PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to s. 14 of the Personal Information Protection and Electronic Documents Act, 2000, c. 5 (PIPEDA). Mr. Keith Vanderbeke (Applicant) seeks an order:
- requiring the Royal Bank of Canada (RBC or Respondent) to retain copies of all mortgage renewal acknowledgment letters which it issues in respect of its mortgages (first relief);
- requiring the Respondent to provide access to all such mortgage renewal acknowledgment letters by all persons liable to pay RBC's mortgages (second relief); and
- requiring the Respondent to disclose to the Applicant the total content of the mortgage renewal acknowledgment letter issued in respect of his mortgage in 1996 (third relief).
I. Facts and Procedural History
A. Mortgage Registration
[2] The Applicant is identified as a guarantor in a Charge/Mortgage of land (Applicant's Record, at 15-36) registered in favour of the Respondent on June 17, 1991 as instrument No. 503979 in the Land Registry Office for the Land Registry Division of Chatham-Kent (No. 24) (June 1991 Mortgage). The amount secured by the mortgage was 249 000$.
[3] On July 1, 1996, the mortgage went into default. The Respondent commenced court action to recover its losses. By summary judgment dated December 12, 1997, Justice Zalev of the Ontario Court ordered the Applicant to pay $259,929.73 plus costs of $1,500 to the Respondent (Respondent's Record, at 15-16).
B. Enforcement of the Court's Decision
[4] In connection with the enforcement of this decision, a motion was brought on behalf of the Respondent to compel the Applicant to comply with undertakings and to answer questions which he had refused to answer at his examination in aid of execution. On November 26, 1998, the Applicant filed a notice of cross-motion, requesting an equitable stay of this judgment (Respondent's Record, at 17-19). A supplementary notice of cross-motion was filed by the Applicant on December 4, 1998 for the summary judgment to be set aside or, in the alternative, that the summary judgment be amended to the Applicant's benefit (Respondent's Record, at 20-24). The Applicant's reason for opposing the enforcement of the summary judgment dated December 12, 1997 appears to be that he allegedly entered a Mortgage Renewal Agreement on May 31, 1996 (May 31, 1996 Mortgage Renewal Agreement) (Respondent's Record, at 25-27). Under the terms of this Mortgage Renewal Agreement, the Applicant contended that he was not in default and that he was liable to pay lower interests than as per the June 1991 Mortgage.
[5] The Applicant's cross-motion was dismissed by order of Justice Cusinato of the Ontario Superior Court of Justice on October 6, 1999. I reproduce substantial portions of that decision because of its relevance to the matter at hand:
ISSUE:
The Defendant's position is that the plaintiff's materials for summary judgement upon the mortgage claimed to be in default is inadequate, constituting misrepresentation, tantamount to fraud.
COURT'S REVIEW AND COMMENTARY TO DEFENSE POSITION:
[...]
When the facts are considered as a whole, I do not accept the defendant's position [the Applicant in the present matter] that what occurred was tentamount to misrepresentation. In reference to the correspondence, the defence suggests was critical to their having exercised a right under the original mortgage and its renewal, I am not convinced it would have altered the final disposition in any way.
[...]
The defence position that the mortgage was unilaterally renewed by Vanderbeek's signature and acceptance to the renewal agreement after his counter proposal to that very agreement failed, existed only in Vanderbeke's state of mind.
[...]
A contract does not arise unless there is a meeting of the minds between the contracting parties. Once the original offer for renewal was rejected, there was no further offer open for acceptance and this is a basic principle of contract law. With these principles of law I concur.
[...]
For the defendant to say that the mortgage was renewed after the bank's rejection because of the defendant's later acceptance of the original proposal is flawed. This bears no reality to the position taken by the bank and reported to the defendant's. The bank's position was clear. Their offer was no longer open, based on the terms of the defendant's unaccepted counter-proposal and the mortgage then became due and payable.
[...]
CONCLUSION:
[...]
As I have indicated in my reasons, I am not satisfied the materials filed by the moving party [the Applicant] illustrate that he has come even close to satisfying this court that there was any basis to plead an allegation of fraud or misrepresentation.
[...]
[Solicitor/client costs] [...] may be allowed in such instance where it is necessary to demonstrate a punitive order as to the conduct of the solicitor or in the alternative in the nature of a compensatory order to provide for full reimbursement in a matter in which there was an abuse of process. In my consideration of the facts before me, it is appropriate solicitor/client costs be available to the plaintiff, the responding party, the Royal Bank of Canada in the nature of a compensatory order for the full reimbursement of their costs.
