Wednesday, June 18, 2014

Henry v Bell Mobility: Another Federal Court case shows PIPEDA damages are hardly worth pursuing absent evidence of actual harm

The Federal Court, in the recently issued decision in Henry v Bell Mobility 2014 FC 555 (not yet on CanLII or the Court's site) has awarded a very modest sum of damages to a customer of Bell Mobility whose phone account was accessed by an impostor. At the hearing before the Federal Court, Bell did not contest liability so all the Court had to consider was the appropriate measure of damages. Nevertheless, the facts are relevant: An individual was able to convince a customer service representative employed by the mobile phone company to grant her access to the complainant's account. She was provided with general account information and the last seven numbers dialed. The impostor was also allowed to make changes to the account.

The claimant alleged that he suffered a lost business opportunity as a result of the impostor then contacting an intended business associate of the claimant. However, the claimant did not offer any compelling evidence to support this business opportunity. Instead of the 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, the Court awarded $2,500 in general damages plus $1,000 in costs. The complainant had argued that the Court should follow Chitraker v Bell, but the court was not convinced.

[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.

Interestingly, there is no mention of Jones v Tsige; the court only discusses PIPEDA cases.

What's the moral of this story? Absent any actual, provable harm, PIPEDA damages are hardly worth pursuing.

1 comment:

mike henry henry said...

The real moral of the story is that Bell controls bureaucracy. The Privacy commission's initial senior investigator stonewalled me for 1 year,asking me for more updates and continued to give me the runaround. My member of Parliament had her agree that the investigation would be completed within 1 year.At the 1year end she coincidentally was on a leave of absence. The next senior analyst of the Privacy commission started the next runaround. Soon after I found out how and why.The Directer General of the Privacy commission was contacted and I finally received the well founded results of the investigation. It took a year and a half..There still is a lot more to be told,given the right platform. As far as the Federal Court ruling, the one thousand dollars for legal fees is a farce. Tell me what lawyer works on a case over a 3 year period for such a small amount.There still is a whole bunch more to expose ,again given the right platform and opportunity.I also wonder if the Prothonotary and the legal counsel for Bell had the same law professor at THE University..