Court File and Parties
COURT FILE NO.: CV-16-194-00 DATE: 20190222 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
WILLIAM (“BILL”) BALDWIN and JULIE HUGHSON Plaintiffs – and – JASON MORNINGSTAR, DEBORAH PARROTT (also known as DEBORAH MORNINGSTAR) and THE ATTORNEY GENERAL OF CANADA Defendants
Counsel: Laura Hohensee, for the Plaintiffs Angela Chaisson, for Jason Morningstar and Deborah Parrott
HEARD in Kingston: 1 November 2018
Before: Mew J.
Reasons for Decision (Motion for Summary Judgment)
1T. and S. played on the same hockey team and, at the time this dispute arose, had known each other for about three to four years.
2T.’s parents are the individual defendants in this proceeding, Jason Morningstar and Deborah Parrott. Both of them work as a correctional officers at the Joyceville Medium Institution. In addition, Jason Morningstar volunteered as a trainer for the hockey team that his son and S. played on.
3S.’s mother is one of the plaintiffs in this action, Julie Hughson. His father is Ryan Fulton. Prior to the events giving rise to this action, the marriage between Ms. Hughson and Mr. Fulton had ended: in their affidavits on this motion, they refer to each other as “ex-spouse”.
4From 2012 to 2017, Ms. Hughson and the other plaintiff, Bill Baldwin, were in a relationship. For some of that time, Mr. Baldwin was incarcerated at the Joyceville Minimum Institution. His incarceration arose from his conviction, on 20 December 2011, for criminal harassment, invitation to sexual touching and sexual assault.
5Ms. Hughson had not told Mr. Fulton about the nature of the charges that had resulted in Mr. Baldwin’s conviction. Rather, she had told Mr. Fulton that Mr. Baldwin was incarcerated for cigarette smuggling.
6The plaintiffs’ action against the defendants arises from allegations that the defendants were responsible for Mr. Fulton becoming aware of the true nature of Mr. Baldwin’s convictions. This is said to have caused Child and Family Services to become involved and to Mr. Fulton seeking sole custody of S., with restricted access to S. on the part of Ms. Hughson.
7In their amended statement of claim, the plaintiffs seek damages, including aggravated and punitive damages, against the individual defendants and their employer, Correctional Services Canada (represented by The Attorney General of Canada). The amended statement of claim alleges that the individual defendants recklessly and without justification intruded upon Mr. Baldwin’s seclusion by unlawfully accessing and subsequently disseminating confidential information about the reasons for his incarceration. The amended statement of claim also appears to assert (but fails to clearly articulate) a claim of expressly intending to inflict emotional and economic harm on both of the plaintiffs.
8Jason Morningstar and Deborah Parrott seek summary judgment dismissing the action.
9Although the record contains some evidentiary disputes, both the moving parties and the responding parties are in agreement that their dispute is appropriately determined by summary judgment. While the plaintiffs have not formally moved for summary judgment in their favour, they submit that it would be open to the court to do so and to assess damages based on the existing record.
10Prior to the hearing of the motion, the court was advised by counsel for the Attorney General of Canada that the Attorney takes no position on this motion. However, it is acknowledged that if the moving parties succeed on their motion for summary judgment, the claim against the Attorney General of Canada would also fall away.
The Facts
11In 2017, S. told T. that his mother’s boyfriend was serving a lengthy sentence at Joyceville. T., in turn, told his father, who says he did not think much of it at the time and took no action.
12Jason Morningstar was subsequently approached by a work colleague, Ryan Hailey, who told him that an inmate at the Joyceville Minimum Institution had started asking questions about Jason Morningstar and his son. Mr. Hailey told Jason Morningstar that Mr. Baldwin’s girlfriend’s son played on the same hockey team as his son.
13Jason Morningstar describes this incident as “a pivotal moment” in his career. Never before had an offender made personal inquiries of him or anyone in his family. He says it gave rise to deep concerns on his part, particularly for the safety of his family.
14As a result of his concerns, Jason Morningstar accessed the Correctional Services Canada Offender Management System (“OMS”), he says, to make sure that Mr. Baldwin was not dangerous to his son. Upon seeing that Mr. Baldwin was a convicted sex offender, serving a lengthy sentence for sex crimes against a minor, Jason Morningstar became distressed.
15Jason Morningstar told his wife, the defendant Deborah Parrott, about his concerns.
16Deborah Parrott then accessed Mr. Baldwin’s information on the OMS herself, to confirm what her husband had told her. He had been so upset that she thought it could have been a mistake. Her own search on the OMS confirmed that it was not.
17Correctional Services has confirmed that each of Mr. Morningstar and Ms. Parrott accessed Mr. Baldwin’s OMS electronic file once.
18Both Jason Morningstar and Deborah Parrott acknowledge that it was wrong for them to have accessed William Baldwin’s information on the OMS. Each expressed regret. Both of them were disciplined. Jason Morningstar received a reprimand and a fine of $270. Deborah Parrott was also reprimanded. Both of them had hitherto spotless employment records with Correctional Services Canada.