[...]
[6] An appeal of this decision was dismissed by the Ontario Court of Appeal on April 28, 2000 (Respondent's Record, at 49-50; see also the endorsement dated May 3, 2000, Respondent's Record, at 48-49).
C. First Complaint with the Privacy Commissioner
[7] On November 4, 2001, the Applicant filed a complaint with the Privacy Commissioner of Canada (PCC) pursuant to s. 11 of PIPEDA, complaining that the Respondent failed to provide him with personal information relating to his mortgage. During the courses of his dispute with the Respondent, the Applicant specifically requested the three following documents:
- The May 31, 1996 Mortgage Renewal Agreement;
- The Mortgage Renewal Acknowledgment letter allegedly issued by the Respondent in 1996; and
- An affidavit of documents pertaining to a court action between the Respondent and him.
On November 12, 2002, the PCC concluded that the complaint was not well founded (Respondent's Record, at 52-55). The following portions of PCC's decision are worth reproducing:
[...]
My Office's investigation revealed that RBC had responded to Mr. Vanderbeke's request for [the May 31, 1996 Mortgage Renewal Agreement], both before and after the Act took effect, on six different occasions. He is the sole signatory to the document, which identifies him as the guarantor for the mortgage, and provides information regarding the amount of the mortgage, the rate and the date of amortization. RBC provided my Office with a copy of an existing agreement, with customer information omitted, for comparison purposes. Our review confirmed that a portion of the document was missing from the copy that he received. The missing section contained an information box for the rate, amortization and payment amount, as well as the second page. This missing page contained general information regarding mortgage rates but did not contain any information that identified the complainant as an individual. RBS indicated that mortgage agreement documents are imaged or microfilmed and hard copy originals are destroyed. In this instance, the original document was microfilmed incorrectly prior to the coming into force of the Act. The document was therefore not captured in its entirety, thus explaining the missing information.
[...]
Accordingly, I conclude that the complaint is not well-founded [my emphasis].
[...]
[8] The Applicant brought a Notice of Application to challenge this decision before the Federal Court (Respondent's Record, at 56-62), but it was struck out in its entirety by an Order dated February 12, 2004 (Respondent's Record, at 63-69). In her reasons, Prothonotary Milczynski noted that "the application [is] simply another attempt by the Applicant to establish his version of events - that the mortgage in issue was or should have been renewed, and on the terms for such renewal that have been repeatedly expressed by the Applicant in this and the other proceedings" (Decision, at 4). Further, Prothonotary Milczynski concluded that "the relief sought in the Notice of Application and proposed amended application reflect the Applicant's continued attempt to re-litigate issues that have been the subject of prior judicial determinations" and that "[t]he Applicant's application is, in this case, an abuse of the Court's process" (Decision, at 6).
D. Second Complaint with the Privacy Commissioner
[9] On December 3, 2002, the Applicant filed a second complaint with the PCC, alleging that the Respondent does not properly retain mortgage renewal acknowledgement letters for its clients. Unlike the first complaint, this second complaint is allegedly not focussed on the Applicant's personal interest in obtaining his 1996 Mortgage Renewal Acknowledgement Letter.
[10] On December 15, 2003, the PCC concluded that this second complaint was not well founded and sent the Applicant a letter to this effect (Respondent's Record, at 70-72). The Applicant filed a second Notice of Application on January 29, 2004 (Applicant's Record, at 1-7), seeking the above-mentioned order (see para. 1 of the present decision).
II. Issues and Analysis
[11] Section 14 of PIPEDA allows a complainant to make an application to the Federal Court under enumerated circumstances:
| 14. (1) A complainant may, after receiving the Commissioner's report, apply to the Court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner's report, and that is referred to in clause 4.1.3, 4.2, 4.3.3, 4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3, 4.5 or 4.9 of that Schedule as modified or clarified by Division 1, in subsection 5(3) or 8(6) or (7) or in section 10. (2) The application must be made within forty-five days after the report is sent or within any further time that the Court may, either before or after the expiry of those forty-five days, allow.
[...] |
14. (1) Après avoir reçu le rapport du commissaire, le plaignant peut demander que la Cour entende toute question qui a fait l'objet de la plainte - ou qui est mentionnée dans le rapport - et qui est visée aux articles 4.1.3, 4.2, 4.3.3, 4.4, 4.6, 4.7 ou 4.8 de l'annexe 1, aux articles 4.3, 4.5 ou 4.9 de cette annexe tels que modifiés ou clarifiés par la section 1, aux paragraphes 5(3) ou 8(6) ou (7) ou à l'article 10. (2) La demande est faite dans les quarante-cinq jours suivant la transmission du rapport ou dans le délai supérieur que la Cour autorise avant ou après l'expiration des quarante-cinq jours.
