Date: 20100513
Docket: T-788-09
Citation: 2010 FC 529
Ottawa, Ontario, May 13, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ISABELLE
ARCAND
Applicant
and
ABIWYN
CO-OPERATIVE INC.
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
application comes before the Court pursuant to sections 14 and 16 of the Personal
Information Protection and Electronic Documents Act, S.C. 2000, c. 5, P-8.6
(the Act), in respect of reports of the Office of the Privacy Commissioner of
Canada (the Commission) issued on March 31, 2009 and May 5, 2009 respectively,
both flowing from a complaint made to the Commission by the applicant.
[2]
The
applicant requests:
1. An order requiring the
respondent to correct its practices and comply with principle 4 and sections 5
to 10 of the Act;
2. An order requiring
the respondent to publish a notice of any of the action taken or proposed to be
taken to correct its practices to comply with the Act;
3. An order requiring
that the respondent pay the applicant damages in the amount of $30,000,
including damages for psychological suffering and humiliation;
4. The applicant’s
costs of this application; and
5. Such further and
other relief as this Honourable Court deems just.
Background
[3]
The
parties to this application have a past with complaints, disputes and
litigation stemming from incidents which occurred in 2005 and prior. In late
2006, the parties entered into a settlement as part of which the applicant
agreed to give up any further claims. What falls to be determined by this Court
is whether the respondent can enforce that release to bar any further award of
damages in this application.
[4]
The
respondent is a non-profit housing co-operative located in Ottawa, Ontario and organized
under the laws of Ontario pursuant to the Co-operative Corporations
Act, R.S.O. 1990, c. C.35 (the Co-op Act). The applicant was a resident of
the co-op from 1993 to 2007.
[5]
A
dispute arose between the parties causing the respondent’s board of directors
to initiate eviction proceedings against the applicant in accordance with
procedures set out in the Co-op Act. On April 21, 2005, the respondent provided
the applicant with a notice to appear before the board on May 3, 2005.
[6]
At
around this time, the applicant retained a lawyer to provide her with legal
advice and to represent her interests in connection with the eviction
proceedings. On or about May 2, 2005, the lawyer wrote to the respondent
requesting an adjournment of the May 3, 2005 board meeting for medical reasons.
Two notes from the applicant’s physician were appended to the letter.
[7]
The
board declined to grant the adjournment and on May 3, 2005, voted to evict the
applicant. The applicant appealed the board’s decision to the members of the
respondent drawing attention to the doctors’ notes. The respondent advised the
applicant and her counsel that a general members meeting would be held on May
26, 2005 to decide her appeal. On May 16, 2005, the respondent distributed a notice
of special members meeting to approximately 100 members. The package contained
copies of the two notes from the applicant’s physician. The applicant was upset
that her sensitive medical information had been widely distributed. Neither the
applicant nor her counsel attended the May 26, 2005 meeting at which her
eviction was upheld.
[8]
The
applicant maintained the position that her eviction was improper given the
circumstances and refused to vacate the premises. The respondent later
commenced an action at the Ontario Superior Court to enforce the eviction. On
December 16, 2005, the applicant filed a statement of defence and counterclaim
claiming that the respondent had harassed the applicant, refused to accommodate
her disability and had damaged her personal belongings throughout her 13 year
tenancy. The statement discussed specific incidents of harassment and
mismanagement by board members and staff of the respondent and also
specifically addressed the incident involving the medical notes. In a paragraph
concluding her defence, the applicant stated:
[39.] Ms. Arcand pleads and relies on the
Ontario Human Rights Code, R.S.O. 1990, c. H-19 as amended, the Co-operative
Corporations Act, R.S.O. 1990, c. C.35 as amended, and the Personal
Information Protection and Electronic Documents Act, S.C. 2000, c. 5 as
amended.
[9]
In
her counterclaim, the applicant sought damages for injury and disrepair to her
belongings and apartment, general damages for mental anguish and distress
caused by harassment and discrimination by the respondent’s board and employees
and punitive damages for years of what was described as outrageous misconduct.
[10] In a filed
reply and defence to counterclaim, the respondent denied all allegations made
by the applicant including a denial of any liability for mental anguish and
distress.
