Court File and Parties

Court File No.: CV-12-470359
Date: 2013-11-27
Superior Court of Justice - Ontario

Re: Eleanor Denise Baines, Plaintiff

AND:

Sigurdson Courtlander Burns and Silverstone, Barristers & Solicitors, Defendant

Before: Carole J. Brown J.

Counsel:

Eleanor Denise Baines, representing herself

Heidi Rubin, for the Defendant

Heard: November 18, 2013

Endorsement

[1] The defendants bring this Rule 20 motion for summary judgment on the ground that there is no genuine issue for trial in this action. Ms. Rubin, on behalf of the defendant, indicates that the defendant is not a legal entity. The lawyers involved are actually the staff office of TD Insurance, who practice as a law office and not as partners in a law firm. However, for purposes of this motion the defendant's are assuming that they were properly named in the statement of claim, without requiring amendments at this juncture.

[2] At the beginning of the motion, the plaintiff provided an amended statement of claim. Ms. Rubin, for the defendant, advises that she is prepared to argue the motion on the basis of the amended statement of claim, which adds claims of negligence. This decision is, therefore, based on the amended statement of claim.

The Facts

Procedural History

[3] The action arises from a motor vehicle accident which occurred on January 26, 2000, in which the plaintiff was a passenger in a vehicle driven by N. Hehar and owned by M.S. Hehar. On January 18, 2002, the plaintiff commenced an action for damages of $500,000 for personal injuries alleged to have resulted in permanent, serious impairment of an important physical, mental or psychological function. In the plaintiff's supplementary affidavit filed in this motion, she states that she sought total damages of $2,350,380 for income loss, pension loss, future healthcare costs and pain and suffering. The defendants in this case, Sigurdson Courtlander, represented the Messrs. Hehar in that action.

[4] The key issue in that action was the extent of the plaintiff's injuries and whether her alleged injuries met the threshold under Bill 59 of permanent, serious impairment as indicated above. Accordingly, in defending the action and in response to that plaintiff's medical evidence, the defendants retained medical practitioners and experts to conduct IMEs, some conducted by paper reviews, and others, in-person examinations to which the plaintiff consented. The Defendants further presented certain evidence related to the plaintiff's educational and work history, which she had placed in issue by claiming for special damages for loss of income and earning capacity.

[5] Following a 10 day jury trial in March of 2011, the jury determined that the plaintiff's net recovery for pecuniary damages was zero. Thereafter, the defendants brought a threshold motion to dismiss the plaintiff's claim for non-pecuniary damages. Moore J. found that the threshold had not been met and dismissed the plaintiff's claim for general damages.

[6] The plaintiff appealed the jury's verdict and the Order of Moore J., which appeal was dismissed by the Divisional Court. The plaintiff sought leave to appeal to the Court of Appeal and to have an extension of time for appealing the Divisional Court's decision, which was denied by Hoy J. An appeal of that decision was dismissed by the Court of Appeal.

The Present Action

[7] On December 18, 2012, the plaintiff commenced this action for the tort of intrusion upon seclusion and breach of privacy as against that defendants' lawyers in the other case, alleging that they were negligent, engaged in misconduct by marshalling certain medical and other evidence used in the defence, and committed the tort of intrusion of the plaintiff's seclusion. The plaintiff seeks damages of $150,000.

[8] The plaintiff alleges that the defendants, in representing Messrs.Hehar, violated statutory rules, committed intrusion upon seclusion, were negligent and violated her privacy by sending personal medical records to the defence doctors without her consent, obtained addendum expert reports, based on the documents provided by her, without obtaining her consent to provide said documents to the defence experts, discussed the contents of these personal documents with their witnesses at trial, sent copies of the Rule 30.10 motion record to the plaintiff's former employer and ODSP without her consent, and obtained official transcripts of her marks from the University of Waterloo without her consent. She refers, inter alia, to the College of Physicians and Surgeons of Ontario, Policy Statement #7-12 Medical Expert Reports and Testimony, regarding the physicians' obligations, the Rules of Professional Conduct, the Personal Health Information Protection Act 2004, S.O. 2004,c3,ch. A, Part III, and the Freedom of Information and Protection of Privacy Act, R. S. O. 1990, ch. F 31, ss. 2, 21.

[9] The plaintiff argues that the documents produced and used at trial were provided to the defence medical experts without her consent, that said documents were obtained contrary to the statutory provisions based on the statutes cited above at paragraph 8, and were intentionally not disclosed in an attempt to deceive her.

