On June 6th, the Ontario Superior Court of Justice dismissed a motion by an execution creditor for an order to compel a mortgagee to provide a mortgage discharge statement so it could enforce its judgement by way of a sheriff’s sale.
Justice Gray held that he was bound to apply the Court of Appeal’s 2011 judgement in Citi Cards Canada Inc. v. Pleasance, in which Justice Blair held that such an order is precluded by the federal Personal Information Protection and Electronic Documents Act. Justice Gray confessed to being troubled by the outcome and wrote an invitation to appeal by opining on various theories in which the disclosure of personal information in a discharge statement would comply with the consent rule in PIPEDA. He questioned, for example, whether a mortgagor implicitly consents to the disclosure of information about his or her mortgage to third parties with an interest in the mortgage and whose interest is at stake.
Justice Gray did not question whether federal parliament, by exercise of the trade and commerce power, intended to fetter the jurisdiction of a provincial superior court to make an order that would, in effect, relieve a commercial actor from the consent obligation in PIPEDA. Perhaps he was paying due respect to the higher court, because City Cards suggests that PIPEDA has just such an effect. Maybe the execution creditor will take Justice Gray’s invitation and seek leave to appeal.
I’ve gone back to read Citi Cards closely, and should say that it’s not fair to say it fetters the jurisdiction of a provincial superior court. The Court makes two distinct findings, one affirming the application judge’s (unremarkable) finding that PIPEDA precludes disclosure without consent and a second affirming the application judge’s decision, made in the exercise of discretion, to deny an order. On discretion, the Court finds the application judge’s exercise of discretion to be proper in the circumstances, partly because of the debtor’s privacy interest and partly because the debtor’s wife had a 50% interest in the property and had not yet been examined under Rule 60.18(6)(a). In Trang, Justice Gray questions the efficacy of a Rule 60.18(6)(a) examination and rejects an argument that Citi Cards is distinguishable.