[11]
On October 7, 2005, the
applicant initiated a complaint concerning the breach of her privacy to the
Commission (the privacy complaint). The Commission sent letters to both the
applicant and the respondent on January 16, 2006 advising them that an
investigation had begun. The respondent’s then counsel responded with a letter
of submissions to the Commission on February 13, 2006. The respondent’s
position was that it had simply followed its internal policies which were in
compliance with the Co-op Act.
[12]
On October 30, 2006,
the applicant and respondent entered into a settlement agreement (the
settlement) whereby inter alia, the applicant received monetary
compensation and in return would vacate the co-op premises and sign a full and final
release (the release).
[13]
The parties disagree
with regard to the effect of the release. The applicant alleges that she was
asked during negotiations to drop her privacy complaint and specifically
refused. She also alleges that she was under the impression that the settlement
and the release had been drafted in such a way as to allow her to continue her
privacy complaint. The respondent disagrees.
[14]
On March 31, 2009, the
Commission released a report of findings. The report found that a breach of the
applicant’s privacy had occurred and a recommendation was made that the
respondent amend its by-laws and privacy policy to clearly indicate that it
will seek a member’s express consent before disclosing sensitive personal
information. In the Commission’s view, this would bring those documents into
compliance with principles 4.3, 4.3.4, and 4.3.6 of the Act.
[15]
The respondent amended
its by-laws accordingly and informed the Commission of the change on April 17,
2009. On May 5, 2009, the Commission responded that it was “satisfied with the
actions taken with respect to [the] recommendations”.
[16]
On April 29, 2009, the
applicant, through her new counsel, sent the respondent a letter demanding
compensation in relation to the report and alluded to the potential for this
application. The respondent refused to pay and thereafter the applicant
commenced this application.
Issues
[17] The issues
are as follows:
1. Is the applicant
estopped from bringing this application by virtue of the settlement agreement
and release signed by the parties?
2. If not, what damages, if
any, is the applicant entitled to?
Applicant’s Written Submissions
[18] The applicant submits
that settlement did not encompass the respondent’s breach of the Act. The
settlement was only in regards to the respondent’s eviction proceedings. There
is no mention of the privacy complaint anywhere in the settlement, despite the
respondent’s knowledge that it had been initiated. Nor did the applicant’s
pleadings discuss any specific cause of action in relation to the breach of the
Act.
[19] The applicant submits
that she was careful to not give up her right to continue the privacy complaint
and demonstrated her understanding of the settlement and release by continuing
with the privacy complaint. Indeed, the respondent took part in the privacy
complaint and did not attempt to enforce the settlement. This indicates that
the respondent also viewed the privacy complaint as being separate from the
litigation. At best, there was no meeting of the minds on this issue.
[20] In the alternative, the
applicant asks this Court to exercise its residual discretion to refuse to
apply the estoppel since the settlement and did not adequately compensate the
applicant for her humiliation and thus, results in unfairness.
[21] The respondent’s breach
of the Act was a serious one. The respondent’s actions were also in violation
of the Co-operative Corporations Act and the Human Rights Code of
Ontario. The applicant has
suffered considerable and continuing mental distress as a result of the
respondent’s breach which allowed other co-op members to make assumptions about
the applicant and to stereotype or otherwise malign her. The applicant feels
that her reputation is damaged forever and also fears that some of the material
distributed by the respondent may still be in circulation, since the package
was sent to 100 members and was never entirely recovered. The applicant is
fairly entitled to compensation.
Respondent’s Written Submissions
[22] The
respondent submits that the present application is an abuse of process, is
vexatious and must be dismissed. These proceedings violate the community’s
sense of fair play and decency.
[23] The
release signed by the applicant encompassed the relief she now seeks. It was a complete
bar to any other “claim, demand or complaint”. Similarly structured releases have
not been confined strictly to the claims advanced in that action alone. The
words, “the Defendant withdraws any and all complaints and actions arising out
of her membership…” in the release clearly precluded the applicant from continuing
her privacy complaint and any subsequent attempts to enforce a decision based
on that complaint.
[24] In
regards to the intention of the parties, the test is objective. There is
nothing to substantiate the applicant’s claim that she instructed her lawyer to
draft the release to omit the privacy complaint or any objective evidence of
her intention. If she really did so instruct her lawyer, she would have had a
potential cause of action against him. After the settlement and release, there
was no reason for the respondent to take any action until the applicant
attempted to seek compensation by the demand letter of April 29, 2009, upon
which the respondent immediately enforced the release. Lastly, by asserting
that the settlement was improvident, the applicant is implicitly acknowledging
that the initial settlement was for the same damages.
