Reasons for Decision (Motions for Summary Judgment)
COURT FILE NO.: CV-16-511 DATE: 20180730 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LEON FILBEY Plaintiff – and – TANIA ASHE, KINGSTOWN FINANCIAL SERVICES INC., SUN LIFE ASSURANCE COMPANY OF CANADA c.o.b. SUN LIFE FINANCIAL, NATHANIEL DYLAN ASHE and REISHA VIOLET MARY FILBEY Defendants
Counsel: Kurt Pearson and Michael Taft, for the Plaintiff Miranda Serravalle, for the Defendants, Tania Ashe, Kingstown Financial Services Inc. and Sun Life Assurance Company of Canada Michael Swindley, for the Defendants Nathaniel Dylan Ashe and Reisha Violet Mary Filbey
HEARD at Kingston: 22 May 2018
Graeme Mew J.
[1] Tania Ashe Santin and Leon Filbey were married for approximately 13 years. Both parties acknowledge that their separation was acrimonious, as was its aftermath. This action, brought under the simplified procedure, is inextricably linked to the demise of that marriage.
[2] The statement of claim is packed with allegations about obligations said to have arisen under the separation agreements entered into between the parties, conflicts of interest, negligence, breach of fiduciary duty, breach of trust and misrepresentation on the part of Ms. Ashe (a financial advisor), and her company, Kingstown Financial Services Inc. Amongst other claims, Mr. Filbey also asserts that there was a lack of responsiveness by Ms. Ashe and the corporate defendants to Mr. Filbey's requests to have Ms. Ashe removed as the designated financial advisor on certain accounts.
[3] However, stripped of the surplusage pleaded in the statement of claim and putting to one side matters complained of in that pleading which fall within the exclusive domain of family law proceedings, what is left is (i) a dispute over the irrevocable beneficiary designations in two life insurance policies issued by Sun Life and owned by Mr. Filbey; (ii) claims for damages against Ms. Ashe and the corporate defendants based on negligence, breach of trust, fraudulent misrepresentation, negligent misrepresentation and breach of fiduciary duty; and (iii) a claim by Mr. Filbey that his personal financial and insurance records were improperly accessed by Ms. Ashe and the corporate defendants.
[4] The defendants seek a dismissal of the action in its entirety saying that the claims relating to the life insurance policies and negligence, breach of trust/fiduciary duty and misrepresentation are statute barred, and the claim for breach of privacy/intrusion upon seclusion is untenable.
Background
[5] Very few facts in this case appear to be seriously disputed, although Mr. Filbey and Ms. Ashe take very different views of how those facts should be interpreted. As will be seen, to the extent there are disputes about the facts, many of them arise from evidence consisting of bald statements which are unsupported by other evidence. Other evidentiary conflicts have no bearing on the issues to be decided and, hence, the outcome of these motions.
[6] The core of the parties’ dispute is whether the plaintiff made a valid request to have the beneficiaries of two life insurance policies owned by Mr. Filbey (the “Policies”) designated as irrevocable beneficiaries. The beneficiaries of these two policies were and are Nathaniel Dylan Ashe and Reisha Violet Mary Filbey.
[7] Tania Ashe and Leon Filbey were married on 6 July 1996. They separated on 1 January 2009 and entered into a separation agreement on 20 May 2009. They divorced in 2013.
[8] Nathaniel Ashe is Ms. Ashe’s son and was Mr. Filbey’s step-son. Reisha Filbey is the daughter of Tania Ashe and Leon Filbey.
[9] Ms. Ashe was, at all material times, a financial advisor. The company through which she conducted her business as such was Kingstown Financial Services Inc.
[10] Mr. Filbey had a military career, rising to the rank of Master Corporal; he now runs a house painting business.
[11] During the course of their marriage, Ms. Ashe was Mr. Filbey’s financial advisor. Indeed, she appears to have generally managed their financial affairs as a couple.
