Law Times

Law Times • December 12, 2016 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Privacy and Freedom of Information PROVINCIAL PRIVACY LEGISLATION Collection of personal information Mortgagee was compelled to disclose discharge statement Creditor loaned homeowners $35,000. Homeowners default- ed on loan. Creditor obtained judgment against homeowners but required discharge state- ment (statement) from bank holding mortgage on home- owners' property (mortgagee). Mortgagee refused to provide statement without homeown- ers' consent under Personal Information Protection and Electronic Documents Act (PIPEDA). Creditor obtained orders to examine homeown- ers in aid of execution. Motion judge refused both of creditor's motions to compel mortgagee to disclose statement, consid- ering himself bound by 2011 appellate decision. Majority of Court of Appeal dismissed creditor's appeal, holding that s. 7(3)(c) exception did not ap- ply, that statement was "per- sonal information" homeown- ers did not impliedly consent to disclosure of, and that creditor could obtain state- ment by obtaining examina- tion order under R. 60.18(6) (a) of Rules of Civil Procedure. Dissenting judge would have ordered mortgagee to provide statement. Creditor appealed. Appeal allowed; statement was ordered disclosed. Order sought by creditor was "order made by court" under s. 7(3) (c), statement fell within s. 7(3) (b) exception to consent re- quirement, and homeowners impliedly consented to state- ment's disclosure. PIPEDA did not interfere with courts' abil- ity to make orders or with rules regarding record production or debt collection disclosure. Requiring creditor to bring an- other motion f lew in face of in- creasing concerns about access to justice. Judgment creditor who served debtor with mo- tion to obtain disclosure was entitled to order for disclosure and should not be required to undergo further procedure to realize debt. Homeowners also impliedly consented to dis- closure to creditor when they gave mortgage. Information in statement was less sensitive than other financial informa- tion and was generally available to public except that statement disclosed current balance at single point in time. In deter- mining individual's reasonable expectations under PIPEDA, whole context was important, including legitimate business interests of other creditors. Statement was not just private matter between mortgagee and mortgagor. Finally, disclosure to person requiring informa- tion to exercise established legal right was different from disclosure to curious party with no legal interest in prop- erty. Royal Bank of Canada v. Trang (2016), 2016 Carswel- lOnt 18044, 2016 CarswellOnt 18045, 2016 SCC 50, 2016 CSC 50, McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Kara- katsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2014), 2014 Carswel- lOnt 17254, 2014 ONCA 883, Alexandra Hoy A.C.J.O., John Laskin J.A., Robert J. Sharpe J.A., E.A. Cronk J.A., and R.A. Blair J.A. (Ont. C.A.). Federal Court of Appeal Civil Practice and Procedure CLASS AND REPRESENTATIVE PROCEEDINGS Representative or class proceedings under class proceedings legislation Common question in original order was restored Plaintiff brought motion to cer- tify as class proceeding action relating to denial of sickness benefits under Employment In- surance Act to individuals who were receiving parental benefits under Act when they became ill. Judge certified class proceeding for negligent implementation of Act in original order. Attorney General of Canada and Canada Employment Insurance Com- mission brought motion for re- consideration of original order. Motion was granted and amend- ments were made in amending order. Plaintiff appealed amend- ment in amending order that deleted common question that asked whether defendants who owed duty breached that duty of care. Appeal allowed. Common question in original order was restored. Certification judge cer- tified question of whether Com- mission or Service Canada owed duty of care in administering Act and if so, content of duty and which defendant owed duty de- spite her statement that it would require individual assessment to determine who owed duty. It could not be said that manifest intention of certification judge was not to certify subject question related to whether Commission or Service Canada, who would have been found to have owed duty as result of earlier common questions, breached that duty. This common question was con- ditional, directly and indirectly, on other questions that had been certified. It was not clerical error or mistake to include this com- mon question in original order. McCrea v. Canada (Attor- ney General) (2016), 2016 Car- swellNat 5814, 2016 FCA 285, J.D. Denis Pelletier J.A., Wyman W. Webb J.A., and D.G. Near J.A. (F.C.A.). Criminal Law EXTRAORDINARY REMEDIES Miscellaneous Application for judicial review was dismissed Conviction review. Applicant was convicted of first degree murder, after son, son's then-wife, and an- other witness testified that they saw applicant kill deceased. Ap- plicant applied for conviction re- view on basis of son's later confes- sion that he murdered deceased. Criminal Conviction Review Group concluded on preliminary assessment that son's confession was not reasonably capable of belief. Group, acting as delegate for Minister of Justice, found that there was no new and significant evidence providing reasonable basis to conclude that miscar- riage of justice likely occurred and decided not to proceed to investigative stage of review pro- cess. In reconsideration decision after alleged inconsistencies were raised with respect to wife's cur- rent recollection, Group refused to compel wife's examination and cross-examination under oath. Applicant's application for judi- cial review was dismissed. Appli- cant appealed. Appeal dismissed. Minister followed methodology appropriate to purposes of legis- lative framework during prelimi- nary assessment phase, carefully considering information offered in support of application. Min- ister went further, interviewing wife as witness to crime but de- clining to investigate further or to examine her under oath. Min- ister had firm evidentiary basis for decision that confession was not reasonable basis for conclud- ing miscarriage of justice likely occurred. At applicant's trial, jury had cellblock confession by son to murder, supported by motive, but still found that applicant was murderer. Minister could not find independent corroborating evidence demonstrating that son committed murder, as opposed to making confessions Minister had acceptable and defensible basis for conclusion. Minister's failure to disclose note detailing interview with wife did not work procedural fairness because it was not material and did not sup- port need for further exploration of matter, as wife confirmed her earlier testimony that applicant committed killing. Legislative standards permitted Minister to take into account credibility of information, such as son's confes- sion, supporting application. Winmill v. Canada (Minis- ter of Justice) (2016), 2016 Car- swellNat 5309, 2016 FCA 250, M. Nadon J.A., David Stratas J.A., and Donald J. Rennie J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 2146, 2015 Car- swellNat 6014, 2015 FC 710, 2015 CF 710, René LeBlanc J. (F.C.). International Trade and Customs APPRAISAL OF VALUE AND DETERMINATION OF TARIFF CLASSIFICATION Classification of imports for duty Customs Act(Can.) permitted importers to correct tariff classifications CASELAW Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. FOR MORE INFORMATION CONTACT Colleen Austin T: 416.649.9327 | E: colleen.austin@thomsonreuters.com www.canadianlawlist.com Get noticed by the lawyers, judges, corporate counsel, finance professionals and other blue chip cilents and prospects who find the contacts they need for Canadian legal expertise at canadianlawlist.com with an Enhanced listing. ENCHANCE YOUR LISTING TODAY! Untitled-1 1 2016-12-06 8:30 AM

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