COURT FILE NO.: CV-19-00004487-0000
DATE: 2021 10 04
SUPERIOR COURT OF JUSTICE – ONTARIO
LUCIA DERENZIS and JOSHUA DA SILVA
- and -
Plaintiffs
HER MAJESTY IN RIGHT OF ONTARIO, GORE MUTUAL INSURANCE COMPANY, HEIDI SEVCIK, JOSEPH FERRITO, SARAH BEECRAFT, JENNIFER BETHUNE, KEN JONES, WHITEHALL BUREAU OF CANADA LIMITED, MICHAEL WRIGHT,
DAVID MASCARENHAS, AMBLESIDE INVESTIGATION MANAGEMENT Inc., RAPID INTERACTIVE DISABILITY MANAGEMENT LIMITED, RANU HEERAMAN SINGH (a.k.a. RANU HEERAMAN), PEEL REGIONAL POLICE SERVICES BOARD, ANDREA PERONE, CARL MULLINGS
Defendants
BEFORE: Ricchetti RSJ.
COUNSEL: J. Campisi Jr. and P. Murray for the Plaintiffs
A. Camporese for the Defendant Gore Mutual Insurance Company
HEARD: In Writing
RULE 2.1.01 APPLICATION
The Application............................................................................................................................... 2
The Claims...................................................................................................................................... 2
The Background.............................................................................................................................. 3
The Allegations............................................................................................................................... 4
The LAT Proceedings...................................................................................................................... 6
The Plaintiff Submissions................................................................................................................ 6
Gore’s Submissions......................................................................................................................... 7
Analysis........................................................................................................................................... 7
Ms. Derenzis’ Claims.................................................................................................................. 7
Mr. Da Silva.............................................................................................................................. 10
Conclusion..................................................................................................................................... 11
THE APPLICATION
[1] This is a R. 2.1.01 application by Gore Mutual Insurance Company (“Gore”).
[2] Rule 2.1.01 creates a summary procedure intended to weed out litigation that is clearly frivolous, vexatious or an abuse of process:
2.1.1 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. O. Reg. 43/14, s. 1
[3] This R. 2.1 application was previously heard by J. Fowler Byrne.
[4] The Divisional Court remitted the matter back to this court to be heard with full written submissions from both parties.
[5] Subsequent to the Divisional Court’s ruling, the Plaintiffs and Gore filed revised written submissions.
THE CLAIMS
[6] Given the thrust of the submissions, it is necessary to review the claims advanced in the Fresh as Amended Statement of Claim.
[7] Essentially, the claims are in contract, intentional torts and negligence (the latter two both are causes of action in tort) along with the challenge to the constitutional validity of certain sections of the Insurance Act and the Statutory Accidents Benefits Schedule. More specifically, Ms. Derenzis claims against 16 named defendants:
• A declaratory order that ss. 280, 267.5 of the Insurance Act, s. 19(3)4 and 55 of the
Statutory Accidents Benefit Schedule O Reg. 34/10 are unconstitutional;
• damages against a number of individuals and companies for conspiracy;
• A claim for Misrepresentation and Intentional Contract Breach;
• Damages against Gore for “hurt and loss of dignity to Ms. Derenzis”;
• Damages for “bad faith claims adjustment”; and
• Mandatory Order that directing how Gore is to deal with the “ongoing Targeted Litigation”. [8] Mr. Da Silva claims:
• Damages from certain individuals and companies as a result of being hit by a vehicle operated by a private investigator hired by Gore.
[9] Ms. Derenzis and Mr. Da Silva claim:
• Damages from certain individuals and the Peel Region Police Services Board; and
• Damages for conspiracy against a number of individuals and companies relating to surveillance.
THE BACKGROUND
[10] Ms. Derenzis was a pedestrian hit by a truck on November 24, 2015 and sustained injuries. [11] Mr. Da Silva is Ms. Derenzis’ son in law, married to Ms. Derenzis’ daughter.
