ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-CV-484542
DATE: 20140402

BETWEEN:

MOUNTAIN PROVINCE DIAMONDS INC.
Applicant

– and –

DE BEERS CANADA INC.
Respondent

Eric Fournie and Oleg M. Roslak, for the Applicant

Alex D. Cameron, for the Respondent

HEARD: March 10, 2014

Perell, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] Pursuant to a Joint Venture Agreement, the Applicant, Mountain Province Diamonds Inc., (“MPD”) and the Respondent, De Beers Canada Inc. (“De Beers”) are developing a diamond mine in the Northwest Territories.

[2] This Application is a dispute between these joint venturers about compliance with the Personal Information Protection and Electronic Documents Act,^[1] (“PIPEDA”).

[3] MPD seeks an order that De Beers disclose detailed payroll records of its employees working on the diamond mine project. The details would include employment contracts, salary, hours worked, bonus formulae and calculations, and payments.

[4] De Beers submits that it would be violating PIPEDA if it provided the information, and it refuses to provide the personal information of its employees to MPD. De Beers offers instead to hire an independent third party auditor who would disclose to MPD aggregate/non-identified reporting and no discreet personal information about De Beers’ employees.

[5] By this Application, MPD submits that PIPEDA does not prohibit the disclosure of the information sought, but if it does, then the court should grant an order pursuant to s. 7(3)(c) of the Act permitting the disclosure.

[6] For the reasons that follow, I conclude that PIPEDA applies to the personal information being sought. I conclude further that the court does not - as yet - have the jurisdiction to make an order authorizing the disclosure of the information. I, therefore, dismiss the Application without prejudice to a renewed Application.

B. FACTUAL BACKGROUND

[7] Pursuant to a Joint Venture Agreement, De Beers (51% interest) and MPD (49% interest) are developing a diamond mine in the Northwest Territories. De Beers is the “Operator” under the Agreement. Under the Joint Venture Agreement, the parties share costs in accordance with their respective interests in the joint venture.

[8] The joint venture has a Management Committee. The Committee has representatives of both parties and the Committee makes the decisions about the exploration and development of the mine. The work on the ground is performed by De Beers under the direction of the Management Committee.

[9] Under the Joint Venture Agreement, as Operator, De Beers determines the number of employees and the terms of their employment for the joint venture. The employees are employed by De Beers.

[10] The costs of employment are paid by the joint venturers. Salaries and wages of De Beers’ Senior Management may be charged to the joint venture only when they are working directly on technical aspects of the project in a field location and only at a rate similar to the salaries and wages paid to the most senior personnel normally working at such field location.

[11] Under the Joint Venture Agreement, MPD has the right to audit De Beers’ accounts and records in respect of the project either by appointing an external auditor or by conducting the audit itself.

[12] Under the Agreement, De Beers is required to furnish copies of documents relating to the joint venture. The Agreement states:

Each Participant shall have the right at all reasonable times and on reasonable notice to inspect, review and require the Operator to furnish, at the sole expense of the Participant concerned, copies of documents in the possession or control of the Operator, wherever the same may be located, relating to the Joint Venture.

[13] Under Article 16.1 of the Joint Venture Agreement, any information received by a party is regarded as proprietary and the information is not to be disclosed without the prior consent of all parties.

[14] Putting aside whether De Beers has adequately provided information about its employees’ working for the joint venture, De Beers has apparently complied with its disclosure obligations under the Joint Venture Agreement.

[15] De Beers already provides some information about the employees working on the mine project. In support of a quarterly cash call, De Beers provides the names, internal employee codes, job status, and pay range for each employee who is expected to provide services to the project.

[16] De Beers provides MPD with non-identifiable payroll summaries and gross payroll cost for De Beers’ employees who have worked on joint venture activities. After the end of the quarter, De Beers provides similar information in respect of any employee who actually worked on the project, together with the actual hours worked.

[17] MPD, however, has requested more detailed information about employees and their employment. MPD seeks information about the actual rate paid to each employee for the work done on the project, together with a breakdown of the portion of the actual rate that is attributable to payroll burden and to bonus.

[18] MPD says that this information is necessary: (1) in order for De Beers to comply with its contractual obligations; and (2) in order for MPD to complete its due diligence with respect to the multi-millions of funds it is contributing to the venture. It says that it is entitled to audit the expenditures of the joint venture.

[19] De Beers has refused to provide the requested information and instead has offered to provide MPD with non-identifiable payroll summaries and gross payroll costs.