[12] In October 2009, Ms. Ashe ceased to be Mr. Filbey’s financial advisor with respect to his personal investments. However, she remained the advisor of record with respect to the two life insurance policies in question as well as a trust account and a registered education savings plan (“RESP”) maintained for the purposes of Reisha’s educational needs.
[13] On or about 9 October 2009, a beneficiary change request form pertaining to the Policies, and signed by Mr. Filbey, was submitted to Sun Life Assurance Company of Canada.
[14] The beneficiary change request form specified that the beneficiary designation was irrevocable.
[15] Because the beneficiaries were both under eighteen at the time, it was also necessary to name a trustee. The trustee so named was “Tania Ashe-Filbey” with the annotation that she was “ex-spouse”. The form also showed Ms. Ashe-Filbey as “Advisor”.
[16] Ms. Ashe prepared the paperwork relating to the irrevocable beneficiary designations and claims there was a comprehensive discussion concerning “all of the implications of irrevocably naming the children as beneficiaries” at that time.
[17] The plaintiff maintains there was no discussion of irrevocability in 2009. He says he was presented with partially blank forms that he was asked to sign and that he did so not having been told by Ms. Ashe that he was making irrevocable beneficiary designations.
[18] On 16 June 2010, Ms. Ashe wrote to the plaintiff advising “As for the two policies on that you [sic] life you are unable to take a loan on these as you have named Reisha and Dylan as irrevocable beneficiaries. This means the policies cannot be altered in any way without the written consent of the beneficiary”.
[19] On 6 March 2012, Mr. Filbey wrote to Ms. Ashe asking about the irrevocable beneficiary clauses:
Was wanting to know what the irrevocable clause was. I am good with reisha and dylan at 50 percent each… When I redue my will, how does the life insurance stuff reference the kids fit in!
[20] Ms. Ashe responded:
Simply put the Irrevocable beneficiary designation on your life insurance policies prevents you from making any changes to the plans ie changing beneficiaries, cancelling the plans or takings loans out on the policies.
[21] In or about January 2015, Ms. Ashe says that, in her capacity as financial advisor to the Policies and the trust account, she received some notifications from Sun Life that Mr. Filbey had attempted to access the trust funds and the Policies and to take loans out against the Policies. At around the same time, Ms. Ashe provided a copy of the separation agreement between herself and Mr. Filbey to CI Investments, the fund manager of the trust account, and informed them about Reisha's status as a high school student so that the trust account would be flagged in the event that anyone tried to make any withdrawals prior to her needing the funds for her post-secondary education. This appears to have precipitated requests from Mr. Filbey that Ms. Ashe be removed as the financial advisor for the trust account and the Policies.
[22] During the course of communications between the parties concerning the request to have Ms. Ashe removed, Mr. Filbey wrote to Ms. Ashe on 17 February 2015 as follows:
We have a conflict of interest in this matter of you taking care of Reisha's RESP and insurance needs. You have did your part as to taking care of it in R eisha's best interest I agree, but it is you that I can't deal with and you can't even talk in a calm manner towards me without losing your mind and professionalism. You my friend will have to accept this and honor my wishes as I am in NO obligation to have you as agent of record even in our separation agreement. I already talked to your head office with reference to this and hot the confirmation that I could do so.
If you were more nicer and respectful towards Lisa and I we would not be having an issue here.
The reference to “Lisa” is to Lisa Graham, who Mr. Filbey married in 2014.
[23] On 14 August 2015, Mr. Filbey retained another financial planner to complete a dealer of record change, changing the dealer for the trust account and RESP from Sun Life (and, hence, Ms. Ashe) to another company.
[24] Following her removal as dealer of record, Ms. Ashe once again contacted CI, saying that when she did so she made clear that she was calling in her capacity as Reisha’s mother and to ensure that the account had been flagged in January 2015 when she had provided the separation agreement. According to Ms. Ashe, she did not ask about the balance of the account or for any personal information with respect to Mr. Filbey. Nevertheless, she says that the CI representative she spoke to volunteered that Mr. Filbey had withdrawn approximately $9,500 from the trust account. She states that this was the only information provided to her by CI.
