Canada: Privacy And Property: The Supreme Court Clarifies The Limits Of PIPEDA

Last Updated: April 24 2017
Article by Scott Venton and Kyle Kuepfer

The Supreme Court of Canada has recently released a decision that will help clarify the relationship between legitimate business concerns and the privacy interests of individuals. In Royal Bank of Canada v Trang1 ("Trang"), the Supreme Court removed a number of hurdles that judgment creditors often face when attempting to execute against a judgment debtor's real property. Whereas a judgment creditor was previously required to obtain a debtor's consent or a court order before obtaining a mortgage discharge statement (a prerequisite to a sheriff's sale), the Trang decision allows the same creditor to obtain the debtor's implied consent simply by filing a writ of seizure and sale with the sheriff. At a broader level, Trang makes clear that individuals cannot hide behind the Personal Information Protection and Electronic Documents Act2 ("PIPEDA") to escape their legal obligations.

The facts in Trang are relatively straightforward. Royal Bank of Canada was a judgment creditor of the Trangs, who owned property that was subject to a mortgage held by Scotiabank. Pursuant to their judgment, RBC filed a writ of seizure and sale against the property. However, when RBC attempted to undertake a sheriff's sale, the sheriff declined to sell the property without first obtaining a mortgage discharge statement from Scotiabank, as required by the Execution Act3. Scotiabank refused to provide the mortgage discharge statement, asserting that PIPEDA precluded it from doing so without the Trangs' consent.

At the Ontario Court of Appeal, the majority of a five-judge panel agreed with Scotiabank, concluding that a mortgage discharge statement is "personal information" that is protected from non-consensual disclosure under PIPEDA. Relying on its earlier reasoning in Citi Cards Canada Inc. v Pleasance4, the Court of Appeal maintained that RBC's request for the Trangs' financial information did not fit cleanly into any of the exceptions to the consent requirements contained in PIPEDA.

The Supreme Court disagreed, opting for a commercially sensible result that prioritizes legitimate business concerns. Writing for a unanimous court, Justice Côté held that RBC was entitled to receive a discharge statement from Scotiabank for two reasons. First, Justice Côté concluded that PIPEDA was not intended to interfere with the court's inherent jurisdiction to order the disclosure of financial information, including mortgage discharge statements, to facilitate debt repayment. The court relaxed the strict requirement that a creditor seeking financial disclosure must demonstrate certain difficulties in enforcing its judgment, noting that a creditor "should not be required to undergo a cumbersome and costly procedure to realize its debt"5. As a result, judgment debtors who fail to attend an examination or refuse to consent to the disclosure of a mortgage discharge statement will be deemed sufficiently "difficult", thereby entitling creditors to an order for disclosure, notwithstanding the potential barriers imposed by PIPEDA.

Second, and perhaps more importantly, after a contextual analysis of the information contained within mortgage discharge statements, Justice Côté reasoned that judgment debtors provide their "implied consent" consent to its disclosure under certain circumstances. Consequently, the need to obtain an order for disclosure will occur sparingly, as implied consent provides a sufficient basis for the disclosure of the discharge statement. As most of the information relating to the mortgage is already publicly registered on title, the court held that the contents of a mortgage discharge statement should be considered "less sensitive" than other forms of financial information.

The court also held that a "reasonable [mortgagor] expects that a creditor will be able to obtain the information necessary to realize its legal rights."6 Interestingly, the court concluded that the legitimate business interests of others (in this case, RBC) were a relevant part of the context that informed the reasonable expectations of the mortgagor.

Trang's emphasis on context when determining whether consent is implied should be of general assistance to commercial entities seeking disclosure of "less sensitive" forms of information. At a minimum, Trang will require future privacy assessments to consider more than just the interests of the individual seeking protection under PIPEDA. Using broad language, Justice Côté writes:

In my view, when determining the reasonable expectations of the individual, the whole context is important ... to do otherwise would unduly prioritize privacy interests over the legitimate business concerns that PIPEDA was also designed to reflect...7

While the implications of these global statements are still uncertain, the effects of Trang will undoubtedly be welcomed by judgment creditors. Just as the Personal Property Security Act8 provides judgment creditors with the ability to obtain account information from secured parties, a judgment creditor is now able to directly obtain the discharge statement from the mortgagee without the express consent of the debtor. In the past, creditors seeking to enforce a writ against mortgaged real property have been required to locate and serve the debtor with a notice of examination in aid of execution, force their attendance at the examination, and compel the disclosure of a discharge statement by obtaining a court order against either the debtor or the mortgagee. However, the Supreme Court has made it clear that filing a writ of seizure and sale with the sheriff is now sufficient to trigger a mortgagor's implied consent to the disclosure of a mortgage discharge statement.

While Trang provides a principled justification for the disclosure of a mortgagor's personal information, a prudent lender might nonetheless wish to obtain a borrower's express consent to the disclosure of certain financial information as a term of the standard mortgage agreement. This preventive step may assist in avoiding the expense and trouble associated with legal proceedings commenced under PIPEDA or, as was the case in Trang, motions to compel the disclosure of private financial information.


1 2016 SCC 50.

2 SC 2000, c 5.

3 RSO 1990, c E-24.

4  2011 ONCA 3.

5 Supra, note 1 at para 32.

6 Supra, note 1 at para 48.

7 Supra, note 1 at para 44.

8  RSO 1990, c. P-10, s 18.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions