Use (Personal Information)

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Funeral home's disclosure in pursuit of a debt allowed under the Act, 2006 CanLII 51517 (PCC)

Application: Principle 4.3 states that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate. Paragraph 7(3)(b) is an exception to this requirement for consent. It states that an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is for the purpose of collecting a debt owed by the individual to the organization.

[1]

Consumer Reporting Act, R.S.O. 1990, c. C.33

1 (1) In this Act,

“credit information” means information about a consumer as to name, age, occupation, place of residence, previous places of residence, marital status, spouse’s name and age, number of dependants, particulars of education or professional qualifications, places of employment, previous places of employment, estimated income, paying habits, outstanding debt obligations, cost of living obligations and assets; (“renseignements sur la solvabilité”)
“personal information” means information other than credit information about a consumer’s character, reputation, health, physical or personal characteristics or mode of living or about any other matter concerning the consumer; (“renseignements personnels”)


[2]

Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5)[3]

Protection of Personal Information in the Private Sector

2 (1) The definitions in this subsection apply in this Part.

...
business transaction includes
(a) the purchase, sale or other acquisition or disposition of an organization or a part of an organization, or any of its assets;
(b) the merger or amalgamation of two or more organizations;
(c) the making of a loan or provision of other financing to an organization or a part of an organization;
(d) the creating of a charge on, or the taking of a security interest in or a security on, any assets or securities of an organization;
(e) the lease or licensing of any of an organization’s assets; and
(f) any other prescribed arrangement between two or more organizations to conduct a business activity. (transaction commerciale)
personal informationmeans information about an identifiable individual.
recordincludes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine-readable record and any other documentary material, regardless of physical form or characteristics, and any copy of any of those things. (document)
...

4 (1) This Part applies to every organization in respect of personal information that

(a) the organization collects, uses or discloses in the course of commercial activities; or
(b) is about an employee of, or an applicant for employment with, the organization and that the organization collects, uses or discloses in connection with the operation of a federal work, undertaking or business.
...
(3) Every provision of this Part applies despite any provision, enacted after this subsection comes into force, of any other Act of Parliament, unless the other Act expressly declares that that provision operates despite the provision of this Part.
...

5 (1) Subject to sections 6 to 9, every organization shall comply with the obligations set out in Schedule 1.

(2) The word should, when used in Schedule 1, indicates a recommendation and does not impose an obligation.
(3) An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.
...

7 (1) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may collect personal information without the knowledge or consent of the individual only if

...
(d) the information is publicly available and is specified by the regulations; or
...
(3) An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.
(a) made to, in the Province of Quebec, an advocate or notary or, in any other province, a barrister or solicitor who is representing the organization;
(b) for the purpose of collecting a debt owed by the individual to the organization;
(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;

[3]

SCHEDULE 1 (Section 5)

  • Principles Set Out in the National Standard of Canada Entitled Model Code for the Protection of Personal Information, CAN/CSA-Q830-96

Principle 9 — Individual Access

  • 4.9
Upon request, an individual shall be informed of the existence, use, and disclosure of his or her personal information and shall be given access to that information. An individual shall be able to challenge the accuracy and completeness of the information and have it amended as appropriate.
  • 4.9.5
When an individual successfully demonstrates the inaccuracy or incompleteness of personal information, the organization shall amend the information as required. Depending upon the nature of the information challenged, amendment involves the correction, deletion, or addition of information. Where appropriate, the amended information shall be transmitted to third parties having access to the information in question.

Citi Cards Canada v. Pleasance, 2010 ONSC 1124 (CanLII)[4]

[26] Circumstances do not exist in the present case that justify disclosure of the information sought without Mr. Pleasance’s consent. Section 7(5) of the PIPEDA provides that, despite clause 4.5 of Schedule 1, an organization may disclose personal information for purposes other than those for which it was collected in any of the circumstances set out in sections 7(3)(a) to (h.2) of the Act. I will deal only with those exceptions that Citi Cards submits are applicable to the present case.