[25] On 10 September 2015 Ms. Ashe contacted Mr. Filbey to obtain further information about the trust funds. She says that he refused to provide any further information. A proceeding then ensued, commenced by Ms. Ashe, in the family division of this court. That proceeding ultimately led to an order being made in November 2016 which, among other things, prevented further depletion of the trust account for purposes other than Reisha Filbey’s post-secondary education. As a result of that proceeding Ms. Ashe learned that on 25 August 2015, a few days following her removal as financial advisor to the trust account, Mr. Filbey had, in fact, withdrawn $9,681.37 from the trust account.
[26] On 7 December 2015, Ms. Ashe signed the release of Mr. Filbey as a client in respect of the Policies. She justified the delay in doing so, following Mr. Filbey’s requests, on the basis that it was not until then that she and her lawyer were satisfied that appropriate steps had been taken to protect the Policies and funds.
[27] The statement of claim in this action was issued on 29 December 2016.
[28] Because this action is brought under the simplified procedure provided for by Rule 76 of the Rules of Civil Procedure, there has been no cross-examination of the deponents of any of the affidavits filed in relation to this summary judgment motion: Rule 77:04(1).
The Claims
[29] In respect of the Policies, Mr. Filbey seeks a declaration that the trustee and beneficiary designations are invalid and that they should be rectified to express the true intentions and obligations of Mr. Filbey or, alternatively, be revoked.
[30] Because both of the beneficiaries are now adults, concerns about the trustee designations are academic. However, the essence of Mr. Filbey’s complaints about the beneficiary designations appear to be that:
a. “Unbeknownst” to Mr. Filbey, Ms. Ashe had him sign the irrevocable beneficiary designations on the Policies, having failed to explain the forms to Mr. Filbey, misrepresented the nature of the forms and presented him with partially blank forms that Ms. Ashe subsequently completed;
b. it was not until 14 January 2015 that Mr. Filbey was first shown the full particulars of the Policies containing the purported irrevocable beneficiary designations facilitated by Ms. Ashe;
c. the refusal of the defendants to agree to release the irrevocable designations constitutes a continuing tort which is causing harm to Mr. Filbey’s economic interests;
d. the irrevocable designations were procured by Ms. Ashe /Kingstown Financial Services Inc. (for whom Sun Life is vicariously liable) by misrepresentation, breach of trust and breach of fiduciary duty owed to the plaintiff.
[31] In addition to the allegations which Mr. Filbey makes concerning the Policies, he asserts that Ms. Ashe and/or Kingstown breached their duties of care and good faith and the fiduciary obligations owed to him; by failing to make appropriate inquiries to ensure that his financial and insurance needs were being met; giving improper or incorrect advice to him; acting as his advisors notwithstanding the existence of an obvious conflict of interest; using their position of trust and expertise to influence Mr. Filbey’s dealings with Sun Life; and, giving improper or incorrect advice with a view to deriving personal benefits from their dealings with him.
[32] Against Sun Life, Mr. Filbey says that it should have known that Ms. Ashe/Kingstown was acting as his advisor in a clear and obvious conflict of interest and, upon learning of that conflict of interest, should have immediately taken steps to assign a new advisor. Mr. Filbey also claims that Sun Life should have known that Ms. Ashe was accessing his personal financial and insurance records at a frequency and for a duration that was inconsistent with a legitimate business purpose. Furthermore, upon learning that Mr. Filbey wanted a new advisor, Sun Life should have immediately taken steps to prevent Ms. Ashe from accessing Mr. Filbey’s personal, financial and insurance records.
[33] Against Reisha Filbey and Dylan Ashe, Mr. Filbey asserts that they have failed to consent to their revocation as beneficiaries under the Policies despite requests by him that they do so.
[34] The invasion of privacy and intrusion upon seclusion claims assert that Ms. Ashe, Kingstown and/or Sun Life access to Mr. Filbey’s personal, financial and insurance records without legitimate reason. Incidents of such access are alleged to include “repeated viewing”of Mr. Filbey’s personal financial and insurance records for improper purposes, improperly and illegally obtaining certain financial records relating to the plaintiff in September 2015 and the obtaining by Ms. Ashe of Sun Life records in November 2016 after she had ceased to be Mr. Filbey’s advisor and without his consent.