[25] The
respondent submits that the applicant has not put forward any acceptable
evidence in support of her claim for compensation. The report from the
Commission does not result in any prima facie entitlement to any award
of damages.
Analysis and Decision
[26] Issue 1
Is the
applicant estopped from bringing this application by virtue of the settlement
agreement and release signed by the parties?
Before determining the merits of
the respondent’s argument that the applicant is estopped from proceeding, it is
useful to elaborate on the type of application at hand. Subsection 14(1) and
section 16 of the Act read as follows:
|
14.(1) A complainant may, after receiving
the Commissioner’s report, apply to the Court for a hearing in respect of any
matter in respect of which the complaint was made, or that is referred to in
the Commissioner’s report, and that is referred to in clause 4.1.3, 4.2,
4.3.3, 4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3, 4.5 or 4.9 of that
Schedule as modified or clarified by Division 1, in subsection 5(3) or 8(6)
or (7) or in section 10.
. . .
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.
|
14.(1)
Après avoir reçu le rapport du commissaire, le plaignant peut demander que la
Cour entende toute question qui a fait l’objet de la plainte — ou qui est
mentionnée dans le rapport — et qui est visée aux articles 4.1.3, 4.2, 4.3.3,
4.4, 4.6, 4.7 ou 4.8 de l’annexe 1, aux articles 4.3, 4.5 ou 4.9 de cette
annexe tels que modifiés ou clarifiés par la section 1, aux paragraphes 5(3)
ou 8(6) ou (7) ou à l’article 10.
. .
.
16.
La Cour peut, en sus de toute autre réparation qu’elle accorde :
a) ordonner à
l’organisation de revoir ses pratiques de façon à se conformer aux articles 5
à 10;
b) lui
ordonner de publier un avis énonçant les mesures prises ou envisagées pour
corriger ses pratiques, que ces dernières aient ou non fait l’objet d’une
ordonnance visée à l’alinéa a);
c)
accorder au plaignant des dommages-intérêts, notamment en réparation de
l’humiliation subie.
|
[27] A hearing
under section 14 is not a judicial review of the Commission’s report but
provides for de novo review in Court of “any matter in respect of which
the complaint was made,” (see Waxer v. McCarthy, 2009 FC 169, [2009]
F.C.J. No. 252 (QL) at paragraph 25 and 26)).
[28] Section 14
gives an applicant a right to apply to this Court for a hearing if certain
preconditions are met. Here, the applicant has met those preconditions. The
disclosure of the applicant’s sensitive medical information and resulting
humiliation were the subject matter of the Commission’s report. Further, in
dealing with the privacy complaint, the Commission applied Principle 4.3
regarding consent and found that there had in fact been a breach of the
applicant’s privacy by the respondent.
[29] This
application for a hearing under section 14 is not an abuse of process. There
has been no previous section 14 hearing on this matter and as such, it is the
first opportunity for a court to examine, and if necessary, enforce the
findings of the Commission.
[30] The applicant
also invites this Court to apply section 16 by making orders under susbsections
16(a) and (b) and to award monetary damages under subsection 16(c).
[31] Section 16
enables courts to make a broad range of remedies and specifically contemplates
in subsection 16(c), that monetary damages can be awarded for humiliation. The
Act does not further clarify damage awards leaving common law concepts to fill
the void. In substance, the subsection creates a statutory cause of action -
humiliation - and allows for monetary damages calculated under common law and
tort concepts to flow to applicants provided they first bring a privacy
complaint and otherwise qualify for a hearing under section 14 and provided the
Commissioner’s report can confirm those facts necessary to establish the
humiliation claimed. As a threshold, Parliament has left it to courts to
determine when some degree of humiliation based on a breach of the Act
described in a Commissioner’s report, warrants this type of relief.
[32] I find it
unnecessary in the present case to decide whether humiliation, that warrants
the granting of damages under section 16(c) of the Act, must rise to the level
where it can be considered a personal injury as is required of other psychological
injuries in tort law (see Mustapha v. Culligan of Canada Ltd., [2008] 2
S.C.R. 114, 55 C.C.L.T. (3d) 36, [2008] S.C.J. No. 27 (QL) at paragraphs 8 to
10).