[20] On August 20, 2012, De Beers made a proposal for the disclosure of information. The proposal was that De Beers would be party to an audit engagement letter and without ensuring that the consents would be forthcoming, De Beers would seek to obtain the consent of its employees to the disclosure of information to an auditor. Under the proposal, the auditor would execute a confidentiality agreement and would agree not to disclose personal information to MPD but MPD would be advised of the result of the audit and aggregate reporting would reveal whether De Beers is maintaining costs in line with the targets referenced in the joint venture.

[21] MPD did not accept De Beers’ proposal.

[22] Given the large number of employees involved in the mine project, it seems that it is not practical to obtain individual consents to disclosure of the personal information that MPD is seeking.

[23] On July 10, 2013, MPD commenced this Application. It seeks an order that De Beers disclose to MPD employment and payroll records, employment contracts, detailed payroll records, and such other documents and information relating to the identities and time and income allocation of all De Beers employees, contractors and agents. It seeks detailed information about hours spent, salary, bonus formulae and calculations, reimbursements, other payments made, and other documents and information.

[24] The Notice of Application was amended on December 2, 2013, and the hearing of the Application was adjourned, on consent, from December 2013 to March 10, 2014.

C. DISCUSSION AND ANALYSIS

1. Introduction

[25] MPD submits that it is entitled to the information it seeks under the Joint Venture Agreement and that the disclosure of the requested information would not contravene PIPEDA. It submits that the disclosure of the information, as requested, is necessary and would be consistent with the purposes of the Act.

[26] In the alternative, MPD submits that the Court should make an order under s. 7(3)(c) of the Act authorizing the requested disclosure.

[27] De Beers resists the Application. It submits that the disclosure of personal information as requested by MPD would violate s. 5(3) of PIPEDA.

[28] De Beers submits that the disclosure requested is not necessary, effective, proportional, or less intrusive than other means of disclosure that would satisfy its contractual obligations under the Joint Venture Agreement. It submits that, in contrast, its proposal for disclosure to an auditor would not contravene PIPEDA and would take into account the factors of necessity, effectiveness, proportionality, and would be a less privacy-invasive alternative to MPD’s request for information. It submits that less intrusive measures of disclosure should be used instead of the very intrusive request made by MPD.

[29] De Beers argues that transferring the personal information to a third party auditor would not only provide a high degree of assurance regarding confidentiality and accountability, but also ensure that the use of the information would be strictly limited to the audit purpose. In this regard, De Beers notes that MPD’s request for relief would not, but should, limit the disclosure of the requested information to the audit purpose.

[30] As I will explain in more detail below, although I agree with aspects of both parties’ arguments, my analysis of PIPEDA leads me to the conclusion that both parties’ arguments about the application of PIPEDA are incorrect.

[31] I agree with MPD that it has a contractual right to the personal information about De Beers’ employees working on the mine project.

[32] I disagree with De Beers’ submission that the disclosure of the information would be contrary to the Act because the disclosure is unnecessary, ineffective, disproportionate, and over-intrusive. I also disagree with De Beers’ that its proposal to disclose the personal information to an auditor with instructions to scrutinize the information for MPD is an approach that would be compliant with PIPEDA.

[33] However, I agree with De Beers that unless a statutory exception to non-disclosure is identified, it would contravene PIPEDA, if it disclosed the personal information of its employees without the consent of those employees, whose privacy the Act compels De Beers to protect and MPD to respect.

[34] As will become clearer from the discussion below, I disagree with MPD’s submission that s. 7(3)(c) provides the court with the jurisdiction to exempt De Beers from complying with the Act simply because disclosure would be consistent with the spirit or purposes of the Act.

[35] My ultimate conclusion is that no exception to PIPEDA yet applies, and, therefore, MPD’s Application must be dismissed but without prejudice to a renewed Application if it can activate one of the exceptions to the non-disclosure and protection of privacy mandated by the Act.

2. The Operation of PIPEDA: Would the Disclosure of the Requested Information to MPD Contravene the Act?

[36] The preamble to PIPEDA states that it is: “An Act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances …”

[37] Privacy rights and an individual’s ability to control the use of personal information are quasi-constitutional rights and help preserve a free and democratic society.^[2] PIPEDA was introduced to establish rules to govern the collection, use and disclosure of personal information in a manner that balances the right of privacy against the need of organizations to collect, use or disclose that information for purposes that a reasonable person would consider appropriate in the circumstances.

