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Home > Our Insights > Supreme Court of Canada Warns Judgment Creditors: Implied Consent is Enough to Disclose Discharge Statement in Royal Bank of Canada v. Trang
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Supreme Court of Canada Warns Judgment Creditors: Implied Consent is Enough to Disclose Discharge Statement in Royal Bank of Canada v. Trang

Published:

November 22, 2016

Author(s):

  • David Fraser

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On November 17, 2016 the Supreme Court of Canada decided a mortgagee has the mortgagor’s implied consent to disclose its discharge statement to the mortgagor’s judgment creditor – and this is sufficient to comply with the Protection of Personal Information and Electronic Documents Act (PIPEDA). It’s now much easier for a judgment creditor to obtain disclosure of the debtor’s mortgage statement from the mortgagee. The decision is relevant beyond Ontario because PIPEDA is federal legislation applicable across Canada, and Atlantic Canadian Provinces have legislation analogous to the Ontario legislation.

Scotiabank held a registered first mortgage on the Trang’s Toronto real property. RBC subsequently loaned the Trangs money. They defaulted and RBC obtained a judgment against them. Twice, the Trangs didn’t show for their examination in aid of execution. RBC asked Scotiabank for a mortgage discharge statement to facilitate sale of the property but Scotiabank said PIPEDA precluded it from disclosing the statement without the Trangs’ express consent. RBC asked the Ontario court for an order to compel Scotiabank to produce the mortgage discharge statement, but the Ontario Court of Appeal refused. RBC appealed the Supreme Court of Canada.

In Royal Bank of Canada v. Trang, the Supreme Court of Canada agreed with RBC: PIPEDA does not require the mortgagee to have the mortgagor’s express consent to produce a mortgage discharge statement to a judgment creditor – and Scotiabank must produce the Trang’s mortgage discharge statement to RBC:

Implied consent is good enough to disclose mortgage discharge statement to a judgment creditor. PIPEDA does apply to mortgage discharge statements that lending institutions hold and the current mortgage balance (and mortgage discharge statement disclosing that balance) is “personal information” – but consent to its disclosure to a judgment creditor can be implied (and need not be express) under PIPEDA because:

  • Sensitivity of financial information. It’s less sensitive than other financial information (and than the Ontario Court of Appeal thought it is). The sensitivity of financial information is contextual; the already public related financial information, the purpose of making it public and the nature of the relationship between the debtor, the creditor and directly affected third parties are relevant. The outstanding mortgage balance is but a moment in the life of a publicly disclosed mortgage; disclosing it ensures the parties ‘have all pertinent information involving the property’ and makes the bank’s rough calculations based on publicly available information more certain; there are already some exceptions to a bank’s implied obligation not to disclose information about those from whom it has obtained a security interest in any event; and the state of the mortgage account also affects other creditors.
  • Reasonable expectations. A mortgagor would reasonably expect a mortgagee to provide a discharge statement to a judgment creditor. This is also a contextual determination informed by the legitimate business interests of other creditors and by who seeks disclosure and why; disclosure to someone who needs the information to exercise an established legal right is different than someone who’s just nosy. A reasonable person would consider it appropriate for a mortgagee to provide a discharge statement to a judgment creditor who has obtained a writ of seizure and sale of the mortgaged asset from the court and filed it with the sheriff. These steps demonstrate that that the creditor intends to exercise an established legal right that depends on the disclosure of the mortgage discharge statement. The mortgagor implicitly gave consent for the purpose of assisting a sheriff in executing a writ of seizure and sale when the mortgagor gave the mortgage. RBC didn’t need to seek the mortgage discharge statement through the examination process; obtaining a writ of seizure and sale and filing it with the sheriff triggered the consent to disclose the Trangs gave when they gave a mortgage to Scotiabank.

Disclosure of the mortgage discharge statement is indeed “appropriate” under PIPEDA.   An order for disclosure is appropriate where (as here) the creditor has already obtained judgment, has filed a writ of seizure and sale, and has either asked the debtor, in writing, to sign a consent to disclosure without success or the debtor has not attended a single judgment debtor examination. That judgement creditor has proven its claim should be entitled to an order for disclosure as long as it serves the debtor with the motion to obtain disclosure.

Disclosure by Court Order. The order RBC sought does constitute an order made by a court under PIPEDA’s section 7(3)(c). PIPEDA does not interfere with the court’s ability to make orders; the court had the power to order disclosure under either the civil procedure rules or the court’s inherent jurisdiction to order disclosure.