[...] |
[12] The nature of the hearing pursuant to section 14 of PIPEDA was analysed in detail in Englander v. TELUS Communiations Inn., 2004 FCA 387, at paras. 47-48. It is a fresh application to the Federal Court, a de novo proceeding. Unlike judicial review applications, what is at issue is not the decision-maker's decision, but the conduct of the party against whom the complaint is filed (See also Turner v. Telus Communications Inc., 2005 FC 1601, at para. 30). In the matter at hand, the PCC reports are therefore not impugned decisions, but rather pieces of evidence among others. My role is therefore to examine the Applicant's allegation in relation to the Respondent's compliance with the PIPEDA.
[13] The application of PIPEDA to the Respondent pursuant to sub. 4(1) is not disputed:
| 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 the organization and that the organization collects, uses or discloses in connection with the operation of a federal work, undertaking or business. |
4. (1) La présente partie s'applique à toute organisation à l'égard des renseignements personnels : a) soit qu'elle recueille, utilise ou communique dans le cadre d'activités commerciales; b) soit qui concernent un de ses employés et qu'elle recueille, utilise ou communique dans le cadre d'une entreprise fédérale. |
[14] Sections 5 to 10 (Division 1: "Protection of personal information") states the general principles with respect to the protection of personal information in the private sector. Section 5 refers to Schedule 1, which set out detailed obligations that organizations should comply with, and gives recommendations:
| 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. |
5. (1) Sous réserve des articles 6 à 9, toute organisation doit se conformer aux obligations énoncées dans l'annexe 1. (2) L'emploi du conditionnel dans l'annexe 1 indique qu'il s'agit d'une recommandation et non d'une obligation. (3) L'organisation ne peut recueillir, utiliser ou communiquer des renseignements personnels qu'à des fins qu'une personne raisonnable estimerait acceptables dans les circonstances. |
[15] Considering the above, the issues are the following:
- Has the Respondent complied with PIPEDA's information retention requirements?
- Has the Respondent complied with PIPEDA's access to information requirements?
- Should the Court issue an order requiring the Respondent to disclose to the Applicant the total content of the mortgage renewal acknowledgment letter issued in respect of his 1996 mortgage?
A. Has the Respondent complied with PIPEDA's information retention requirements?
[16] The Applicant submits that the Respondent fails to retain copies of all mortgage renewal acknowledgment letters which it issues in respect of its mortgages and claims that the Court should order the Respondent to do so. In the applicant's view, an order from this Court would render meaningful the Respondent's clients' rights to access their personal information (Schedule 1, section 4.9.1) and their rights to correct it if it is incorrect (Schedule 1, section 4.9.5), as PIPEDA guarantees:
| 4.9 Principle 9 - Individual Access
4.9.1
Upon request, an organization shall inform an individual whether or not the organization holds personal information about the individual. Organizations are encouraged to indicate the source of this information. The organization shall allow the individual access to this information. However, the organization may choose to make sensitive medical information available through a medical practitioner. In addition, the organization shall provide an account of the use that has been made or is being made of this information and an account of the third parties to which it has been disclosed.
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. |
4.9 Neuvième principe - Accès aux renseignements personnels
4.9.1
Une organisation doit informer la personne qui en fait la demande du fait qu'elle possède des renseignements personnels à son sujet, le cas échéant. Les organisations sont invitées à indiquer la source des renseignements. L'organisation doit permettre à la personne concernée de consulter ces renseignements. Dans le cas de renseignements médicaux sensibles, l'organisation peut préférer que ces renseignements soient communiqués par un médecin. En outre, l'organisation doit informer la personne concernée de l'usage qu'elle fait ou a fait des renseignements et des tiers à qui ils ont été communiqués.
4.9.5
Lorsqu'une personne démontre que des renseignements personnels sont inexacts ou incomplets, l'organisation doit apporter les modifications nécessaires à ces renseignements. Selon la nature des renseignements qui font l'objet de la contestation, l'organisation doit corriger, supprimer ou ajouter des renseignements. S'il y a lieu, l'information modifiée doit être communiquée à des tiers ayant accès à l'information en question. |
[17] The Respondent submits that RBC's mortgage renewal acknowledgment letters contains information that can be obtained from other sources. It is the Respondent's view that there is no ground to justify an order from this court and that personal information contained in Mortgage Renewal Acknowledgement Letters is properly kept by the Respondent.
