Supreme Court of Canada Grants Leave to Appeal PIPEDA Case Involving Mortgagor’s Privacy Rights in a Mortgage Discharge Statement

On July 16, 2015, the Supreme Court of Canada (SCC) granted leave to appeal from the Ontario Court of Appeal (ONCA) decision in Royal Bank of Canada v Trang et al., 2014 ONCA 883, setting up a significant opportunity for the SCC to determine how provisions of Canada’s Personal Information and Electronic Documents Act (PIPEDA) can affect judgment creditors and mortgagees.

In this case, Royal Bank of Canada (RBC) is a judgment creditor seeking a mortgage discharge statement (discharge statement) from another creditor, Bank of Nova Scotia (BNS), in order to have the judgment debtors’ property sold for collection of RBC’s judgment.  BNS refused to provide the discharge statement to RBC arguing that the discharge statement contains personal information of the mortgagor and such a disclosure to RBC would contravene PIPEDA.  In the lower court decision (2013 ONSC 4198), a motion by RBC for an order that BNS provide the mortgage discharge statement was dismissed on the ground that the case was not distinguishable from a prior ONCA decision on similar facts (Citi Cards Canada Inc v Pleasance, 2011 ONCA 3).

The ONCA dismissed RBC’s appeal by a 3-2 margin with the majority holding that the discharge statement includes personal (financial) information protected by PIPEDA that cannot be disclosed by a mortgagee without either the mortgagor’s express consent or an order for disclosure based on an authority or rule separate from PIPEDA.

The SCC is likely to hear the appeal in early 2016.