Balancing the Rights of Debtors and Creditors

26 May 2017
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26 May 2017, Comments 0

A writ of Seizure and Sell is one of the principal methods of enforcing a judgement for payment of money.

If a creditor directs the Sherriff to seize and sell a property, the Sherriff needs to know what is owing on any outstanding mortgages. Obtaining this information has been made more difficult with introduction of the Personal Information Protection and Electronic Document Act (PIPEDA), which protects debtors and limits the ability of judgement creditors to obtain necessary information on the enforcement of their judgements has been complicated. The unwillingness of Mortgagors to provide discharge statements effectively made it impossible in many cases for creditors to enforce writs of seizure and sale.

This position has been challenged in recent court cases, most notably in the Royal Bank vs Trang case in which Royal Bank sought a discharge statement from Scotiabank. Relying on PIPEDA, Scotiabank refused the request and Royal Bank sought an order compelling Scotiabank to provide a statement.

The Supreme Court of Canada in an unanimous decision held that a Superior Court Judge had inherent jurisdiction to order disclosure of the discharge statement and more significantly that the debtors had implied consent to disclosure of the discharge statement.

This specifically overturns Citi Cards Canada Inc. vs Pleasance which had been a Court of Appeal case in Ontario which ruled you did not have to supply the discharge statement.

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