Review of Settled Cases

In January 2004, the Office of the Privacy Commissioner of Canada (OPC) introduced a new type of complaint disposition under the Personal Information Protection Electronic documents Act (PIPEDA) – “settled during the course of the investigation.”  This means that, during the investigation, the OPC helped negotiate a solution that satisfied the complainant, the organization and the OPC.

In 2005, about 40 per cent of PIPEDA complaints were settled.  To assess whether settlement was an appropriate way to deal with PIPEDA complaints, we examined a random sample of settled cases from 2004 and 2005. 

Criteria for attempting to settle a complaint

The Investigations and Inquiries Branch of the OPC relies on the following criteria to determine whether a particular complaint lends itself to settlement:

General Criteria

1. At the beginning of the investigation, investigators consider the following factors:

• Does the case raise an issue that the OPC has already addressed?  If so, the investigator brings this to the attention of both parties to see if there is any interest in settling the complaint.
• Does the case appear to involve a one-time occurrence resulting from a “mistake” by the organization’s employee?
• Does the complaint appear to be the result of mis-communication between the parties?  If so, the investigator will attempt to resolve this and have the case settled.
• Does the complainant simply want the organization to recognize that it made a mistake?  Would the complainant be satisfied with an apology, correction of the error, or both?
• Has either party indicated an interest in settling?  Is there an indication that the parties are already in settlement discussions, or have had such discussions?
• Does the case suggest that both parties would be well-served by the speedy resolution that a settlement might provide?  Is there a continuing relationship between the parties (for example, employer/employee) that is important to the parties, and would a settlement resolution be beneficial to all concerned?

Systemic and public interest considerations

2. Investigators must also consider the following factors to determine whether a case is suitable for settlement:

• Does it serve the public interest to settle the complaint?  For example, it would not be in the public interest to settle a case when an organization offers to provide a remedy for an individual complainant, but is not prepared to change the offending policy or practice to benefit others. 
• Does the case raise an important and outstanding systemic issue that should be dealt with in a formal finding? 
• Does the alleged contravention reflect an industry-wide policy or practice?
• Does the complainant wish to take the matter to the Federal Court?
• Is there a power imbalance between the parties?  If so, does the complainant have access to legal advice?
• Does the complaint raise issues similar to those raised in earlier complaints against the organization, and that the organization should have addressed?
• Is the organization genuinely interested in fixing a problem, or is this a matter of “buying-off” the complainant?

Remedial considerations

3. During or at the end of the investigation, investigators consider the following factors:

• Does the organization acknowledge that a contravention has occurred?
• Do the facts as determined by the investigators lend support to the complainant’s allegations?  If not, investigators must explain this to the complainant and see if the complainant is prepared to consider the matter closed.  If the investigation supports the allegations, the organization must be approached to see if it is interested in remedying the matter.
• Can the matter be resolved by changes by the organization to prevent a recurrence?

We may revise and refine the criteria listed above as we gain more experience in settling PIPEDA cases. 

Settled Case Profiles

The OPC reviewed 34 cases, selected at random, from 2004 and 2005.  This represents about one-fifth of the cases settled since this disposition option was introduced.  The results of the review are set out below in three tables that identify (1) the sector involved, (2) the complaint type and (3) the nature of the settlement.

The four monetary settlements in the sample of cases took the following forms:

• A bank gave a $250 credit on an account when it sent information to the wrong address;
• A car dealership paid a customer $4000 for emotional distress and family dissension when it disclosed the customer’s financial information to her father;
• A bank paid an undisclosed amount for its unauthorized disclosure of a client’s information to the client’s spouse;
• $5000 was paid to a customer for disclosure, in error, of sensitive personal information.

Two other cases were settled, possibly for money, but no further details were available. 

We were encouraged by the 11 cases where a practice was changed, and the further 11 cases where the complainant was satisfied with an explanation.  These outcomes demonstrate that organizations can avoid having complaints reach the OPC by taking actions to settle complaints themselves. 

Sectoral Breakdown

Sector	Count
Sales	11
Financial Institutions	8
Telecommunications	6
Other	5
Accommodation	2
Insurance	2

Complaint Type

Complaint Type	Count
Use and Disclosure	17
Collection	7
Safeguards	4
Access	3
Accuracy	1
Consent	1
Correction/Notation	1
Time limits	1
(Complaints may deal with more than one issue)

Settlement

Settlement	Count
Complainant satisfied with explanation of event or practices	11
Practice changed	11
No actual breach of law	7
Monetary Settlement	4
Access to information provided	3
Other settlement (possibly monetary, but no details available)	2
Employee of organization disciplined	1
Refund	1
Written apology	1
(Settlement of complaint may fall into more than one category)