Collection Agencies

R.R.O. 1990, Reg. 74: GENERAL

22. (1) If a debtor sends a collection agency or collector, by verifiable means, including personal service, certified mail, courier, facsimile or e-mail, a notice stating that the debtor disputes the debt and suggests that the matter be taken to court, the collection agency or collector shall not thereafter contact or attempt to contact the debtor, unless the debtor consents to or requests the contact.

(2) If a debtor or his or her lawyer or licensed paralegal sends a collection agency, by verifiable means, including personal service, certified mail, courier, facsimile or e-mail, a notice requesting that the collection agency communicate only with the debtor’s lawyer or licensed paralegal, and setting out the lawyer or licensed paralegal’s address and telephone number, the collection agency or a collector shall not thereafter contact or attempt to contact the debtor other than through the debtor’s lawyer or licensed paralegal unless the debtor consents to or requests the contact.

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

9 (3) A consumer reporting agency shall not include in a consumer report,

(a) any credit information based on evidence that is not the best evidence reasonably available;

PIPEDA Report of Findings #2017-007

Complaint

The complainants alleged that Public Executions Inc., the operator of the publicexecutions.ca website, was disclosing their personal information without consent.

Outcome

In this case, it is clear that PIPEDA is applicable. The website was disclosing the complainants’ personal information in exchange for a fee from a third party (the judgment creditor), which is considered a commercial activity under PIPEDA. The Act applies to organizations that collect, use or disclose personal information in the course of commercial activities.

As for the claim that the site was a form of journalism and thus exempt from consent under PIPEDA, we did not agree. We found that the primary purpose of the website was not journalistic. Our analysis was guided by a recent Federal Court decision in A.T. v. Globe24h, which noted, among other criteria, that an activity should involve an “element of original production” to be considered journalism. Upon examining the content of the site, we found that there was nothing original about the information on the site; it simply posts content provided by others.

Our office’s findings also took into account the determination of the Ontario Ministry of Government and Consumer Services that the website operated as a “consumer reporting agency” under Ontario’s Consumer Reporting Act. As such, its use and disclosure of information relating to debts owing by individuals was strictly regulated. Under this legislation, there is a specific prohibition on publishing a debtor’s failure to pay except in specified circumstances. Collection agencies are similarly strictly regulated. In this case, the website was disclosing personal information to the world at large. Accordingly, our office found that, contrary to what is required by subsection 5(3) of PIPEDA, a reasonable person would not consider it appropriate for an organization to publicize broadly this information for financial gain and for the purpose of coercing debtors into paying their debts, especially given the availability of legal mechanisms to enforce judgments.

35. Similarly, persons who act as consumer reporting agencies (Footnote 10) are prohibited by the Ontario Consumer Reporting Act from disclosing information in their files (which includes information about outstanding debt obligations) except in specified circumstances, for instance, to persons who a consumer reporting agency has reason to believe intend to use the information for collection of a debt, employment purposes, underwriting insurance or who have a direct business need for the information.Footnote 11 Based on our review of this legislation, it does not appear that a person who acts as a consumer reporting agency would be permitted to disclose credit information to the world at large in the manner that the respondent is doing.

LaFleur v. Canadian Bond Credits Ltd., 2003 CanLII 64307 (ON SC)

I find that the defendant contravened the Collection Agencies Act and that its persistent unwarranted telephone calls constituted harassment of the plaintiffs. It was an invasion of their privacy and constituted a nuisance deserving of compensation.

Having regard to the number of calls, the duration of them, and the detrimental effect they had on the plaintiffs and in particular Lynn Bourke, I believe a fair assessment of general damages for the invasion of privacy and consequent nuisance would be $1,000 for the plaintiff Lynn Bourke and $500 for the plaintiff Marc LaFleur.

Tran v. Financial Debt Recovery Ltd., 2000 CanLII 22621 (ON SC)

[1] MOLLOY J.:—The plaintiff, Mark Tran, commenced this action under the Simplified Rules on April 17, 2000, in a desperate attempt to end the harassment to which he had been subjected by the defendant debt collection agency. The defendant’s activities were directed towards collecting the balance allegedly owing on a student loan. Mr. Tran conducted the action on his own without the benefit of any legal advice.

