Indexed As: Royal Bank of Canada v. Trang. Ontario Court of Appeal Hoy, A.C.J.O., Laskin, Sharpe, Cronk and Blair, JJ.A. December 9, 2014.

Transcription

1 Royal Bank of Canada (plaintiff/appellant) v. Phat Trang and Phuong Trang a.k.a. Phuong Thi Trang (defendants) and Bank of Nova Scotia (respondent) (C57306; 2014 ONCA 883) Indexed As: Royal Bank of Canada v. Trang Ontario Court of Appeal Hoy, A.C.J.O., Laskin, Sharpe, Cronk and Blair, JJ.A. December 9, Summary: The Royal Bank of Canada (RBC) obtained a judgment against the defendants, Phat and Phuong Trang. The Trangs owned a property, which they had mortgaged to the Bank of Nova Scotia (Scotiabank). The Sheriff refused RBC's request to sell the property without a mortgage discharge statement from Scotiabank. RBC twice sought to obtain this statement by examining the Trangs as judgment debtors, but they did not appear for either examination. RBC also asked Scotiabank to produce a mortgage statement. Scotiabank refused, arguing that the Personal Information Protection and Electronic Documents Act (Can.) (PIPEDA) precluded it from doing so. RBC requested an order that Scotiabank produce a mortgage discharge statement. The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 4198, dismissed the motion. RBC appealed. Neither the Trangs nor Scotiabank participated in the appeal. To ensure that their positions were properly represented, Hoy, A.C.J.O., appointed the Privacy Commissioner of Canada as amicus curiae. The Court of Appeal sat as a panel of five, in accordance with its practice when, as here, it was asked to overrule one of its previous decisions. The Ontario Court of Appeal, Hoy, A.C.J.O., and Sharpe, J.A., dissenting, dismissed the appeal. Courts - Topic 75 Stare decisis - Authority of judicial decisions - Prior decisions of same court - General principles - [See Courts - Topic 78]. Courts - Topic 78 Stare decisis - Authority of judicial decisions - Prior decisions of same court - "Per incuriam" exception - On an appeal, the appellant argued that Citi Cards Canada Inc. v. Pleasance et al. (2011 Ont. C.A.) had been wrongly decided or was distinguishable - The Ontario Court of Appeal sat as a panel of five in accordance with its usual practice when asked to overrule one of its previous decisions - The court stated that "Strictly applied, the principle of stare decisis - 'stand by things decided' - means we ought to follow Citi Cards even if we disagree with it. Per incuriam is a well-recognized exception to stare decisis. Literally, per incuriam means 'through lack of care'; in law, it means a decision made without regard to a statutory provision or earlier binding authority. Under the per incuriam exception, the court may depart from one of its previous decisions if two conditions are met: The panel deciding the earlier case did not advert to judicial or statutory authority binding on it; and If the panel had considered this authority, it would have decided the case differently." - See paragraphs 7, 15, 16 and 37 to 39. Courts - Topic 83 Stare decisis - Authority of judicial decisions - Prior decisions of same court - Court of Appeal - [See Courts - Topic 78]. Trade Regulation - Topic 9404

2 Protection of personal information and electronic documents - General - Application and interpretation of legislation (Personal Information Protection and Electronic Documents Act) - The Ontario Court of Appeal stated that "Although PIPEDA [Personal Information Protection and Electronic Documents Act (Can.)] is federal legislation, it applies across Canada unless it has been displaced by provincial legislation that the Governor-in-Council by order has declared is substantially similar to PIPEDA. Ontario has not enacted a substantially similar privacy law of general application in the private sector. Thus PIPEDA governs the commercial activities of all Ontario lending institutions, whether provincially regulated or federally regulated... PIPEDA seeks to balance individuals' right to privacy in their personal information with organizations' need to collect, use and disclose that information in their commercial activities.... Consent is a cornerstone of PIPEDA. Collection, use or disclosure of personal information ordinarily requires an individual's knowledge and consent. An organization may collect, use or disclose personal information without an individual's knowledge or consent only in the limited circumstances enumerated in s. 7 of the Act.... The provisions of the Act must be read together with Schedule 1, which lists ten key principles for the protection of personal information." - See paragraphs 10 to 17. Trade Regulation - Topic 9404 Protection of personal information and electronic documents - General - Application and interpretation of legislation (Personal Information Protection and Electronic Documents Act) - Section 3 of the Personal Information Protection and Electronic Documents Act (Can.) (PIPEDA) provided that "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." - Section 5(3) of the Act also contained the words "for purposes that a reasonable person would consider appropriate in the circumstances" - The Ontario Court of Appeal held that neither s. 3 nor s. 5(3) was an alternative to obtaining consent or an exception to the need for consent - The court stated that "An organization that collects, uses or discloses personal information for a purpose consistent with ss. 3 and 5(3) will nonetheless contravene PIPEDA if it fails to obtain the affected individual's consent, unless an exception to the requirement for consent applies." - See paragraphs 65 to 69 and 91. Trade Regulation - Topic 9404 Protection of personal information and electronic documents - General - Application and interpretation of legislation (Personal Information Protection and Electronic Documents Act) - The Ontario Court of Appeal stated that "PIPEDA [Personal Information Protection and Electronic Documents Act (Can.)] is a privacy statute. By passing it, Parliament has recognized the high value Canadians place on the privacy of their personal information. Exceptions, which allow our personal information to be disclosed without our knowledge or consent, are carefully and narrowly tailored. A party seeking disclosure without consent must satisfy the court that one of the narrow exceptions applies." - See paragraph 85. Trade Regulation - Topic 9441 disclosure of personal information - General - [See second Trade Regulation - Topic 9404]. Trade Regulation - Topic disclosure of personal information - Personal information - What constitutes - RBC obtained a judgment against the Trangs - The Trangs owned a property, which they had mortgaged to

