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Summary

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Privacy - Protection of personal information - Creditor and debtor - Civil Procedure - How is implied consent under the Personal Information Protection and Electronic Documents Act, S.C. 2000 (“PIPEDA”) assessed? - Can consent of the Trangs to disclosure of their discharge statement to Royal Bank of Canada (“RBC”) be implied? - Given the exception in s. 7(3)(i) of PIPEDA for disclosure without consent where “required by law”, and the exception in s. 7(3)(b) for disclosure “for the purpose of collecting a debt owed by the individual to the organization”, could Scotiabank have disclosed a mortgage discharge statement to RBC after RBC filed its writ of seizure and sale, on the basis that Scotiabank had a right to be repaid from that sale? - Given the “required by law” exception in s. 7(3)(i), could Scotiabank have disclosed the discharge statement to RBC without consent after the Trangs failed to attend an examination at which they were required by the Rules of Civil Procedure to produce that personal information to RBC? - What effect, if any, does s. 7(3)(c) of PIPEDA have on the power of the courts to issue orders for production of personal information? - Could the courts below have issued an order that Scotiabank produce the mortgage discharge statement? - Personal Information Protection and Electronic Documents Act, S.C. 2000 (“PIPEDA”), c. 5, ss. 3, 7, and cl. 4.3.6 of Schedule 1.

The appellant, RBC, has a judgment against the respondents, Phat and Phuong Trang, in respect of a loan by RBC to the Trangs which went into default. The Trangs own a property mortgaged to the respondent, Bank of Nova Scotia (“Scotiabank”). The Sheriff refuses to sell the property without a mortgage discharge statement. RBC sought to obtain this statement by examining the Trangs but they did not appear, and Scotiabank contended PIPEDA precluded it from disclosing the statement. RBC then brought a motion to compel Scotiabank to produce the statement. The motion judge found that he was bound by Citi Cards Canada Inc. v. Pleasance, 2011 ONCA 3, 103 O.R. (3d) 241, and dismissed the motion. The Ontario Court of Appeal quashed RBC’s appeal because the motion judge’s order was interlocutory, finding RBC should seek to examine a Scotiabank representative and obtain the statement by motion under rule 60.18(6)(a) of the Ontario Rules of Civil Procedure. Scotiabank appeared voluntarily on the examination and not by court order issued under rule 60.18(6)(a). It maintained PIPEDA prevented disclosure of the discharge statement. RBC brought another motion to compel production by Scotiabank, however the motion was not brought under rule 60.18(6)(a), as instructed by the Court of Appeal.

Lower Court Rulings