COURT OF APPEAL FOR ONTARIO
Group Inc., 2021 ONCA 672
DATE: 20210929
DOCKET: C68933
Strathy C.J.O., Pepall and Pardu JJ.A.
BETWEEN
Joan Wakeling and Barbara Evison
Appellants/Plaintiffs
and
Desjardins General Insurance Group Inc. and Nadia Lucia Constantino
Respondents/Defendants
Ashu Ismail, for the appellants
Gillian P. Kerr and William L. Main, for the respondents
Heard: September 17, 2021 by video conference
On appeal from the judgment of Justice Susan E. Healey of the Superior Court of Justice, dated November 6, 2020, with reasons reported at 2020 ONSC 6809.
Pardu J.A.:
OVERVIEW
[1] In 2019, Barbara Evison attended a case conference with her close friend and supporter, Joan Wakeling, and notified opposing counsel that Ms. Wakeling would be a witness at the upcoming hearing. Ms. Evison was appealing her insurer’s decision to deny her accident benefits following a car accident. Her insurer, Desjardins General Insurance Group Inc., had employed Ms. Wakeling for many years. When Desjardins management learned of Ms. Wakeling’s participation in the conference, they fired her. Both Ms. Wakeling and Ms. Evison brought an action in the Ontario Superior Court, arguing (among other things) that Desjardins and its counsel, Nadia Constantino, had invaded their privacy by revealing to Desjardins management that Wakeling had participated in the conference. Wakeling also argued that she had been wrongfully terminated. Justice Healey struck all their claims except Wakeling’s claims for wrongful termination and for aggravated and punitive damages against Desjardins.
OVERVIEW OF THE APPEAL
[2] The appellants argue that Justice Healey erred by: (1) striking their claim for breach of privacy (intrusion upon seclusion) without leave to amend; (2) dismissing their entire action against the respondent Nadia Constantino without leave to amend; (3) striking certain of their claims for punitive damages; and (4) not permitting them to amend their claim to add new defendants and new causes of action.
BACKGROUND
[3] Ms. Evison was involved in a car accident in 2018. Her claim for accident benefits was denied by her insurer, Desjardins General Insurance Group Inc. Ms. Evison appealed the denial to the License Appeal Tribunal (the “LAT”).
[4] A case conference was scheduled before the tribunal. Ms. Evison brought her long-time friend and neighbour, Ms. Wakeling, to assist her at the conference. Ms. Evison recorded Wakeling’s name on her witness list and gave the list to Desjardins’ counsel at the hearing, Nadia Constantino. Ms. Wakeling had been an employee of Desjardins and its predecessor companies for 24 years. At the conference, Ms. Evison asked Ms. Constantino if there would be any consequences for Ms. Wakeling’s employment with Desjardins. Ms. Constantino declined to answer, and Ms. Wakeling then left the conference.
[5] On her first day back at work following the case conference, Ms. Wakeling was told that Desjardins was investigating her conduct, and she was escorted out of the building. Eleven business days later she was fired, because of her involvement in Evison’s accident benefits claim and alleged failure to comply with a company code of conduct.
[6] Wakeling and Evison brought claims against Desjardins and Constantino in the Superior Court of Justice for breach of privacy and punitive damages. The appellants pleaded that they had an expectation of privacy, which the respondents breached when Evison’s witness list (containing Wakeling’s name) was revealed to Desjardins management. Wakeling alone brought claims against Desjardins for wrongful termination and for aggravated and punitive damages. These claims are not at issue in this appeal.
[7] Wakeling and Evison filed a motion in the Ontario Superior Court of Justice to add to their Statement of Claim additional defendants (all employees of Desjardins in their personal capacities) and additional claims for breach of privacy, breach of confidence, and breach of the Human Rights Code, R.S.O. 1990, c. H. 19. Desjardins and Constantino simultaneously brought a motion to strike all claims related to breach of privacy, and to strike any residual claims against Constantino in her personal capacity. They also sought to block Wakeling and Evison from adding the new claims and new defendants.
The motion judge’s decision
[8] The motion judge struck the appellants’ claims for breach of privacy and punitive damages. She dismissed the entire action against Nadia Constantino and denied the appellants leave to add new claims and defendants to their Statement of Claim.