[33] However,
given the openness of subsection 16(c) and its implicit evoking of the common
law notion of damages, it is appropriate for courts to consider common law doctrines
such as estoppel and abuse of process which, if established, would preclude any
award of damages.
[34] On the other
hand, subsections 16(a) and (b) are much more tied to the specific scheme and
language of the Act. In this case, the applicant’s claim for relief under these
subsections is not so much prohibited by the release she signed as it is
prohibited by the fact that requesting such relief would be pointless and in my
view, vexatious.
[35] The
Commission recommended that the respondent amend its by-laws and privacy policy
“…to clearly indicate that it will seek a member’s express consent before
disclosing sensitive personal information…”. I am satisfied that the respondent
took this recommendation seriously, was forthright with the Commission and
moved quickly to amend it policies. Less than one month later, after receiving
correspondence from the respondent, the Commission wrote:
You have advised that Abiwin Co-operative
has already adopted a policy of requesting express consent with respect to the
distribution of sensitive personal information during proceedings that may lead
to the termination of membership and occupancy rights. You also note that at
the Co-operative’s annual general meeting in November 2009 a formal adoption of
the proposed by-law changes will be considered.
As such, our Office is satisfied with the
actions taken with respect to my recommendations. However, I would appreciate
you reporting back to me on the Board’s decision on the proposed by-law
amendment.
[36] Indeed, the
applicant admits in her memorandum of argument at paragraph 42, “… [the
respondent] accepted the outcome of the Privacy Commissioner’s report, and
implemented that office’s recommendations.” Further, in taking away from the
need to intervene is the fact that the applicant no longer resides at the
Co-op.
[37] There is no
need for this Court to make an order pursuant to subsections 16(a) or (b).
[38] I now turn to
the claim for relief under subsection 16(c).
[39] In my view,
it is unnecessary to establish that the applicant is estopped from collecting
damages. It is enough that the release signed by the applicant in 2006 is
enforceable and bars the applicant’s request for an award of damages under
subsection 16(c) of the Act. With the release, the respondent attempted to, and
in my view did, purchase contractual immunity from the present claim made
against it.
[40] A release is
a contractual clause which often limits or precludes a party from commencing an
action in the future. It is simply one type of promise which can be reduced to
writing and to which the general rules of contract law apply. A release has
also been described as follows:
Black's Law Dictionary Fifth Edition
defines 'release' as "the relinquishment, concession, or giving up of a
right, claim, or privilege, by the person in whom it exists or to whom it
accrues, to the person against whom it might have been demanded or
enforced." Releases are generally enforced in accordance with their terms.
If a party wants to reserve or exclude a particular claim or right, that party
must expressly exclude it from the terms of a general release…
Keats v. Arditti, [2000] N.B.J. No. 498 (QL)
at paragraph 104
[41] At issue in
the present case is the meaning of the words of the release. Words in a
contract take their meaning from the context in which they are used and the
intent of the parties. As the Supreme Court of Canada remarked in Eli Lilly
& Co. v. Novopharm Ltd., [1998] 2 S.C.R. 129, [1998] S.C.J. No. 59 at
paragraph 54:
…The contractual intent of the parties is
to be determined by reference to the words they used in drafting the document,
possibly read in light of the surrounding circumstances which were prevalent at
the time….
[42] However, it
has been ruled that the scope of a release clause will be more narrowly limited
to those things which were in contemplation of the parties at the time when the
release was given (see Hill v. Nova Scotia (Attorney
General),
[1997] 1 S.C.R. 69, [1997] S.C.J. No. 7 (QL) at paragraph 20). It is perhaps
fitting that release clauses are owed a slightly more narrow interpretation
than other contractual clauses given the broad language they typical employ.
Regardless, the words of the release themselves are a good indicator of what
was in the contemplation of the parties (see Ysselstein v. Tallon,
[1992] O.J. No. 881, 18 C.P.C. (3d) 110 (Gen. Div.) at paragraphs 59 to 61).
This applies a fortiori where the party signing the release was
represented by counsel.