[12] Gore was the insurer of the vehicle owner/driver in the 2015 motor vehicle accident.
[13] A number of the defendant individuals are officers and employees of Gore involved in Ms. Derenzis’ claim.
[14] A number of individuals or corporate defendants are from a private investigation firm hired by Gore to investigate Ms. Derenzis’ claim.
[15] One corporate defendant was involved in conducting insurer examinations for Gore regarding Ms. Derenzis’ claim.
[16] One individual was involved as an Occupational Therapist regarding Ms. Derenzis’ claim.
[17] The Peel Regional Police and its officers were involved in the investigation of a motor vehicle accident on October 31, 2017 where Mr. Da Silva was injured during surveillance of Ms. Derenzis.
THE ALLEGATIONS
[18] Ms. Derenzis applied for accident benefits after the 2015 motor vehicle accident.
[19] Ms. Derenzis alleges that Gore “began to manage her claim to create misinformation to deny her benefits she would have otherwise been entitled” and that a number of the individuals and companies were negligent, failed, acted deliberately in a manner or conspired to “have an adverse impact on the amount she could recover in tort.”
[20] On May 3, 2017 Ms. Derenzis filed an application with the License Appeal Tribunal (LAT).
[21] Ms. Derenzis alleges that officers/employees of Gore improperly sought further surveillance and alleges that the manner of surveillance was improper, excessive and improperly used police officers.
[22] Ms. Derenzis alleges that Gore did not produce its file but “sterilized” it to defeat her claim.
[23] During the surveillance, Mr. Da Silva was struck by a vehicle operated by one of the individuals (a police officer) conducting allegedly improper surveillance resulting in a broken leg. Further, the allegations are that the police were negligent or deliberately failed to process the accident to the deliberate detriment of Mr. Da Silva’s claim.
[24] Ms. Derenzis alleges that Gore continues to surveil her regarding her claim despite her requests to stop.
[25] Ms. Derenzis alleges that Gore’s conduct in the LAT proceeding has been improper.
[26] Ms. Derenzis alleges some misconduct by the Divisional Court in dealing with a motion she brought regarding the LAT proceeding.
[27] Ms. Derenzis alleges that her personal information has been distributed, contrary to PIPEDA, thereby prejudicing her claim.
[28] Paragraphs 189 to 197 of the Claim outlines why the various statutory and regulations provisions are unconstitutional. Paragraphs 204 through 209 outlines why the provisions violate the Ontario Human Rights Code.
THE LAT PROCEEDINGS
[29] Ms. Derenzis has filed two LAT proceedings. One in 2017 and one in 2018.
[30] In the 2017 LAT proceeding, she disputed entitlement and quantum of attendant care benefit. Later in 2019, Ms. Derenzis sought a special award for “unreasonably withheld or delayed payment of benefits.
[31] In the 2018 LAT proceeding, she sought a finding that she sustained a catastrophic impairment, claimed entitlement and income replacement benefit and a special award for unreasonably withheld or delayed payment of benefits.
[32] Both LAT proceedings are ongoing.
THE PLAINTIFF SUBMISSIONS
[33] Essentially, the Plaintiffs’ submit that there is merit in the various claims advanced by them and that the claims are neither frivolous, vexatious or an abuse of process.
[34] On the key issue regarding the LAT proceedings commenced by Ms. Derenzis, the Plaintiffs state:
It is submitted that any potential concern of this court, with respect to where the jurisdiction of the Licence Appeal Tribunal (“LAT”) ends, and where the jurisdiction of the Superior Court exists potentially resulting in the bifurcation, or extinguishing, of rights as a result of section 280 of the Insurance Act is not properly addressed through rule 2.1.01.
GORE’S SUBMISSIONS
[35] Gore submits that the action is frivolous, vexatious and/or an abuse of the court’s process. Gore submits that the LAT has exclusive jurisdiction over the entitlement and statutory benefits. See ss. 280(1) and (3) of the Insurance Act.
