Court of Appeal for Ontario
Date: 20211207 Docket: C67654
Doherty, Benotto and Huscroft JJ.A.
BETWEEN
Annabelle Maritza Edgeworth Plaintiff (Appellant)
and
Karyn Shapira, Brian Levine, Northbridge General Insurance Corporation and Andrew Evangelista Defendants (Respondents)
Counsel: Rocco Galati, for Annabelle Maritza Edgeworth Thomas M. Slahta, for Karyn Shapira and Andrew Evangelista Todd J. Burke, for Brian Levine David Zuber and David J. Olevson, for Northbridge Insurance Corporation
Heard: December 3, 2021
On appeal from the order of Justice Lorne Sossin of the Superior Court of Justice, dated October 11, 2019, with reasons reported at 2019 ONSC 5792.
Reasons for Decision
[1] Annabelle Maritza Edgeworth appeals an order which dismissed most of the claims in her action.
[2] Having been injured in a bicycle accident, Ms. Edgeworth retained Campisi LLP to commence an action against a person who was insured by the respondent Northbridge General Insurance. Northbridge retained Karyn Shapira, of Evangelista Barristers and Solicitors, to defend the action.
[3] On October 3, 2016, Ms. Edgeworth made an offer to settle. In January 2017, Brian Levine was retained to conduct a defence medical assessment. The assessment was completed in April 2017. No medical report was ever delivered. On June 7, 2017, Ms. Edgeworth’s outstanding settlement offer was accepted by the defence and the action was formally dismissed on October 12, 2017.
[4] Two years later Ms. Edgeworth brought this action alleging that the respondents Ms. Shapira, Dr. Levine, Northbridge and Andrew Evangelista conspired to suppress Dr. Levine’s expert report. She sought damages for unlawful means conspiracy, intrusion on seclusion, conspiracy to injure, and misrepresentation. Campisi LLP represented her.
[5] The respondents moved to strike the pleadings against them under rr. 21 and 25 of the Rules of Civil Procedure and to have Campisi LLP removed as solicitor of record.
[6] The motion judge granted the motions as follows:
- The action was dismissed entirely against Dr. Levine, Northbridge and Andrew Evangelista.
- The claims against Ms. Shapira were dismissed, except for the misrepresentation claim.
- Campisi LLP was removed as solicitor of record.
[7] On appeal, Ms. Edgeworth submits that the motion judge:
(i) erred in striking the claims for conspiracy and intrusion on seclusion; (ii) applied the wrong test on a motion to strike; (iii) disregarded the facts alleged in the pleadings; and (iv) erred in removing Campisi LLP from the record.
[8] We do not accept the appellant’s submissions.
[9] The appellant relies on a failure to comply with r. 33.06 to ground the unlawful means component conspiracy. That rule – limited to a medical report consented to in writing or ordered by the court – requires that the examining health practitioner prepare a written report of any examination and share it with the parties. The motion judge held that this was not the kind of “wrongful act” envisioned in the jurisprudence dealing with unlawful means conspiracy: see Agribrands Purina Canada Inc. v. Kasamekas et al., 2011 ONCA 460, 334 D.L.R. (4th) 714 and Beaird v. Westinghouse (1999), 43 O.R. (3d) 581 (C.A.). The motion judge also rejected the argument that a failure to comply with the rules constituted the crime of obstructing justice under the Criminal Code, R.S.C. 1985, c. C-46, and thus was actionable.
[10] With respect to the claim of intrusion upon seclusion, the motion judge held that the appellant had submitted to the medical examination requested by the defence willingly and with justification, in the context of her own personal injury claim. Therefore, the tort was not made out.
[11] Finally, the motion judge held that even if the causes of action were established, the appellant would have the insurmountable barrier of establishing damages. The damages in this case were the result of her choice, with the advice of counsel, to finalize the settlement even though she knew that a written medical report had not been completed.
[12] The motion judge reviewed each of the appellant’s causes of action, considered the facts pleaded and found that it was plain and obvious that they could not succeed. He correctly identified the essential elements of each cause of action, considered the facts and applied the correct test under the rules.
[13] Nor did the motion judge err in removing Campisi LLP as solicitor of record. The misrepresentation claim turns on what was said between Campisi and Ms. Shapira. As the motion judge said at para. 91, it is hard to imagine a scenario where he would not be required to testify. There is an obvious conflict requiring that he be removed from the record.
[14] The appeal is dismissed. As agreed, costs are payable to the respondents in the global amount of $15,000 inclusive of disbursements and HST.
“Doherty J.A.”
“M.L. Benotto J.A.”
“Grant Huscroft J.A.”