Aecon Industrial Western, a Division of Aecon Construction Group Inc. Applicant - v. -, 2013 ABQB 122

Court of Queen ’ s Bench of Alberta Citation: Aecon Industrial Western v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146, 2013 ABQB 122 Date: 20130301 Docket: 1203 17878 Registry: Edmonton Between: Aecon Industrial Western, a Division of Aecon Construction Group Inc. Applicant - and - International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146 Respondent _______________________________________________________ Memorandum of Decision of W. S.

Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is an application by an enforcement creditor to have the Respondent Union disclose employment information about a Union member.

[ 2 ] In August, 2012, the Applicant was given judgment against the Union member. [ 3 ] The Union was not a party to the underlying action. The lawsuit had nothing to do with Union membership. The judgment debtor did not pay and the Applicant sought to enforce its judgment under the Civil Enforcement Act . It is not known whether a requirement to provide a Financial Report of Debtor under

Part 1.3 of the Civil Enforcement Regulation, AR 116/2010 was served. All we know is that the (now) enforcement debtor has not been responsive to correspondence or demands for payment of the judgment. [ 4 ] The Union has not volunteered any employment information. It cites the Personal Information Protection Act , RSA 2003, c. P-6.5; ( “ PIPA ” , or the Privacy Act ). [ 5 ] There is no doubt that the International Brotherhood of Boilermakes, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146 is subject to the Privacy Act .

As such, it has a positive duty not to disclose information protected by the Act without the consent of the person furnishing the information (section 7), or without one of the exceptions in

section 20 applying. In this case, the union member has not furnished any consent (and I do not believe is even aware of this application). [ 6 ] Some of the exceptions to disclosure are as follows: Disclosure without consent 20 An organization may disclose personal information about an individual without the consent of the individual but only if one or more of the following are applicable: (

a) a reasonable person would consider that the disclosure of the information is clearly in the interests of the individual and consent of the individual cannot be obtained in a timely way or the individual would not reasonably be expected to withhold consent; (

e) the disclosure of the information is for the purpose of complying with a subpoena, warrant or order issued or made by a court, person or body having jurisdiction to compel the production of information or with a rule of court that relates to the production of information; (

m) the disclosure of the information is reasonable for the purposes of an investigation or a legal proceeding [ 7 ] The first question is whether the considerations in TD Bank v. Sawchuk , 2011 ABQB 757 apply here. In that case the question was whether a federally regulated Bank should disclose a mortgage payout balance in a foreclosure action.

The federal Privacy Act ( Personal Protection and Electronic Documents Act S.C. 2000, c. 5 , ‘ PIPEDA ’ ) applied in that case. [ 8 ] In a foreclosure context, a prior encumbrancer has an interest in disclosing payout information to the Court and to a foreclosing subsequent encumbrancer. It will take priority to a portion of the funds and will want to be paid out. A prior encumbrancer also has an interest in preserving the existing procedure and not being made a party to the action.

In this type of situation the interest of the debtor and the organization are aligned. [ 9 ] It might also be said that in a foreclosure context, the amount of outstanding indebtedness is not information collected from an individual in the same sense that the information is collected here. In other words, the individual is not providing the bank, in a foreclosure context, with information that an individual would ordinarily (and otherwise) could expect to keep private. It is the bank ’ s own record of the state of affairs between it and the debtor. (Cf Royal Bank v.

Trang , 2012, ONSC 3272 , per Gray J. at para. 29)

[ 10 ] The present context is quite different. Here, the Union has no interest in disclosure. It collected the employment information, which would otherwise be private, from its member. This case, therefore, is not so much in the category of TD Bank v. Sawchuk . It is much more in the category of Citi Cards Canada Inc. v. Pleasance, 2011 ONCA 3 . [1] [ 11 ] Citi Cards dealt with the federal Privacy Act . In that case, the Ontario Court of Appeal found that granting an Order based on the exception in 7(3)(

c) the Federal Act, which is the same exception found in

section 20(

e) of the Alberta Act (above), would be circular. I agree with the Ontario Court of Appeal to the extent that using

section 20(

e) in this context would be pulling ourselves up by our bootstraps.

So that exception is of little help. [ 12 ] In the Citi Cards case, the Appellant argued : There is no good reason why the Banks should need or require the consent of the debtor to disclose information that the debtor is required by law to disclose, ..., and PIPEDA was never intended to be used as a shield by an individual to prevent third parties from disclosing personal information that the individual is required by law to produce. [ 13 ] The Court identified what it saw as flaws in that argument, saying : [29] First, [the Appellant ’ s argument] is inconsistent with the plain wording of s. 7(3) of the Act. “ An organization may disclose personal information ... only if the disclosure is [authorized by one of the exemptions] ” (emphasis added).