ANALYSIS
MS. DERENZIS’ CLAIMS
[36] While the various claims appear distinct, they have a singularly common factual underpinning – Ms. Derenzis claims that her entitlement to statutory accident benefits from Gore have been denied to her and claims that the conduct of Gore, the persons and other companies, individually and jointly named in the Claim, all caused or contributed to the denial or the prejudice of her claim to her statutory accident benefits through their conduct.
[37] Ms. Derenzis’ claim for accident benefits fall into five categories:
a. Gore’s decision to approve or deny claims for accident benefits pursuant to the provisions of the SABS;
b. Gore’s decision to conduct surveillance on Lucia Derenzis;
c. Gore’s decisions about how and when to conduct insurer’s examinations pursuant to section 44 of the SABS, including the decision to utilize third-party processing companies to coordinate section 44 examinations;
d. Gore’s collection, use, transfer, and disclosure of Lucia Derenzis’ personal information throughout the adjustment process, which Mrs. Derenzis consented to upon filing a signed Application for Accident Benefits; and
e. Gore’s conduct during and in relation to LAT proceedings.
[38] Had these been the only claims advanced, the disposition of Ms. Derenzis’ claims regarding her entitlement and accident benefits would have been simply disposed of as being within the exclusive jurisdiction of the LAT.
[39] However, Ms. Derenzis’ challenges the constitutional validity of the Insurance Act provisions (and the regulations made thereunder) which deal with her entitlement and accident benefits by the LAT.
[40] It appears that this is an attempt to circumvent the decision in Campisi v. Ontario (Attorney General), 2018 ONCA 869 where, Ms. Derenzis’ now solicitor of record, was denied standing to raise these same constitutional challenges.
[41] Challenges under section 7, and 15 of the Charter and under Section 96 of the Constitution Act have not been heard by this court with a Plaintiff who is presently before the LAT and is faced with the exclusive jurisdiction set out in s. 280 of the Insurance Act and related regulations dealing with entitlement and accident benefits.
[42] In Campisi, the Supreme Court determined that a lawyer who has clients with cases before the LAT did not have the requisite standing to challenge the constitutional validity of the Insurance Act provisions.
[43] To determine standing to challenge the validity of legislation the court generally looks at 3 factors:
i. Serious judiciable issue;
ii. The Nature of the Plaintiff’s interest;
iii. Reasonable and Effective Means of Bringing the Issue before the Court.
[44] At this stage, it is not possible for this court to properly assess these factors. First, the court only has the allegations in the Statement of Claim. Second, there may be other interested parties who would and should have an opportunity to make submissions on the constitutional challenge, a process which cannot be accomplished in the limited procedure provided for in R. 2.1.01. Third, Gore’s submissions did not deal with the constitutional challenge. Instead, Gore focused on two main points:
a) The claims are duplicitous of other proceedings and are outside of the jurisdiction of the Superior Court;
b) The claims are frivolous and vexatious and constitute abusive conduct by the Plaintiffs as Ms. Derenzis’ claims exhibit numerous hallmarks of vexatious litigation.
[45] There are difficulties with each of these submissions using the limited procedure in R. 2.1.01.
[46] Gore’s first point is entirely dependent on the assumption that the claims are outside the jurisdiction of the Superior Court. That may dependent on the outcome of the constitutional challenge. Further, the mere fact there are two claims before the LAT does not make the Plaintiffs’ conduct abusive. Even with Ms. Derenzis’ multiple and questionable motions (with many being dismissed), the LAT has not seen fit to deal with the multiple claims as abusive of its jurisdiction.
[47] Gore’s second point is easily dismissed. The length of the Statement of Claim is not necessarily indicative of abuse of process or a vexatious litigant.
[48] I am simply not persuaded that this is the clearest of cases.
[49] Perhaps with resort to other Rules and a more fulsome evidentiary record, some of Gore’s concerns and claims may be made out.
