Citi Cards Canada Inc. v. Pleasance et al., 2011 ONCA 3

• Judge: Blair, Juriansz and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 06, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONCA 3;(2011), 272 O.A.C. 371 (CA)

Citi Cards Can. Inc. v. Pleasance (2011), 272 O.A.C. 371 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JA.009

Citi Cards Canada Inc. (applicant/appellant) v. Charles Pleasance, The Canada Trust Company and The Toronto-Dominion Bank (respondents/respondents in appeal)

(C52004; 2011 ONCA 3)

Indexed As: Citi Cards Canada Inc. v. Pleasance et al.

Ontario Court of Appeal

Blair, Juriansz and LaForme, JJ.A.

January 6, 2011.

Summary:

A judgment creditor (credit card debt) sought a sheriff's sale of the debtor's home to satisfy the debt. The sheriff refused to act on the writ of execution without mortgage discharge statements from the two mortgagees. The mortgagees refused to provide mortgage statements to the judgment creditor. The Ontario Superior Court, in a judgment reported [2010] O.T.C. Uned. 1124, dismissed an application to compel the mortgagees to provide mortgage statements. The court held that the statements contained "personal information" under the Personal Information Protection and Electronic Documents Act and s. 7 of the Act prohibited disclosure without the debtor's consent, unless one of the s. 7(3) exceptions applied. No exception applied. Alternatively, the court would not have ordered production of the statements where the judgment creditor had an alternative remedy, an examination of the debtor's wife (co-owner) as a non-party under rule 60.18(6). The judgment creditor appealed.

The Ontario Court of Appeal dismissed the appeal. The information was "personal information" that could not be disclosed under the Act without the debtor's consent. The exemptions relied on did not apply.

Trade Regulation - Topic 9442.1

Protection of personal information and electronic documents - Protection, collection or disclosure of personal information - Personal information - What constitutes - A sheriff refused to sell a debtor's home under a writ of execution without mortgage statements from the two mortgagees - The judgment creditor had not sought to examine the debtor in aid of execution, and had neither added the debtor's wife (joint owner) as a party nor applied to examine her under rule 60.18(6) as a non-party - The mortgagees refused to disclose the statement on privacy grounds and the judge refused to compel the mortgagees to provide the statements - The judge held that the statements contained "personal information" under the Personal Information Protection and Electronic Documents Act - Section 7 of the Act prohibited disclosure without the debtor's consent, unless one of the s. 7(3) exceptions applied - The Ontario Court of Appeal dismissed the judgment creditor's appeal - Banks (mortgagees) were organizations to which the Act applied - The information in the mortgage statements was "personal information" - Disclosure was not permitted without consent - The s. 7(3) exemptions related to disclosure "required by law" or in "compliance with a court order" did not apply - Disclosure could not be ordered to comply with a court order (this application) which had not yet been made - That was a circular argument - Also, disclosure was not "required by law" - The court rejected the argument that since a debtor examined in aid of execution would be required by law to disclose the information, the banks should also be compelled to disclose the statements - The debtor had not been examined, so he was not "required by law" to disclose the information - The court stated that "I know of no law requiring a financial institution to disclose mortgage statements to an unsecured judgment creditor seeking to enforce its remedy by way of sheriff's sale in the absence of default under the mortgage and steps taken by the mortgagee to enforce the mortgage" - The judge also did not err in exercising his discretion to find that, alternatively, the judgment creditor should first be required to pursue the available alternative remedy under rule 60.18(a) of applying to examine the wife as a non-party.

Trade Regulation - Topic 9457

Protection of personal information and electronic documents - Protection, collection or disclosure of personal information - Exceptions - Disclosure "required by law" or "court order" - [See Trade Regulation - Topic 9442.1 ].

Cases Noticed:

Royal Bank of Canada v. Welton et al. (2009), 244 O.A.C. 262; 93 O.R.(3d) 403 (C.A.), refd to. [para. 19].

Vanderbeke v. Royal Bank of Canada (2006), 294 F.T.R. 216 (F.C.), refd to. [para. 19].

Canadian Imperial Bank of Commerce v. Sutton (1981), 34 O.R.(2d) 482 (C.A.), refd to. [para. 37].

Bock v. Fairburn (1990), 40 C.P.C.(2d) 277 (Ont. Dist. Ct.), refd to. [para. 37].

Parks v. Sullivan (1982), 29 C.P.C. 124 (Ont. Master), refd to. [para. 37].

Bank of America Trust and Savings Association v. Shaefsky et al. (1997), 45 O.T.C. 304; 24 C.P.C.(4th) 135 (Gen. Div.), refd to. [para. 37].

Blastco Corp. v. Pittman Environmental Technologies Inc., [2001] O.T.C. 285; 10 C.P.C.(5th) 106 (Sup. Ct.), refd to. [para. 37].

Statutes Noticed:

Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, sect. 3 [para. 15]; sect. 4(1) [para. 19]; sect. 7(3) [para. 18].

Counsel:

Ian K. Latimer, for the appellant;

Richard Horodyski, for the respondents in appeal, Canada Trust Co. and Toronto-Dominion Bank.

This appeal was heard on October 8, 2010, before Blair, Juriansz and LaForme, JJ.A., of the Ontario Court of Appeal.

On January 6, 2011, Blair, J.A., released the following judgment for the Court of Appeal.