19Jason Morningstar had known S.’s father, Ryan Fulton, for many years. After becoming aware that Mr. Baldwin was a convicted sex offender, Mr. Morningstar says he asked Mr. Fulton if he knew what his ex-wife’s boyfriend had received his sentence for. Mr. Fulton responded that the conviction was for smuggling drugs or cigarettes for the mafia. Mr. Morningstar says that in response he suggested that Mr. Fulton may wish to speak to his ex-wife about her boyfriend. He asserts that this is all that he said. He denies that he gave any other information related to Mr. Baldwin or his criminal history.
20Ryan Fulton confirms that this is the extent of what he was told by Jason Morningstar. After his conversation with Mr. Morningstar, Mr. Fulton drove to Julie Hughson’s place of work to ask her what Mr. Baldwin had been convicted for. She admitted to him that she had lied about the smuggling conviction, and informed Mr. Fulton that Mr. Baldwin had received three years’ incarceration for sexually assaulting his step-daughter, who was a child at the time.
21Ms. Hughson gives a different account. She says that when she was confronted by Mr. Fulton, Mr. Fulton was already aware of the nature of Mr. Baldwin’s convictions. She distinctly remembers Mr. Fulton saying “Morningstar told me”. She maintains that she did not disclose the nature of Mr. Baldwin’s convictions to Mr. Fulton. She says that she would have had no reasonable basis for doing so.
22Once Mr. Fulton became aware of the true nature of Mr. Baldwin’s criminal convictions, he initiated family law proceedings to obtain sole custody of his son and also produced and put up posters around Ms. Hughson’s neighbourhood stating that Mr. Baldwin was a convicted sex offender.
23I would note that although Mr. Baldwin denies that he asked Mr. Hailey about Mr. Morningstar and his son, Mr. Hailey was not cross-examined on his affidavit in which he asserts that such questions were asked.
24Information about Mr. Baldwin’s convictions, including his sexual convictions, is widely obtainable on the internet.
Issues
25The individual defendants assert that there are no genuine issues requiring a trial on either of the causes of action articulated by the plaintiffs, namely:
a. Negligent and/or intentional infliction of emotional and economic harm; or b. Intrusion upon seclusion.
Analysis
26To the extent that there is conflicting evidence, I accept the evidence of Mr. Hailey (who was not cross-examined) where it conflicts with Mr. Baldwin’s evidence. I make no finding as to whether Mr. Morningstar or Ms. Hughson told Mr. Fulton about Mr. Baldwin’s conviction for a sexual offence. For the purposes of my analysis, it makes no difference to ultimate assessment of whether the plaintiffs are entitled to relief.
27Setting aside the apparent conflation by the plaintiffs of two separate torts, namely intentional interference with economic relations and intentional infliction of mental suffering, the record contains no evidence of economic harm or employment difficulties that have been experienced by the plaintiffs as a result of the defendants’ actions.
28Intentional interference with economic relations is an economic tort. In that regard, there is no evidence of any intention on the part of the defendants to interfere with the plaintiffs’ business or economic interests. It is not enough that the defendants’ conduct caused foreseeable economic loss. The elements of the tort require (a) wrongful interference by the defendants with the actions of a third party in which the plaintiff has an economic interest; and (b) an intention by the defendant to cause a loss to the plaintiff: Correia v. Canac Kitchens, 2008 ONCA 506.
29The plaintiff, William Baldwin, asserts intentional infliction of mental suffering by the defendants. The elements of that tort are (a) flagrant or outrageous conduct; (b) calculated to produce harm; and (c) resulting in a visible and probable illness.
30In his affidavit, Mr. Baldwin asserts:
… It will take me considerable time to overcome the stigma of my convictions and the action of the Defendant Officers have significantly contributed to my pain and suffering.
While I acknowledge my past criminal history, I continue to maintain my innocence of the convictions that I have been serving at Joyceville. These were highly sensitive charges and the actions of the Defendants [sic] Officers have caused me and Julie great pain and embarrassment.
31Attached to his affidavit, Mr. Baldwin included an excerpt from a psychological treatment summary dated 13 August 2016 stating that Mr. Baldwin’s current convictions “are certainly inconsistent with his personality profile” and that the “accusations against him appear unusual and his explanation of a false allegation are compelling. This is supported by the clinical evidence that indicates he has no sexual deviance or abnormality that would fit the profile of a person accused of the offences he was ultimately convicted”.
32It bears noting that Mr. Baldwin unsuccessfully appealed his conviction to the Ontario Court of Appeal and that the Supreme Court of Canada refused leave to appeal from that decision.
33The psychological treatment summary describes Mr. Baldwin as having done “a remarkable job of overcoming the sequela of his criminal matters” and that he is “heading in a very positive direction in his life by maintaining a positive romantic relationship, being involved in positive employment, and making effective use of his leisure time”. The report anticipated that Mr. Baldwin would likely reach his warrant expiry date without complications and that he did not require ongoing treatment.