3 Scotiabank - The Sheriff refused RBC's request to sell the property without a mortgage discharge statement from Scotiabank - RBC twice sought to obtain this statement by examining the Trangs as judgment debtors, but they did not appear for either examination - RBC also asked Scotiabank to produce a mortgage statement - Scotiabank refused, arguing that the Personal Information Protection and Electronic Documents Act (Can.) (PIPEDA) precluded it from doing so - RBC sought an order that Scotiabank produce a mortgage discharge statement - The motions judge refused - RBC appealed, arguing, inter alia, that the mortgage discharge statement was not "personal information" of the Trangs where all the details of their mortgage (principal amount, interest rate, payment periods and due date) were made publicly available when the mortgage was registered - Therefore, the Trangs could not claim a privacy interest in the discharge statement as it would simply set out the current principal and interest owing on the mortgage at the time RBC asked the Sheriff to sell the property - The Ontario Court of Appeal disagreed - Current mortgage balances were not publicly available information in the Ontario Land Registry System or under PIPEDA - A current mortgage balance was, under PIPEDA, personal information of a mortgagor ("information about an identifiable individual") - Further, the Trangs had not waived any privacy interest in their current mortgage balances simply because the details of their mortgage at the time of registration were on the public record - See paragraphs 32 to 36 and 91. Trade Regulation - Topic 9443 disclosure of personal information - When appropriate or reasonable - RBC obtained a judgment against the Trangs - The Trangs owned a property, which they had mortgaged to Scotiabank - The Sheriff refused RBC's request to sell the property without a mortgage discharge statement from Scotiabank - RBC twice sought to obtain this statement by examining the Trangs as judgment debtors, but they did not appear for either examination - RBC also asked Scotiabank to produce a mortgage statement - Scotiabank refused, arguing that the Personal Information Protection and Electronic Documents Act (Can.) (PIPEDA) precluded it from doing so - RBC sought an order that Scotiabank produce a mortgage discharge statement - The motions judge refused - RBC appealed - RBC argued that Citi Cards Canada Inc. v. Pleasance et al. (2011 C.A.) had been wrongly decided or was distinguishable and that PIPEDA should not be applied to frustrate or unnecessarily increase the costs of enforcing a judgment lawfully obtained - The Ontario Court of Appeal rejected the argument - The court held that the information in a mortgage discharge statement was sensitive information for which the mortgagee would need the mortgagor's express consent to disclose to a third party, such as a judgment creditor (PIPEDA, Schedule 1, clause 4.3.6) - Further, the Trangs' reasonable expectations supported Scotiabanks' refusal to discharge the mortgage statement to RBC without the Trangs' express consent - The court noted that RBC had two ways to obtain the mortgage discharge statement from Scotiabank: by a term in its loan agreement with the Trangs or by a court-ordered examination under rule 60.18(6)(a) of the Rules of Civil Procedure - An order under rule 60.18(6)(a) to examine a Scotiabank representative would satisfy the exemption in s. 7(3)(c) of PIPEDA - See paragraphs 54 to 64 and 75 to 89. Trade Regulation - Topic 9444 disclosure of personal information - Consent to collection or disclosure - [See first and second Trade Regulation - Topic 9404 and Trade Regulation - Topic 9443]. Trade Regulation - Topic 9454 disclosure of personal information - Exceptions - General - [See Trade Regulation - Topic