[38] In Englander v. TELUS Communications Inc.,^[3] Justice Décary of the Federal Court of Appeal reviewed the legislative history of PIPEDA, and he described its purposes as a compromise between competing interests. He stated at paragraphs 37-39, and 46:

37. The purpose of the Privacy Act was described as being twofold by LaForest J. in Dagg v. Canada (Minister of Finance), 1997 358 (SCC), [1997] 2 S.C.R. 403, at 434. First, it is to "protect the privacy of individuals with respect to personal information about themselves held by a government institution;" and, second, to "provide individuals with a right of access to that information."

38. The purpose of PIPEDA is altogether different. It is undoubtedly directed at the protection of an individual's privacy; but it is also directed at the collection, use and disclosure of personal information by commercial organizations. It seeks to ensure that such collection, use and disclosure are made in a manner that reconciles, to the best possible extent, an individual's privacy with the needs of the organization. There are, therefore, two competing interests within the purpose of PIPEDA: an individual's right to privacy on the one hand, and the commercial need for access to personal information on the other. However, there is also an express recognition, by the use of the words "reasonable purpose," "appropriate" and "in the circumstances" (repeated in subsection 5(3)), that the right of privacy is not absolute.

39. PIPEDA is a compromise both as to substance and as to form.

40. All of this to say that, even though Part 1 and Schedule 1 of the Act purport to protect the right of privacy, they also purport to facilitate the collection, use and disclosure of personal information by the private sector. In interpreting this legislation, the court must strike a balance between two competing interests. Furthermore, because of its non-legal drafting, Schedule 1 does not lend itself to typical rigorous construction. In these circumstances, flexibility, common sense and pragmatism will best guide the Court.

[39] Although this Application is about complying with the provisions of PIPEDA, it is worth briefly summarizing how the Act is enforced. Under s. 11(1), an individual may file with the Privacy Commissioner (who is appointed under s. 53 of the Privacy Act)^[4] a written complaint against an organization for contravening a provision of Division I of Part I of PIPEDA or for not following a recommendation set out in Schedule 1 which is made a part of Part I of the Act. Under s. 11(2), the Commissioner may initiate complaints on his or her own initiative. Section 12 of the Act empowers the Commissioner to investigate a complaint. Under s. 13, the Commissioner shall within one year prepare a report that contains, among other things, the Commissioner’s findings and recommendations or any settlement that was reached by the parties. Pursuant to s. 14 of the Act, after receiving a copy of the report, a complainant may apply to the Federal Court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner’s report. Under s. 16, the Federal Court is empowered to give remedies including an order that the organization correct its practices to comply with the Act. The Federal Court is empowered to award damages to the complainant, including damages for any humiliation that the complainant has suffered. It is also worth noting that a complainant grieved by the misuse of his or her personal information may also have a common law claim for the tort of intrusion upon seclusion; see Jones v. Tsige.^[5]

[40] The Application now before the court concerns the operation of Part I of PIPEDA. The purpose of Part I is described in s. 3 of the Act as follows:

3. 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.

[41] Part I of PIPEDA concerns the protection of personal information in the private sector governed by the federal government. Section 4(1)(a) of the Act provides that Part I applies to every organization in respect of personal information that the organization collects, uses or discloses in the course of commercial activities.

[42] Section 2(1) (interpretation) provides the following definitions of: “commercial activity”, “organization”, and “personal information”:

“commercial activity” means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists

“organization” includes an association, a partnership, a person and a trade union

“personal information” means information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.

[43] It is not disputed that PIPEDA applies to De Beers and to its joint venture with MPD. De Beers is an organization that collects, uses or discloses personal information in the course of its commercial activities.

[44] MPD wishes for De Beers to disclose the personal information that De Beers collects or uses for its employees engaged in the diamond mine project in order for MPD to audit whether or not there has been a proper accounting for MPD’s financial contribution to the joint venture. The right to audit these expenditures is a right that MPD contracted for when it agreed to form a joint venture with De Beers. MPD only seeks information about employees who provide services to the joint venture.

[45] Division 1 of Part I provides for the protection of personal information. For present purposes, the following sections of the Act, which define the obligations of De Beers and MPD with respect to personal information, are relevant:

Compliance with obligations

5. (1) Subject to sections 6 to 9, every organization shall comply with the obligations set out in Schedule 1.

Meaning of “should”

(2) The word “should”, when used in Schedule 1, indicates a recommendation and does not impose an obligation.