[23] The plaintiff, not being versed in the law, simply put the facts of his case before the court and requested relief. Essentially, he saw his cause of action as being based on harassment by the defendant and his damages as flowing from emotional suffering, damage to his reputation and loss of income. It seems to me that the potential causes of action arising from the facts proven at trial are defamation, intentional infliction of emotional harm, interference with economic interests, threatening bodily harm and invasion of privacy. I alerted counsel for the defendant to all of those possibilities, with the exception of invasion of privacy, and invited his submissions.

[28] Thus, the evidence establishes all of the requisite elements of the tort of defamation. Upon proof of the tort, damages flow: Gatley on Libel and Slander, supra at p. 11. As stated by the Supreme Court in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at 1196, 126 D.L.R. (4th) 129: “It has long been held that general damages in defamation cases are presumed from the very publication of the false statement and are awarded at large.” It is not necessary to prove specific damages, although if special damages can be shown, they are also compensable. The defendant argues that the plaintiff’s general damages for defamation should be at the low end of the scale because he was a recent graduate without a well-established reputation and because of the limited extent of the publication of the defamation. The application of that reasoning to this case is flawed. Although the defendant did not publish its defamatory statements to the whole world, it chose the one person in the world to whom publication would have the most devastating impact on the plaintiff, his employer. In assessing damages, the nature of the audience may be more important that its size: Raymond E. Brown, The Law of Defamation in Canada, 2nd ed. (Toronto: Carswell, 1994) at p. 27-72.2. In Hill, supra, the Supreme Court noted the uniqueness of each libel case, stating at para. 187:

The assessment of damages in a libel case flows from a particular confluence of the following elements: the nature and circumstances of the publication of the libel, the nature and position of the victim of the libel, the possible effects of the libel statement upon the life of the plaintiff, and the actions and motivations of the defendants.

Mr. Tran was a recently hired employee. This was his first real job in his chosen career. He was working in the field of finance. He had yet to develop a proven track record of responsibility and loyalty to his employer. He was therefore particularly vulnerable at this time and in this kind of workplace to the kind of defamation perpetrated by the defendant. Ironically, it was because he was a recent graduate that the defendant’s attack on his reputation was particularly harmful. In addition, defamation related to one’s profession is particularly harmful and should be reflected in the award of damages: Schultz v. Porter (1979), 1979 CanLII 1049 (AB QB), 9 Alta. L.R. (2d) 381 (S.C.), where the court stated at p. 400 that the fact that the plaintiff’s “commercial and professional reputation was directly involved merits an award of damages substantially higher than would be the case if the defamation did not involve economic consequences”. How closely the defamation touches the core elements of a person’s personality, and his or her integrity, professional reputation, and loyalty are key considerations in awarding damages: Gatley, supra at p. 202.I will deal below with the quantum of damages in more detail. Intentional Interference with Economic Interests

[42] Mr. Tran estimated his damages for stress and emotional suffering based on the amount of time he was required to spend each day to deal with that problem. He said that, over and above his usual level of exercise, he spent about one hour every day engaged in meditation and exercise designed to relieve the effects of the defendant’s harassment on his emotional well-being. This continued for 10 months, for a total of 300 hours over that period. Mr. Tran testified that clients are usually charged between $60.00 to $80.00 for his professional services. He therefore felt it was reasonable to value the time he spent dealing with his emotional stress at $30.00 an hour, for a total of $9,000.00. In addition to this calculation based on lost time, Mr. Tran proposed an additional amount of damages to compensate him for the loss of weight, memory problems and humiliation he experienced over that 10-month period. He suggested that figure should be at least $2,000.00 but confessed that he was not sure how that should be calculated.

[43] Mr. Tran therefore felt that his damages were actually at about $40,000.00. However, he arbitrarily reduced that amount to $15,000.00 because he did not want to appear unreasonable.

[50] In my view, justice requires the amendment of the statement of claim to reflect something closer to the damages to which Mr. Tran is entitled. I am particularly swayed by the following:

(a) Mr. Tran was unrepresented by counsel and unaware of his rights;

(b) the defendant was represented by counsel;

(c) the defendant’s conduct towards Mr. Tran was deliberate and flagrantly abusive;

(d) there is no claim for punitive damages, although one might well be supported by the evidence;

(e) there is no prejudice to the defendant, provided that the claim is not amended beyond the monetary jurisdiction of the Simplified Rules.

Accordingly, the statement of claim is amended to increase the quantum of damages claimed to $25,000.00 and judgment is granted to the plaintiff in that amount.