4 9443]. Trade Regulation - Topic 9457 disclosure of personal information - Exceptions - Disclosure "required by law" or "court order" - [See Trade Regulation - Topic 9443]. Trade Regulation - Topic 9457 disclosure of personal information - Exceptions - Disclosure "required by law" or "court order" - An appellant argued that a judgment creditor was entitled, in law, to disclosure of a mortgage statement from a mortgagee because the judgment creditor needed the statement to exercise its right to sell the equity of redemption in the judgment debtor's real property, a right expressly recognized under s. 28 of the Execution Act (Ont.) - The Ontario Court of Appeal rejected the argument - No provision of the Execution Act required disclosure of a mortgage statement; thus no provision of that Act satisfied the "required by law" exception in s. 7(3)(i) of the Personal Information Protection and Electronic Documents Act (Can.) - See paragraphs 70 to 72 and 91. Words and Phrases Difficulty - The Ontario Court of Appeal discussed the meaning of this word as found in rule 60.18(6)(a) of the Rules of Civil Procedure (Ont.) - See paragraphs 77 to 79. Cases Noticed: Citi Cards Canada Inc. v. Pleasance et al. (2011), 272 O.A.C. 371; 103 O.R.(3d) 241; 2011 ONCA 3, consd. [para. 3]. Royal Bank of Canada v. Welton et al. (2009), 244 O.A.C. 262; 93 O.R.(3d) 403; 2009 ONCA 48, leave to appeal denied, [2009] S.C.C.A. No. 111; 398 N.R. 395, refd to. [para. 10, footnote 4]. United Food and Commercial Workers, Local 401 v. Privacy Commissioner (Alta.) et al., [2013] 3 S.C.R. 733; 451 N.R. 253; 561 A.R. 359; 594 W.A.C. 359; 2013 SCC 62, refd to. [para. 13]. Englander v. Telus Communications Inc., [2005] 2 F.C.R. 572; 328 N.R. 297; 2004 FCA 387, refd to. [para. 15]. Polowin (David) Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 199 O.A.C. 266; 76 O.R.(3d) 161 (C.A.), leave to appeal denied (2006), 350 N.R. 398 (S.C.C.), refd to. [para. 39]. Tournier v. National Provincial and Union Bank of England, [1924] 1 K.B. 461 (C.A.), refd to. [para. 59]. Canadian Imperial Bank of Commerce v. Sutton (1981), 34 O.R.(2d) 482 (C.A.), refd to. [paras. 78, 102]. Mountain Province Diamonds Inc. v. DeBeers Canada Inc., 25 B.L.R.(5th) 141; 2014 ONSC 2026, refd to. [para. 83, footnote 13]. Douglas v. Loch Lomond Ski Area, [2010] O.T.C. Uned. 6483; 2010 ONSC 6483, refd to. [para. 83, footnote 13]. Aecon Industrial Western v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146 (2013), 558 A.R. 108; 2013 ABQB 122, refd to. [para. 83, footnote 13]. EnerWorks Inc. v. Glenbarra Energy Solutions Inc. et al., [2012] O.T.C. Uned. 748; 39 C.P.C.(7th) 190 ; 2012 ONSC 748 (Master), refd to. [para. 130]. Toronto-Dominion Bank v. Sawchuk (2011), 530 A.R. 172; 86 C.B.R.(5th) 1; 2011 ABQB 757 (Master), refd to. [para. 130].

