) ) ROYAL BANK OF CANADA Plaintiff – v. –, 2013 ONSC 4198

CITATION: Royal Bank of Canada v. Trang, 2013 ONSC 4198 COURT FILE NO.: 6464/10 DATE: 2013-06-18 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) ROYAL BANK OF CANADA Plaintiff – and – PHAT TRANG and PHUONG TANG akaPHUONG THI TRANG Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) James M. Satin, Counsel for thePlaintiff/Moving Party No one for Bank of Nova Scotia, RespondingParty ) ) ) HEARD: June 13, 2013 REASONS FOR JUDGMENT GRAY J. [1] This motion is a sequel to one that was originally brought before me on May 16, 2012. [2] The plaintiff has a judgment against the Trangs, who own real property.

The plaintiff wants to sell the property to collecton its judgment. The sheriff will not sell the property unless the plaintiff produces a mortgage statement from the Bank of Nova Scotia,a mortgagee. The Bank of Nova Scotia refuses to produce a mortgage statement on the ground that to do so would contravene thePersonal Information Protection and Electronic Documents Act S.C. 2000, c.5 (PIPEDA). [3] On June 6, 2012, I ruled that the Bank of Nova Scotia was prohibited from producing a mortgage statement because todo so would contravene PIPEDA.

On December 21, 2012, the Court of Appeal quashed an appeal from my decision on the ground thatmy decision was interlocutory. The Court held that the decision would not be final unless the plaintiff examined a representative of theBank of Nova Scotia and the Bank of Nova Scotia persisted in its refusal to provide a mortgage statement. The plaintiff has now doneso, the Bank of Nova Scotia has persisted in its refusal, and the plaintiff brings the same motion afresh. [4] For the reasons that follow, the motion is dismissed.

Background [5] The background to this matter is extensively set out in my Reasons for Judgment in Royal Bank of Canada v. Trang (2012), 2012 ONSC 3272 , 20 R.P.R. (5th) 79 (Ont. S.C.J.), and I need not review it again. In short, I held that the plaintiff wasnot entitled to compel the Bank of Nova Scotia to provide a mortgage statement because, as decided by the Court of Appeal in Citi CardsCanada Inc. v.

Pleasance (2011), 2011 ONCA 3 , 103 O.R. (3d) 241 (C.A.), to do so was prohibited by PIPEDA. [6] In my Reasons, I noted that a number of statutory provisions had apparently not been drawn to the attention of the Courtof Appeal in Citi Cards, and that it was at least arguable that those provisions might suggest a different result. However, I ultimatelyheld that it was for the Court of Appeal, and not for me, to decide the matter differently.

[7] The Court of Appeal quashed an appeal from my decision: see Royal Bank of Canada v. Trang (2012), 2012 ONCA 902 , 25 R.P.R. (5th) 241 (Ont. C.A.). The Court held that since the plaintiff had not conducted an examination of a representative ofthe Bank of Nova Scotia under Rule 60.18 (6)(a), my order did not finally dispose of the question of whether the Royal Bank couldobtain an order compelling the Bank of Nova Scotia to provide a mortgage statement. [8] The plaintiff has now conducted an examination of a representative of the Bank of Nova Scotia. She is the Bank’s seniorlegal counsel.

She testified that the Bank of Nova Scotia would refuse to produce a mortgage statement because its disclosure isprohibited by PIPEDA. That seems to finally dispose of the question. Submissions [9] Mr. Satin, counsel for the plaintiff, submits that the plaintiff has now exhausted all means of attempting to secure amortgage statement from the Bank of Nova Scotia. There is nothing left that the plaintiff can do to secure the information it requires inorder to sell the property.

If PIPEDA, properly interpreted, means that a mortgage statement cannot be obtained, the plaintiff will simplylose its right to sell the property in order to satisfy its judgment. [10] Mr. Satin submits that in addition to the arguments outlined in my previous Reasons for Judgment, there is yet anotherprovision of PIPEDA that is relevant and persuasive.

Section 3 of PIPEDA provides as follows: 3. The purpose of this

Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange ofinformation, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy ofindividuals with respect to their personal information and the need of organizations to collect, use or disclose personal information forpurposes that a reasonable person would consider appropriate in the circumstances. [Emphasis added] [11] Mr.

Satin submits that it is clear from this provision that private information can be disclosed if a reasonable person wouldconsider it appropriate in the circumstances. In a case such as this, it is clearly appropriate that a mortgage statement be disclosed inorder that an execution creditor can exercise its statutory right to sell property. Indeed, Mr. Satin submits that a reasonable person wouldconsider it to be quite inappropriate to not disclose this information.

Analysis [12] While the examination of a representative of the Bank of Nova Scotia undoubtedly means that the plaintiff has nowexhausted every means of attempting to require the Bank of Nova Scotia to provide a mortgage statement, the examination itself does notadd to the plaintiff’s substantive argument that it is entitled to a statement notwithstanding PIPEDA. [13] PIPEDA either prohibits the disclosure of the requested information or it does not.

The fact that it is requested through anexamination does not change the legal analysis: if PIPEDA prohibits the disclosure of the information, it cannot be obtained through anexamination any more than it can be obtained in response to a letter asking for it. Indeed, it seems to me that to require an examinationto get this sort of information simply adds cost and difficulty.

If the execution creditor is entitled to the information, it should be able toobtain it without an additional layer of time and cost. [14] In the final analysis, I remain of the view that PIPEDA, as interpreted by the Court of Appeal in Citi Cards, prohibits therelease of the requested information. Any change must come from the Court of Appeal, and not from me. Disposition [15] For the foregoing reasons, the motion is dismissed. There will be no order as to costs. Gray J. Released: June 18, 2013 CITATION: Royal Bank of Canada v. Trang, 2013 ONSC 4198 COURT FILE NO.: 6464/10

DATE: 2013-06-18 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ROYAL BANK OF CANADA Plaintiff – and – PHAT TRANG and PHUONG TANG aka PHUONG THI TRANG Defendants REASONS FOR JUDGMENT Gray J. Released: June 18, 2013