[27] Section 7(h.1) of the PIPEDA permits the disclosure “of information that is publicly available and is specified by the regulations.” Citi Cards argues that the information it seeks is of a type that is available publicly since the face amount of a mortgage is available from the Registry Office and the balance of a mortgage may be accessible from credit bureaus. Regulation SOR 2001-7 specifies five types of publicly available information. The current balance of a mortgage is not publicly available anywhere and therefore does not fall within this exclusion. For information to come within the exclusion in s. 7(3)(h.1), it must be collected from a publicly available source. Where a listing real estate agent advertised information from which the purchase price of a recently sold property could be calculated, the agent was held not be saved by the exclusion in s. 7(3)(h.1) even though the sale price was also available from the municipal/provincial property registry.[14] Insofar as Credit Bureau information is concerned, the disclosure of such information requires the individual’s consent. The Assistant Privacy Commissioner has held that information contained in Credit Reports does not lose its character as personal information and any collection or disclosure of it must comply with the PIPEDA.[15]

[28] Section 7(3)(i) permits disclosure as required by law. For the reasons given above, I agree with the submission of the Banks that there is no law requiring disclosure of mortgage statements to an execution creditor where the mortgagee has not taken steps to enforce the mortgage by issuance of a Notice of Sale or otherwise.

[29] Section 7(3)(c) permits disclosure “required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records.” It is a circular argument that the Court should make an Order for the production of records because their disclosure is permissible when an order is made for their disclosure. Citi Cards, in order to establish an exclusion under section 7(3)(c), must demonstrate a lawful basis, independently of the PIPEDA, for obtaining the Order for the disclosure of the information or records.

[4]

TSL-04311-19 (Re), 2019 CanLII 87609 (ON LTB)

24. The Tenant stated that the Landlord had recently contacted the individuals who the Tenant had used as references in his original tenancy application with the Landlord in 2017. The Tenant advised that on April 3, 2019, his references were contacted by the Landlord and they were informed that the Tenant was in arrears of rent and the amount of arrears owing. The Landlord confirmed that he had contacted the Tenant’s references as he felt that as references, they should assist him in convincing the Tenant to pay the rent owing.

25. The Landlord should not have disclosed information about the Tenant’s rental account to third parties. The Tenant’s payment history was personal information and pursuant to subsection 5(3) of the Personal Information Protection and Electronic Documents Act, SC 2000, c. 5, should only be disclosed for purposes that a reasonable person would consider appropriate in the circumstances.

26. The Landlord breached the Tenant’s privacy rights by sharing information about his payment history with third parties and he ought to have known that this was unreasonable as the Tenant’s references would not have a right to know of the Tenant’s debts or credit history. We find that the privacy breach interfered with the Tenant’s reasonable enjoyment.

Conclusion and Remedy

27. The Tenant is entitled to an abatement of rent for the harassment and also for substantial interference. Based on the nature of these problems and the impact on the Tenant, we find that an appropriate amount for the harassing emails would be $250.00 and an appropriate amount for the substantial interference would be $500.00.

[5]

TNT-93514-17 (Re), 2018 CanLII 42879 (ON LTB)

32. The Tenants allege that the Landlord substantially interfered with their reasonable enjoyment, and harassed them, by repeatedly telling people that the Tenants owed money and would be evicted.

33. B.B. testified to the following incidents:

a. in July 2016 and May 2017, the Landlord served notices to terminate the tenancy for rent arrears;
b. in July 2016, the Landlord told the Tenants’ roommate that they owed rent and would be evicted;
c. in July or August, 2016, the Landlord told the Tenants’ daughter that the Tenants owed rent;
d. in May, 2017, an employee of the Landlord told a guest of the Tenants that they owed rent and would be evicted; and
e. also in May, 2017, the Landlord told one of his maintenance contractors that the Tenants owed rent.

34. Service of a notice of termination is the proper way for the Landlord to inform the Tenants that he believes they are in arrears. It is not interference or harassment.

