MORTGAGEBROKER mbabc.ca fall 2015 | 41
clientconfidential
is was a breach of the customer's
privacy rights provided by the Act. e
customer did not need to prove damages
to prove that her right to privacy under the
Act has been breached. It did remain for the
Court to determine the consequences to
the Bank of the breach. We will examine that
aer we look at the claims of negligence
and breach of contract.
Negligence
In order to prove negligence a person claiming
breach of privacy must prove that:
■ the person who breached their privacy owed
them a duty of care;
■ the person breached the standard of care by
the breach of privacy; and
■ the claimant suffered damages as a result of
the breach.
In this case the customer did not prove she
suffered any damages resulting from the breach
(even if the other two criteria had been met), so
the claim of negligence could not succeed.
Breach of Contract
Contractual rights to privacy of course
depend on the obligations between the parties
pursuant to their contract. e obligations
were, in relation to this case, set out earlier
when reviewing the facts of the case.
Because the ex-husband did not open the
envelopes, the Bank had not disclosed any
information to him; hence it did not violate its
contractual obligations in this regard.
However, the Bank did breach its own
privacy policy by:
■ altering the customer's personal information
without authorization from the customer; and
■ providing inaccurate information to the
credit bureaus and then failing to correct it
immediately upon the customer complaining
as to the inaccurate information.
e privacy policy was part of the Bank's
contract with its customer and the Bank
breached that part of the contract.
When a Court awards damages for breach
of contract the purpose generally is to restore
the claimant to the position they would have
been in, as much as money can do, had the
breach not occurred. In this case, the customer
had not suffered any damages resulting from
the breach of contract and so restoration was
not needed. Consequently no damages were
awarded.
Damages and Costs
of the Action
Where breach of the Act, civil law negligence
or breach of contract has been proven, the
claimant would generally be awarded the
monetary value of proven damages.
We have already said that the claimant
does not receive compensation for negligence
or breach of contract where he or she has not
suffered any damages.
What, if any amount, of damages should
be awarded to the claimant who has proved a
breach of privacy under the Act but has not
suffered any damages? e Court in this case
awarded the claimant nominal damages. e
amount of the nominal damages should be
determined by the following:
Mortgage brokers collect
considerable private and
sensitive information
from clients.