Issues
[35] The following issues are considered:
a. Is summary judgment appropriate?
b. If so, are the plaintiff’s claims relating to:
i. the Policies, and
ii. the defendant’s alleged negligence, breach of trust, fraudulent misrepresentation, negligent misrepresentation and breach of fiduciary duty,
statute barred?;
c. Is the plaintiff’s claim for breach of privacy and intrusion upon seclusion tenable?
Is Summary Judgment Appropriate?
[36] The plaintiff disputes the suitability of summary judgment. He argues that given the procedural and evidentiary context, as well as the competing evidence of Ms. Ashe and Mr. Filbey, there are genuine issues requiring a trial.
[37] The defendants, by contrast, say that summary judgment is appropriate and proportionate. They argue that the plaintiff is deliberately trying to make the case far more complicated than it really is. Many of the facts that really matter are not in dispute. The interests of efficiency and a proportionate allocation of judicial resources to this case are best achieved by summary judgment.
[38] Although there is no general prohibition against summary judgment motions in cases governed by the simplified procedure, it will often be the case that bringing a motion for summary judgment will conflict with the efficiency that can be achieved by simply following the abridged procedures in Rule 76.
[39] Nevertheless, following the Supreme Court’s directives in Hryniak v. Mauldin, 2014 SCC 7 if, on a summary judgment motion, a judge is confident that he or she can find the necessary facts and apply the relevant legal principles on the basis of the record before the court, and the motion presents a proportionate, more expeditious and less expensive means to achieve a just result, summary judgment should be granted, even if the matter is governed by the simplified procedure: Sutton Group v Kim, 2014 ONSC 891 at para. 18; affd. 2014 ONCA 583.
[40] There will be no genuine issue requiring a trial where a judge is able to reach a fair and just determination on the merits and where the material filed on the motion: (i) allows the judge to make the necessary findings of fact; (ii) allows the judge to apply the law to the facts; and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak, at paras. 32, 49-51; Fernandes v. Carleton University, 2016 ONCA 719, 34 C.C.E.L. (4th) 180, at para. 28.
[41] A court hearing a summary judgment motion will assume that the parties have placed before it, in some form, all of the evidence that would be available at a trial which relates to the issues submitted for summary determination: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 33. A responding party cannot rely on the possibility that better evidence will arise at trial: 790668 Ontario Inc. v. D’Andrea, 2014 ONSC 3312 at para 117; affd. 2015 ONCA 557.
[42] By way of general observation, there is already a substantial record before the court. Had there been discovery and a trial under the simplified procedure instead of summary judgment motions, I doubt whether a great deal more time and expense would have been incurred by the parties than has now been invested in the summary judgment process. A trial would, of course, have taken up more of the court’s time and resources. And it would likely not have taken place so quickly. In terms of overall efficiency and proportionate use of the court’s and judicial resources, the summary judgment procedure has it, but only by a narrow margin. What can of course be said with confidence is that a failed summary judgment attempt in this case would impose a significant additional layer of expense. Given the point that has now been reached, and having due regard to the efficiencies of the simplified procedure, it would not serve the interests of the parties or the efficient administration of justice for the court to decline to resolve the parties’ dispute summarily if that can be done fairly and justly using the tools provided by Rule 20.04.
Are the Plaintiff’s Claims Statute Barred?
[43] The defendants assert that the plaintiff’s claims for a declaration and an order that the trustee and beneficiary designations under two life insurance policies are invalid and for rectification of those policies to express the true intentions and obligations of the plaintiff, are statute barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., as amended.
[44] A limitation defence is also said to lie against some if not all of the claims for damages made by the plaintiff against Tania Ashe, Kingstown Financial Services Inc. and Sun Life Assurance Company of Canada and against Nathaniel Ashe and Reisha Filbey.