[18] Mr. David Cutway, Manager (Policy Home Equity Financing) with RBC swore an affidavit in which he explains the types of mortgage renewals and the renewal process (Respondent's Record, at 73-81). Examples of Renewal Acknowledgement Letters are annexed to the affidavit (Respondent's Record, at 73-81). These letters includes comprehensive information sent to the client to confirm the terms of the mortgage, including the mortgage type, the renewal date, the mortgage principal, the interest rate, the term, the prepayment privileges, the maturity date, the remaining amortization, the payment frequency and the first payment dates. These letters are sent to the client whenever the Mortgage is renewed, whether this is made upon the client's request or automatically. In addition to the Renewal Acknowledgment Letters, an Annual Statement is mailed in January of each year to inform the client about the status of his/her mortgage (Respondent's Record, at 123-124). Both the Renewal Acknowledgement Letters and the Annual Statements include detailed information about the terms of the Mortgage.
[19] I have no doubt that the terms of the Mortgage, the Mortgage Number and the address of the mortgagor, included in both the Annual Statements and the Renewal Acknowledgement Letters constitute personal information under PIPEDA.
[20] Having said that, the Respondent is under no obligation to retain these letters, as long as all the information contained in the renewal acknowledgement letters is retained by the Respondent in some forms or other data banks and that this information can be recollected upon request subject to a retention period. Thus the affidavit of Mr. Cutway indicates that it is possible for the Respondent to access the information included in the Mortgage Renewal Acknowledgement Letters from several databases maintained by RBC (Respondent's Record, p. 75 and 79). The whole loan history can be accessed though the On-line Mortgage System ("OLMS") and the Enterprise Data Warehouse ("EDW"). In addition, all Renewal Agreements are scanned and stored in a software program called "IMAGE" and the bulk of the information that is included in the Renewal Acknowledgement Letters is also contained in the Renewal Agreements themselves (Respondent's Record, at 105-113). The remaining information can be retrieved by a proposal inquiry from the OLMS. In short, although the Respondent does not keep or scan every Renewal Acknowledgement Letter forwarded to clients, the personal information that they contain can be retrieved from RBC's databases. The Office of the Privacy Commissioner of Canada reached a similar conclusion in its letter dated December 15, 2003 (Applicant's Record, p. 8 to 10). He also found, and I agree with this finding, that the retention requirements included in principles 4.5, 4.5.2 and 4.5.3 have been met by the Respondent.
[21] The Applicant further submitted in his memorandum that an order from this court would also prevent the information from being manually altered by the Respondent's agents. The Applicant refers to a portion of the transcript of the cross-examination of Mr. David Cutway, in which Mr. Cutway indicates that in certain cases, alterations to the RBC databases by employees might not appear from the records of the Bank. The relevant excerpt reads as follows (Applicant's Record, at 68-70):
Q. [...] I want to ask you a question about how these records of personal information are altered. I mean if the applicant or any other person was shown their personal information and reasonably required an amendment to it or a correction to it more to point. Are those records manually altered?
A. Depends on the record you're speaking of but generally it would be a manual input of some sort.
[...]
If it's on a computer software program there would be a correction made to the information input into the program.
Q. Now when that sort of an alteration is done, when any change to that information is made is the fact of the alteration itself recorded? What I'm trying to get at is if for example some record maintained by the bank indicated that the applicants hair was blue and he required you to change that to brown and you made that correction would the record thereafter simply show brown hair or would it show that it was blue and then at such and such date it was altered to brown?
A. It would depend on the nature of the record.
Q. So such an alteration might not be evident within the records of the bank?
A. It depends on the particular type of record that the information is being input into.
Q. Okay so in some cases the fact of the alteration might be evident and others not?
A. By reviewing the previous iteration of that record they can see the difference between the information that is corrected, but not all records are maintained in that fashion.
Q. Okay, and is there a particular level of management in the bank that is authorized to make corrections to personal information? Is that done at the branch level or some higher level?
A. Again depends on the type of information that's been, that needs to be changed.
[...]
Different individuals have different authorities and can implement different changes depending on the type of change, what records have been impacted.
