Executive Summary: Key Legal and Evidentiary Issues

• Whether easyfinancial complied with PIPEDA when processing Mr. Hodge's six loan applications was the sole issue before the Court.
• Easyfinancial conceded that one "hard" credit inquiry made on February 17, 2021 was duplicative and taken without consent, and it asked TransUnion to remove the record.
• Under section 14 of PIPEDA, the Court determined the matter de novo rather than reviewing the Office of the Privacy Commissioner's findings.
• The applicant carried the burden of proving a breach through clear, convincing, and cogent evidence, a standard the Court found he did not meet.
• Mr. Hodge's attempt to bring the Ontario Consumer Reporting Act into PIPEDA's federal scheme did not succeed, as the Court held it had no jurisdiction over that provincial statute.
• Damages and declaratory relief were refused because no loss, no causal link, and no continuing dispute between the parties were established.

Facts of the case

Kevin Raymond Hodge brought an application against easyfinancial Services Inc. under section 14 of the Personal Information Protection and Electronic Documents Act (PIPEDA). Easyfinancial is a Canadian non-prime lender that offers personal loans to people who may not qualify for credit through traditional banks. Between November 2020 and June 2023, Mr. Hodge submitted six loan applications to the company. Two applications in November 2020 (one online, one in-person) were withdrawn after he applied; a February 16, 2021 online application was approved but withdrawn; an April 3, 2021 in-person application was approved and resulted in an actual loan; a February 22, 2022 online application was approved in part but withdrawn; and a June 14, 2023 online application was refused. Mr. Hodge alleged that easyfinancial conducted credit inquiries without his consent, failed to communicate the risks associated with those inquiries, and did not retain relevant records as required by PIPEDA. He sought damages and declaratory relief.

According to Mr. Hodge's TransUnion consumer report, "hard" credit inquiries were made on November 25, 2020, February 16, 2021, and February 17, 2021, each of which temporarily and adversely affected his credit score. "Soft" inquiries, which do not affect one's credit score, were made on November 27, 2020, February 22, 2022, and June 14, 2023. Easyfinancial acknowledged that the hard inquiry on February 17, 2021 was duplicative and made without consent, attributing it to a delay in processing the February 16, 2021 application. It sent a letter asking TransUnion to remove that inquiry, and TransUnion complied. Mr. Hodge complained to the Office of the Privacy Commissioner (OPC), which accepted the complaint on April 24, 2024, found the February 17, 2021 inquiry "well-founded and resolved," and concluded that the complaint was "not well-founded" in all other respects.

Policy terms and contractual clauses at issue

The case turned in part on the consent language in easyfinancial's standard terms and conditions, its privacy policy, and its loan agreement, each of which Mr. Hodge was asked to review when applying. The standard terms and conditions provided that easyfinancial collects, uses, and discloses personal information to confirm identity, obtain a credit information report, assess creditworthiness on an initial and ongoing basis, and make decisions about applications, and that the applicant permits easyfinancial to obtain credit reports from credit reporting agencies. The privacy policy explained that when a person applies for credit, easyfinancial may ask about credit and payment history, employment, income, assets, and liabilities, and may obtain credit information from reporting agencies, including credit amounts, payment histories, collection actions, and prior bankruptcies. The loan agreement likewise stated that a consumer report containing credit or personal information would be referred to in connection with the agreement, and that the applicant consents to easyfinancial obtaining such a report. The Court read these provisions as authorizing easyfinancial to obtain credit reports, including through hard inquiries, and as advising applicants of the purpose of doing so.

The court's reasoning and analysis

Justice Fothergill confirmed that an application under section 14 of PIPEDA is decided de novo, meaning the Court determines for itself whether easyfinancial contravened the statute rather than reviewing the OPC's report. The applicant bears the burden of proof, and the evidence must be clear, convincing, and cogent. Mr. Hodge alleged several breaches of Schedule I of PIPEDA, including failure to retain records (s 4.5.2), loss of records and inadequate safeguards (s 4.7.1), failure to communicate risks (s 4.3), and the unauthorized February 17, 2021 inquiry. The Court found that easyfinancial had retained the personal information Mr. Hodge provided and one signed loan agreement, and that he offered no evidence it failed to safeguard his information. It also found that the standard terms and privacy policy satisfied the obligation to advise applicants of the purposes for which their information would be used.

Mr. Hodge advanced a new theory at the hearing, relying on OPC decisions referencing the Ontario Consumer Reporting Act. Because these authorities were not in his Memorandum of Fact and Law, the Court allowed easyfinancial to file supplementary written submissions, which were received on June 15, 2026. The Court held that it had no jurisdiction to determine compliance with the Consumer Reporting Act and that the provincial statute did not affect the application of PIPEDA. It reasoned that while an organization can be subject to both statutes, each creates independent obligations, and PIPEDA does not incorporate the provincial requirements. The Court concluded that Mr. Hodge should reasonably have expected disclosure of his personal information to credit reporting agencies, consistent with section 6.1 of PIPEDA. On the conceded February 17, 2021 inquiry, the Court accepted that correcting a breach does not erase it, but held that easyfinancial's corrective steps were relevant to the question of remedy.

Ruling and outcome

On remedies, the Court noted that damages under section 16 of PIPEDA are discretionary and warranted only in the most egregious situations. Mr. Hodge sought $210,000 in damages, $2,997 in lost billable hours, $25,000 for humiliation and reputational harm, and $25,000 in exemplary damages, relying on cases such as Chitrakar and Nammo. The Court distinguished those cases, observing that easyfinancial voluntarily corrected its error, and found that Mr. Hodge had not adduced clear, convincing, and cogent evidence of any loss, humiliation, reputational harm, or causal link to the single unauthorized inquiry. Because easyfinancial acknowledged its one contravention and the inquiry had already been corrected, the Court held there was no longer a real dispute, making declaratory relief inappropriate as well. The application was dismissed. The successful party was the respondent, easyfinancial Services Inc., in whose favour the Court ordered costs in the all-inclusive amount of $2,500, payable by Mr. Hodge, on the basis that the application was largely without merit and his reliance on undisclosed authorities had needlessly complicated the proceedings.