Clearly, the disclosure that is the subject of the listed exemptions is the disclosure of the organization and not that of the individual whose information is in play. [30] This makes sense. Had Parliament intended that organizations would be required to disclose personal information of an individual in circumstances where, in a commercial context, the individual might be required to do so, it could easily have dispensed with the need for consent and created another exemption in those circumstances. Parliament did not do so.

Moreover, if the appellant ’ s argument is correct, any organization could disclose personal financial information about the individual to interested third parties, without that individual ’ s consent, any time there is an outstanding judgment against the individual. Such a result would effectively negative the protection afforded to the privacy rights of individuals pursuant to PIPEDA. [31] Secondly, while Mr.

Pleasance might be required to disclose to Citi Cards the particulars of his mortgages - including the balances required to discharge them - pursuant to an order made in aid of execution, it is not clear that he is “ required by law ” to volunteer that information in the absence of such an order. No such order has been made here. (emphasis in original) [ 14 ] The Alberta Privacy Act differs from its federal counterpart. It has wider exceptions. The Alberta Civil Enforcement Regulation appears to be different from the enforcement regime referred to in paragraph 31 of the Citi Cards case. [ 15 ] In my view,

section 20(

a) of our Provincial Act is wide enough to create the exemption referred to in para. 30 of the Citi Cards case. [ 16 ]

Part 1.3 of our Civil Enforcement Regulation permits an enforcement creditor to require an enforcement debtor to provide information. The information required to be provided includes detailed employment information, such as the information now sought by the Applicant. An Order is not required, only a request.

Section 35.17 of the Regulation provides a means for enforcing compliance, if necessary. [ 17 ] It is difficult to see how an individual could ‘ reasonably be expected to withhold consent ’ to having the Union disclose this information in these circumstances, when this individual is not able to do so themselves. Intransigent and unlawful behavior is not consistent with the use or meaning of the word ‘ reasonable ’ in

section 20(

e) of our Privacy Act .

[ 18 ] Moreover, it cannot have been the intent of the PIPA to tie up information and thereby create a modern version of civil debtor ’ s prison so as to frustrate an execution debtor ’ s timely satisfaction of their debts. The purpose of the Act is to protect reasonable and legitimate expectations, not illegitimate ones. [ 19 ] The Appellant ’ s agrument in City Cards has resonance in the Alberta context. It is appropriate that the Union disclose the enforcement debtor ’ s employment information to the execution creditor. In the circumstances it is not necessary to consider whether the exemptions in

section 20 (

e) or (

m) also apply. [ 20 ] The concept in Rule 5.13, with respect to compensating an outsider to an action for providing information, is useful in determining the costs of this application. Privacy Act law is not settled. It was appropriate that the Union attend and make what were very helpful submissions. Accordingly, it is appropriate that the Union receive costs under column 1, item 7(1) for attendance at this application together with any reasonable costs necessarily arising from the production of the information requested by the Applicant. Heard on the 13 th day of December, 2012.

Dated at the City of Edmonton, Alberta this 1 st day of March, 2013. W. S. Schlosser M.C.C.Q.B.A. Appearances: Kyle Kawanami Emery Jamieson LLP for the Applicant Leanne Chahley Blair Chahley for the Respondent [1] In Citi Cards the Ontario Court of Appeal held that the federal Privacy Act prevented disclosure of a mortgage payout balance to an execution creditor. Gray J. in Royal Bank v. Trang (Ontario S.C.J.) felt bound to apply this decision in a foreclosure

context, though not without a reluctance expressed with some sagacity. The case is not binding upon this Court. Mr. Justice Gray’s decision was appealed on the basis that the Citi Cards case had been decided per incuriam ( Royal Bank v. Trang, 2012 ONCA 902 ). The particular point in issue was that

section 4.3.6 of

schedule 1 to PIPEDA, which allows the Court to imply consent, was not considered by the Court of Appeal in the Citi Cards case. In the appeal of Trang, the Ontario Court of Appeal concluded that it could not revisit Citi Cards as the order from which the appeal was taken was interlocutory . Execution creditors in Ontario may be in a corner unless Citi Cards is revisited or PIPEDA is amended. The situation is particularly odd since the same federally regulated banks are variously Applicants or Respondents when this information is sought.

Banks obtain consent to disclose information to rating agencies such as Equifax. Perhaps the surest way to avoid the gathering storm would be for lenders to include a consent to disclose payout information on their standard documents. But that is something for the bank solicitors.