(1) Test for Motion to Strike
[9] The motion judge noted that a pleading should be struck if it plainly and obviously discloses no reasonable cause of action, assuming all the facts pleaded to be true: Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618, at para. 18; and Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980.
(2) Breach of Privacy
[10] She also set out the test for the tort of intrusion upon seclusion (breach of privacy): (1) intentional conduct by the defendant; (2) an invasion, without lawful justification, of the plaintiff’s private affairs or concerns; and (3) an invasion that would be regarded by a reasonable person as highly offensive causing distress, humiliation, or anguish: Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, at paras. 71-72.
[11] The motion judge found that a breach of privacy could not be made out on the facts pleaded. The respondents’ conduct was not intentional, because the respondents never compelled or caused Wakeling to appear at the conference and never compelled or caused Evison to turn over the witness list with Wakeling’s name on it. The respondents did not invade the plaintiffs’ private affairs; they passively received information from the appellants. They were lawfully entitled to receive a witness list from Evison in the context of the LAT proceeding. The appellants did not plead any facts to support the third prong of the Jones test; but in any case, the motion judge found that a reasonable person would never consider the alleged intrusion to be highly offensive. The decision to disseminate the witness list to Desjardins management could not be considered an intrusion, because breach of privacy is not concerned with the dissemination of information: Jonesat para. 57.
[12] The motion judge gave alternative bases for striking the claim for breach of privacy, including that the claim was legally untenable and therefore an abuse of process because it would have required an impermissible incursion into privileged communications between Constantino and Desjardins.
(3) Punitive Damages
[13] The motion judge struck the punitive damages claims because they were based on the struck breach of privacy claims. She noted that claims for punitive damages could not stand on their own: Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 2002 CanLII 45070 (ON CA), 61 O.R. (3d) 481 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 488, at para. 113. She noted several alternative bases for striking the punitive damages claims. Constantino’s conduct occurred within the course of her employment with Desjardins and could give rise to personal liability. Constantino’s communication of the witness list to her client, Desjardins, was privileged. The communication also arose in the context of a quasi-judicial proceeding and was therefore protected by absolute immunity.
(4) Other Claims Against Constantino
[14] The remaining claims against Constantino were predicated on a theory that Constantino was under a duty to protect the appellants and breached that duty by revealing the witness list to her client. The motion judge rejected this theory, because a party’s solicitor owes no duty of care to the other party: Davy Estate v. CIBC World Markets Inc., 2009 ONCA 763, 97 O.R. (3d) 401, at para. 19.
(5) Motion for Leave to Amend
[15] The motion judge did not grant leave for the appellants to add more parties and claims to their Statement of Claim. She denied leave to add more breach of privacy claims for substantially the reasons above. She denied leave to add more Desjardins employees in their personal capacities for substantially the same reasons that had led her to dismiss the claims against Constantino.
[16] She also denied leave for two new claims: breach of confidence and breach of the Human Rights Code. She found that a reasonable person would not expect the fact of Wakeling’s attendance at the case conference to have the quality of confidentiality required by Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574. She found that the Human Rights Code claim had no possibility of success because it could not possibly relate to one of the particular social areas targeted by the Code (services, accommodation of minors, contracts, employment, and vocational associations).
ANALYSIS
[17] The standard of review on a rule 21.01(1)(b) motion to strike is correctness: McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 38.
[18] A motion judge’s decision not to grant leave to amend a pleading is discretionary, and an appellate court should not interfere with it unless the motion judge erred in principle or acted unreasonably: Mortazavi v. University of Toronto, 2013 ONCA 655, leave to appeal refused, 2014 S.C.C.A. No. 190, at para. 3.
[19] The claims made require examination of four different events:
The initial transmission of the information to Ms. Constantino.
The interaction by her and other Desjardins employees with the appellants at the appearance before the LAT.
Ms. Constantino’s reporting of the events at the appearance to her employer.
Desjardins’ use of the information to terminate Ms. Wakeling’s employment.