35. It was improper for the Landlord to tell third parties about the Tenants’ rental account. The Tenants’ payment history was personal information which, pursuant to subsection 5(3) of the Personal Information Protection and Electronic Documents Act, SC 2000, c 5, should only be disclosed for purposes that a reasonable person would consider appropriate in the circumstances. The Landlord should not have disclosed the information to persons who had no business knowing about the Tenants’ finances.

36. The disclosures substantially interfered with the Tenants’ reasonable enjoyment by breaching their privacy. I do not find the disclosures to have formed a pattern sufficient to constitute harassment.

37. B.B. testified that in 2016, the Tenants’ roommate moved out because the Landlord told him that they owed rent. I do not find that outcome to flow from the Landlord’s conduct; the roommate was free to move out whenever he chose. The only real impact the Landlord’s conduct had on the Tenants was that it annoyed them. A rent abatement of $150.00 will be awarded to compensate them for the annoyance. The Landlord will also be ordered to cease the offending conduct.

[6]

TST-05853-10 (Re), 2010 CanLII 79738 (ON LTB)

17. That being said, it was clearly inappropriate for the Landlord to give out the Tenants’ names and telephone number to the neighbour’s mother and urge her to call them. In the hearing before me the Landlord stated that people give out his number all the time and he gets calls from strangers. As I explained the nature of the relationship between the Tenants and the Landlord is a business relationship. When a business has to collect personal information from its clients in the course of doing business, it is a reasonable expectation of the clients that the business will not pass that information around without their consent. When we use our credit cards in stores we expect the store not to give our credit card data to strangers. We expect the airline company not to tell tour providers our addresses; and we expect our dry cleaner not to sell data about the kinds of clothes we wear. That is why the federal government has passed the Personal Information Protection and Electronic Documents Act [‘PIPEDA’] which basically says that information collected in the context of a business relationship cannot be disclosed to a third party without consent.

18. As a result, I find that by urging the neighbour’s mother to call the Tenants and by giving her the Tenants’ personal information so she could do so the Landlord substantially interfered with the Tenants’ reasonable enjoyment and breached section 22 of the Act.

19. This application is also based on section 23 of the Act which says: “A landlord shall not harass, obstruct, coerce, threaten or interfere with a tenant.” I am of the view that “harassment” refers to any situation where a reasonable landlord ought to know that his or her actions would be unwelcome by any reasonable tenant. It seems to me that the Landlord here should have been aware of the fact that having the neighbour’s mother call the Tenants up to defend her daughter’s behaviour and to tell them there was no legal cause to evict her would not be a welcome experience for the Tenants. As a result, I am satisfied that by instructing the neighbour’s mother to call the Tenants the Landlord also breached section 23 of the Act.


[7]

References

  1. Funeral home's disclosure in pursuit of a debt allowed under the Act, 2006 CanLII 51517 (PCC), <https://canlii.ca/t/1r4h0>, retrieved on 2021-03-26
  2. Consumer Reporting Act, R.S.O. 1990, c. C.33, <https://www.ontario.ca/laws/statute/90c33>, reterived 02-10-2021
  3. 3.0 3.1 Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5), <https://laws-lois.justice.gc.ca/ENG/ACTS/P-8.6/FullText.html>, retrieved on 2020-07-17
  4. 4.0 4.1 Citi Cards Canada v. Pleasance, 2010 ONSC 1124 (CanLII), <http://canlii.ca/t/28tl4>, retrieved on 2020-08-19
  5. TSL-04311-19 (Re), 2019 CanLII 87609 (ON LTB), <http://canlii.ca/t/j2hm5>, retrieved on 2020-07-17
  6. TNT-93514-17 (Re), 2018 CanLII 42879 (ON LTB), <http://canlii.ca/t/hs1f3>, retrieved on 2020-07-17
  7. TST-05853-10 (Re), 2010 CanLII 79738 (ON LTB), <http://canlii.ca/t/2f8lt>, retrieved on 2020-07-17