Applicant’s privacy rights.
[25]
Surprisingly, Bell TV, for unknown reasons, did
not defend the action. At trial it was found that Bell TV’s failure to appear
in Court was consistent with its disregard of Mr. Chitrakar’s privacy rights.
It was also found that the “hard check” on Mr. Chitrakar’s credit had adverse
consequences as it can result in lowering a person’s credit score. There was
evidence that Mr. Chitrakar was denied a student loan request but there was a
finding that there was no direct connection between the Bell TV credit check
and Mr. Chitrakar’s failure to be approved for his student loan. In the
specific circumstances of that case there was no evidence that Bell TV had
changed its contracting policies in light of the Privacy Commissioner’s report;
no evidence of Bell TV acknowledging the breach; nor any evidence of Bell TV.
General damages were therefore awarded in the amount of $10,000.00 plus
exemplary damages of $10,000.00 and $1,000.00 for disbursements.
[26]
Chitrakar is
distinguishable from the current case in that here Bell Mobility has taken
responsibility for the breach of Mr. Henry’s privacy rights; it has put in
place steps to better train CSRs; it has not in any way benefited from the
breach; and, has acknowledged that Mr. Henry is entitled to damages in keeping
with the jurisprudence of this Court. Bell Mobility argued that damages in the
range of $1,500 - $2,000 was more than adequate to compensate Mr. Henry in
these circumstances.
[27]
Having considered all of the evidence and the
jurisprudence and given the circumstances under which the woman cajoled the Bell representative to make the changes to the account and the breadth of the information
disclosed it is my view that an award of $2,500.00 is appropriate. Mr. Henry
was self-represented at trial although he had counsel on record assisting him
earlier in the case. In all of the circumstances, costs in the amount of $1,000.00
will cover disbursements and legal costs.
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