The receipt of the information
[20] The tort of intrusion upon seclusion protects private information from unauthorized prying eyes. It is plain and obvious that Ms. Wakeling’s attendance in person at a case conference in an adjudicative proceeding before an administrative tribunal was not a private event. Further, Ms. Constantino’s receipt of information consisting of a witness list provided by Ms. Evison did not amount to an intrusion; it was authorized by Ms. Evison herself, and it was not private information. Moreover, the appellants pleaded in para. 11 of their statement of claim that tribunal disclosure requirements mandate that witness lists be exchanged in advance of the case conference.
[21] On this basis it is plain and obvious that no cause of action lies against Ms. Constantino for her receipt of that information.
Transmission of the information to Desjardins
[22] Further, as a party to the proceeding, Desjardins was entitled to the information and Ms. Constantino owed a duty to her client to report the unfolding of the case conference to Desjardins.
[23] It is plain and obvious that there was no cause of action against Ms. Constantino for intrusion upon seclusion, for either her receipt of the information or her transmission of the information to her employer.
Claims for other breaches of duty by Ms. Constantino
[24] The statement of claim pleads in diverse respects variations on a theme that Desjardins’ counsel owed a duty to the appellants, and in some cases is premised on a duty said to exist after the case conference and after the report to Desjardins. For example, the appellants pleaded that counsel breached her obligations to the administration of justice when she failed to counsel her client on the impropriety of terminating Ms. Wakeling’s employment and failed to recognize she had a conflict of interest when she later learned that her employer had acted on the information provided.
[25] As the motion judge correctly noted, Ms. Constantino’s duty was to her employer, Desjardins, for whom she was acting as counsel. She did not owe a duty of care to the appellant.
Claims against Desjardins for intrusion upon seclusion
[26] For the same reasons, the receipt by Desjardins from its counsel of information, provided to that counsel by the appellant Evison, does not amount to an intrusion upon Ms. Evison’s privacy interests. Ms. Evison provided the information to Desjardins’ counsel in the course of attendance before an administrative tribunal.
[27] The use Desjardins made of that information and the termination of Ms. Wakeling’s employment will be addressed in the latter’s claim for damages for wrongful dismissal, a proceeding that is continuing. Desjardins does not challenge the pleadings in relation to the claims for wrongful dismissal.
Claim for punitive damages
[28] Desjardins takes no issue with respect to Ms. Wakeling’s claim for punitive damages related to termination of her employment. The statement of claim also included claims for punitive damages by Ms. Evison against Desjardins, and by both appellants against Ms. Constantino.
[29] The claim for punitive damages is not a free-standing cause of action. It must be tied to an independent actionable wrong. The plaintiffs alleged that the manner in which the defendants breached Evison’s privacy interests was so egregious and high-handed that punitive damages are appropriate to further sanction the wrongs committed. If the statement of claim does not disclose a reasonable cause of action for intrusion upon seclusion then the claim for punitive damages for that wrong must also fall. On appeal the appellants attempt to characterize the wrong supporting the claim for punitive damages as a breach of the contractual duty of good faith. It is plain that receipt of the information provided by Ms. Evison by counsel and Desjardins could not amount to a breach of a contractual duty of good faith. I discuss Desjardins’ use of the information at paras. 41 and following in these reasons.
Four new proposed defendants
[30] The appellants’ motion to amend the statement of claim proposed to add four defendants: Risha Maharaj, Joe Crngarov, Tara Davidson, and Jacqueline Thompson. It appears that the first two named were adjusters who also attended the conference before the LAT. The proposed amended statement of claim alleges that Ms. Evison had an expectation that “individuals providing her assistance and/or her potential witness would be held in confidence by the lawyer, Ms. Constantino, adjusters Risha Maharaj and Joe Crngarov and the information would not be disclosed and/or used in any manner outside the proceeding.” The statement of claim alleges that the four named individuals had access to and/or misused the plaintiff’s personal information to harass and eventually improperly terminate Ms. Wakeling’s employment.
[31] The access to the information at the case conference cannot amount to an intrusion upon seclusion for reasons already explained. There is no other particular fact alleged which could form the basis of an action against the four proposed new defendants.
Breach of confidence
[32] The plaintiffs also sought to add claims for breach of confidence. There could be no expectation of confidentiality here attaching to communication of a witness list, or to information as to the identity of a person attending the proceedings.
Human Rights Code Claims
[33] Ms. Evison also advanced a claim for breach of the Human Rights Code.
