Court File and Parties

COURT FILE NO.: CV-18-00604221-0000 DATE: 20190715 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

JOSEPH FURFARI Plaintiff (Respondent) – and – JOHN PEDIAS Defendant (Moving Party)

COUNSEL: Megan Hodges for the Plaintiff (Respondent) Jason Beitchman and Sarah Spitz for the Defendant (Moving Party)

HEARD: July 9, 2019

FAVREAU J. :

Introduction

[1] The plaintiff, Joseph Furfari, claims that the defendant, John Pedias, entered his home while he was on vacation and took some confidential documents. On this basis, Mr. Furfari sues Mr. Pedias for breach of confidence and invasion of privacy. Mr. Furfari seeks damages totaling $300,000, including aggravated and punitive damages.

[2] Mr. Pedias brings a motion to strike the claim pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure. He argues that the claim does not plead the necessary elements and material facts to support the causes of action asserted, and that the claims for aggravated and punitive damages are not properly pleaded.

[3] For the reasons that follow, Mr. Furfari's claim for breach of confidence and his claim for aggravated damages are struck with leave to amend, and the balance of the motion is dismissed.

Background

[4] On a motion to strike, the facts pleaded are to be taken as true, unless they are patently ridiculous or incapable of proof: Frank v. Legate, 2015 ONCA 631, at para. 36. Accordingly, the facts set out below are based on the facts pleaded in the claim.

[5] Until recently, Mr. Furfari and Mr. Pedias were friends. Mr. Furfari was also friends with Mr. Pedias' brother, Mario.

[6] Until December 31, 2017, Mr. Furfari was a senior executive of Furfari Paving Inc., which is a road maintenance company owned by ColasCanada Inc. Both companies are suing Mr. Furfari. Mario is a vice-president of Furfari Paving Inc.

[7] Mr. Furfari claims that Mr. Pedias entered his house and removed a number of confidential documents. The claim is very short and makes the following allegations of fact against Mr. Pedias:

1. The Plaintiff owns a farm located in King City, Ontario ("Property"). The Plaintiff from time to time would hire the Defendant to carry out a variety of handyman type projects at the Property, including installation and maintenance of internet service and security systems.
2. The Defendant was thus familiar with the Property and enjoyed unsupervised access to it for purposes of the projects given to him by the Plaintiff but for no other purpose.
3. The Defendant understood and agreed that the Plaintiff granted him access to his private property on the basis of the Defendant's undertaking and promise of confidence and the Defendant's promise to protect and maintain the Plaintiff's privacy at all times.
4. On or about May 2018 when the Plaintiff was out of the country and without his knowledge or authorization, the Defendant alone or in concert with others gained access to the Property and removed personal and confidential papers, documents and records of the Plaintiff relating to his personal, financial and banking affairs ("Removed Items").
5. Mario was aware that the Plaintiff was out of the country during this time.
6. The actions by the Defendant were unauthorized and were taken without lawful authority or excuse and without colour of right.
7. To the knowledge of the Defendant and Mario, taking of the Removed Items from the Property and any use to which they could be put would be unauthorized by the Plaintiff as well as unlawful.
8. Also to the knowledge of the Defendant, dissemination of the Removed Items to anyone would be detrimental to the Plaintiff and his personal and financial interests.

[8] Mr. Furfari claims that Mr. Pedias's conduct caused him to suffer psychological and emotional harm, harm to his reputation, an increased risk of financial loss and a number of other similar losses.

[9] Amongst the relief claimed, Mr. Furfari seeks the return of the confidential documents, $250,000 in damages for the claims of breach of confidence and invasion of privacy, and $50,000 in aggravated, exemplary and/or punitive damages.

[10] Following the service of the statement of claim, Mr. Pedias made a demand for particulars, including a request that the specific documents removed be identified. In response, Mr. Furfari did not provide any particulars, in some cases on the grounds that no further particulars were available and in other cases that the request was not the proper subject of a demand for particulars.

Test on a motion to strike

[11] Mr. Pedias brings this motion to strike pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, which gives a judge the power "to strike out a pleading on the ground that it discloses no reasonable cause of action".

[12] On a motion to strike brought pursuant to Rule 21.01(1)(b), it is well settled that a court will only strike the claim if it is "plain and obvious that there is no reasonable prospect of success" and the court is to read the claim "as generously as possible, with a view to accommodating any inadequacies in the pleading": Frank v. Legate, at para. 36.

[13] Given that the two causes of action are intentional torts, Mr. Pedias also relies on Rule 25.06(8), which requires the pleading to contain "full particulars":

Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

Issues on the motion

[14] The defendant's motion raises the four following issues:

a. Is the claim for breach of confidence properly pleaded? b. Is the claim for invasion of privacy properly pleaded? c. Is the request for aggravated and/or punitive damages sufficiently pleaded? d. If the claim is struck, should leave to amend be granted?