[43] In
considering what was in the contemplation of the parties, a court may also
consider the context, including the circumstances surrounding the execution of
the document and evidence of the intention of parties (see Taske Technology
Inc. v. PrairieFyre Software Inc., [2004] O.J. No. 6019, 3 B.L.R. (4th) 244
(Ont. S.C. (Master)) at paragraph 25). Courts are limited to considering only
objective evidence of intent. The parties cannot rely solely on their own
direct evidence of what their intention was. The test is the intention a
reasonable person would have had if placed in the situation of the parties. This
principle was stated by Whitten J. in Abundance Marketing Inc. v. Integrity
Marketing Inc., 2002 Carswell Ont. 3273, [2002] O.T.C. 731 (Ont. S.C.):
16 This contextual analysis, in so
far as it touches upon the intentions and expectations of the parties, must be
an objective one. Lord Wilberforce in Reardon Smith Lime Ltd. v.
Hansen-Tangen (1976) 3 All E.R. 570 (H.L.) at page 574 stated:
When one speaks of the intentions of
parties to the contract, one is speaking objectively - the parties cannot themselves
give direct evidence of what their intention was and what must be ascertained
is what is to be taken as the intention which reasonable people would have had
if placed in the situation of the parties. Similarly when one is speaking of
aim or object, or commercial purpose, one is speaking objectively of what a
reasonable person would have in mind in the situation of the parties." (as
quoted by Wilkinson J. in Cinabar Enterprises Ltd. v. Bertelson, Ibid.
para. 51).
[44] In my view, a
reasonable person in the applicant’s situation would have understood that the
present application and request for damages would entirely contravene the words
and the intent of the release she signed. The fact that the privacy complaint
continued to proceed with the Commission does not change this nor does the fact
that more than three years have passed.
[45] Here, I would
give considerable weight to the words of the release, not only because both
parties were fully represented by counsel, but also because the parties had
approximately equal bargaining power and co-drafted the document.
[46] To begin, the
release in the present case was titled FULL AND FINAL RELEASE. Such a title
will militate toward a more broad interpretation of the release (see Taberner
v. World Wide Treasure Adventures Inc., [1994] B.C.J. No. 1154, 45 B.C.A.C.
129 (QL) at paragraphs 7 and 8). However, even given their plain meaning, the
words of the release in the present case, in two separate places, encompass the
type of application brought here.
[47] First, in the
first paragraph, the release provides that the applicant releases the
respondent from “any and all actions, causes of action, claims […] demands for
damages, indemnity costs, interest and loss of injury of every nature kind
howsoever arising which the Releasor may now have or may hereafter have arising
out of Court Action file #05-CV-0314466”.
[48] The first
paragraph of the release bars the present application because this application
arises out of facts that had already occurred and were the subject of that previous
litigation between the parties. In that action, the applicant’s pleadings
described in detail the disclosure of the medical notes which are the subject
of this application and even reproduced them. In those same pleadings, the
applicant also claimed that the board had “knowingly given personal and
sometimes false or misleading information about Ms. Arcand to Co-op members”.
In those same pleadings, the applicant also counterclaimed for “General damages
in the amount of $25,000 for mental anguish and distress caused by
harassment…”. As noted above, the applicant had also claimed she was relying on
the provisions of the Act.
[49] Applicant’s
counsel argued forcefully before me that while the applicant’s pleadings in the
previous action did contain those ingredients, the precise nature of the present
application was not pled, nor was any particular section of the Act. The
applicant therefore claims that the present application was not caught by the
release. I disagree. It is true that the applicant did not specify precisely
which incident or incidents formed the basis of her claim for mental anguish
and did not specify which sections of the Act she relied on but the applicant
cannot draw an advantage from that vagueness now. Even if neither party
contemplated the precise nature of the present application, it would still fall
under the broad words of the first paragraph of the release, because the wrong
that was described in the previous action is the same wrong the applicant now
attempts to claim damages for.
[50] Second, I
find that the present application for damages is barred by the third paragraph
of the release which stated:
IF THE RELEASOR commences any proceeding
involving any claim, complaint or demand against the Releasees for any cause,
matter or thing relating to the matters dealt with in this Release, this
Release may be raised as a complete bar to any such claim, demand or complaint
in the proceeding.
[51] The
applicant’s request for damages under subsection 16(c) for her humiliation
resulting from the respondent’s actions is clearly a “claim or demand” for a
“cause or matter” relating to the matters dealt with in the release.