[22] With deference, I do not see how this portion of the transcript relates to any provisions of PIPEDA, nor how it establishes a failure by the Respondent to respect its obligations under the PIPEDA. All Mr. Cutway explained in his testimony is that the personal information can be manually altered, that not every alteration appears from the Respondent's records, and that the authority to implement changes to the records depends on the nature of the information. PIPEDA is not aimed at ensuring that records kept by private organizations be inalterable or that their integrity be guaranteed. The evidence is to the effect that Annual Statements are provided by the Respondent to mortgagors on an annual basis, and that mortgagors are informed of the terms of their mortgage when the mortgage is renewed. In cases where RBC's records are inaccurate or incomplete, the client can notify the Respondent and have the records modified, pursuant to both PIPEDA and the Respondent's "Privacy Policy" invoked by the Applicant (Applicant's Record, at 89-90). Both the clients' right to access their personal information and their right to correct it if it is incorrect are therefore guaranteed. The Respondent is under no obligation to scan a copy of every single piece of correspondence sent to the client.
[23] For these reasons, I do not believe that the Respondent, in failing to keep copies of Renewal Acknowledgement Letters that it sends to clients, contravenes PIPEDA. Therefore, the Respondent complies with the retention requirements as set out in PIPEDA.
B. Has the Respondent complied with PIPEDA's access to information requirements?
[24] The applicant argues that "RBC's current practice is to send out mortgage renewal acknowledgement letters in respect of its mortgages and then retain a copy of what it has sent out". He further submits that "[t]his means that RBC makes and sends out statements containing personal information which a person then has no ability to inspect or to check for accuracy" (Applicant's Memorandum, at para. 30). In the applicant's view, this is inconsistent with PIPEDA's individual access principles (Schedule 1, section 4.9.1.).
[25] The statement that RBC retains copies of acknowledgement letters is unsupported. The affidavit of Mr. Cutway is to the contrary (Respondent's Record, Tab "O", at para. 34). Further, there is evidence that the contents of Renewal Acknowledgement Letters are generated on the basis of the information that is gathered from various sources, i.e. OLMS, EDW and IMAGE (Respondent's Record, Tab "O", at para. 11 and 25 to 24; Applicant's Record, at 75-79). It is also clear that this information is sent in Annual Statements issued in January of each year, as well as when Mortgage Renewal Acknowledgement Letters are issued. Therefore, it is possible for all clients to inspect annually the information held by the Respondent, as per principle 9 of RBC's "Privacy Policy" (Applicant's Record, at 89-90). At least, there are no indications in the file that it is not possible to access this information.
[26] In sum, the evidence shows that it is possible for clients to access their personal information retained by RBC. I therefore conclude that the Respondent did not contravene PIPEDA's access to information requirements.
C. Should the Court issue an order requiring the Respondent to disclose to the Applicant the total content of the mortgage renewal acknowledgment letter issued in respect of his 1996 mortgage?
[27] The Applicant notes that the Respondent refuses to produce a copy of the 1996 Mortgage Renewal Acknowledgement Letter form.
[28] This issue has already been dealt with in an Order of Prothonotary R. Lafrenière dated July 26, 2005. The Applicant presented a Motion asking for an Order compelling Mr. Cutway to answer certain questions which included questions concerning the reproduction of this letter. It was refused. This Order was not appealed. Furthermore, I note that it was also a document which was the subject of the Order of Prothonotary Milczynski when she struck out completely an Application to challenge the first decision of the Privacy Commissioner (see par. 7 and 8 of the present judgment). I do not see how I could decide otherwise.
III. Costs
[29] Both parties claimed costs. The Applicant seeks his costs in accordance with Column III of the Table of the Tariff B of the Rules. The Respondent, having been successful in obtaining an Order dated July 5, 2004, for the Applicant to pay into Court $5,000.00 as security for its lost, is asking for a lump sum of $5,000.00 with the accrued interest on that amount.
[30] Having reached the conclusion that this Application should be dismissed and that the legal dispute was of some substance, I will grant costs in favour of the Respondent for a total amount of $5,000.00. This Order is generally in line with what Column III of Tariff B would have given.
JUDGMENT
THE COURT HEREBY ORDERS THAT:
- The application is dismissed and costs is in favour of the Respondent for a total amount of 5 000.00$;
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-222-04
STYLE OF CAUSE: KEITH VANDERBEKE
Applicant Applicants
-and-
ROYAL BANK OF CANADA Respondent
PLACE OF HEARING: TORONTO, ONTARIO
APPEARANCES: Paul Bigioni
Thomas Conway
SOLICITORS OF RECORD: Bigioni LLP
Barristers and Solicitors
Markham, ON
Lerners LLP
Barristers and Solicitors
London, ON