Disclosure of personal information requests made by public bodies: should we respond to them?
In order to properly carry out the mission and responsibilities assigned to them by their incorporating acts, some public bodies have special powers allowing them to require the disclosure of personal information through what is sometimes called a “formal demand”. The person whose personal information is subject to such a demand may also be a client, a broker acting for an agency, or an employee of a broker or agency.
Among the organizations having the power to compel the disclosure of information or documents:
Pursuant to sections 78 and 89 of the Real Estate Brokerage Act, an inspector, a syndic or an assistant syndic may require any information or document relating to the carrying out of this Act from any person.
Canada Revenue Agency
Under section 231.2(1) of the Income Tax Act, the power is conferred on the Minister of National Revenue (or any person authorized by the Minister).
Quebec Revenue Agency
Under section 39 of the Tax Administration Act, the Quebec Minister of Finance (or or any person authorized by the Minister) has this power.
The Autorité des marchés financiers (AMF)
Here again, under section 10 of the Act respecting the regulation of the financial sector, any person authorized by the Autorité des marchés financiers to carry out an inspection relating to an Act enforced by the latter may require to examine certain documents.
The obligation to reply
In all cases, any person having custody of information or documents subject to a formal demand by one of the organizations mentioned above has an obligation to comply. But then, how can we reconcile the powers given by these laws with the obligation of confidentiality incumbent on brokers and agencies?
Section 31 of the Regulation respecting brokerage requirements, professional conduct of brokers and advertising reflects section 37 of Civil Code of Québec and is the source of this obligation of confidentiality:
“A licence holder must respect the confidential nature of information given to the holder and the confidentiality of personal information obtained in the course of the holder’s brokerage activities, unless an express provision of an Act, an order of a court of competent jurisdiction or the carrying on of the brokerage activities exempts the holder from that requirement.” (Emphasis added)
Section 71 of the same regulation also requires from any broker or agency executive officer to collaborate with any body responsible for protecting the public.
Moreover, the Act respecting the Protection of Personal Information in the Private Sector (hereinafter referred to as “Act in the private sector”) must also be taken into consideration. These provisions are added to those set out in the Real Estate Brokerage Act and its regulations and provide additional information of which the compliance is monitored by the Access to Information Commission.
As the Civil Code of Québec, sections 13 and 18 (6) of the Act in the private sector stipulates that a personal information cannot be disclosed to a third party without the consent of the person concerned unless the communication request is from a person or body:
- having the power to compel disclosure of personal information; AND
- requires it in the exercise of his or its duties or functions.
Therefore, the broker or agency executive officer who receives a formal demand shall ensure that these two criteria are met before disclosing the information or documents requested. Once the verifications are carried out and concluded, he has no other option but to comply with the request that was sent to him.
Although under the Real Estate Brokerage Act, the broker acting on behalf of an agency sees his obligations of keeping records and registers delegated to the agency, specific laws conferring enforcement powers on various bodies do not provide for such a distinction. Thus, if a body sent a formal demand to a broker rather than an agency, the broker should necessarily reply and provide the information required by this body, if applicable. If upon receipt of such a request, the broker has already sent all the information necessary for keeping his records to his agency, it would be prudent to report this to the body that sent the request as soon as possible.
Finally, it is important to note that under the second paragraph of section 18 of the Act in the private sector, the licence holder must enter in the record concerned any communication made in accordance with subparagraph 6.
As mentioned above, an agency executive officer or a broker may disclose personal information without obtaining the prior consent of the person concerned only if the request that triggered this disclosure meets the two criteria mentioned above. Therefore, an agency executive officer or a broker could not provide personal information in response to a request made by a public body that does not have the power to compel disclosure.
Any disclosure must mandatorily meet the two criteria defined by the Act in the private sector. Disclosing personal information without complying with these criteria may result in serious consequences for the person in default: criminal penalties in accordance with the Act in the private sector, disciplinary sanctions pursuant to the Real Estate Brokerage Act, or civil liability lawsuits.
An agency executive officer or a broker acting on his own account is obliged to respond to a formal demand sent to him if:
- the person or body making the request has the power to compel communication of personal information required; and
- the person or body makes this request in the exercise of his or its duties or functions.
It’s only if these criteria are met that the disclosure of personal information without the consent of the person concerned can take place.
In case of uncertainty about his or its obligations in relation to a formal demand, a broker or agency would be advised to seek legal advice.