Drawing the line between privacy and practicality is not always
easy, even for the Justices of the Court of Appeal, who divided
narrowly on the issue.
Just before Christmas the Ontario Court of Appeal released a split 3-2
decision in a case that pitted the privacy rights of judgment
debtors against the execution rights of judgment creditors.
The Royal Bank of Canada ("RBC") had obtained a
judgment of just over $26,000 against the defendants. The
defendants owned a residential property that RBC wished to
have the Sheriff seize and sell so that the bank could collect on
its judgment. Since the property had a mortgage registered on
title, the Sheriff would not sell the property without a mortgage
discharge statement (the "Statement") from the
mortgagee (in this case Scotiabank).
RBC attempted to conduct two different examinations in aid of
execution on the defendants, who failed to show for both. If they
had shown, the defendants would have been obligated to bring a copy
of the Statement, or alternatively, RBC could have demanded a
copy by way of undertaking given at the examination.
Having no such luck with the defendants, RBC scheduled an
examination of a Scotiabank representative. The Scotiabank
representative attended, voluntarily, but refused to produce
the Statement on the basis that Scotiabank was not permitted
to do so under the provisions of the Personal Information
Protection and Electronic Documents Act
Before the Court of Appeal, Justices Laskin, Cronk and Blair
held that unless the defendants had consented to the release of the
Statement by Scotiabank or unless Scotiabank was required
by court order to attend an examination, the provisions of
PIPEDA operated to prevent Scotiabank from having to
provide the Statement to RBC. In other words, the fact that
Scotiabank voluntarily submitted to an examination acted as a bar
to the court ordering production of the Statement.
In dismissing the appeal, the majority invited RBC to bring a
motion for an order requiring a Scotiabank representative to be
examined, after which time the Statement would be properly
producible under law.
Associate Chief Justice Hoy and Justice Sharpe disagreed with
the majority. Hoy A.C.J.O., noted that "requiring multiple
motions results in unwarranted delay and expense and does not
foster access to justice" and that to require RBC to bring
another motion "would fly in the face of increasing concerns
about access to justice in Canada".
The minority held that they would order Scotiabank to produce
the Statement to RBC and that there were two different bases for
doing so. Firstly, a court ordered examination of a third party
(such as Scotiabank) is not necessary to meet the requirement of
"an order made by a court" within the meaning of s.
7(3)(c) of PIPEDA. Secondly, the minority held that a
court order was unnecessary at all because the defendants'
consent to the disclosure of the Statement can be implied.
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