[15] In the notice of motion and in his factum, the defendant sought the particulars refused as an alternative to the motion to strike. However, at the beginning of the motion, counsel for the defendant advised that he was no longer pursuing this relief. Rather, he argued that the issue of particulars is relevant to the motion to strike because of the requirement to plead "full particulars" in Rule 25.06(8).

Issue 1: Should the claim for breach of confidence be struck?

[16] As held in Lysko v. Braley, [2006] O.J. No. 1137 (C.A.), at para. 17, a claim for breach of confidence requires a plaintiff to prove the three following elements:

a. That the information was confidential; b. That the information was conveyed in confidence; and c. That the confidential information was misused by the party to whom it was communicated to the detriment of the confider.

[17] Mr. Pedias argues that the statement of claim does not properly plead the first and third elements of the claim for breach of confidence. With respect to the first element, he argues that the claim does not sufficiently identify the documents to establish that they are confidential. With respect to the third element, he argues that there is no pleading that the information was misused in a way that caused damage to Mr. Furfari.

[18] While I find that the first element is sufficiently pleaded, I agree that the last element is not properly pleaded.

[19] With respect to the first element, the requirement is that the information be confidential. In this case, paragraph 9 of the claim describes the documents as "personal and confidential papers, documents and records of the Plaintiff relating to his personal, financial and banking affairs". While the claim does not identify the specific documents allegedly taken by Mr. Pedias, they are described as "confidential" and as including financial and banking information, which is information typically considered as confidential. In my view, this is sufficient for the purposes of pleading the first element of the tort of breach of confidence in this case.

[20] During argument, Mr. Pedias's lawyer argued that the description of the documents does not meet the requirement to plead "full particulars". When pressed, he was not able to identify the level of detail that would be sufficient to meet the requirement for full particulars in this case. In my view, for the purposes of this pleading, sufficient particulars have been provided. The purpose of particulars is to identify the “who, where, when, what, and how of the alleged misconduct so that the responding party is on notice of the case to be met: Enerworks Inc. v. Glenbarra Energy Solutions Inc., 2012 ONSC 414 (Sup. Ct.), at para. 40. In this case, the allegations against Mr. Pedias are very narrow. The claim alleges that he took documents that contain personal, financial and banking information during a specified period of time from Mr. Furfari’s house. Without further information, Mr. Pedias should be in a position to respond that he did or did not take the documents, and, if he did take them, he should be in a position to know what they are and to either agree or disagree that they contain confidential information.

[21] With respect to the third element, I agree that the claim does not plead that the information was misused by Mr. Pedias to Mr. Furfari's detriment. In Lysko v. Braley, at para. 18, the Court of Appeal noted that the concept of "detriment" in the context of a claim for breach of confidence is broad enough "to include the emotional or psychological distress that would result from the disclosure of intimate information".

[22] However, in this case, there is no pleading that Mr. Pedias misused the information to Mr. Furfari's detriment. For example, there is no pleading that the information was conveyed to a third party and that the disclosure had a detrimental effect on Mr. Furfari. Instead, the pleading on this point is entirely speculative, stating at paragraph 13 that Mr. Pedias knew that "dissemination of the Removed Items to anyone would be detrimental to the Plaintiff and his personal and financial interests" (emphasis added).

[23] Accordingly, I find that the claim for breach of confidence is not properly pleaded and must be struck. I address the remedy and whether leave to amend should be granted below.

Issue 2: Should the claim for intrusion upon seclusion be struck?

[24] The plaintiff makes a claim for breach of privacy, also known as intrusion upon seclusion, which the Court of Appeal recently recognized as a valid cause of action in Jones v. Tsige, 2012 ONCA 32.

[25] In Larizza v. Royal Bank of Canada, 2018 ONCA 632, at para. 9, the Court of Appeal described the three part test of intrusion upon seclusion as follows:

a. The defendant's conduct must be intentional or reckless; b. The defendant 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.

[26] Mr. Pedias argues that the second and third elements are not sufficiently pleaded. I do not agree.

[27] With respect to second element, Mr. Pedias argues that the claim does not sufficiently plead the allegation that he entered Mr. Furfari's house and took the documents without "lawful justification". The lack of lawful justification is explicitly pleaded at paragraph 6. In addition, the claim pleads that Mr. Furfari gave Mr. Pedias permission to enter his property, but for limited purposes and on the understanding that he would protect his privacy. The issue of the scope of the permission Mr. Furfari gave to Mr. Pedias may be relevant at trial. But I am satisfied that, for the purposes of the statement of claim, Mr. Furfari has sufficiently pled that, while Mr. Pedias had permission to enter the property for some purposes, the removal of confidential documents was not one of those authorized purposes and was therefore unlawful.