[34] Section 46.1(2) of the Human Rights Code provides that a claim for breach of the Code may be advanced in a court proceeding when ancillary to another valid claim. Under those circumstances a court may direct the infringing party to pay monetary compensation to the party whose right was infringed. The appellant concedes that without another valid claim there can be no claim based only on a breach of the Human Rights Code.
[35] This court noted in Jaffer v. York University, 2010 ONCA 654, leave to appeal refused, [2010] S.C.C.A. No. 402, at para. 44:
Although a person may not commence an action based solely on an infringement of a right under Part I of the Code, breach of the Code may be properly raised in an action if the claim is otherwise properly before the court. Thus, whether or not a claim for breach of the duty to accommodate disabilities can proceed in the Superior Court depends upon whether or not the pleading discloses a reasonable cause of action that does not arise solely from a breach of the Code.
[36] There is no other valid claim pleaded by Ms. Evison against Desjardins or Ms. Constantino; that is sufficient to dismiss her claim based on the Human Rights Code.
[37] Further, s. 1 of the Human Rights Code provides that “every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of” specified personal characteristics.
[38] The appellant does not articulate in her statement of claim how the conduct attributed to Desjardins and Ms. Constantino was discriminatory. Ms. Evison also does not claim that she was subjected to adverse treatment because of her disability. As the motion judge pointed out, “such a connection is absent both within the pleading and on the facts of this case. There is no connection made between Evison’s disability and Constantino’s response to Wakeling. In fact, the proposed amendments do not outline how the defendants are alleged to have subjected Evison to adverse treatment, or to have done so as a result of her disability, by Constantino’s inability to provide Wakeling with employment assurances.”
[39] An insurer may set requirements for disability benefits but must apply these in a non-discriminatory manner. Knight v. Surrey Place Centre, 2017 HRTO 281, at para. 24.
[40] Absent any claim of discrimination, this claim cannot stand.
Desjardins’ use of the information
[41] The question remains whether Ms. Evison has a cause of action against Desjardins for its use of the information about Ms. Wakeling’s participation in the LAT proceedings in order to terminate Ms. Wakeling’s employment.
[42] An insurer does have a duty to act in good faith in the manner in which it handles a claim. Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3., at para. 63, referring to 702535 Ontario Inc. v. Non-Marine Underwriters, Lloyd’s London England (2000), 2000 CanLII 5684 (ON CA), 184 D.L.R. (4th) 687 (Ont. C.A.), at para. 29; and Brandiferri v. Wawanesa Mutual Insurance, et al., 2012 ONSC 2206, 16 C.L.R. (4th) 44, at para. 204. A breach of this duty can support an independent cause of action for damages, including punitive damages at common law, apart from and in addition to entitlement under the contract of insurance. Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615, 147 O.R. (3d) 65, at para. 55(a), (b). It is not difficult to envision circumstances in which interference with a witness or misuse of confidential information could amount to bad faith handling of an insured’s claim. See, e.g., Barata v. Intact Insurance Company, 2021 ABQB 419; and Dervisholli et al. and Cervenak and State Farm, 2015 ONSC 2286, 333 O.A.C. 367.
[43] The gravamen of Ms. Evison’s action is invasion of privacy or breach of confidence. In her proposed amended Statement of Claim, Ms. Evison explicitly claims damages for “breach of privacy/confidence.”
[44] Even if a claim for bad faith treatment of her accident benefit claim could be pieced together from the appellants’ pleadings here, s. 280 of the Insurance Act, R.S.O. 1990, c. I.8, is a bar to any such proceedings where accident benefits are in issue. Section 280 bars court proceedings about accident benefits and requires that these be resolved by the Licence Appeal Tribunal. As determined in Stegenga, this includes claims that the insurer acted in bad faith in its treatment of the insured’s application for benefits. Stegenga, at para. 6.
[45] This is a sufficient basis to dismiss the appeal. I need not address whether I agree with other reasons given by the motion judge.
[46] Accordingly, I would dismiss the appeal, with costs payable by the appellant to the respondent fixed at $30,000.00 all inclusive, on a partial indemnity basis.
Released: September 29, 2021 “GRS”
“G. Pardu J.A.”
“I agree G.R. Strathy C.J.O.”
“I agree S.E. Pepall J.A.”