[45] The basis for the defendants’ limitation defences the assertion that the plaintiff discovered his claims more than two years prior to the commencement of this action.
[46] The test on a summary judgment motion based on when a plaintiff’s claim was discovered, for limitation purposes, is whether there is a genuine issue respecting discoverability that requires a trial. If the evidence on the discoverability issue is “less than clear”, the judge should refuse summary judgment: Lindhe v. Chalte, 2015 ONSC 2821, at para. 26.
[47] In his affidavit, Mr. Filbey claims to be unsophisticated in respect of financial matters. He says that he deferred to Ms. Ashe and trusted her because she was a financial planner and an insurance advisor, and because she would assure him that she was doing what was “best for Reisha”. He states that he has suffered for many years from a learning disability, major depression, chronic pain and post-traumatic stress disorder. He is under the care of a psychiatrist. He says that his disabilities affect his concentration and can lead to confusion and forgetfulness.
[48] No medical evidence of any sort has been filed by Mr. Filbey on this motion.
[49] The essence of Mr. Filbey’s evidence on the issue of discoverability in relation to the Policies and the improper acts and omissions of Ms. Ashe is captured in the following paragraphs of his affidavit sworn on 29 March 2018:
I was unaware of what it meant to be an “irrevocable” beneficiary at the relevant time. While I knew the children had been named as beneficiaries, it was only much later on that I learned that the children had been named as beneficiaries “irrevocably”. Thereafter, it was only gradually that I realized what this meant in terms of my ability to make changes to the Sun Life policies.
As I explain herein, I was entirely unaware of the improper acts and omissions by Tania (my advisor) which led to the children being named as irrevocable beneficiaries until sometime after I met with another Sun Life advisor in January 2015.
Accordingly, it was not until my meeting with Ms. Feijo [the new advisor] in early January 2015, that I had some understanding of all of the following facts: (a) that Reisha and Dylan were irrevocably designated as beneficiaries on both of the Sun Life policies; (b) that their status as irrevocably designated beneficiaries meant that I could not make changes to these policies or access the equity in these policies without their consent; and (c) that Reisha and Dylan came to be designated as beneficiaries irrevocably as a result of the “Beneficiary Change Request Form” completed by Tania, wherein she irrevocably designated them as such on my behalf without my knowledge, instructions or consent.
[50] The other evidence on the discoverability issue is not difficult to discern from the record before me. I very much doubt whether the examination and cross-examination of the main protagonists in this case at trial, or on this motion using the fact-finding powers provided by Rule 20.04, would add a great deal of insight beyond what has already been presented.
[51] In the absence of any evidence, beyond bald statements by Mr. Filbey which imply some cognitive difficulties on his part, such as a report from an appropriately qualified professional, the best evidence of what was going on and what the parties knew and understood (or could, with the exercise of reasonable diligence have known or understood) largely resides in the documents that have been produced, including the parties’ communications with each other.
[52] While the evidence of the parties conflicts in relation to certain events – such as whether in 2009 Ms. Ashe explained to irrevocable beneficiary designation to Mr. Filbey – it is not necessary for me to resolve such conflicts as part of my analysis of when Mr. Filbey could have discovered his claims.
[53] I am therefore satisfied that the material filed on the motion allows me to make the necessary findings of fact to determine the limitation issues.
Claims Relating to the Policies
[67] The Beneficiary Change Form, which resulted in Nathaniel Ashe and Reisha Filbey being named as irrevocable beneficiaries of the Policies, was signed by Mr. Filbey on 9 October 2009. That is the date on which he is presumed to have known that the irrevocable beneficiary designation had been made, unless he is able to prove to the contrary.
[68] While Mr. Filbey protests that he did not understand the legal significance of the irrevocable beneficiary designation, such a lack of appreciation does not postpone the commencement of the limitation if he knew or ought to have known that the designation had been made. Error or ignorance of the law or legal consequences of the facts does not delay the running of a limitation period: Nicholas v. McCarthy Tétrault, 2008 ONSC 54974, at para. 27; affd. 2009 ONCA 692.