The Supreme Court of Canada didn’t comment on whether disclosure of the mortgage statement is “required by law” under the Ontario Execution Act.

Practically, this decision makes it much easier for a judgment creditor to obtain disclosure of the debtor’s mortgage statement from the mortgagee.

Express consent clause in loan agreement isn’t necessary (but it can’t hurt). A judgment creditor does not need the debtor’s express consent, in the loan agreement or otherwise, to disclosure of the mortgage discharge statement for the mortgagee to deliver the discharge statement to the judgement creditor. However, including such a term in the loan agreement can’t hurt either.

Court Order under PIPEDA appropriate. If the mortgagee refuses to disclose the mortgagor’s mortgage statement to a judgment creditor, the judgment creditor should be able to obtain a court order for such disclosure under PIPEDA section 7(3)(c).

Court Order under civil procedure rules is not required. While Ontario’s Civil Procedure Rules (and those of most provinces and territories) allow the court to order the examination of anyone who might have knowledge that will assist enforcement of a court order (i.e., the order for the debt), which satisfies the exemption under PIPEDA’s “required by law” exception to the consent requirement. However, this process is lengthy and cumbersome – and now, not necessary.


Please contact your McInnes Cooper lawyer or any member of the Banking & Financial Services Team @ McInnes Cooper or the Privacy Team @ McInnes Cooper to discuss this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2016. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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    On June 13, 2014 the Supreme Court of Canada decided that Canadians have a reasonable expectation of privacy in their online activities, and…

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  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – The Last Minute Guide to Preparing For CASL

    Jun 12, 2014

    The countdown to CASL is almost over: there are only 13 business days until the anti-spam provisions of CASL – and most of the penalties for…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) –10 Steps to Prepare for CASL

    May 8, 2014

    On July 1, 2014 – less than two months from now - the anti-spam sections of Canada’s Anti-Spam Legislation (CASL) take effect. Individuals…

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  • Share Purchase Transactions: Tips For Lenders

    Apr 29, 2014

    Lenders are often faced with a situation where a customer (Borrower) approaches them for funds to complete an acquisition of the shares of a…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – Does CASL Make You A “Spammer”?

    Apr 15, 2014

    The countdown to CASL is on: on July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (“CASL”) take effect. Individuals…

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    Publication
  • Cloud Computing: A Privacy FAQ

    Mar 19, 2014

    As organizations turn to cloud computing services, ensuring compliance with legislation and reducing privacy risks is key. In Canada, there is…

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  • Counting Down to Canada’s Anti-Spam Legislation (CASL): 10 Reasons Why You Should Care About The Upcoming CASL Right Now

    Feb 28, 2014

    On July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (aka “CASL”) will take effect. CASL is: Broad. It applies…

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    Publication
  • Counting Down to Canada’s Anti-Spam Legislation (CASL) – What You Need to Know Now

    Feb 28, 2014

    On July 1, 2014, the anti-spam sections of Canada’s Anti-Spam Legislation (aka “CASL”) take effect. CASL will apply to just about every…

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    Publication
  • Privacy in Computer Contents: Supreme Court of Canada Picks Up Where It Left Off in R. v. Vu

    Nov 8, 2013

    On November 7, 2013, the SCC decided police require specific authorization in a search warrant to search the data in a computer because of the…

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  • General Security Agreements: Tips & Traps

    Aug 28, 2013

    A general security agreement (GSA) is the most common form of personal property security used in the Atlantic Provinces to secure commercial…

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  • Supreme Court of Canada Confirms Employees May Have a Limited Reasonable Expectation of Privacy In Work Computer in R. v. Cole

    Nov 28, 2012

    On October 19, 2012 the Supreme Court of Canada (SCC) decided that a teacher criminally charged with possession of child pornography and…

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  • Legal Alert: SCC Finds Limited Reasonable Expectation of Privacy In Work Computer But Evidence Still Admissible

    Oct 22, 2012

    Mr. Cole was a high school teacher with an employer owned and issued laptop computer.  He also used it for incidental personal purposes, which…

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  • Ontario Court of Appeal Finds Reasonable Expectation of Privacy in Work Computer

    May 6, 2011

    In March 2011, the Ontario Court of Appeal found that an employee had a limited expectation of privacy in the contents of a work computer. The…

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  • Legal Update: Cloud Computing and Privacy FAQ

    Apr 7, 2011

    Note: Click here to read an updated version of this Legal Update in Cloud Computing: A Privacy FAQ as seen in as seen in CCCA Magazine, Spring…

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