Recent Court Activity

The appropriate remedial framework to apply when making an award of damages

(i) The fundamental significance of privacy rights

1. In awarding a remedy to a successful complainant, the Court should be guided by the fundamental importance of privacy rights as embodied in PIPEDA, a statute recognized by the Federal Court as “a fundamental law of Canada”.

   Eastmond v. CPR, 2004 FC 852 at para. 100.

2. The Federal Court’s recognition of PIPEDA as a “fundamental law of Canada” is consistent with the Supreme Court of Canada’s recognition of individuals’ privacy interests as quasi-constitutional in other contexts:

   “Society has come to realize that privacy is at the heart of liberty in a modern state”.

   R. v. Dyment, [1988] 2 S.C.R. 417 at 427.
   

   The Privacy Act is a reminder of the extent to which the protection of privacy is necessary to the preservation of a free and democratic society…The Official Languages Act and the Privacy Act are closely linked to the values and rights set out in the Constitution, and this explains the quasi-constitutional status that this Court has recognized them as having”.

   Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773 at para. 25.

The protection of privacy is a fundamental value in modern, democratic states”; the Court also recognized “the privileged, foundational position of privacy interests in our social and legal culture.”

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at paras. 65 and 69, Mr. Justice La Forest, dissenting on another point).

3. The PIPED Act, insofar as it protects the fundamental privacy rights of the individual, is closely linked to values and rights expressly set out in the Constitution as well as in the Privacy Act, a statute recognized by the Supreme Court of Canada as having quasi-constitutional status. As such, the individual privacy rights that PIPEDA protects are of fundamental significance.
4. Where rights are recognized as promoting a fundamental constitutional objective like personal privacy, the protection of those rights “requires particular vigilance on the part of the courts”.

   Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 at para. 25.

5. Like the Official Languages Act and the Privacy Act, PIPEDA is part of the “fundamental law” of Canada and is thereby deserving of the same vigilance by the courts in promoting its objectives.

   Forum des maires de la Péninsule acadienne v. Canada (Canadian Food Inspection Agency), 2004 FCA 263 at para. 39; Eastmond v. Canadian Pacific Railway, supra.

6. This means that courts should award remedies that promote the purposes of the right being protected (responsive remedies) while also promoting the purpose of the remedies provision (effective remedies).

   Doucet-Boudreau v. Nova Scotia (Minister of Education), supra.

7. PIPEDA’s marrying of judicial (and monetary) remedies with the Privacy Commissioner’s ombuds-process reveals a clear Parliamentary intent that privacy violations be effectively and meaningfully remedied. The Privacy Commissioner submits that the appropriate remedial vigilance requires damages awarded under s. 16(c) of PIPEDA to be commensurate with the fundamental importance of privacy rights in Canada.

(ii) Statutory framework

8. Under subparagraph 16(c) of PIPEDA, privacy violations are clearly compensable. Section 16 states:

   16. The Court may, in addition to any other remedies it may give,

   (a) order an organization to correct its practices in order to comply with sections 5 to 10;

   (b) order an organization to publish a notice of any action taken or proposed to be taken to correct its practices, whether or not ordered to correct them under paragraph (a); and,

   (c) award damages to the complainant, including damages for any humiliation that the complainant has suffered.

9. The nature and extent of damages that may be awarded under s. 16(c) are novel legal questions. However, the Federal Court of Appeal has described the remedial authority s. 16 confers on the Court as “remarkably broad”.

   Englander v. Telus Inc., [2004] F.C.J. 1935 at para. 47.

10. With respect to subparagraph 16(c) specifically, the Federal Court of Appeal’s description of the Court’s remedial authority is particularly apt. As Parliament placed no limits on the types of damages the Court could consider awarding, s. 16(c) permits compensation for any type of damage recognized under Canadian law where there is a causal connection to a breach of PIPEDA.
11. Moreover, by specifically highlighting the availability of “damages for any humiliation” (emphasis added), s. 16 appears to reveal a Parliamentary intent that victims of privacy violations be compensated whenever there is sufficient evidence of any damage causally connected to the matter being reviewed by the Court, whether or not that damage surpasses a particular or objective threshold of severity or manifests itself in lasting physical or psychiatric harm. Under s. 16, simple anguish, worry, anxiety, humiliation and other types of mental distress are clearly compensable.
12. S. 16 is also notable for what it does not contain. S. 16 is unlike the Canadian Human Rights Act, which explicitly caps the availability of damages for pain and suffering arising from a breach of that Act at $20,000. The absence of a similar cap on the damages available under s. 16(c) of PIPEDA makes clear the tremendous flexibility the Court has when assessing the amount of damages to be awarded for any humiliation or other damages suffered by a complainant.

