Case Report – Charter challenge to investigation allowed by PIPEDA rejected

22 Jan

On January 20th, the Ontario Court of Appeal affirmed the dismissal of a Charter application that claimed RBC violated section 8 of the Charter in investigating a case of mortgage fraud.

RBC had collected information from T-D Bank which allowed it to pursue an alleged fraud. Both banks are members of the Bank Crime Investigation Office of the Canadian Bankers Association, a designated “investigative body” under PIPEDA. They relied on sections 7(3)(d)(i) and (h.2) of PIPEDA in sharing the information. The Applicants took issue with these provisions and RBC’s actions taken in reliance on these provisions. They read:

(3)… an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is

(d) made on the initiative of the organization to an investigative body… and the organization…

(i) has reasonable grounds to believe that the information relates to a breach of an agreement or a contravention of the laws of Canada, a province or a foreign jurisdiction that has been, is being or is about to be committed…

(h.2) made by an investigative body and the disclosure is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province…

In February, the Superior Court of Justice held this grant of discretion to make disclosures did not necessarily threaten Charter rights, so was not unlawful itself. It also held that RBC was not acting as a government agent in its investigation and therefore was not bound directly by the Charter.

The Court of Appeal affirmed the application judge’s reasoning and added that the “main protagonist” was in a solicitor-client relationship with RBC that stripped him of standing to make a section 8 claim: “In the circumstances, he cannot lay claim to a reasonable expectation of privacy in the records relating to the receipt and disbursement of funds received from his client concerning the suspect mortgage transactions.”

Royal Bank of Canada v. Ren, 2009 ONCA 48.

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One Response to “Case Report – Charter challenge to investigation allowed by PIPEDA rejected”

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  1. SCC dismisses application for leave in challenge to bank investigation « All About Information - June 6, 2009

    […] June 6, 2009 · No Comments One June 4th, the Supreme Court of Canada denied an application for leave to appeal the Ontario Court of Appeal’s decision in Royal Bank of Canada v. Ren. This January, Ontario’s top court affirmed the dismissal of a Charter application that claimed RBC violated section 8 of the Charter in investigating a case of mortgage fraud. My summary of the Ontario Court of Appeal Judgement is here. […]

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