Appropriate purposes

(3) An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.

Disclosure without knowledge or consent

7.(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is …

(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records; …

(i) required by law.

SCHEDULE 1
(Section 5)

PRINCIPLES SET OUT IN THE NATIONAL STANDARD OF CANADA ENTITLED MODEL CODE FOR THE PROTECTION OF PERSONAL INFORMATION, CAN/CSA-Q830-96

4.3 Principle 3 — Consent

The knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.

Note: In certain circumstances personal information can be collected, used, or disclosed without the knowledge and consent of the individual. For example, legal, medical, or security reasons may make it impossible or impractical to seek consent. When information is being collected for the detection and prevention of fraud or for law enforcement, seeking the consent of the individual might defeat the purpose of collecting the information. Seeking consent may be impossible or inappropriate when the individual is a minor, seriously ill, or mentally incapacitated. In addition, organizations that do not have a direct relationship with the individual may not always be able to seek consent. For example, seeking consent may be impractical for a charity or a direct-marketing firm that wishes to acquire a mailing list from another organization. In such cases, the organization providing the list would be expected to obtain consent before disclosing personal information.

4.3.1

Consent is required for the collection of personal information and the subsequent use or disclosure of this information. Typically, an organization will seek consent for the use or disclosure of the information at the time of collection. In certain circumstances, consent with respect to use or disclosure may be sought after the information has been collected but before use (for example, when an organization wants to use information for a purpose not previously identified).

4.3.2

The principle requires “knowledge and consent”. Organizations shall make a reasonable effort to ensure that the individual is advised of the purposes for which the information will be used. To make the consent meaningful, the purposes must be stated in such a manner that the individual can reasonably understand how the information will be used or disclosed.

4.5 Principle 5 – Limiting Use, Disclosure, and Retention

Personal information shall not be used or disclosed for purposes other than those for which it was collected, except with the consent of the individual or as required by law. …

[46] It was not disputed that PIPEDA applies to the activities of De Beers, MPD, and their joint venture. The heart of the dispute between the parties is how - not whether - PIPEDA applies to MPD’s request for disclosure of personal information about De Beers’ employees.

[47] Although, as I shall explain, there is much more to compliance with PIPEDA, the jurisprudence establishes that to determine whether an organization complies with s. 5(3) of PIPEDA, a four-part test is applied; namely: (1) Is the collection, use or disclosure of personal information necessary to meet a specific need?; (2) Is the collection, use or disclosure of personal information likely to be effective in meeting that need?; (3) Is the loss of privacy proportional to the benefit gained?; and (4) Is there a less privacy-invasive way of achieving the same end?^[6]

[48] In my opinion, there is more to compliance with PIPEDA than the above four factors. If there was not more and just the above four factors, I would have concluded that De Beers would be compliant with PIPEDA in disclosing the personal information requested by MPD because: (1) the disclosure of personal information is necessary for De Beers to perform its contractual obligations under the Joint Venture Agreement; (2) the disclosure of personal information would be effective in meeting De Beers’ obligations under the Joint Venture Agreement; (3) the loss of privacy of employees is proportional to the benefit gained by their employer performing its obligations under the Joint Venture Agreement; and (4) there is no less privacy-invasive way of achieving De Beers’ performance of its obligations under the Joint Venture Agreement.

[49] However, for De Beers to comply with PIPEDA, there is more that needs to be achieved. Under the Act, De Beers can only disclose personal information with the consent of the employees whose personal information would be disclosed. In the case at bar, the employees have not consented to the disclosure of their personal information to MPD nor have the employees consented to disclosure to an auditor as proposed by De Beers.

[50] Thus, in the case at bar, for there to be compliance with PIPEDA, what is required is a way to get around the absence of the employees’ consent to disclosure of their personal information.

[51] Section 7(3) of PIPEDA provides for circumstances when an organization subject to the Act may disclose personal information without the knowledge or consent of the individual concerned. The listed circumstances are sometimes described as exemptions to the obligations under the Act. One of the exceptions under s. 7(3) is that an organization may disclose personal information to comply with an order made by a court. The leading decision about this exception is the Ontario Court of Appeal’s decision in Citi Cards Canada Inc. v. Pleasance.^[7]

[52] The facts of the Citi Cards case were that Citi had obtained a judgment against Mr. Pleasance, and it wished to enforce that judgment by executing a writ of seizure and sale against Mr. Pleasance’s home, which he co-owned with his wife. The sheriff, however, would not act on the writ of execution without having obtained mortgage discharge statements from the first and second mortgagees (Canada Trust and the T-D Bank) of the Pleasances’ home.