[10] The evidence indicates that the three medical experts retained by the defence were provided with the plaintiff's medical records, which had been provided by the plaintiff's counsel to them pursuant to the discovery process, and pursuant to the Rules of Civil Procedure (“the Rules”).

[11] All defence reports were served on the plaintiff's counsel pursuant to the Rules.

[12] The matter went before Horkins J. on May 12, 13 and 17, 2010, at which time Horkins J. dealt with preliminary matters before trial. It was agreed that all of her decisions would be binding on the trial judge. Among other things, Horkins J. observed, with respect to the plaintiff's objections regarding filing of medical reports and request that the defence experts be present for cross-examination, that all the defendant’s agreed that the defence experts would be available. Horkins J ruled that both parties were permitted to serve additional expert reports provided they comply with the Rules, and set timelines. Based on additional medical evidence served by the plaintiff, the defendants served two updated medical reports or addenda, but not within the stipulated timeline.

[13] The plaintiff further alleges, inter alia, that the defendants improperly served a motion record on a previous employer and on ODSP containing her private information. In fact, the motion record was served pursuant to a Rule 30.10 motion brought by the defendants' counsel after numerous requests from the defendants to the plaintiff's then-counsel for production of said documentation, for which undertakings had been given at examinations for discovery, and after correspondence from the plaintiff's counsel on April 9, 2007, indicating that the defendants would have to bring a Rule 30.10 motion to obtain the documentation sought from the third parties directly, which defendants’ counsel did. Service of the notice of motion and motion record on the third parties and on the plaintiff''s counsel was properly effected. In the end, the employer, Pinstripe Personnel, had gone out of business and no records were obtainable. On August 29, 2007, prior to the Rule 30.10 motion being heard, plaintiff's counsel provided the plaintiff's ODSP file to counsel for the defendants, such that no Rule 30.10 motion was required.

[14] Also, defendants' counsel requested of plaintiff's counsel her University of Waterloo transcripts, requested by correspondence from the defendants’ to the plaintiff's counsel of November 30, 2004 which were not provided. Accordingly, on April 22, 2010, defendants' counsel served a summons to witness on Sue Steffler of the University of Waterloo pursuant to Rule 53.04 (1), requiring her attendance to provide evidence at trial and requiring that she bring the plaintiff's transcript with her. It was indicated in the cover letter that if she were to provide the transcript, she would be released from the summons to witness, which was done.

[15] At trial, the defendants' counsel did not produce the University of Waterloo transcripts, as the plaintiff filed her own transcripts in the context of presenting her case, and the defendants' counsel cross-examined her thereon.

[16] Prior to the commencement of trial, the plaintiff prepared a pretrial brief, which included a statement of issues to be dealt with by Moore J.

[17] At trial, the defendant' medical experts testified and opined that the plaintiff did not meet the threshold. All experts were cross-examined by the plaintiff.

The Law

Rule 20: Summary Judgment

[18] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if there is no genuine issue requiring a trial.

[19] When hearing a motion for summary judgment, the judge may weigh the evidence, evaluate credibility and draw any reasonable inferences from the evidence.

[20] When the moving party establishes that there is no genuine issue requiring a trial, the onus shifts to the responding party to demonstrate that there is a genuine issue requiring a trial.

[21] Both parties must "put their best foot forward" and "lead trump or risk losing". The court is entitled to assume that all evidence to be relied on by both parties at trial has been brought before the motion judge. The judge must ask whether a full appreciation of the facts and issues that is required to make dispositive findings can be achieved by way of summary judgment, or whether a full appreciation can only be achieved by way of trial.

The Tort of Intrusion Upon Seclusion

[22] In this action, the plaintiff alleges that the defendants breached her privacy and committed the tort of intrusion upon seclusion by:

1. Providing the plaintiff's medical information to and requesting addendum reports from defence medical experts for purposes of trial, and discussing the contents of the reports at trial;

2. Sending copies of the Rule 30.10 motion to those parties from whom the information sought was requested, viz. the plaintiff's former employer and ODSP;

3. Obtaining the plaintiff's transcript from the University of Waterloo for purposes of the trial.

[23] The tort of intrusion upon seclusion is described as follows:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for intrusion of privacy if the intrusion would be highly offensive to a reasonable person: Jones v Tsige, **2012 ONCA 32** at paragraph **70**.

[24] In order to establish the tort of intrusion upon seclusion, the Court of Appeal has established a three-part test, as follows:

1. The defendants' conduct must be intentional, including reckless;

2. The defendants must have invaded the plaintiff's private affairs or concerns without lawful justification;

3. A reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish: Jones v Tsinge, supra at paragraph 71.

[25] All of the actions complained of were done by counsel for the defendants within the context of the litigation commenced by the plaintiff, were done pursuant to the Rules of Civil Procedure, and were required for purposes of defending the action and the issues raised by the plaintiff in her statement of claim.

