ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 6464/10
DATE: 2013-06-18
BETWEEN:
ROYAL BANK OF CANADA
Plaintiff
– and –
PHAT TRANG and PHUONG TANG aka PHUONG THI TRANG
Defendants
James M. Satin, Counsel for the Plaintiff/Moving Party
No one for Bank of Nova Scotia, Responding Party
HEARD: June 13, 2013
REASONS FOR JUDGMENT
Gray J.
[1] This motion is a sequel to one that was originally brought before me on May 16, 2012.
[2] The plaintiff has a judgment against the Trangs, who own real property. The plaintiff wants to sell the property to collect on its judgment. The sheriff will not sell the property unless the plaintiff produces a mortgage statement from the Bank of Nova Scotia, a mortgagee. The Bank of Nova Scotia refuses to produce a mortgage statement on the ground that to do so would contravene the Personal Information Protection and Electronic Documents Act S.C. 2000, c.5 (PIPEDA).
[3] On June 6, 2012, I ruled that the Bank of Nova Scotia was prohibited from producing a mortgage statement because to do so would contravene PIPEDA. On December 21, 2012, the Court of Appeal quashed an appeal from my decision on the ground that my decision was interlocutory. The Court held that the decision would not be final unless the plaintiff examined a representative of the Bank of Nova Scotia and the Bank of Nova Scotia persisted in its refusal to provide a mortgage statement. The plaintiff has now done so, the Bank of Nova Scotia has persisted in its refusal, and the plaintiff brings the same motion afresh.
[4] For the reasons that follow, the motion is dismissed.
Background
[5] The background to this matter is extensively set out in my Reasons for Judgment in Royal Bank of Canada v. Trang (2012), 2012 ONSC 3272, 20 R.P.R. (5th) 79 (Ont. S.C.J.), and I need not review it again. In short, I held that the plaintiff was not entitled to compel the Bank of Nova Scotia to provide a mortgage statement because, as decided by the Court of Appeal in Citi Cards Canada Inc. v. Pleasance (2011), 2011 ONCA 3, 103 O.R. (3d) 241 (C.A.), to do so was prohibited by PIPEDA.
[6] In my Reasons, I noted that a number of statutory provisions had apparently not been drawn to the attention of the Court of Appeal in Citi Cards, and that it was at least arguable that those provisions might suggest a different result. However, I ultimately held that it was for the Court of Appeal, and not for me, to decide the matter differently.
[7] The Court of Appeal quashed an appeal from my decision: see Royal Bank of Canada v. Trang (2012), 2012 ONCA 902, 25 R.P.R. (5th) 241 (Ont. C.A.). The Court held that since the plaintiff had not conducted an examination of a representative of the Bank of Nova Scotia under Rule 60.18 (6)(a), my order did not finally dispose of the question of whether the Royal Bank could obtain an order compelling the Bank of Nova Scotia to provide a mortgage statement.
[8] The plaintiff has now conducted an examination of a representative of the Bank of Nova Scotia. She is the Bank’s senior legal counsel. She testified that the Bank of Nova Scotia would refuse to produce a mortgage statement because its disclosure is prohibited by PIPEDA. That seems to finally dispose of the question.
Submissions
[9] Mr. Satin, counsel for the plaintiff, submits that the plaintiff has now exhausted all means of attempting to secure a mortgage statement from the Bank of Nova Scotia. There is nothing left that the plaintiff can do to secure the information it requires in order to sell the property. If PIPEDA, properly interpreted, means that a mortgage statement cannot be obtained, the plaintiff will simply lose its right to sell the property in order to satisfy its judgment.
[10] Mr. Satin submits that in addition to the arguments outlined in my previous Reasons for Judgment, there is yet another provision of PIPEDA that is relevant and persuasive. Section 3 of PIPEDA provides as follows:
- The purpose of this Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances.
[Emphasis added]
[11] Mr. Satin submits that it is clear from this provision that private information can be disclosed if a reasonable person would consider it appropriate in the circumstances. In a case such as this, it is clearly appropriate that a mortgage statement be disclosed in order that an execution creditor can exercise its statutory right to sell property. Indeed, Mr. Satin submits that a reasonable person would consider it to be quite inappropriate to not disclose this information.
Analysis
[12] While the examination of a representative of the Bank of Nova Scotia undoubtedly means that the plaintiff has now exhausted every means of attempting to require the Bank of Nova Scotia to provide a mortgage statement, the examination itself does not add to the plaintiff’s substantive argument that it is entitled to a statement notwithstanding PIPEDA.
[13] PIPEDA either prohibits the disclosure of the requested information or it does not. The fact that it is requested through an examination does not change the legal analysis: if PIPEDA prohibits the disclosure of the information, it cannot be obtained through an examination any more than it can be obtained in response to a letter asking for it. Indeed, it seems to me that to require an examination to get this sort of information simply adds cost and difficulty. If the execution creditor is entitled to the information, it should be able to obtain it without an additional layer of time and cost.
[14] In the final analysis, I remain of the view that PIPEDA, as interpreted by the Court of Appeal in Citi Cards, prohibits the release of the requested information. Any change must come from the Court of Appeal, and not from me.
Disposition
[15] For the foregoing reasons, the motion is dismissed. There will be no order as to costs.
Gray J.
Released: June 18, 2013
COURT FILE NO.: 6464/10
DATE: 2013-06-18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROYAL BANK OF CANADA
Plaintiff
– and –
PHAT TRANG and PHUONG TANG aka PHUONG THI TRANG
Defendants
REASONS FOR JUDGMENT
Gray J.
Released: June 18, 2013