COURT OF APPEAL FOR ONTARIO

2016 ONCA 238

DATE: 20160331

DOCKET: C60767

Doherty, Cronk and Pepall JJ.A.

BETWEEN

Diana Michelle Daniella Hordo

Applicant (Appellant)

and

State Farm Mutual Automobile Insurance Company (A United States of America Illinois Registered Mutual Insurer), Barbara Bellissimo and Edward B. Rust Jr.

Respondents (Respondents)

Robert Besunder, for the appellant

Mark Gelowitz and Karin Sachar, for the respondents

Heard and released orally: March 29, 2016

On appeal from the order of Justice Andra Pollak of the Superior Court of Justice, dated June 15, 2015.

ENDORSEMENT

[1] The appellant appeals, on numerous grounds, from the motion judge’s decision striking her application for declaratory relief against the respondents as an abuse of process. At heart, the appellant claims that confidential and private health-related information provided by her to the respondent State Farm in support of her claim for statutory accident benefits was wrongly transmitted to persons outside Ontario without her prior knowledge or consent.

[2] The motion judge accepted State Farm’s position that the appellant’s complaints against State Farm have also been asserted in her pending action against it for accident benefits. In addition, the appellant has lodged similar complaints on essentially the same basis under the Insurance Act, R.S.O. 1990, c. I.8 and the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”), both of which provide comprehensive dispute resolution schemes. In these circumstances, the motion judge accepted State Farm’s submission that declaratory relief should not be granted where it will not resolve the disputes between the parties and there are other reasonably effective procedures available for dealing with those disputes.

[3] We agree with the motion judge’s conclusion.

[4] The appellant’s allegations that State Farm misrepresented its status and the location of its adjusters to the appellant and wrongly transmitted her personal and confidential medical information to State Farm representatives in the United States without her consent are squarely pleaded in the appellant’s statutory accident benefits action. There is clear overlap between that action and the appellant’s application for declaratory relief.

[5] Moreover, the detailed dispute resolution procedures in the Insurance Act and PIPEDA furnish a statutory framework for resolution of the appellant’s claim that her privacy rights have been breached and her additional allegation that State Farm has engaged in unfair business practices. In these circumstances, in our view, the appellant’s application is misconceived and designed to circumvent these mandatory statutory schemes.

[6] The proposed fresh evidence sought to be filed by the appellant is irrelevant to the core issues described above. It wholly fails to meet the test for admission of fresh evidence on appeal. Further, it contains serious allegations of impropriety against the respondents. Given our conclusion that the proposed fresh evidence is irrelevant, we need not deal with those allegations. That said, we see nothing to support those allegations, which the respondents strongly dispute, save for the bald and unsubstantiated assertions of the appellant’s father.

[7] We note that the appellant has not sought leave to appeal costs in her notice of appeal. Nevertheless, we have considered the arguments advanced in her factum on this issue. We see no basis for appellate interference with the motion judge’s costs award. It is neither plainly wrong nor tainted by any error in principle.

[8] The motion for leave to file fresh evidence on appeal is therefore dismissed, as is the appeal. The respondents are entitled to their costs of the appeal and the motion, which we fix in the total amount of $20,000, inclusive of disbursements and relevant taxes.

“Doherty J.A.”

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”