5 Statutes Noticed: Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.). Execution Act, R.S.O. 1990, c. E-24, sect. 28 [para. 70]. Rules of Civil Procedure (Ont.), rule 60.18(6)(a) [para. 77]. Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, sect. 3 [para. 12]; sect. 5(3) [para. 14], sect. 7(3)(1), sect. 7(3)(c) [para. 16]; Schedule 1, sect [para. 18]; sect [para. 19]; sect [para. 20]. Authors and Works Noticed: Cardozo, Benjamin N., The Nature of the Judicial Process (1960), p. 151 [para. 131]. Ogilvie, M.H., Bank and Customer Law in Canada (2nd Ed. 2013), pp. 324 to 338 [para. 59]. Counsel: James Satin and Justin Winch, for the appellant; No one appearing for the respondent; Megan Brady and Kate Wilson, the Privacy Commissioner of Canada, appearing as amicus curiae. This appeal was heard on June 16, 2014, by Hoy, A.C.J.O., Laskin, Sharpe, Cronk and Blair, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered the following decision on December 9, 2014, which was comprised of the following opinions: Editor: Jana A. Andersen Laskin, JJ.A. (Cronk and Blair, JJ.A., concurring) - see paragraphs 1 to 90; Hoy, A.C.J.O., dissenting (Sharpe, J.A., concurring) - see paragraphs 91 to 136. Appeal dismissed. Courts - Topic 75 Stare decisis - Authority of judicial decisions - Prior decisions of same court - General principles - On an appeal, the appellant argued that Citi Cards Canada Inc. v. Pleasance et al. (2011 Ont. C.A.) had been wrongly decided or was distinguishable - The Ontario Court of Appeal sat as a panel of five in accordance with its usual practice when asked to overrule one of its previous decisions - The court stated that "Strictly applied, the principle of stare decisis - 'stand by things decided' - means we ought to follow Citi Cards even if we disagree with it. Per incuriam is a well-recognized exception to stare decisis. Literally, per incuriam means 'through lack of care'; in law, it means a decision made without regard to a statutory provision or earlier binding authority. Under the per incuriam exception, the court may depart from one of its previous decisions if two conditions are met: The panel deciding the earlier case did not advert to judicial or statutory authority binding on it; and If the panel had considered this authority, it would have decided the case differently." - See paragraphs 7, 15, 16 and 37 to 39. Courts - Topic 83 Stare decisis - Authority of judicial decisions - Prior decisions of same court - Court of Appeal - On an appeal, the appellant argued that Citi Cards Canada Inc. v. Pleasance et al. (2011 Ont. C.A.) had been wrongly decided or was distinguishable - The Ontario Court of Appeal sat as a panel of five in accordance with its usual practice when asked to overrule one of its previous decisions - The court stated that "Strictly applied, the principle of stare decisis - 'stand by things decided' - means we ought to follow Citi Cards even if we disagree with it. Per incuriam is a well-recognized exception to stare decisis. Literally, per incuriam means

6 'through lack of care'; in law, it means a decision made without regard to a statutory provision or earlier binding authority. Under the per incuriam exception, the court may depart from one of its previous decisions if two conditions are met: The panel deciding the earlier case did not advert to judicial or statutory authority binding on it; and If the panel had considered this authority, it would have decided the case differently." - See paragraphs 7, 15, 16 and 37 to 39. Trade Regulation - Topic 9441 disclosure of personal information - General - The Ontario Court of Appeal stated that "PIPEDA [Personal Information Protection and Electronic Documents Act (Can.)] is a privacy statute. By passing it, Parliament has recognized the high value Canadians place on the privacy of their personal information. Exceptions, which allow our personal information to be disclosed without our knowledge or consent, are carefully and narrowly tailored. A party seeking disclosure without consent must satisfy the court that one of the narrow exceptions applies." - See paragraph 85. Trade Regulation - Topic 9444 disclosure of personal information - Consent to collection or disclosure - Section 3 of the Personal Information Protection and Electronic Documents Act (Can.) (PIPEDA) provided that "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." - Section 5(3) of the Act also contained the words "for purposes that a reasonable person would consider appropriate in the circumstances" - The Ontario Court of Appeal held that neither s. 3 nor s. 5(3) was an alternative to obtaining consent or an exception to the need for consent - The court stated that "An organization that collects, uses or discloses personal information for a purpose consistent with ss. 3 and 5(3) will nonetheless contravene PIPEDA if it fails to obtain the affected individual's consent, unless an exception to the requirement for consent applies." - See paragraphs 65 to 69 and 91. Trade Regulation - Topic 9444 disclosure of personal information - Consent to collection or disclosure - The Ontario Court of Appeal stated that "PIPEDA [Personal Information Protection and Electronic Documents Act (Can.)] is a privacy statute. By passing it, Parliament has recognized the high value Canadians place on the privacy of their personal information. Exceptions, which allow our personal information to be disclosed without our knowledge or consent, are carefully and narrowly tailored. A party seeking disclosure without consent must satisfy the court that one of the narrow exceptions applies." - See paragraph 85. Trade Regulation - Topic 9444 disclosure of personal information - Consent to collection or disclosure - RBC obtained a judgment against the Trangs - The Trangs owned a property, which they had mortgaged to Scotiabank - The Sheriff refused RBC's request to sell the property without a mortgage discharge statement from Scotiabank - RBC twice sought to obtain this statement by examining the Trangs as judgment debtors, but they did not appear for either examination - RBC also asked Scotiabank to produce a mortgage statement - Scotiabank refused, arguing that the Personal Information Protection and Electronic Documents Act (Can.) (PIPEDA)

