Consumer Reports (Credit Reports)
Consumer Reporting Act, R.S.O. 1990, c. C.33
Spencer v. Equifax Canada Inc., 2011 ONSC 7284 (CanLII)
[20] Equifax is a consumer reporting agency within the meaning of the Consumer Reporting Act, R.S.O. 1990, c.33, (hereinafter called the “CRA”). Any credit report distributed by Equifax falls within the CRA definition of a consumer report. It should be noted that the phrases “consumer report” and “credit report” are often used interchangeably.
[28] Regarding defamation, in my view such a claim is not applicable in the present case because the provision of a credit report falls within the realm of qualified privilege. In the case of Cusson v. Quan, 2007 ONCA 771, at paragraphs 38, 39, and 40, the OCA found that communications such as employee references, business reports, credit reports, and complaints to public authorities are subject to qualified privilege as they are statements made by persons who have a duty or interest in making the statements and the persons to whom they are made have a corresponding duty or interest to receive them. Where there is qualified privilege, the plaintiff can only succeed if the plaintiff proves malice. There is no evidence of malice in this case.
[29] Therefore, this action may proceed only as a negligence claim, and I will analyze it in that context.
38] Spencer also suggested that information regarding a consumer debt should not be accepted into the database until the purported creditor has obtained a judgment against the consumer. Again, this suggestion is not fair or just, and is not in accordance with the objectives of the regulatory scheme. Litigation as between creditor and debtor is usually a lengthy process. The fact that a business or institution is suing an alleged debtor in a court of law is a relevant piece of credit information. An outstanding, although unresolved, lawsuit is relevant to the credit granting decision and should be recorded, provided it is recorded accurately. I agree with the comments of Brown J. at para. 36 of the case of Matutschovsky v. Equifax Canada Inc., 2009 CanLII 13619, that the CRA does not proscribe reporting on a debt prior to a judgment being obtained.
