Supreme Court

Privacy and Freedom of Information

Collection of personal information
Mortgagee was compelled to disclose discharge statement

Creditor loaned homeowners $35,000. Homeowners defaulted on loan. Creditor obtained judgment against homeowners but required discharge statement (statement) from bank holding mortgage on homeowners’ property (mortgagee). Mortgagee refused to provide statement without homeowners’ consent under Personal Information Protection and Electronic Documents Act (PIPEDA). Creditor obtained orders to examine homeowners in aid of execution. Motion judge refused both of creditor’s motions to compel mortgagee to disclose statement, considering himself bound by 2011 appellate decision. Majority of Court of Appeal dismissed creditor’s appeal, holding that s. 7(3)(c) exception did not apply, that statement was “personal information” homeowners did not impliedly consent to disclosure of, and that creditor could obtain statement by obtaining examination order under R. 60.18(6)(a) of Rules of Civil Procedure. Dissenting judge would have ordered mortgagee to provide statement. Creditor appealed. Appeal allowed; statement was ordered disclosed. Order sought by creditor was “order made by court” under s. 7(3)(c), statement fell within s. 7(3)(b) exception to consent requirement, and homeowners impliedly consented to statement’s disclosure. PIPEDA did not interfere with courts’ ability to make orders or with rules regarding record production or debt collection disclosure. Requiring creditor to bring another motion flew in face of increasing concerns about access to justice. Judgment creditor who served debtor with motion to obtain disclosure was entitled to order for disclosure and should not be required to undergo further procedure to realize debt. Homeowners also impliedly consented to disclosure to creditor when they gave mortgage. Information in statement was less sensitive than other financial information and was generally available to public except that statement disclosed current balance at single point in time. In determining individual’s reasonable expectations under PIPEDA, whole context was important, including legitimate business interests of other creditors. Statement was not just private matter between mortgagee and mortgagor. Finally, disclosure to person requiring information to exercise established legal right was different from disclosure to curious party with no legal interest in property.

Royal Bank of Canada v. Trang (2016), 2016 CarswellOnt 18044, 2016 CarswellOnt 18045, 2016 SCC 50, 2016 CSC 50, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2014), 2014 CarswellOnt 17254, 2014 ONCA 883, Alexandra Hoy A.C.J.O., John Laskin J.A., Robert J. Sharpe J.A., E.A. Cronk J.A., and R.A. Blair J.A. (Ont. C.A.).

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