On January 6, 2011, the Ontario Court of Appeal upheld a
decision of the Superior Court to the effect that the Personal
Information Protection and Electronic Documents Act (PIPEDA),
did not permit a financial institution to disclose an
individual's mortgage statement to a third party for the
purpose of facilitating the enforcement of that party's rights
as a judgment creditor.1
Citi Cards Canada Inc. sought to have Mr. Pleasance's
property sold in order to satisfy a judgment held against him. The
sheriff required mortgage discharge statements from Canada Trust
and Toronto-Dominion Bank (collectively the "Banks"),
both of whom held mortgages against the property. The Banks refused
to provide the statements on the basis that doing so would be a
violation of Mr. Pleasance's privacy rights. Citi applied to
the Court for a declaration that the Banks were permitted to
disclose the mortgage statements and an order compelling them to do
so. Although Citi could have requested an order permitting it to
examine Mr. Pleasance or other parties with relevant information,
Citi choose not to do.
The Court confirmed that the mortgage statements contained
'personal information' as defined in PIPEDA. The Court also
held that whether or not Mr. Pleasance had an obligation to
disclose the information was irrelevant to the consideration of
whether or not the Banks were "required by law" to do so.
Finding no court order or principle of law that required the Banks
to disclose the information, the Court held that the Banks'
disclosure of the mortgage statements would not have been
permissible under PIPEDA.
Further, the Court of Appeal affirmed the decision of the lower
court not to order the Banks to be examined for the purpose of the
collection of the debt. This decision was based, in part, on a
concern for the privacy rights of Ms. Pleasance, who held a 50%
interest in the property at issue.
This decision is an important one for all organizations in
Canada that are subject to PIPEDA. Canadian companies regularly
receive requests for information about individuals from other
entities that are engaged in litigation with those individuals. It
is important to recognize, as this decision does, that the fact
that legal proceedings are pending does not mean that an
organization that is not part of those proceedings may disclose
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