[69] Even if, as Mr. Filbey alleges, Ms. Ashe misrepresented the existence of the irrevocability clauses or somehow tricked him into signing a partially blank form such that he did not know what he had signed, Mr. Filbey was aware of the existence of irrevocable beneficiary designations by June 2010 and, by the very latest, March 2012, when Ms. Ashe told him about the clauses and, in particular, that he could not change the beneficiaries or take out loans on the Policies.
[70] There is no indication that Mr. Filbey asked for copies of the Policies to be produced but was refused. Nor did he question how the irrevocable beneficiary designation had come about.
[71] The only remotely plausible explanation that Mr. Filbey provides for his assertion that he did not discover Tania Ashe is alleged wrongdoing in respect of the policies until 2015 is his assertion that he suffers from psychological issues and chronic pain. There is, however, no evidence, beyond his bald assertion, to support that position and, more importantly, no evidentiary basis that would engage the “Incapable Persons” provisions in section 7 of the Limitations Act, 2002.
[72] I find that Mr. Filbey knew, or that a reasonable person with his abilities and in his circumstances ought to have known, of the existence of a claim against the defendants in respect of all matters pertaining to the policies by, at the very latest, 6 March 2012, when he received a clear explanation from Ms. Ashe about the existence and effect of the irrevocable beneficiary designations.
[73] Accordingly, Mr. Filbey’s claims in respect of the Policies are dismissed.
Negligence, Breach of Fiduciary Duty, Breach of Trust, Misrepresentation (Limitation Period)
[74] To the extent that Mr. Filbey’s allegations of negligence, breach of fiduciary duty, breach of trust and misrepresentation relate to the events of 2009, they are statute barred for the reasons already given. This would include the allegations of conflict of interest because Mr. Filbey knew from at least that time onwards that such a conflict, or at least the appearance of it, existed.
Merits of Remaining Claims
Negligence, Breach of Fiduciary Duty, Breach of Trust, Misrepresentation
[54] Mr. Filbey’s claims of negligence, breach of duty of good faith and fiduciary duty against Ms. Ashe and/or Kingstown are pleaded in paragraphs 46 and 47 of his statement of claim. He asserts that they failed to meet his financial and insurance needs; failed to provide him with the Policies and the forms that he had signed; failed to explain the Policies or the forms; failed to tell him about changes to the Policies; and gave improper or incorrect advice.
[55] He also claims that Ms. Ashe and Kingstown continued to act as his financial advisors notwithstanding an obvious conflict of interest; that they used their position of trust and expertise to influence Mr. Filbey’s dealings with Sun Life and to manipulate his financial and insurance dealings without his knowledge or consent; furnished incomplete, misleading or false updates to Mr. Filbey regarding the Policies; caused him to sign incomplete and/or misleading forms; and gave improper or incorrect advice with a view to deriving personal benefit from the dealings with Mr. Filbey and/or benefits to “Ms. Ashe’s children”.
[56] In respect of Sun Life, in addition to alleging that Sun Life is vicariously liable for the negligence of Ms. Ashe and Kingstown, Mr. Filbey claims that Sun Life was negligent and breached its fiduciary duty to him as a result of knowing that Ms. Ashe and Kingstown had a conflict of interest in continuing to act as Mr. Filbey’s financial advisor of record and failing to take steps to address the risks posed by such a conflict of interest, including the ability of Ms. Ashe to access his personal financial and insurance records.
[57] Mr. Filbey’s evidence relating to these and the other breaches of duty alleged by him are set out in a 210 paragraph affidavit and a 45 paragraph supplementary affidavit.
[58] Many of the acts and omissions complained of took place more than two years before the commencement of this proceeding and, hence, form part of the analysis of limitation issues. However some of them arise from things that happened in 2015. In assessing the evidence relating to those events and the allegations made by Mr. Filbey, I am required to assess whether I am able to decide those issues on the present record or whether the issues are such that they can only fairly be resolved at trial.
