It is suggested when considering this type of action which while a bit unusual is not unique, there are basic principles that are not only administratively important but also socially which are as follows;
The above noting of the importance of the issue generally is outlined the Memo Case of Clark v. Scotiabank, 2004 CanLII 34438 (ON SC) which distinguished on its facts does underline the importance of credit in society and to a party to an action
Relevant Statutes and Sections Illustrating the Above and/or duties of Parties
Consumer Reporting Act
9 (1) Every consumer reporting agency shall adopt all procedures reasonable for ensuring
accuracy and fairness in the contents of its consumer reports. R.S.O. 1990, c. C.33, s. 9 (1).
(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;
Correction of errors
13 (1) Where a consumer disputes the accuracy or completeness of any item of information contained in his or her file, the consumer reporting agency within a reasonable time shall use its best endeavors to confirm or complete the information and shall correct, supplement or delete the information in accordance with good practice. R.S.O. 1990, c. C.33, s. 13 (1).
The above sections are important in that the sections require that the credit reporting companies and the banks have not only an obligation to be accurate but also to use the best information available and to endeavor to investigate and use best endeavors to confirm or ensure evidence is correct. It should be noted that both sections use the word “shall” which as indicated in the Interpretation Act is;
Shall” and “May”
11 The expression “shall” is to be construed as imperative and the expression “may” as permissive.
Thus it can be suggested that the sections of the CRA outlined above when properly interpreted or applied are not discretionary and are mandatory on the part of the defendants to ensure accuracy and/or corrections which in the case at bar would include the concerns and errors pointed out by the plaintiffs.
It should be further that while there are other duties and time periods allowed the above two sections with the use of the word shall and the general and overriding nature of the duty placed upon the agencies indicate in any reasonable interpretation that no matter when and how the banks and agencies report their information it must and SHALL BE accurate and based on the best evidence available which in this case is the information provided by the plaintiff.
While the facts in respect to this matter cover and extended period of the primary relevant facts area;
Cause of Action
It should be noted cause of action is negligence. As pointed out the duty of care in this matter does not only exist as a result of the proximately of the parties (bank/customer/reporting agency) but also by way of the imposed statutorily duty of care. The corresponding duty of care likewise arises from both the general proximity of the parties, the nature of the defendant’s business obligations and of course as indicated above by way of statute.
The issue has always been the ability of the plaintiff to quantify damages over aggravated and/or punitive so outlined specific damages as much as possible and the infer general damages analogous to defamation.