COURT OF APPEAL FOR ONTARIO

CITATION: Baines v. Sigurdson Courtlander Burns and Silverstone Barristers & Solicitors, 2015 ONCA 80

DATE: 20150204

DOCKET: C59081

Feldman, Cronk and Hourigan JJ.A.

BETWEEN

Eleanor Denise Baines

Appellant/Plaintiff

and

Sigurdson Courtlander Burns and Silverstone Barristers & Solicitors

Respondent/Defendant

Eleanor D. Baines, acting in person

Adam Pantel, for the respondent

Heard and released orally: January 23, 2015

On appeal from the order of Justice Carole J. Brown the Superior Court of Justice, dated May 12, 2014.

ENDORSEMENT

[1] The appellant was the unsuccessful plaintiff in an action arising from a motor vehicle accident. She subsequently commenced an action against the respondent, the lawyers who represented the defendants in the motor vehicle litigation, for the tort of intrusion upon seclusion, breach of privacy and negligence.

[2] The appellant alleges that the respondent violated her privacy by: (a) providing her medical information to defence experts without her consent for the purpose of the trial and obtaining addendum reports from the defence experts based on her medical information; (b) serving copies of a rule 30.10 motion record on her former employer and the Ontario Disabilities Support Program without her consent; and (c) obtaining official transcripts of her marks from the University of Waterloo without her consent.

[3] The respondent brought a motion for summary judgment to dismiss the appellant’s claim. The motion judge granted the motion and awarded the respondent $3,500 in costs. The appellant appeals that order.

[4] We see no basis to interfere with the order of the motion judge.

[5] The appellant’s claim in the underlying personal injury action put in issue her medical and psychological injuries, as well as her ability to work and pursue her studies. She thereby waived any privacy interest in her medical records and academic records for the purpose of the litigation.

[6] Moreover, the respondent’s impugned conduct throughout, including service of the rule 30.10 motion, was justified by law as it was undertaken for the purposes of the litigation pursuant to the Rules of Civil Procedure. In these circumstances, there was no breach of the appellant’s privacy and the tort of intrusion upon seclusion cannot be established.

[7] The respondent’s reference to the appellant’s medical condition during the trial also does not amount to negligence or any breach of duty by the respondent. The respondent owed no duty to the appellant.

[8] The appellant also alleges a breach of her right to natural justice on the basis that the respondent raised an issue – that it was improperly named in the statement of claim – for the first time on the return of the motion. However, the naming issue is not relevant to the summary judgment motion because the respondent agreed that it was properly named for the purposes of that motion. There was, therefore, no breach of natural justice.

[9] Finally, the appellant submits that the motion judge ignored evidence of her impecuniosity in making the costs award. The evidentiary onus is on the party asserting impecuniosity and we see no grounds to interfere with the motion judge’s ruling. The appellant did not meet her onus. There is also no basis to interfere with the quantum of the costs award, which was entirely reasonable and far below the respondent's actual costs.

[10] The appeal is dismissed. The respondent is entitled to its costs, which we fix at $2,000, inclusive of HST and disbursements.

"K. Feldman J.A."

"E.A. Cronk J.A."

"C.W. Hourigan J.A."