    Canadian Human Rights Act, R.S.C. 1985, c. H-6 as amended, s. 53(2)(e).

13. The “remarkably broad” remedial authority s. 16 confers on the Federal Court is akin to the broad remedial mandate s. 24(1) of the Charter confers on the judiciary – a mandate the Supreme Court of Canada has said requires a liberal and purposive interpretation.

    24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

    Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 24(1).

14. In Dunedin, the Supreme Court of Canada said of section 24(1) of the Charter that “the language of this provision appears to confer the widest possible discretion on a court to craft remedies for violations of Charter rights.” In view of the fact that “[i]t is difficult to imagine language which could give the court a wider and less fettered discretion ”, the Court determined that “[t]his broad remedial mandate for s. 24(1) should not be frustrated by a “[n]arrow and technical” reading of the provision”.

    R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 at para. 18, citations omitted [Dunedin].

15. Like s. 24(1) of the Charter, s. 16 of PIPEDA confers the widest possible discretion on the Federal Court to craft an appropriate remedy for a violation of privacy. S. 16 empowers the Federal Court with a very broad remedial mandate that must be applied purposively, to ensure effective remedies are available for violations of privacy rights by the private sector. Damage awards made under s. 16(c) should, then, reflect the Court’s broad remedial mandate in a manner that is commensurate with the fundamental significance of individual privacy rights.

(iii) Available heads of damages

16. In view of its very broad language, s. 16(c) of PIPEDA permits the Court to order any type of damages recognized in Canada, including:

    (a) special and general compensatory damages;

    (b) aggravated damages; and,

    (c) where appropriate, punitive damages.

17. Special and general compensatory damages are awarded for pre-hearing and future losses respectively and encompass both pecuniary and non-pecuniary losses.
18. In the privacy context, special damages might include, for example, the legal costs of rectifying a breach of privacy that improperly affected one’s credit rating.

    Boulerice c. Acrofax Inc., [2001] R.L. 621 (C.Q.) (Civ. Div. Sm. Cl.); Roy c. Société sylvicole d’Arthabaska-Drummond, 2004 llJCan 49387 (C.Q. (Civ. Div.) (CanLII).

19. Consistent with remedial principles that are well established in the human rights context, general damages for breaches of privacy rights must reflect the fundamental importance of privacy rights and their intrinsic value, irrespective of the monetary or personal losses actually suffered:

General damages can be awarded by the Tribunal for the intrinsic value of an individual’s human right, distinct from any award for mental anguish…

Colvin v. Gillies, [2004] O.H.R.T.D. No. 3 at para. 248

The purpose of this head of damages is to compensate for the injury to the intrinsic value of the right to be free from discrimination. General damages awarded under this branch should reflect the loss of the particular human right itself, independent of actual monetary or personal; losses suffered. In order to meet the broad policy objectives under the Code, damages under this heading ought to provide for true compensation, not just minimal recompense…

Ontario (Human Rights Comm.) v. Ontario (Ministry of Health) (No. 2), (1995), 24 C.H.R.R. D/250 (Ont. Bd. Inq.) at para 6.

It has been suggested that [X] be ordered to pay general damages to [Y] as compensation for the discriminatory decision that deprived him of employment at [X]. I will do so but I am not making this award based on [Y]’s asserted emotional distress after his termination…The general damages instead should reflect the intrinsic value of the human right that has been contravened.

McLellan v. MacTara Ltd., [2004] N.S.H.R.B.I.D. No. 6 at para. 60.

20. Aggravated damages are awarded for the increased emotional or psychological distress caused to a complainant when that complainant’s rights are violated in humiliating or undignified circumstances. Non-pecuniary losses like emotional pain, anguish, grief, humiliation, anxiety, wounded pride, damaged self-confidence or self-esteem, loss of faith in friends or colleagues, and similar types of mental distress are typically compensated under this head of damages.

    Norberg v. Wynrib, [1992] 2 S.C.R. 226 at para. 53; Huff v. Price (1990), 51 B.C.L.R. (2d) 282 at 299 (C.A.).

21. Punitive damages are intended to punish a respondent for “malicious, oppressive and high-handed” conduct and bear no relation to any losses a complainant has suffered. In the absence of harsh, vindictive or malicious conduct, punitive damages are also appropriate where the conduct in question is reprehensible and offends the ordinary standards of decent conduct in the community.

    Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 196; Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595 at para. 36; Norberg v. Wynrib, supra, at paras. 53 and 58.
    

(iv) Application of these different heads of damages to breaches of privacy

22. Jurisprudence that expressly addresses breaches of privacy and applies the common law principles highlighted above in this context can assist the Court to exercise its broad and flexible remedial authority under s. 16(c) of the PIPED Act.
23. In Malcolm v. Fleming, a plaintiff was awarded $15,000 in general damages for an invasion of privacy occasioned by surreptitious video recording in several rooms of a dwelling house, including the bathroom. Punitive damages in the amount of $35,000 were also awarded.