[59] My analysis with respect to the non-limitation aspects of the dispute between the parties does necessitate a greater measure of evaluation of the evidence. But that is exactly what the Supreme Court of Canada in Hryniak encourages motion judges to do if it can be done fairly and justly. At paragraph 57 of Hryniak, Karakatsanis J. wrote:
On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and (2.2) can provide an equally valid, if less extensive, manner of fact finding.
[60] Ultimately, the goal is to achieve a fair and just adjudication of the dispute. If, on a summary judgment motion, a judge is confident that he or she can find the necessary facts to resolve the dispute, proceeding to trial would not generally be proportionate, timely or cost-effective: Hryniak, at para. 50.
[61] As will become more apparent below, I am satisfied that summary judgment is a proportionate vehicle for the resolution of the dispute between these parties and I am confident that the evidentiary record before me provides me with an ability to make a fair and just determination of the issues.
[75] Some of the allegations, however, relate to events in 2015. These allegations are not statute barred. But the evidence does not support the existence of any viable claims based upon the causes of action pleaded. In particular, there is no opinion evidence establishing professional negligence or a breach of any other duty on the part of the defendants in relation to their advice or their management of the trust account.
[76] The existence of fiduciary obligations on the part of Ms. Ashe and the corporate defendants is not denied. It is not easy to distill from the pleadings and the evidence provided by the plaintiff how those obligations were breached. Mr. Filbey alleges that Ms. Ashe provided information about the trust accounts to his personal financial advisor and criticizes Ms. Ashe and Sun Life for the delay in removing Ms. Ashe as the advisor on the trust accounts while both Sun Life and Ms. Ashe considered their legal obligations. As Ms. Ashe and Kingstown argue in their factum, however, it is not readily apparent whether any of these actions would breach the standard of care for a financial advisor – or the duties of a fiduciary – especially given the interplay between the trusts, the separation agreement and their professional obligations.
[77] To the extent that there were any such breaches, however, there is absolutely no evidence that Mr. Filbey has suffered any damage as a result. And the back story throughout is the ongoing post-separation antipathy of the parties towards each other. For example, with respect to the trust account, it will be recalled that in February 2015 he wrote that Ms. Ashe had taken care of Reisha’s best interests, but that he no longer wished Ms. Ashe to act as agent of record – although even then he added that he would not be taking that position if Ms. Ashe was “more nicer and respectful” to Mr. Filbey’s new wife.
[78] Nor is there any other evidence relating to the performance of the investments or about whether any losses or other damage resulted from any action or inaction on the part of Ms. Ashe or the corporate defendants, either during or after the determination of their professional relationship.
[79] Mr. Filbey does complain about his inability to borrow against the Policies, but that is a product of the irrevocable beneficiary designation that occurred in 2009, and, hence, even if there was otherwise some validity to this complaint, his remedy is statute barred.
[80] Mr. Filbey also pleads in paragraphs 54 – 56 of his statement of claim that he has suffered personal distress, mental anguish, humiliation and anxiety. However, not only are these claims not particularised, he has not provided any other evidence to support them.
[81] Mr. Filbey’s claims based on allegations of negligence, breach of fiduciary duty, breach of trust and misrepresentation cannot be sustained on the evidence; he has failed to prove any of these claims on a balance of probabilities.
Breach of Privacy/Intrusion Upon Seclusion
[62] The claims of invasion or breach of privacy and intrusion upon seclusion made against Ms. Ashe, Kingstown and Sun Life are said by the defendants to be unsupported by the evidence.
[63] The allegations arise largely from things which happened in 2015. To the extent that there are claims of repeated viewing of the plaintiff’s personal or financial insurance records that may have predated 2015, my analysis proceeds on the basis that Mr. Filbey would have known that, as the financial advisor to the trust account and the Policies, Ms. Ashe was able to access information pertaining to them. The main thrust of the allegations, as I read them, arises from things that happened from the time that Mr. Filbey made it clear that he no longer wanted Ms. Ashe to be the financial advisor.