34In my view, the record simply does not support evidence of intention to emotionally harm Mr. Baldwin, or of any conduct on the part of the defendants that would rise to the level of “flagrant or outrageous”. Nor was there any conduct on the part of the defendants which was calculated to harm Mr. Baldwin and cause him mental suffering. While the defendants should not have done what they did, I am satisfied that their misguided accessing of Mr. Baldwin’s OMS record was motivated only by a desire to protect their son and to find out who it was that was asking questions about him and them.
35To similar effect, Ms. Hughson puts forward no evidence of mental suffering. No doubt the custody dispute that she then became embroiled in with Mr. Fulton was “costly and emotionally draining”. But on any reasonable view, the cause of Ms. Hughson’s distress was her own lack of candour. She lied to her ex-husband about Mr. Baldwin’s convictions. That gamble did not pay off. The truth eventually came to light. It would be nonsensical if she could obtain relief against the defendants for any role they may have played in a discovery of the truth that would almost certainly have eventually happened in any event.
36I then turn to the claim by the plaintiff, William Baldwin, of intrusion upon seclusion based upon:
a. The access by the defendants of his OMS records; and b. The making and distribution of posters featuring Mr. Baldwin’s photograph and details of his sex assault convictions.
37I can deal with the complaint about the posters in short order. Ryan Fulton made the posters. He acted alone. Mr. Baldwin was told as long ago as 2015 that Ryan Fulton had admitted to having done so.
38There is not a scrap of evidence that the defendants had anything to do with Mr. Fulton having made and distributed the posters. Even if they were the source of Mr. Fulton’s information about Mr. Baldwin’s convictions, the information was (a) true; and (b) Mr. Fulton’s actions could not reasonably have been anticipated by the Morningstars.
39As to the claim of intrusion upon seclusion arising from Mr. Baldwin’s OMS records having been accessed, the Court of Appeal’s decision in Jones v. Tsige (2012), 2012 ONCA 32, 108 O.R. (3d) 241 which imported the tort of intrusion upon seclusion into Ontario law, held that establishing the tort requires proof of the following:
a. The defendants’ conduct must be intentional, which can include recklessness; b. The defendants must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and c. A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
40There is no doubt that the Morningstars intentionally accessed Mr. Baldwin’s OMS records. The first element of the intrusion upon seclusion test is therefore met.
41As to the second element, the information obtained by the defendants was less than what was publically available by doing a simple internet search. Furthermore, the Court of Appeal has upheld the principle that people have no right to privacy in criminal proceedings against them: Tadros v. Peel Regional Police Service (2009), 2009 ONCA 442, 97 O.R. (3d) 212 (C.A.) The criminal charges made against Mr. Baldwin and the disposition of those charges are matters of public record. Accordingly, although the Morningstars did not have lawful justification for the OMS searches which they undertook, the result of those unlawful searches was the obtaining of information that was already in the public domain, albeit through a different medium.
42Even if the Morningstars’ actions could be said to have amounted to an invasion, without lawful justification, of Mr. Baldwin’s private affairs or concerns, his claim is, in my view, bound to fail on the third element of the tort of intrusion upon seclusion.
43No reasonable person would regard what the Morningstars did as “highly offensive causing distress, humiliation or anguish”.
44In so finding, I should not be taken as condoning the actions of the Morningstars for which they have been rightly sanctioned by their employer.
45However, I find that the Morningstars acted out of concern for the son, in moments of parental panic and vulnerability. Their behaviour was not highly offensive.
46Furthermore, there is simply no evidence, beyond a bald assertion by Mr. Baldwin, of anything that could be vaguely described as distress, humiliation or anguish on his part (over and above the distress, humiliation or anguish which he has doubtless experienced as a result of being convicted of a sexual offence against a minor).
Disposition
47For the foregoing reasons, I conclude that there are no viable claims asserted in this action. There are no issues which require a trial. The action is dismissed against all defendants.
48I would add that, had I decided liability the other way, I would hold that the plaintiffs have failed to prove any meaningful damages. In so finding, I appreciate that the Court of Appeal has effectively held that such damages are at large and should be modest, but sufficient, to mark the wrong that has been done.
49Had I found that the defendants were responsible for intrusion upon Mr. Baldwin’s seclusion, I would have fixed damages in the nominal amount of $1,000.
50I am provisionally of the view that the defendants should receive their costs of this motion and of the action on a partial indemnity basis.
51If counsel are unable to agree on costs of the motion, I direct as follows:
a) the defendants should serve a costs summaries on the plaintiffs, accompanied by written submissions on the quantum and scale of costs within 14 days of the release of these reasons; b) the plaintiffs should serve their response on the defendants seeking costs within 7 days thereafter; c) the defendants should serve their reply/replies, if any, within 7 days thereafter; d) in all cases, the written submissions should be limited to 3 pages, plus costs summaries; and e) the plaintiffs are invited to submit the bill of costs they would have presented to the court had they been successful on the motion.
52I would ask counsel for the Morningstar defendants to collect copies of all of the parties’ costs submissions and arrange to have the package delivered to me care of the Trial Co-ordinator in Kingston as soon as the final exchange of materials has been completed. For the avoidance of doubt, no further materials should be filed individually; rather, counsel for the Morningstar defendants should assemble a single package for delivery as described above.
Graeme Mew J.
Released: 22 February 2019