Privacy claim survives based on allegation of pretexting

On October 23rd, the Ontario Superior Court of Justice allowed a borderline privacy claim to proceed because it alleged the deceptive use of personal information to obtain evidence for a family law proceeding.

The plaintiffs brought a motion to vacate a non-dissipation order on their developed property so they could build on another property. In support of the motion, one of the plaintiffs swore and filed an affidavit that included financial data that supported the need to mortgage the developed property.

The respondent to the motion (the former spouse of one of the plaintiffs) lived with a mortgage broker, who took some of the financial data and obtained a letter of interest that suggested construction financing on the undeveloped property was an option. The respondent filed the letter and succeeded in her response to the motion, at which point the plaintiffs took issue with the mortgage broker’s conduct and eventually filed suit.

Justice Hambly was most troubled with the misimpression allegedly given by the mortgage broker to the finance company, who said that it thought the mortgage broker asked for the letter on behalf of the plaintiff. Assuming that the mortgage broker was acting on behalf of the respondent’s counsel (as he pleaded), Justice Hambly said that is was not clear “that a party or a person acting on the instructions of a party can release private personal financial about another party derived from the court files in a family law action to a third party for the purpose of getting an opinion under the guise that he is acting in the other party’s interest without the other party’s consent.”

Rosati v Cornelio, 2013 ONSC 6461 (CanLII).