Case Report – Court espouses preference for conservative approach to PIPEDA remedies

On June 23rd, Mosely J. of the Federal Court dismissed a PIPEDA application because the applicant failed to establish a need for a compliance order (with or without notice to the public) and failed to prove his damages. In doing so, Mosely J. made the following conservative statement about the PIPEDA’s remedial provision:

Pursuant to section 16 of PIPEDA, an award of damages is not be made lightly. Such an award should only be made in the most egregious situations. I do not find the instant case to be an egregious situation.

The OPC issued a report in May 2009 in which it concluded that the respondent – a fitness club – breached the consent rule in PIPEDA by disclosing information about the applicant’s membership usage to his employer as part a corporate membership program. It recommended a change in practice, and the respondent complied.

Mosely J. held that the applicant had established a breach of the consent rule but had not established justification for a remedy. He rejected the applicant’s argument that he suffered employment-related consequences because of the breach for wont of evidence. His reasoning suggests that individuals who apply for a PIPEDA remedy must prove damages, and based on the statement quoted above, something significantly more.

Randall v. Nubodys Fitness Centres, 2010 FC 681 (CanLII).

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