[26] The medical evidence provided to the defence experts was medical evidence provided by the plaintiff to the defendants' counsel within the context of the examinations for discovery and as required by the Rules. The addendum reports were permitted to be sought pursuant to the Order of Horkins J. for purposes of the trial. While they were served outside the timeline provided by Horkins J., this is not invalidate them, as suggested by Ms. Baines.

[27] The Rule 30.10 motion records served on the plaintiff's former employer and on ODSP, were served within the context of the litigation for purposes of defending the plaintiff's allegations regarding her inability to work or pursue studies due to the motor vehicle accident, and after numerous requests by the defendants' counsel to produce same. The plaintiff's then-counsel advised defendants' counsel that defendants' counsel would have to bring a Rule 30.10 motion in order to obtain the documentation, which was done. Service of the motion record on the third parties was pursuant to the Rules. In the end, the employer had gone out of business, and the plaintiff's ODSP file was produced at trial by the plaintiff herself.

[28] Finally, with respect to the University of Waterloo transcripts, these were obtained with respect to the issues raised by the plaintiff following service of the Summons to Witness on Sue Steffler of the University of Waterloo, requiring that she attend and give evidence at trial and that the transcripts be brought to the trial with her. The plaintiff argues in this motion that the defendants' "deceived" the witness by making her think that the Summons to Witness was a subpoena. In support of this contention, she has produced an e-mail from Ms. Steffler to her advising that her transcript had been subpoenaed. The proper document, a Summons to Witness, was served on Ms. Steffler pursuant to the Rules of Civil Procedure and there is no evidence of any deception in that regard. Moreover, at trial, the transcript was entered in evidence by the plaintiff herself, and not by the defendants.

[29] All of the actions complained of were done pursuant to the Rules of Civil Procedure and within the context of the litigation commenced by the plaintiff against Messrs. Hehar, who were represented by the defendants in this action. I do not find the statutes cited by the plaintiff at para. 7, supra, to have application in the circumstances of this case and on the facts before me. Further, all evidence adduced was judicially supervised by the presiding trial judge, Moore J There is no basis for an action for nor a finding of negligence, intrusion upon seclusion, or privacy in the circumstances of this case. All of the actions, as indicated previously, were conducted within the context of the litigation, pursuant to the Rules of Civil Procedure and, with respect to the addendum expert reports, upon the Order of Horkins J.

[30] As stated by Cory J. A. (as he then was) in Cook v Ip, [1985] O. J. No. 2653, paragraphs 11 and 13:

There can be no doubt that it is in the public interest to ensure that all relevant evidence is available to the court. This is essential if justice is to be done between the parties. Wherever damages are claimed for injuries suffered, a review of the medical records is of vital importance to the court's decision. Evidence as to early diagnosis of injury may be very important, for example, in cases involving head injuries, low back injuries or traumatic neurosis. Without production of all pertinent medical records, it may be impossible for either the plaintiff to prove his claim or for the defendant to determine the nature and extent of the injuries or to calculate the damages that flow from them. The production of medical records is thus fundamental to the court's determination of the nature, extent and effect of the injuries which may have been suffered and the appropriate measure of damages flowing from them.…

No doubt medical records are private and confidential in nature. Nevertheless, when damages are sought for personal injuries, the medical condition of the plaintiff both before and after the accident is relevant. In this case, it is the very issue in question. The plaintiff himself has raised the issue and placed it before the court. In these circumstances there can no longer be any privacy or confidentiality attaching to the plaintiff's medical record.

[31] In this case, based on the plaintiff's statement of claim in the original action, her medical and psychological injuries were squarely in issue. Also, the effect of the alleged injuries on her activities of daily living, including, social, household, athletic, educational and other activities, and her ability to earn a livelihood were placed in issue in the statement of claim.

[32] Based on the evidence before me, the submissions of Ms. Baines and counsel for the defendants, the jurisprudence and statutes relied on by Ms. Baines and Ms. Rubin for the defendant, and based on the foregoing analysis, I find that there is no genuine issue for trial. I find that there is no cause of action established in this case as regards the tort of intrusion on seclusion alleged to have been committed by the defendant.

[33] Based on the record before me, I am satisfied that a full appreciation of the issues before me can be had on the basis of the motion records and evidence before me and that the full machinery of a trial is not required. Accordingly, I grant summary judgment to the defendants in this action.

Costs

[34] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown J.

Date: November 27, 2013