CMB MAGAZINE cmba-achc.ca spring 2016 | 41
privacymatters
The siTuaTion
You are a mortgage broker. An enforcement
authority (such as your regulator, the police,
the Canada Revenue Agency or the anti-spam
authority) has asked you to provide certain
records. You are told the records relate to an
investigation the enforcement authority is
carrying on. You know that the records contain
information about you, two of your clients, a
mortgage broker colleague and three of your
lender connections.
e enforcement authority, having asked
you for records, has made you uncomfortable.
You would like more information before you
decide how to respond. Are you obligated to
provide the records? Would you be breaching
the privacy of the others mentioned above if
you disclosed the records?
are you required To comply?
If the enforcement authority is making a
lawful demand, you are required to provide
the records. You would not be unlawfully
breaching the privacy of others by making
disclosure pursuant to a lawful demand for
records. Disclosure made in response to a
lawful demand is an exception to privacy laws
which might otherwise prohibit disclosing the
records. Although you will have compromised
the client's privacy, you will not have done so
contrary to privacy laws.
However, if the enforcement authority is
not making a lawful demand for the records
but rather is only requesting that you provide
them, you have the choice whether to comply.
Regardless of your preference or any desire to
be helpful, unless there is a lawful demand you
should not disclose the records if doing so would
cause you to possibly breach other requirements
(such as privacy). You could be held accountable
for any such breaches.
WhaT is The difference beTWeen
a laWful demand and a mere
requesT for records?
An enforcement authority is not all-powerful;
it has only those powers that are provided to
it by law. It has the right to demand that you
disclose records only if the law gives it the
power to demand the subject records from you
in the existing circumstances.
For example, a regulator of mortgage
brokers is not all-powerful when it comes to
mortgage brokers. e regulator can demand
from you only those records the law gives it the
The Right to
Refuse
Is a regulator or other agency asking to access your records? Before you comply,
know your options and the authorities' limitations
by ray basi, ll.b.
sTaff, educaTion and policy revieW
