II. LIABILITY ISSUES
B. A landlord conducting a credit check on a prospective tenant without their knowledge or consent does not amount to the privacy tort of intrusion upon seclusion, as the Ontario statute authorized a credit check in the circumstances and a reasonable person would not regard this to be highly offensive, causing humiliation or anguish.
Larizza v. The Royal Bank of Nova Scotia, 2017 ONSC 6140, per Favreau, J. [4248]
I. FACTS AND ISSUES
Plaintiff Larizza was taken advantage of by the Defendant
Rosenberg, a fraudster. She met Rosenberg in February 2012 through
an online dating service. At the time, she owned her own home and
worked as an executive director at a medical center. Rosenberg
misrepresented his circumstances to Larizza, claiming that he was a
56-year-old, wealthy Swiss-Canadian businessman who was heir to a
fortune. In reality, he was a 69-year-old Egyptian who had been
convicted of fraud many times and was not the heir to any
fortune.
In July 2012, Rosenberg convinced Larizza to sell her house, quit
her job and move in with him. They ended up living in a penthouse
owned and managed by Defendant landlord Minto. During their time
together, Larizza gave Rosenberg various sums of money, having been
convinced that he needed to borrow it because his own money was
tied up abroad or that he was investing the funds on her
behalf.
When Larizza and Rosenberg met, he was living in a luxury apartment
in the building owned by Minto. Rosenberg inquired about renting
the penthouse. Minto performed a credit check on Rosenberg through
Equifax and concluded that there was "insufficient"
credit information on him to justify renting him the penthouse.
Minto told Rosenberg that if he gave the name of someone else for a
credit check they might be able to end up renting him the
penthouse, so Roseberg provided Larizza's name. Without any
direct communication with Larizza or getting her consent to a
credit check, Minto obtained her credit report from Equifax. It
showed that she had a strong credit rating, which would be
sufficient for the purposes of leasing the penthouse. Larizza
argued that Minto's conducting of the unauthorized credit check
was contrary to Minto's policy and the Credit Reporting
Act, R.S.O. 1990, c. C.33 and PIPEDA (the Personal
Information Protection and Electronic Documents Act, S.C.
2000, c. 5).
Larizza signed a lease for the penthouse in May 2012. She claimed
that she had no involvement in the negotiation of the lease, as
that was all done by Rosenberg and that she signed the lease in a
rush, believing that Rosenberg was going to be the tennant and she
was only signing as an occupant. The document showed on the front
page that Larizza was to be a tenant, with Rosenberg as the
occupant, and she signed above the word "tenant". In
February 2013, Larizza and Rosenberg advised Minto that they
intended to exercise their option to extend the lease and it was
extended to June 30, 2014. Rosenberg made the payments throughout
the lease, until July and August 2013. At that time, Minto wrote to
Rosenberg and Larizza to advise them of the default in rent and
that legal action will be commenced if they did not pay it. In
September 2013 Minto applied to evict Larizza and Rosenberg before
the Landlord and Tenant Board. In the end, that application was
dismissed because by the time it was heard, Larizza had vacated the
penthouse.
In September 2012 Larizza was referred to Defendant Hoffstein, a
lawyer at Fasken Martineau. When Larizza met Hoffstein, she advised
that she had met Rosenberg and planned to marry him in November
2012, that he was a wealthy Swiss businessman who intended to
purchase a $10 million insurance policy naming a trust for the
benefit of Larizza and her two daughters as the beneficiary. She
also advised Hoffstein that Rosenberg had a lawyer in Switzerland
who is working on a prenuptial agreement. Hoffstein was retained by
Larizza to provide estate planning advice in connection with her
Will prior to her marriage and the creation of the trust that
Rosenberg intended to create, and to prepare a Power of Attorney
naming Rosenberg as the attorney. None of the tasks were finished
because Hoffstein did not receive instructions or information that
she requested that would allow her to complete those tasks.
Throughout her communication with Hoffstein, Larizza was advised to
prepare her Will "in contemplation of marriage" before
the marriage, otherwise her current Will would be revoked upon
marriage. Larizza kept putting Hoffstein off and eventually married
Rosenberg in March 2014 without first advising Hoffstein.
Larizza sued the landlord Minto for breach of privacy (intrusion
upon seclusion) breach of contract, negligence, negligent
misrepresentation and intentional/negligent infliction of mental
distress. The claim for intrusion upon seclusion was based on the
allegation that Minto had conducted the credit check on her without
her authority or knowledge in breach of his own policies and some
statutes. Larizza also sued other entities, the claims against whom
were settled by the time this application was brought. Rosenberg
was noted in default.
Minto and Fasken applied for summary dismissal of the claims
against them.
II. HELD: For the Defendants, summary dismissal granted.
51 The elements of intrusion upon seclusion are:
(See Jones v. Tsige, 2012 ONCA 32 (Ont. C.A.) at paras. 70-71.)
59 Accordingly, in my view, Minto may have contravened PIPEDA when it failed to obtain Ms. Larizza's consent prior to conducting the credit check. However, this does not end the inquiry in relation to the second element of the test. Notably, contravention of a statute on its own does not give rise to a cause of action, and PIPEDA contains its own regimen for complaints, investigations and resolutions. In addition, the second element of the test requires that the defendant invade the "private affairs or concerns" of the plaintiff. In Powell v. Shirley, 2016 ONSC 3577 (Ont. S.C.J.) at para. 87, this court considered whether the information in a credit report is the type of information over which a person has a legitimate privacy interest. The Court found that credit checks do not give rise to such an interest because they tend to contain information about dealings with third parties: Much of the credit report relates to disclosure of the simple fact that other identified third parties had made requests to the relevant credit bureau for the provision of information concerning the plaintiffs. In my view, a request for information about the plaintiffs cannot be equated with information about the plaintiffs. Moreover, it seems to me that a record compiling details of who may have made such requests to the credit bureau, and when those requests were made, without any apparent involvement whatsoever of the plaintiffs, is not a record in respect of which the plaintiffs could or would have had any reasonable expectation of privacy. To the extent the credit report discloses the existence of formal collection proceedings pursued by third parties against the plaintiffs, and/or judgments obtained by third parties against the plaintiffs, it should be remembered that such proceedings and judgments almost certainly would be a matter of public record. It may be true that the credit bureau makes a summary of such information more readily available than it would be if a party seeking such information otherwise had to expend the time and resources necessary to attend at each and every courthouse in Ontario or elsewhere, and perform a thorough search of court files, generally accessible to the public in an open courts system, for records of litigation, (including claims, judgments, writs of execution and other formal debt enforcement measures), relating to Mr. and/or Mrs. Powell. In my view, however, that does not change the inherently public and non-private nature of the underlying information. It seems to me that there is a significant difference and
distinction to be made between situations involving financial
records relating to an individual, maintained by that
individual's bank or other institution, in respect of which an
individual may have a legitimate and understandable expectation of
privacy, and situations where a person has dealt with a third party
in an arm's length commercial transaction leaving that third
party with a debt or alleged debt against the individual which it
wishes to pursue. In my view, records concerning that third
party's assertion of a debt, and efforts to pursue such a debt,
are very unlikely to be records in respect of which the debtor or
alleged debtor would have a legitimate or reasonable expectation of
privacy. 60 Similar third party information is contained in Ms. Larizza's credit report. Accordingly, the request for Ms. Larizza's credit report without her consent, while it may have contravened PIPEDA, was authorized by the CRA and, given the nature of the information, in my view would not constitute and invasion of Ms. Larizza's personal affairs.
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