[53] When the mortgagees, however, refused to provide the mortgage statements to Citi because of PIPEDA, Citi applied for an order requiring them to produce the statements. But, Justice Price dismissed the Application, and he ruled that Citi had the alternative of a motion under 60.18(6) of the Rules of Civil Procedure to examine Mrs. Pleasance in aid of execution.

[54] Citi appealed to the Ontario Court of Appeal. Justice Blair wrote the judgment for the Court dismissing the appeal. In the Court of Appeal, there was no issue that the mortgagees were obliged to comply with PIPEDA, and Justice Blair agreed with Justice Price that the information in the mortgage statements was personal information of Mr. Pleasance, the judgment debtor, and of his spouse, Mrs. Pleasance. Justice Blair reasoned that since neither Mr. Pleasance nor Mrs. Pleasance had given their consent to the release of the information, the mortgagees were correct in refusing to disclose the mortgage statements.

[55] Thus, the issue in Citi Cards Canada Inc. v. Pleasance became whether one of the exemptions provided in s. 7(3) of PIPEDA applied; namely exception s. 7(3)(c) (disclosure required to comply with court order) or s. 7(3)(i) (disclosure required by law). However, neither exception was available and, therefore, Justice Blair concluded that the mortgagees were prohibited by PIPEDA from disclosing the information sought.

[56] In paragraph 25, Justice Blair reasoned that the s. 7(3)(c) exception (which is the exception relied on in the case at bar by MPD) was not available because it presupposed that a disclosure order had already been made by the court. He stated:

The "order" requiring compliance, upon which Citi Cards relies, is the order sought on this application. It is circular to argue that the Banks are required to disclose the mortgage statements because disclosure is required by an order not yet made. Even a liberal interpretation of the legislation cannot lead to such a pliant result.

[57] Later in his judgment, Justice Blair remarked in obiter that there could be situations where a court might order disclosure of personal information governed by PIPEDA after an order under the Rules of Civil Procedure had been made. In paragraph 37 of his judgment, he stated:

There may well be situations where a financial institution could be ordered to make such information available as the result of a rule 60.18(6)(a) motion. It is not necessary here to consider the "ifs, when, and in what circumstances" such an order might be made, because I am not satisfied that the application judge erred in the exercise of his discretion. He was rightly concerned about the privacy rights of Ms. Pleasance - she holds a 50% interest in the property sought to be sold - as well as the privacy rights of Mr. Pleasance. In view of his correct decision that PIPEDA prohibits the Banks from disclosing the mortgage statements, it was not an error in the circumstances to require the appellant to pursue another available alternate remedy in lieu of making the order sought. There is support for the proposition that a creditor should exhaust all other reasonable means available before a rule 60.18(6)(a) order is made

[58] In Easybank Inc. v. Spagnuolo Estate,^[8] Master Graham applied the obiter from the Citi Card case. In Easybank Inc., the Master made an order under s. 7(3)(c) of PIPEDA to order the Toronto Dominion Bank, which was a non-party that had information needed to enforce a monetary judgment against the defendant, to provide a mortgage statement that would disclose personal information about the defendant. The Bank had resisted disclosing the information, because it did not have the defendant’s consent to disclose the information, and the Bank felt that disclosure without consent was non-compliant with PIPEDA. Master Graham concluded that the court had the jurisdiction to make a disclosure order against the Bank because the plaintiff had exhausted all means of obtaining the information from the defendant. Alternatively, Master Graham ruled that the Bank could release the information because the defendant could be taken to have consented or impliedly consented to the disclosure of the information.

[59] In Royal Bank of Canada v. Trang,^[9] Justice Gray interpreted the outcome of Citi Cards Canada Inc. v. Pleasance more strictly. In this case, the Royal Bank had a judgment against the defendant Trang, and the Bank of Nova Scotia refused to disclose a mortgage statement to facilitate the enforcement of the Royal Bank’s judgment by its sale of Trang’s property. The Royal Bank then examined a representative of the Bank of Nova Scotia in aid of execution, but the Bank of Nova Scotia persisted in its refusal to disclose the mortgage statement because of PIPEDA.

[60] After the examination in aid of execution, the Royal Bank then brought an unopposed motion to have the statements disclosed. Justice Gray dismissed the Application and stated at paragraphs 12-14 as follows:

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.