7 precluded it from doing so - RBC sought an order that Scotiabank produce a mortgage discharge statement - The motions judge refused - RBC appealed - RBC argued that Citi Cards Canada Inc. v. Pleasance et al. (2011 C.A.) had been wrongly decided or was distinguishable and that PIPEDA should not be applied to frustrate or unnecessarily increase the costs of enforcing a judgment lawfully obtained - The Ontario Court of Appeal rejected the argument - The court held that the information in a mortgage discharge statement was sensitive information for which the mortgagee would need the mortgagor's express consent to disclose to a third party, such as a judgment creditor (PIPEDA, Schedule 1, clause 4.3.6) - Further, the Trangs' reasonable expectations supported Scotiabanks' refusal to discharge the mortgage statement to RBC without the Trangs' express consent - The court noted that RBC had two ways to obtain the mortgage discharge statement from Scotiabank: by a term in its loan agreement with the Trangs or by a court-ordered examination under rule 60.18(6)(a) of the Rules of Civil Procedure - An order under rule 60.18(6)(a) to examine a Scotiabank representative would satisfy the exemption in s. 7(3)(c) of PIPEDA - See paragraphs 54 to 64 and 75 to 89. Trade Regulation - Topic 9454 disclosure of personal information - Exceptions - General - RBC obtained a judgment against the Trangs - The Trangs owned a property, which they had mortgaged to Scotiabank - The Sheriff refused RBC's request to sell the property without a mortgage discharge statement from Scotiabank - RBC twice sought to obtain this statement by examining the Trangs as judgment debtors, but they did not appear for either examination - RBC also asked Scotiabank to produce a mortgage statement - Scotiabank refused, arguing that the Personal Information Protection and Electronic Documents Act (Can.) (PIPEDA) precluded it from doing so - RBC sought an order that Scotiabank produce a mortgage discharge statement - The motions judge refused - RBC appealed - RBC argued that Citi Cards Canada Inc. v. Pleasance et al. (2011 C.A.) had been wrongly decided or was distinguishable and that PIPEDA should not be applied to frustrate or unnecessarily increase the costs of enforcing a judgment lawfully obtained - The Ontario Court of Appeal rejected the argument - The court held that the information in a mortgage discharge statement was sensitive information for which the mortgagee would need the mortgagor's express consent to disclose to a third party, such as a judgment creditor (PIPEDA, Schedule 1, clause 4.3.6) - Further, the Trangs' reasonable expectations supported Scotiabanks' refusal to discharge the mortgage statement to RBC without the Trangs' express consent - The court noted that RBC had two ways to obtain the mortgage discharge statement from Scotiabank: by a term in its loan agreement with the Trangs or by a court-ordered examination under rule 60.18(6)(a) of the Rules of Civil Procedure - An order under rule 60.18(6)(a) to examine a Scotiabank representative would satisfy the exemption in s. 7(3)(c) of PIPEDA - See paragraphs 54 to 64 and 75 to 89. Trade Regulation - Topic 9457 disclosure of personal information - Exceptions - Disclosure "required by law" or "court order" - RBC obtained a judgment against the Trangs - The Trangs owned a property, which they had mortgaged to Scotiabank - The Sheriff refused RBC's request to sell the property without a mortgage discharge statement from Scotiabank - RBC twice sought to obtain this statement by examining the Trangs as judgment debtors, but they did not appear for either examination - RBC also asked Scotiabank to produce a mortgage statement - Scotiabank refused, arguing that the Personal Information Protection and Electronic Documents Act (Can.) (PIPEDA) precluded it from doing so - RBC sought an order that Scotiabank produce a mortgage discharge statement - The motions judge refused - RBC appealed - RBC argued that Citi Cards Canada Inc. v. Pleasance et al. (2011 C.A.) had been wrongly decided or was distinguishable and that PIPEDA should not be applied to frustrate or unnecessarily increase the costs of enforcing a judgment lawfully obtained - The Ontario Court of Appeal rejected

8 the argument - The court held that the information in a mortgage discharge statement was sensitive information for which the mortgagee would need the mortgagor's express consent to disclose to a third party, such as a judgment creditor (PIPEDA, Schedule 1, clause 4.3.6) - Further, the Trangs' reasonable expectations supported Scotiabanks' refusal to discharge the mortgage statement to RBC without the Trangs' express consent - The court noted that RBC had two ways to obtain the mortgage discharge statement from Scotiabank: by a term in its loan agreement with the Trangs or by a court-ordered examination under rule 60.18(6)(a) of the Rules of Civil Procedure - An order under rule 60.18(6)(a) to examine a Scotiabank representative would satisfy the exemption in s. 7(3)(c) of PIPEDA - See paragraphs 54 to 64 and 75 to 89.