Justin Winch

The appellants appealed a summary judgment granting the respondent bank amounts owing on a mortgage and line of credit, leave to issue a writ of possession, and dismissing their counterclaim.

The appellants admitted indebtedness but argued they had an arrangement with the respondent's employees to make mortgage payments using funds from a third-party loan.

The Court of Appeal upheld the motion judge's finding that there was no genuine issue requiring a trial, as the appellants led no evidence to contradict the respondent's evidence of default, including property tax arrears.

The appeal was dismissed.

The appellant judgment creditor sought to enforce its judgment by having the sheriff sell the respondents' mortgaged property.

The sheriff required a mortgage discharge statement, which the mortgagee bank refused to provide without the respondents' consent, citing PIPEDA.

The respondents failed to attend examinations in aid of execution.

The appellant brought a motion to compel the mortgagee to produce the statement, which was dismissed based on binding precedent.

On appeal, a five-judge panel of the Court of Appeal dismissed the appeal.

The majority held that the mortgage discharge statement was sensitive personal information under PIPEDA, and the respondents could not be deemed to have impliedly consented to its disclosure to a judgment creditor.

The majority affirmed that the proper procedure to obtain the statement without consent is to seek an order for the examination of the mortgagee under Rule 60.18(6)(a) of the Rules of Civil Procedure, which would satisfy the court order exemption in PIPEDA.