[28] With respect to the third element, the defendant argues that it is plain and obvious that a reasonable person would not find the alleged invasion highly offensive. Again, this is an issue to be determined at trial. The pleading does not allege a trivial invasion of Mr. Furfari's privacy, but rather that Mr. Pedias entered his property and took personal, financial and banking documents, with a suggestion that Mr. Pedias did so to help his brother Mario in a law suit against Mr. Furfari. If Mr. Furfari can establish these allegations, the third element of intrusion upon seclusion may well be made out. I note that, in VonMaltzmahn v. Koppernaes, 2018 NSSC 192 (Sup. Ct.), at para. 51, the Court found in that case that entering another person's home and rifling through personal items was "highly offensive" and thereby met the third branch of the test for invasion of privacy.

[29] Accordingly, I decline to strike the claim of invasion of privacy.

Issue 3: Should the claims for aggravated damages and punitive damages be struck?

[30] Mr. Pedias argues that the claims for aggravated and punitive damages are not sufficiently pleaded because the paragraph seeking this relief contains "boilerplate" language without any supporting material facts or particulars.

[31] The claim for aggravated and punitive damages is set on in a paragraph near the end of the claim as follows:

The conduct of the Defendant as aforesaid merits strong disapprobation by this Court and an award of substantial aggravated, exemplary and/or punitive damages.

[32] In support of his position on this issue, the defendant relies on a number of cases in which courts have held that paragraphs of this nature are insufficient to support a claim for aggravated or punitive damages: for example, Gravelle v. A1 Security, 2014 ONSC 5472 (Sup. Ct.).

[33] I agree that the claim for aggravated is insufficiently pleaded, but I do not agree that the claim for punitive damages is deficient.

[34] Aggravated damages are compensatory in nature, and they are meant to compensate a plaintiff for the effects of reprehensible or egregious conduct. Therefore, a claim for aggravated damages must be supported by particulars of the conduct and its effects on the plaintiff. For example, as was held in Gravelle v. A1 Security, 2014 ONSC 5472 (Sup. Ct.), at para. 40, a bald statement that the wrongful conduct had a negative effect on a plaintiff’s reputation is not sufficient. In this case, I am satisfied that the claim sufficiently pleads the defendant’s alleged reprehensible conduct, but not the effects of the conduct. Paragraph 15 of the claim provides a list of alleged damage, including psychological and emotional harm, and loss of reputation. But these damages are all stated baldly with no supporting particulars. In my view, this is insufficient to support a claim for aggravated damages, and the claim is therefore struck.

[35] Punitive damages are awarded to punish a defendant for reprehensible conduct. In this case, I am satisfied that the facts pleaded, if proven, may support a claim for punitive damages. Therefore, I am not striking the claim for punitive damages.

[36] The claim for aggravated damages is struck and the claim for punitive damages is not struck. The remedy is addressed below.

Issue 4: Should the plaintiff be granted leave to amend his claim?

[37] The plaintiff should be given an opportunity to remedy the deficiencies in the claims for breach of confidence and for aggravated damages. This is not a case where the claim is so deficient that it cannot be remedied or where the plaintiff has already been given an opportunity to amend his claim. Therefore, leave to amend the claims for breach of confidence and aggravated damages is granted.

Costs

[38] The parties agreed at the end of the hearing that the successful party would be entitled to $3500 in costs. While I am granting the motion, the defendant was not entirely successful. In addition, the defendant abandoned his request for particulars, which the plaintiff fully addressed in his factum.

[39] Under the circumstances, I find that costs payable by the plaintiff to the defendant in the amount of $2,500 all-inclusive are reasonable and proportionate in this case.

Conclusion

[40] The motion to strike the claims for breach of confidence and aggravated damages is granted with leave to amend. The balance of the motion is dismissed.

[41] The plaintiff is to deliver his amended statement of claim by no later than 30 days from today’s date, and defendant is to deliver his statement of defence by no later than 30 days thereafter. The parties can amend this schedule for the exchange of pleadings on consent.

[42] The defendant is entitled to costs in the amount of $2,500, which are to be paid within 30 days of today’s date.

FAVREAU J.

RELEASED: July 15, 2019

COURT FILE NO.: CV-18-00604221-0000 DATE: 20190715 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

JOSEPH FURFARI Plaintiff (Respondent) – and – JOHN PEDIAS Defendant (Moving Party)

REASONS FOR JUDGMENT

FAVREAU J.

RELEASED: July 15, 2019