[52] Looking
beyond the words of the release, a closer examination of the circumstances
surrounding the signing of the release provides no assistance to the applicant.
She was fully represented by counsel throughout and thus, cannot make any claim
of non est factum. Nor can she claim that the release should be set
aside due to unequal bargaining power. Both with counsel, the applicant and the
non-profit co-op were essentially on a level playing field.
[53] A review of
the minutes of settlement which was agreed to and signed by the parties on the
same day as the release, is informative. Paragraph 9 reads:
The Defendant, Isabelle
Arcand agrees to execute full and final releases for all counterclaims in the
action and, in particular, the Defendant withdraws any and all complaints and
actions arising out of her membership and occupancy in the Plaintiff, Abiwin
Co-operative Inc., and further not to file any future complaints or actions
arising out of such membership and occupancy.
(My emphasis)
[54] In my view,
this is further evidence that the release they would later sign was meant to be
just as it was titled, a full and final release from all claims arising out of
her membership and occupancy.
[55] It seems the
applicant’s only evidence of her contrary intention that the privacy complaint
and this ensuing application would not be barred is her evidence that she was
asked by the respondent prior to the release to drop her privacy complaint and
she refused. She also claims that she instructed her lawyer, in drafting the
settlement and release, to leave this avenue open to her.
[56] The problem
is that there is no objective evidence of this belief. If parties A and B agree
to enter into a settlement and a full and final release in regards to a long standing
and multifaceted dispute and party A wishes to keep open the possibility of
claiming damages in a different type of action but in relation to the same
basic facts, he or she ought to specifically exclude that cause of action from
the settlement and release. If party A chooses not to, party B is entitled to
rest assured that the dispute has been resolved in full.
[57] Finally, the
applicant cannot rely on the respondent’s acquiescing to the Commission’s
complaint process as evidence that the respondent did not believe the release
applied. On the contrary, the respondent’s post-settlement conduct was entirely
consistent with a belief that the release was enforceable.
[58] An
application under section 14 of the Act is optional for those who receive a
Commissioner’s report in their favour. It is not simply an extension of the
privacy complaint. It is a separate and subsequent step and is itself a new
action. In this case, it related to matters dealt with in the release signed by
the applicant and was barred by that release. The privacy complaint had already
been initiated at the time the release was signed. When the applicant attempted
to take this next step and apply for damages under subsection 16(c), the
respondent immediately sought to enforce the release.
[59] For the
reasons above, I have determined that a reasonable person in the applicant’s
situation ought to have understood that the full and final release would
preclude this application.
[60] Finally, I
would reject the applicant’s claim that the release should be set aside because
the settlement was improvident and did not fully compensate her. This final
claim only affirms her acknowledgement that the initial settlement was for the
same damages she is now attempting to claim damages for a second time.
[61] The
respondent, the non-profit Co-op, paid valuable consideration for the
settlement and release. At minimum, the release was the means through which it
has purchased contractual immunity from such an action arising out of the very
events which gave rise to the settlement. As such, I would allow enforcement of
the document and say that it prevents the applicant from any claim of damages
under subsection 16(c).
[62] The release
also imposed on the applicant an obligation to withdraw her privacy complaint.
She did not do so and the respondent did not take any positive action either. Instead,
the Commission continued its work and produced a report with which the
respondent complied. It is that report which allowed the applicant to proceed
with this hearing and, as I stated above, I do not find this hearing itself to
be an abuse of process.
[63] Issue 2
What damages,
if any, is the applicant entitled to?
For the reasons set out above, I
am of the view that while the applicant has a right to proceed with this
hearing under section 14 of the Act, no categories of relief under section 16
are open to her. I have described above how making an order pursuant to
subsections 16(a) or (b) in the present circumstances would be unnecessary and
repetitive since the Commission has already succeeded here with the simple
recommendation that the respondent change its by-laws and privacy policy. The
respondent took heed of this recommendation and promptly complied. I have also
concluded that the applicant is barred from claiming damages under subsection
16(c) as such a claim is contrary to the terms of the release signed by the
applicant.
[64]
The
application is therefore dismissed with costs to the respondent.
JUDGMENT
[65]
IT
IS ORDERED that the application is dismissed with costs to the respondent.
“John
A. O’Keefe”
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