[61] Although Justice Blair’s comment that there may be situations where a non-party could be ordered to make personal information available as the result of a court order is obiter, I think that Master Graham’s approach and not Justice Gray’s approach is the right one. That said, for present purposes, the most important point from Citi Cards Canada Inc. v. Pleasance is the proposition that s. 7(3)(c) of PIPEDA does not provide a free-standing jurisdiction to grant exemptions. As Justice Blair stated, it is circular to argue that disclosure is required because disclosure is required by an order not yet made.

[62] There are, however, cases in which s. 7(3)(c) of PIPEDA seems to have been used by a court as a free-standing jurisdiction to authorize the disclosure of personal information in appropriate circumstances. For example, in Southlake Regional Health Centre Employees’ Credit Union Ltd.,^[10] Justice Lauwers made an order to facilitate the sale of the assets of a credit union that was being acquired by another credit union. Justice Lauwers noted that this type of order had been made by Ontario courts in fifteen other cases involving mergers, acquisitions, or arrangements of credit unions.

[63] In the area of business law, there are statutory provisions that would empower a court to order the disclosure of business records that might contain personal information. For example, s. 253 of Ontario’s Business Corporations Act empowers the court to make compliance orders. Section 253(1) states:

Orders for compliance

253(1) Where a corporation or any shareholder, director, officer, employee, agent, auditor, trustee, receiver and manager, receiver, or liquidator of a corporation does not comply with this Act, the regulations, articles, by-laws, or a unanimous shareholder agreement, a complainant or a creditor of the corporation may, despite the imposition of any penalty in respect of such non-compliance and in addition to any other right the complainant or creditor has, apply to the court for an order directing the corporation or any person to comply with, or restraining the corporation or any person from acting in breach of, any provisions thereof, and upon such application the court may so order and make any further order it thinks fit.

[64] It may be that s. 253(1) of the Business Corporations Act or similar jurisdiction provides the authority for court orders that explain the numerous cases noted by Justice Lauwers in in Southlake Regional Health Centre Employees’ Credit Union Ltd. In any event, I read s. 7(3)(c) of PIPEDA as requiring a court order for disclosure to be made first and it would then not be circular reasoning for that order to trigger the exception under PIPEDA, where disclosure of personal information can be made notwithstanding the absence of consent from the individual whose personal information is being disclosed.

[65] Applying the above analysis to the case at bar, I conclude that because of the absence of the employees’ consent, the disclosure requested by MPD would contravene PIPEDA and no exception is currently available because a disclosure order has not yet been made pursuant to some jurisdiction found outside of PIPEDA.

D. CONCLUSION

[66] For the above reasons, I dismiss MPD’s Application without prejudice to a renewed Application.

Perell, J.

Released: April 2, 2014

COURT FILE NO.: 13-CV-484542
DATE: 20140402

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

MOUNTAIN PROVINCE DIAMONDS INC.
Applicant

‑ and ‑

DE BEERS CANADA INC.
Respondent

REASONS FOR DECISION

Perell, J.

Released: April 2, 2014

[^1]: S.C. 2000, c. 5. For a history of the development of this legislation, see Perrin, Black, Flaherty & Rankin, The Personal Information Protection and Electronic Documents Act, An Annotated Guide, (Irwin Law Inc., Toronto, 2001).

[^2]: Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, at paras. 19‑24, citing Lavigne v. Canada (Office of the Commissioner of Official Languages, 2002 SCC 53 at paras. 24‑25; Dagg v. Canada (Minister of Finance), 1997 358 (SCC), [1997] 2 SCR 403, at paras. 65‑66.

[^3]: 2004 FCA 387, [2005] 2 F.C.R. 572 at para. 46.

[^4]: R.S.C., 1985, c. P‑21.

[^5]: 2012 ONCA 32. See also Hopkins v. Kay, 2014 ONSC 321.

[^6]: Eastmond v. Canadian Pacific Railway, 2004 FC 852 at para. 127; Wansink v. TELUS Communications Inc., 2007 FCA 21 at para. 16.

[^7]: (2011), 2011 ONCA 3, 103 O.R. (3d) 241 (C.A.).

[^8]: [2012] O.J. Nos. 3921 (Master). See also McBean v. Griffin, 2012 ONSC 6555 at paras. 16‑17.

[^9]: 2013 ONSC 4198.

[^10]: 2012 ONSC 2530.