SCC Renders Practical Privacy Decision on Mortgage Information

The Supreme Court of Canada, in Royal Bank v Trang, made a privacy decision that will bring a sigh of relief to lenders and creditors.

A judgment creditor asked the sheriff to seize and sell a house to satisfy the judgment. To do that, the sheriff needed to know how much was owed on the mortgage on the house. The mortgage lender didn’t have express consent to provide the information, and said PIPEDA prevented it from giving it. Lower courts agreed.

But the SCC took a more practical approach. The issue was whether there was implied consent to release that personal information. The SCC said there was.

They interpreted implied consent in a broader perspective, looking at the entire situation, including the legitimate business interests of other creditors. Financial information is considered to be sensitive personal information, and thus in general faces a higher threshold for implied consent. But in this context, they held that it is a reasonable expectation of a debtor for a mortgage lender to provide a discharge statement to another creditor wanting to enforce its rights against that property.

Comments

  1. Thank goodness. The lower courts’ decisions in this case always seemed to me to be too pure for real life, form over substance.

  2. John – the theory/practice aphorism often attributed to Yogi Berra sometimes explains what goes on in lower court decisions. Other times: a three letter acronym of which the first to are WT.

    Unfortunately, in those cases, we have a number of explanations, none of which are palatable, assuming of course the problem isn’t an – I’ll be polite – overly technical, not demanded by legislation or any other binding on the court principle – decision from higher up the pecking order court:

    1. judicial incompetence (in the particular case)
    2. lawyer’s incompetence (in the particular case)
    3. one of the lawyers being a bit too good at advocacy in advancing the client’s case’;
    4. all of the above;
    5. none of the above;
    6. there is no number 6;
    7. the dog ate my homework.

    I can say things things a bit more explicitly than I used to, now.

Leave a Reply

(Your email address will not be published or distributed)