    Malcolm v. Fleming, [2000] B.C.J. No. 2400 (B.C.S.C.).

24. In Srivastava v. Hindu Mission of Canada (Quebec) Inc ., the surreptitious tapping of a Temple’s telephone in order to record the conversations of its priest was remedied by an award of $15,000 in damages for breach of privacy and an additional $5000 in exemplary damages.

    Srivastava v. Hindu Mission of Canada (Quebec) Inc., [2001] J.Q. no. 1913 (Q.C.A.).

25. In the recent case of Poirier v. Wal-Mart Canada Corp., Arnold-Bailey J. reviewed jurisprudence respecting provincial torts of invasion of privacy and analogous common law torts. From her review of the jurisprudence, Arnold-Bailey J. identified a range of damages for violations of privacy between $300 to $35,000:

The plaintiff’s authorities, irrespective of the cause of action brought, reflect two prominent factors which influence the amount of damages awarded, being: (1) the injury to the plaintiff, the greater the injury the greater the damages; and (2) the nature of the defendant’s conduct, the higher the degree of carelessness or callousness, the higher the damages. The cases reflect a range of damages from $300 to $35,000.

Poirier v. Wal-Mart Canada Corp., [2006] B.C.J. No. 1725 at para. 105 (B.C.S.C.) (QL).

(v) Factors relevant to the quantification of damages

26. The common law, statutory torts of invasion of privacy and the Privacy Commissioner’s expertise in dealing with privacy complaints further highlight several factors specific to the privacy law context that will be relevant to the quantification of damages for violations of PIPEDA.
27. In her review of jurisprudence in Poirier v. Wal-Mart Canada Corp, Arnold-Bailey J. found that “the previous cases consider whether embarrassment, humiliation and distress was caused to the person whose privacy was violated, whether the actions of the responsible party were flagrant and callous, and the extent to which the responsible party gained a commercial advantage”.

    Poirier v. Wal-Mart Canada Corp, supra, at para. 104

28. Other courts confronted with a claim for damages for breach of privacy have found the following to be factors to be relevant to an assessment of damages owing for breach of privacy:
    • Whether privacy rights were breached by a person in a position of authority over the plaintiff (Getejanc at para. 30)
    • Whether the wrongdoer, when shown to be wrong, refuses to make explanation or apologize (Somosh at para. 65);
    • Whether trust, legitimate expectations of privacy or a duty of confidence was breached (Lee v. Jacobson, Hollinsworth at para. 27)
    • Whether confidential information was communicated to only a limited audience or the public at large (B.M.P. at para. 428);

    Getejanc v. Brentwood College Assn’n, [2001] B.C.J. No. 1249; Insurance Corporation of British Columbia v. Somosh, [1983] B.C.J. No. 2034; Lee v. Jacobson, [1992] B.C.J. No. 132 (overturned on other grounds); Hollinsworth v. BCTV, a division of Westcp, TV Group Ltd., [1996] B.C.J. No. 2638 (overturned on other grounds); B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, [2005] BCSC 1091 (varied on other grounds, [2007] B.C.J. No. 137).

29. Under provincial legislation creating a statutory tort of invasion of privacy, the following factors are expressly relevant to the quantification of damages for breach of privacy:
    • the nature, incidence and occasion of the act, conduct or publication constituting the violation of privacy of;
    • the effect of the violation of privacy on the health, welfare, social business or financial position of the victim or his family;
    • any relationship, whether domestic or otherwise, between the parties to the action;
    • any distress, annoyance or embarrassment suffered by the victim or his family arising from the violation of privacy; and
    • the conduct of the victim and the defendant, both before and after the commission of the violation of privacy, including any apology or offer of amends made by the defendant.

    Privacy Act, C.C.S.M. c. P125, s. 4(2) (CanLII)

30. The Privacy Commissioner submits that these factors may also serve as a useful framework to guide the granting of damages under s. 16(c) of the PIPED Act.
31. Furthermore, based on her specific experience and expertise in dealing with complaints under PIPEDA, the Privacy Commissioner submits that, in the context of a violation of PIPEDA by a respondent organization, the following non-exhaustive list of factors will also be relevant to an assessment of damages owing:
    • The degree to which the respondent organization participated in the Privacy Commissioner’s ombuds-process in good faith;
    • The personal and emotional costs a complainant endures in order to assert privacy rights in a public form; and
    • The incentives an award of damages may create for respondent organizations, as the level of an award of damages must be sufficiently high to create an incentive for compliance and not be so low as to constitute a fee or license for privacy violations.