ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-417051

DATE: 20120210

BETWEEN:

SILVANA SAMPOGNA and ANGELO SAMPOGNA Plaintiffs/Respondent – and – ALLAN SMITHIES Defendant/Moving Party

Vernon Balaban, for the Plaintiffs

Jessica Braun, for the Defendant

HEARD: January 16, 2011

T. Mcewen J.

reasons for decision

Background

1The Defendant, Allan Smithies (“Smithies”), brings this motion for summary judgment pursuant to rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194. He seeks an order dismissing the Plaintiffs’ claim on the basis that it fails to disclose a cause of action and that it is statute barred as per the provisions of the City of Toronto Act, 2006, S.O. 2006, c. 11, Schedule A (“COTA”). Smithies is a manager of the City of Toronto’s Traffic Planning/Right-of-way Management Section. One of his duties is to handle inquiries with respect to the purchase of any public road allowance in the City’s Etobicoke York District.

2In accordance with his duties, he became involved with the Plaintiffs, Silvana Sampogna and Angelo Sampogna (the “Sampognas”) with respect to their interest in purchasing a portion of a public lane.

3In the course of his dealings with the Sampognas, Smithies released documents to Councillor Giorgio Mammoliti (“Mammoliti”), the local Councillor, which contained the Sampognas’ private information, including their telephone number and address.

4Smithies provided affidavit evidence in this matter. He states that he was under the impression that Mammoliti would keep the information private and not release it to the public. Accordingly, he did not believe that he was breaching his obligation to keep the information private; he thought that he was acting in accordance with the City’s standard practice.

5Ultimately, the Sampognas filed a complaint in this matter to the City’s Corporate Access and Privacy Office (the “CAP”) which conducted an investigation. The CAP concluded that Smithies’ disclosure of the Sampognas’ personal information to Mammoliti was not in compliance with the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (“ MFIPPA ”). The CAP made recommendations that, amongst other things, the City apologize to the Sampognas and Smithies receive proper training.

Smithies’ Motion

6Smithies relies on the following grounds for this motion:

1. The only basis for the Sampognas’ claim is an alleged breach of MFIPPA. A breach of a statute does not amount to a cause of action in a civil claim, thus the claim discloses no cause action; and,

2. Smithies acted in good faith in the performance of his duties at all times. Accordingly, no proceeding for damages can be commenced against him for any act done in good faith in the performance of his duties or for any alleged neglect or default in the performance in good faith of those duties by reason of s. 391 of COTA. As such, the claim is statute barred.

7The Plaintiffs oppose the motion but have not submitted any case law or authorities in support of their position.

Issues

The following issues arise on this motion:

(1) Is this an appropriate case for summary judgment?

(2) Does a breach of MFIPPA give rise to a cause of action?

(3) Is the claim statute barred?

Analysis

(1) Is this an appropriate case for summary judgement?

8I have concluded that this is an appropriate case for summary judgement. Smithies contends that the Sampognas’ claim is without merit and the trial process is not required in the interest of justice.

9In this event, I must first ask myself whether “the full appreciation of the evidence and issues that is required to make the dispositive findings [can] be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial:” see Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764. In this case, the evidence is of a straightforward nature and there is very little, if any, conflicting evidence. There would be a limited number of witnesses at trial. I agree with counsel for Smithies that the Motion Record is sufficient to provide a full appreciation of the evidence and issues. The Sampognas did not oppose the motion for summary judgement on the basis that it would be inappropriate to do so in the circumstances of this case.

(2) Does a breach of MFIPPA give rise to a cause of action?

10In the Sampognas’ Statement of Claim they seek damages as a result of the alleged breach of statute. There are no other allegations against Smithies in the Statement of Claim. In particular, there are no allegations of negligence against Smithies.

11Smithies contends that the mere allegation of a breach of statute is insufficient to found a case of action: see Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205 and Deep v. Ontario, [2004] O.J. No. 2734 (S.C.) aff’d [2005] O.J. No. 1294 (C.A.). I agree. The law is well settled that the Plaintiffs are not entitled to claim damages solely for the violation of a statute, even if such violation is assumed to have taken place. I stress that in coming to this conclusion, I do not have to determine whether or not Smithies was in fact negligent since there is no allegation of negligence against him. The claim alleges only a breach of the provision of MFIPPA. The Statement of Claim, therefore, does not disclose a cause of action against Smithies and ought to be dismissed.

12The order is made without prejudice to the right of the Sampognas to seek leave to amend their Statement of Claim.

(3) Is the claim statute barred?

13Section 391 of COTA provides as follows:

Immunity re performance of duty

391. (1) No proceeding for damages or otherwise shall be commenced against a member of city council, an officer, employee or agent of the City or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by-law passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority.

14Smithies submits that it is uncontested that he was a City employee acting within the scope of his duties during the relevant period. He therefore submits that an action can only be commenced against him if it can be demonstrated that he was not acting in good faith in the performance or intended performance of his duties as an employee of the City.

15Smithies further submits there is no evidence that he did not act in good faith, even if it is assumed he breached the provisions of the MFIPPA. The Sampognas submit that Smithies’ failure to contact them before releasing their personal information constitutes bad faith. It is important to point out, however, that they make no specific factual allegations that he acted in bad faith towards them or that he had any animosity towards them. Rather, as mentioned, the sole assertion in this regard is that disclosure of the information, in and of itself, constitutes bad faith.

16Actions are carried out in good faith if they are not founded upon fraud, oppression or improper motives. The presence of good faith is established by the absence of bad faith. In any case, the onus is upon those alleging it to establish a charge of improper conduct: see Exeter (Town) v. Huron (County), [1990] O.J. No. 240. In this case, there are no allegations that Smithies acted upon fraud, oppression or improper motives. There are no allegations that he used his office improperly or engaged in deliberate conduct intended to cause harm. Once again, the sole allegation the Sampognas make against Smithies is that he failed to contact them before releasing their personal information. Smithies explained in his affidavit and during cross-examination that the disclosure was inadvertent. There is no evidence of any kind presented on this motion to contradict his position. This is supported by the fact that Ms. Sampogna, at her cross-examination, agreed that there was no reason to believe that Smithies was trying to cause the Sampognas any damage. As a result, I cannot conclude that his actions amount to an absence of good faith.

17Statutory immunity may not provide immunity in cases of gross carelessness or serious negligence: see Finney v. Barreau du Québec, 2004 SCC 36, [2004] S.C.J. No. 31. I cannot conclude, however, based on the evidence before me, that Smithies’ actions constituted either. It is clear that Smithies acted in accordance with the standard practice of his division at the time the information was disclosed to Mammoliti. While this may have been wrong, there is no allegation or suggestion of gross carelessness or serious negligence.

18In my view, the statutory immunity contained at s. 391 of COTA is designed to deal with this type of situation, where Smithies, in his role as a manager, acted in accordance with the standard practice and in good faith.

19Accordingly, I conclude that the claim is statute barred.

Order

20Based on the foregoing, the Plaintiffs’ claim is dismissed with costs.

21Smithies is entitled to his costs of the action and the motion. After hearing submissions of counsel and reviewing the Bill of Costs provided by Smithies, I order that the Sampognas, jointly and severely, pay Smithies’ costs in the amount of $7,000 for costs, plus H.S.T. and $715.34 for disbursements.

T. McEwen J.