[64] My observations concerning my confidence that the record enables me to fairly adjudicate the resolution of the claims concerning negligence, breach of fiduciary duty, breach of trust and misrepresentation, are equally applicable to the claims of breach of privacy/intrusion upon seclusion.
[82] Recognition of the tort of intrusion upon seclusion is a recent development in the common law in this province. In Jones v. Tsige, 2012 ONCA 32, the Court of Appeal set out a three-part test for establishing intrusion upon seclusion:
a. the defendant’s conduct must be intentional or reckless;
b. the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
c. a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
[83] Mr. Filbey alleges that Ms. Ashe repeatedly viewed his personal financial records for improper purposes while she was his advisor at Sun Life. However, other than making this bald assertion, he offers no other factual or evidentiary foundation for this allegation.
[84] At all times material to the allegations made by Mr. Filbey, Ms. Ashe was the advisor of record only for the trust accounts and the Policies. As such, she would have had legitimate reasons to access information relating to these accounts prior to her removal as advisor in August and December 2015 respectively.
[85] So far as Mr. Filbey’s personal accounts were concerned, the uncontradicted evidence of Ms. Ashe is that once those accounts were transferred out of her inventory to another advisor, she was no longer able to access them in the Sun Life system, or any information with respect to them.
[86] Mr. Filbey’s claims appeared to be based entirely on speculation. He tacitly acknowledges this in his affidavit, saying “I suspect she accessed or attempted to access my financial information on multiple occasions”.
[87] With respect to Mr. Filbey’s complaints about Ms. Ashe’s interactions with CI, there was an incident when Ms. Ashe, purportedly acting in her personal capacity, received information, gratuitously offered by CI, that Mr. Filbey had withdrawn approximately $9,500 from the trust account.
[88] As the mother of the beneficiary of the trust account, Reisha still being a minor at the time, it would be hard to characterise Ms. Ashe’s actions in contacting CI as devoid of lawful justification. To the extent that anything Ms. Ashe did could be reasonably regarded as an invasion of Mr. Filbey’s privacy, it was a benign invasion. It was nothing like the detailed personal financial information improperly obtained by the bank employee in Jones v. Tsige. Furthermore, the very limited information which Ms. Ashe obtained from CI was subsequently provided to her, with actual records, by Mr. Filbey in the Family Court proceedings.
[89] It is important too, to remember that the information that Ms. Ashe obtained was in relation to the trust property belonging to Reisha. Mr. Filbey would not have had a reasonable expectation of unqualified privacy in respect of a trust account for which he owed fiduciary obligations to his and Ms. Ashe’s daughter.
[90] Finally, even if the first two branches of the test in Jones v. Tsige were made out, which I do not find to be the case, a reasonable person would not find such invasion of Mr. Filbey’s privacy as may have occurred “highly offensive or causing humiliation, distress or anguish”.
Disposition
[91] For the foregoing reasons, the motions for summary judgment seeking dismissal of the plaintiff’s claims against the defendants are granted. The plaintiff’s action is dismissed.
[92] I encourage the parties to agree on the issue of costs. Should they not be able to do so, I direct as follows:
a. The defendants should serve a bill of costs on the plaintiffs, accompanied by written submissions within 21 days of the release of these reasons;
b. The plaintiffs should serve their response on the defendants within 14 days thereafter;
c. The defendants should serve their reply, if any, within 7 days thereafter;
d. In all cases, the written submissions should be limited to 4 pages, plus bills of costs; and
e. The plaintiffs are invited to submit the bill of costs they would have presented to the court had they been successful in the action.
[93] I would ask counsel for the defendants Nathaniel Ashe and Reisha Filbey to collect copies of all of the parties' submissions and arrange to have the package delivered to me at the Court House, 5 Court Street, Kingston K7L 2N4 as soon as the final exchange of materials has been completed. For the avoidance of doubt, no materials should be filed individually; rather, counsel for the Nathaniel Ashe and Reisha Filbey should assemble a single package for delivery as described above.
Graeme Mew J.
Released: 30 July 2018