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 (“PIPEDA”).
RBC then brought a motion to have the court compel Scotiabank to produce the Statement. Although it was clear that Justice Gray wanted to grant RBC the relief it sought, he felt that he was handcuffed by the Court of Appeal’s prior interpretation of PIPEDA.
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.