[50] The R. 2.1.01 application regarding Ms. Derenzis’ claim is dismissed.
MR. DA SILVA
[51] Mr. Da Silva’s claim is described in the Plaintiffs’ written submissions as:
The Plaintiff Joshua DaSilva (“Joshua”) has claimed pecuniary damages, non- pecuniary damages and punitive damages against Gore as a result of being run down by the private investigator hired by Gore.
[52] Mr. Da Silva goes on to elaborate on this claim:
Details have been pleaded in which the private investigators were carrying out surveillance for the purpose of harassing Lucia, contrary to the Criminal Code. In carrying out such harassment activities there is an obvious enhancement of risk. While Gore may not have intended for Joshua to be run down breaking his tibia and fibula, Gore is vicariously liable for the actions of its agent based on the significant connection between the creation of the risk and the wrong that accrues therefrom.
[53] Gore submits that the claims by Mr. Da Silva constitutes an abuse of process as Mr. Da Silva has executed a full and final release in favour of the Defendant “from any and all actions, causes of actions, mediations, arbitrations, claims and demands for statutory accident benefits […] and from any and all claims that may arise with respect to punitive, exemplary and aggravated damages, damages for mental distress, a special award, and without restricting the foregoing, with respect to all issues and claims in issue” arising out of the incident that occurred on October 31, 2017.
[54] The question is whether the “Full and Final Release” should be received and considered by this court as Rule 2.1.01 requires that the application be considered from a review of the pleading and a determination based on “its face”. There are limited circumstances where other documents, such as court proceedings, may be put before the court on a R. 2.1.01 application.
[55] Mr. Da Silva executed a Full and Final Release to Gore on May 10, 2019. A copy was attached to the Gore’s compendium.
[56] Despite filing revised submissions, the Plaintiffs chose not to respond to this submission.
[57] Nevertheless, I am not persuaded that I can receive the Full and Final Release as the wording of R. 2.1.01 is clear, the attack on the claim must be based on its face. The Full and Final Release is a private document.
[58] Mr. Da Silva’s claim is NOT struck.
CONCLUSION
[59] The R. 2.1.01 application is dismissed.
[60] Either party seeking costs may deliver written submissions limited to 3 pages, together with an attached Cost Outline and any authorities. Such submissions to be filed within 2 weeks of the release of these reasons.
[61] Any party against whom costs are sought may deliver written submission limited to 3 pages and any authorities. Such submissions to be filed within 4 weeks of the release of these reasons.
[62] No reply submissions permitted without leave.
Date: October 4, 2021
Ricchetti RSJ.
COURT FILE NO.: CV-19-00004487-0000
DATE: 2021 10 04
ONTARIO SUPERIOR COURT OF JUSTICE
SUPERIOR COURT OF JUSTICE – ONTARIO
LUCIA DERENZIS and JOSHUA DA SILVA
Plaintiffs
- and -
HER MAJESTY IN RIGHT OF ONTARIO, GORE MUTUAL INSURANCE COMPANY, HEIDI SEVCIK, JOSEPH FERRITO, SARAH BEECRAFT, JENNIFER BETHUNE,
KEN JONES, WHITEHALL BUREAU OF CANADA LIMITED, MICHAEL WRIGHT, DAVID MASCARENHAS, AMBLESIDE INVESTIGATION MANAGEMENT Inc., RAPID INTERACTIVE DISABILITY MANAGEMENT LIMITED, RANU HEERAMAN SINGH
(a.k.a. RANU HEERAMAN), PEEL REGIONAL POLICE SERVICES BOARD, ANDREA PERONE, CARL MULLINGS
Defendants
COUNSEL: J. Campisi Jr. and P. Murray for the Plaintiffs
A. Camporese for the Defendant Gore Mutual Insurance Company
RULE 2.1.01 APPLICATION
Ricchetti RSJ.