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REAL ESTATE "The judgment serves as a useful reminder to financial institutions that they have these privacy obligations and, even though there may have been practices in the past of handing out this kind of information, they obviously can't do it." BARBARA McISAAC, BORDEN LADNER GERVAIS LLP while determining whether or not there was an exemption because of the order. The ruling creates a huge obstacle for credit card companies and other credit- ors, according to Hayles. "Without the discharge statements, they're not going to be able to seize somebody's home and sell it or threaten to sell it in order to collect on the debt." And Hayles says he is concerned consumers will suffer because credit card companies will be able to justify high interest rates by arguing that this ruling makes it more difficult for them to collect money that they are owed. But what is most surprising about this case, according to privacy lawyer Barbara McIsaac, counsel in the Ottawa office of Borden Ladner Gervais LLP, is that some financial institutions have been sharing mortgage information with third parties in spite of the clear dictates of PIPEDA, which has been in force for several years. "The judgment serves as a useful reminder to financial institutions that they have these privacy obligations and, even though there may have been practices in the past of hand- ing out this kind of information, they obviously can't do it," she says. McIsaac and Hayles both observe there is one relatively simple long- term solution available for credit card companies. They could include in their credit card agreements a clause whereby, in the event of a default, the cardholder consents to any other creditors providing information about other debts. This would allow banks to release the discharge statements, since PIPEDA allows for the sharing of personal information with the consent of the person whose information has been collected. In the meantime, the appeal court FALCONBRIDGE ON MORTGAGES FIFTH EDITION EDITOR-IN-CHIEF: WALTER M. TRAUB THE MOST COMPREHENSIVE, UP-TO-DATE WORK OF CANADIAN MORTGAGE LAW Since 1919, Falconbridge on Mortgages has held its position as the most comprehensive treatise and practical interpretation of Canadian mortgage law available. It includes expert commentary, detailed guidance, practical analysis and quickly guides you through even the most daunting aspects of modern Canadian mortgage law. It also provides regular updates on all aspects of changing Canadian mortgage law making it the most up-to-date resource available. Gain a solid understanding of: mortgage enforcement in an insolvency context Looseleaf • $333 Subscription updates invoiced as issued (1/yr) P/C 0563035000 ISBN 0-88804-367-8 Prices subject to change without notice, to applicable taxes and shipping & handling. • • • mortgages and subdivision control under the Ontario Planning Act environmental issues affecting the mortgagee ... and more! Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluation CANADA LAW BOOK® CL0311 22 M A RCH 2011 www. CANADIAN Lawyermag.com noted there is another way for Citi Cards and other creditors in similar situations to obtain the information in the mortgage discharge statements. That involves obtaining a court order for an "examination in aid of execution" under the Rules of Civil Procedure that would entitle the creditor to question the debtor about assets available to satisfy the debt. If the debtor were to fail to provide the required informa- tion, the creditor would then be able to argue that situation was covered by an exemption to PIPEDA's privacy rule since the disclosure of information was required by a court order. The problem with this approach, according to Citi Cards, is that it is prohibitively expensive, since debtors will try to avoid being served with the notice of examination, fail to attend hearings, and neglect to provide infor- mation that has been requested. The cost of obtaining the mortgage dis- charge statements in this way could be greater than the debt that the creditor is seeking to recover, Citi Cards told the court. In this case, the credit card company was unable to find Charles, who was believed to be somewhere in Alberta. However, the court noted that Citi Cards could have sought to examine Bibi, who was co-owner of the property and still living there. But Citi Pleasanc C ar ds e: ontarioc C decisions/2011/2011O ommunic anada E chostar c C Inc. anlii.org/en/on/onsc/doc/2010/2010ons c2164/2010onsc2164.html v. ourts.on.c ations N C C A 0003.htm a/ R orp. v. odg ers: