Court File and Parties

COURT FILE NO.: CV-21-00671583-0000 DATE: 20241008 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Bradley D. Smith, Plaintiff/Responding Party -and- Angela Margurite Fountain, Dr. Angela Fountain & Associates, Christina-Louise Bodington, Defendants/Moving Parties

BEFORE: L. Brownstone J.

COUNSEL: John David Ekpenyong, for the Plaintiff Paul J. Martin, for the Defendant Christina-Louise Bodington Lisa Hamilton, for the Defendants Angela Margurite Fountain and Dr. Angela Fountain & Associates

HEARD: October 2, 2024

Endorsement

Introduction

[1] The plaintiff, Mr. Bradley Smith, is the father of two children who were receiving treatment at the defendant Dr. Angela Fountain & Associates clinic (“the clinic”), where the defendant Ms. Christina-Louise Bodington was employed as a psychotherapist. Dr. Angela Fountain is a registered psychologist who practices under the clinic’s name. The clinic and Dr. Fountain are referred to together as the Fountain defendants.

[2] The causes of action asserted are all based upon Ms. Bodington having improperly accessed the plaintiff’s son or sons’ file or files at the clinic. The defendants acknowledge a single instance on which this occurred.

[3] The claim was commenced by Mr. Smith on his own behalf. He has not brought the claim as litigation guardian of his child or children, nor has he asserted a claim under the Family Law Act, R.S.O. 1990, c. F.3. Based on this, as well as on the facts established in the affidavit of Ms. Bodington and admissions flowing from a request to admit, the defendants move for summary judgment dismissing the claim against them.

[4] For the reasons that follow, the defendants’ motion is granted and the claim is dismissed.

Procedural History

[5] The claim was commenced in November 2021. In November 2022, Ms. Bodington served a request to admit on Mr. Smith, who has been represented throughout the proceedings. Mr. Smith did not respond. Six months later, the defendants advised they would seek summary judgment, based in part on the admissions that flowed from Mr. Smith’s failure to respond to the request to admit.

[6] The parties appeared before Associate Justice Josefo on April 24, 2023. That endorsement is important, so I reproduce large parts of it here:

On April 24, 2023, counsel for plaintiff delivered a Case Conference Request Form. The relief sought was as follows:

• Declaration that the request to admit by the Defendant(s) is an abuse of process.
• Declaration that the request to admit is premature.

Considering the matter, on April 25, 2023, I had ATC Ms. Sharma send all counsel my preliminary observations, as follows:

"Counsel: at a tele-case-conference which, as the Request Form makes clear, is limited to 15 minutes, counsel for plaintiff wants me to issue a "Declaration that the request to admit by the Defendant is an abuse of process [and] Declaration that the request to admit is premature." Of course, Rule 51 governs the issue. It preliminarily seems to me, however, that a case-conference, which is for less contentious matters, may be ill-suited to this issue, which at first blush appears better suited to be argued at a motion (if it must).

Three preliminary observations come to mind:

• Rule 51.01 (1) begins by stating, " A party may at any time ... request any other party to admit... " [ bolding added ]….

The Case Conference took place this afternoon. From counsel, I learned that the crux of the case is that the plaintiff, in his own right, not as litigation guardian nor as a representative plaintiff, sues the two defendants in tort for breach of confidence. Allegedly, defendant Bodington, a psycho-therapist employed by defendant Dr. Fountain (a psychologist), viewed the treatment file for the plaintiff's minor sons even though she was not their therapist. When Dr. Fountain learned of this, she allegedly reported the matter to what she believed were the appropriate authorities. Plaintiff asserts, apparently, that the breach of confidence occurred to alienate him from his children, and to favour the children's mother, from whom plaintiff is estranged.

The case has been stalled for over a year. …

On November 24, 2022, counsel for Bodington delivered a Request to Admit. Yet counsel for the plaintiff did not respond. Subsequently, on April 13, 2023, counsel for Bodington wrote to counsel for plaintiff, seeking dates for a summary judgment motion arising out of the deemed admissions. In response, counsel for plaintiff sought this case conference.

If plaintiff wishes to seek to set aside the Request to Admit, then, as Mr. Wilton correctly pointed out, his remedy is not by case conference but rather by way of motion “to the Court”….

[I]t is my preliminary and non-binding view that a motion to set aside a Request to Admit might better be heard and disposed of first, before any summary judgment motion is scheduled. This is because if such a motion succeeds or fails, either outcome will likely be significant in the determination of the defendants’ summary judgment motion….

I reiterate that this case has stalled seemingly due to the delay of the plaintiff (counsel for plaintiff asserted by way of explanation for the delay that a related action has consumed much of his time). Thus, I today order that, if plaintiff decides to move to set aside the Request to Admit, such motion must be requisitioned and booked, with a Motion Record delivered to counsel opposite and filed, by no later than July 14, 2023. If the plaintiff has not done so by that date, the CPC Judge may certainly take this into account when considering whether to “green-light” the summary judgment motion.

That time-tabling Order is effective immediately, without need for further formality.

[7] The plaintiff did not move to set aside the request to admit. The next step occurred in August 2023, when the parties appeared at CPC because the defendants wished to schedule this summary judgment motion. At that attendance, the plaintiff advised for the first time that he wished to amend his pleading, and that he wished to do so on the same date the summary judgment motion was returnable. Koehnen J. endorsed the record in part as follows:

The Defendant wishes to schedule a summary judgment motion.

The plaintiff advised for the first time today that he wants to amend his claim and seeks a 1 hour motion to do that. The plaintiff wants to schedule the motion to amend at the same time as the summary judgment motion. That makes no sense because the motion to amend might impact the summary judgment motion.

I set the schedule for the summary judgment motion on the next page.

The issue of the amended claim shall be directed to a case conference.

To ensure that there is no delay in booking the case conference, either side may book it by emailing:

TorontoCaseConferenceAppointments@ontario.ca

To the extent that the outcome of the case conference on the amended pleading has an effect on the summary judgment motion, that can be addressed at the case conference as well.

[8] The plaintiff did not schedule a case conference. The defendants served their materials for this summary judgment motion on April 15, 2024, in accordance with the schedule ordered by Koehnen J. Ms. Bodington served a factum on behalf of both defendants on August 2, 2024, in accordance with the schedule ordered.

[9] The plaintiff was ordered to serve responding materials by May 31, 2024, and a factum by September 2, 2024. He did neither of those things. Nor did the plaintiff seek to cross-examine the defendants’ affiants.

[10] About a week before the motion, the plaintiff served a four-paragraph affidavit on the defendants, which was never uploaded to Case Center. A different four-paragraph affidavit was uploaded on October 1, 2024, the day before the motion was scheduled to be argued.

[11] On October 1, 2024, the plaintiff also served and uploaded a notice of motion, a motion record, and a factum seeking to amend his statement of claim.

[12] The plaintiff’s motion to amend the claim was not properly before the court. The plaintiff followed none of the steps set out by Koehnen J. on August 8, 2023. The plaintiff was directed to seek a case conference in advance of the summary judgment motion if he wished to amend his pleading. He took no steps to do so. The endorsement of Koehnen J. was crystal clear that today’s date was scheduled for the summary judgment motion only. The timetable ordered pertained only to the materials for summary judgment.

[13] I advised counsel that, in the circumstances, the plaintiff’s motion to amend the statement of claim would not be heard.

[14] The plaintiff then advised that he did not receive Ms. Bodington’s motion record in April 2024. Court stood down for the parties to review their emails. Ms. Bodington’s counsel confirmed the record was served on April 15, 2024, at 11:18 a.m. Plaintiff’s counsel advised that he had not seen the email or opened it before this morning, although upon review of his inbox he acknowledged he received the material on April 15, 2024. Plaintiff’s counsel also stated that he told his articling student to prepare, serve, and file a responding affidavit, but the student did not do so. Plaintiff’s counsel sought an adjournment which the defendants opposed.

[15] I denied the plaintiff’s adjournment request. The plaintiff took no steps that were ordered to be taken. He ignored Koehnen J.’s order that the matter of the amended pleading be dealt with in advance of the summary judgment motion and that he seek a case conference to do so. He ignored the timetable ordered by Koehnen J. He did not seek to bring a motion to withdraw admissions, the process Associate Justice Josefo reminded him was the appropriate process should he wish to seek that relief. Instead, counsel sought to proceed with the motion he wished to bring, and ignored the motion that was properly before the court.

[16] Failure to notice that documents have been served and blaming an articling student, for whom counsel is responsible, for not preparing, serving, filing, and uploading an affidavit are not acceptable reasons for taking no steps in a proceeding, not following court orders, and then asking the court to adjourn a date that has been scheduled for 14 months.

[17] Such chaos cannot be tolerated. The effects on the defendants are real. They have prepared evidence and argument, as ordered to do, and prepared for today’s motion. They have had litigation hanging over them for three years and declared their intention to bring this motion over 18 months ago. But they are not the only ones who are adversely affected. Litigants are waiting for motion dates for many months, and very often for over a year, as was the case here. The cascading effects of parties not complying with court-ordered timetables and seeking last-minute adjournments wreak havoc on the system that is here to serve all litigants, not just the parties whose matter is sought to be adjourned.

[18] I considered the adjournment request in accordance with the factors laid out in Khimji v. Dhanani et al. (2004), 69 O.R. (3d) 790 (C.A.) and Ariston Realty Corp. v. Elcarim Inc., at para. 34. I found that the interests of justice, the need for the administration of justice to process proceedings in an orderly way, and the overall objective of determining the matter on its substantive merits weigh definitively in favour of denying the adjournment request.

[19] I therefore proceeded to hear the summary judgment motion.

The test for summary judgment

[20] Under r. 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence, or if the parties agree to have all or part of the claim determined by summary judgment and the court is satisfied that it is appropriate to grant it. Rules 20.04(2.1) and (2.2) provide the court with expanded fact-finding powers to make this determination.

[21] In accordance with Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 57 [Hryniak], in order to be appropriate for summary judgment, the evidence before the court must be such that a judge is confident that she can fairly resolve the dispute.

[22] The court must first determine if there is a genuine issue requiring trial based only on the evidence before it, without using the extended fact-finding powers in rr. 20.04(2.1) and (2.2). There is no genuine issue requiring trial if the evidence allows the court to fairly and justly adjudicate the dispute using this proportionate procedure: Hryniak, at para. 66.

[23] If there appears to be a genuine issue requiring a trial, the court must determine if the need for a trial can be avoided by using the powers in rr. 20.04(2.1) and (2.2). These powers may be used if it would not be against the interests of justice to do so: Hryniak, at para. 66.

[24] The moving party bears the evidentiary burden of showing there is no genuine issue requiring a trial. Parties are required to put their best foot forward: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11.

The evidence properly before the court

A. The plaintiff’s materials

[25] As indicated above, plaintiff’s counsel did not serve or file any materials in accordance with the court-ordered schedule. He advised that he did not believe he had received any affidavit material, then conceded he had received the email but had not noticed or opened it. I note that the material filed by the Fountain defendants referred to the Bodington affidavit, as did the moving parties’ factum. None of this triggered an inquiry by plaintiff’s counsel as to whether there was affidavit evidence he had failed to notice. None of this triggered plaintiff’s counsel to serve affidavit evidence until a week before the proceeding, in contravention of the order of Koehnen J. One of the two four-paragraph affidavits served was uploaded to Case Center. That affidavit identifies the children and states that Mr. Smith “will act on their behalf in this matter”. The fourth paragraph states:

4. That to note the files breached were family files containing information not only of the children but also information of me the father. Including interviews and observations by the authorized staff of fountain and associates.

[26] At the court’s request, counsel for the defendants read to the court the other four-paragraph affidavit the plaintiff served on the defendants on September 25, 2024. As stated, that affidavit was not uploaded to Case Center. The court was advised there were no exhibits attached. The affidavit stated that the defendants accessed confidential health information, unlawfully disclosed it, and issued an apology which the plaintiff did not accept. The affidavit asserts that the file viewed by Ms. Bodington did not contain information solely about the children, but also included information about the plaintiff.

[27] The defendants state that this affidavit was not properly before the court and should not be considered. I agree. The affidavit was not provided in accordance with the timetable. The defendants had no opportunity to consider whether to cross-examine on it. It was not uploaded to Case Center and therefore not made available to the court.

[28] I will deal with the affidavit that was uploaded, referred to in paragraph 25, below.

B. The request to admit

[29] The plaintiff made no mention of the request to admit in his factum, although it could not be clearer that the request to admit and the deemed admissions that flow therefrom are central to this motion. In oral argument, the plaintiff asked the court not to rely on the request to admit. In effect, he asked the court to set it aside.

[30] First, the plaintiff argued that the request to admit was improper and abusive because it was served prior to the exchange of documents or examinations for discovery. He argues that r. 31.04 precludes this.

[31] I do not accept this argument. Rule 31.04 governs the timing of when a party may seek to examine another party for discovery. Rule 31.04 in no way limits r. 51.02(1), which provides that “[a] party may at any time, by serving a request to admit (Form 51A), request any other party to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document.” (emphasis added). Rule 51.03 requires a party to respond to a request to admit within 20 days, failing which the party will be deemed to admit the truth of the facts in the request.

[32] I note that this same argument appears to have been made before Associate Justice Josefo, who saw fit to put the words “at any time” in bold in his endorsement. The plaintiff was advised to bring a motion to withdraw the admissions should he wish to do so. Associate Justice Josefo also bolded the deadline date for doing so, July 14, 2023. The plaintiff brought no such motion.

[33] The plaintiff then argued that it would be a miscarriage of justice to rely on the request to admit. He relied on two cases, raised for the first time at the hearing and not in his factum, in support of his argument.

[34] In CSES Inc. v. Capital Contracting & Interiors Corp., 2013 ONSC 7318, 2013 CarswellOnt 17616, Gilmore J. considered a motion under r. 51.05 to withdraw deemed admissions from a failure to respond to a request to admit. There, Gilmore J. referred to the case of Antipas v. Coroneos, [1988] O.J. No. 137, at para. 14 for the test to be applied on a motion to set aside deemed admissions. That test is the following:

[A] party requesting leave to withdraw an admission must pass three tests by establishing (1) that the proposed amendment raises a triable issue; (2) that the admission was inadvertent or resulted from wrong instructions; and (3) that the withdrawal will not result in any prejudice that cannot be compensated for in costs.

[35] In the second case raised by the plaintiff, Khan v. Sinclair, 2014 ONSC 1210, 2014 CarswellOnt 2535, Morgan J. permitted a self-represented party to withdraw some admissions, based on the facts that some of the admissions were not confined to factual conclusions as required under the rules, and that the self-represented party, as distinct from counsel, may not have understood the impact of the request to admit.

[36] Neither case assists the plaintiff, who is represented by counsel and has been throughout. Counsel has known what was required to set aside the request to admit since at least May 2023 when Associate Justice Josefo set it out for him. He took no steps to set aside the admissions. There is absolutely no explanation for the delay in doing so. This is certainly not a case of inadvertence. The plaintiff made a calculated decision not to respond, and then not to bring a motion to set aside the admissions. He wished instead to argue that the request to admit was improper because it was served before examinations for discovery, a submission I have rejected.

[37] The failure to meet the second branch of the test is sufficient to dispose of the request to set aside the admissions. However, I note that the affidavit of Ms. Bodington contains the facts set out in the request, other than with respect to Mr. Smith’s claimed damages. Ms. Bodington was not cross-examined. The plaintiff filed no affidavit evidence as required by the order of Koehnen J. I am therefore not persuaded that setting aside the request to admit would raise a triable issue. Finally, for the reasons set out above on the adjournment request, I have concerns that the prejudice could not be compensated for in costs. The plaintiff fails the test set out in the cases upon which he relies.

[38] Counsel then asked me to set aside the admissions because his client should not have to bear the price for his error. I do not find it just or appropriate to set aside the request in the circumstances of this case. The system cannot function when rules and orders are blatantly disregarded, then followed by a request for forgiveness. As noted above in the context of the adjournment discussion, the civil court system simply cannot function absent compliance with the rules and court orders. Whether Mr. Smith has recourse in another forum is a matter I leave to Mr. Smith.

The facts established in the properly admissible evidence

[39] The plaintiff’s two children were treated by Dr. Fountain and her other staff. Ms. Bodington never met Mr. Smith or his children, nor did she treat any of the Smiths. Ms. Bodington worked both at the clinic and at Durham Catholic Family Services (DCFS). Ms. Bodington received information at her DCFS employment that a mother and her two sons with a last name beginning with S were previous clients of the clinic and had become clients at DCFS. One of the sons had disclosed to DCFS that he had told the social worker he was seeing at the clinic that his dad was hurting him. Ms. Bodington was told that Dr. Fountain had done nothing about this disclosure, despite her legal obligations to report. Through conversations, Ms. Bodington came to believe that the concern likely related to the Smith children. Ms. Bodington acknowledged reading a single entry of the most recent counselling session of one of the children and concluded that it was unclear if the child had reported abuse.

[40] In her affidavit, Ms. Bodington swears that she has personal first-hand knowledge of seven of the eight facts in the request to admit, insofar as those facts relate to her. These include the following facts:

i) None of the defendants disclosed any information concerning the plaintiff to any third party; ii) None of the defendants disclosed any information concerning the plaintiff to the plaintiff's ex-wife; iii) None of the defendants disclosed any information concerning the plaintiff to Mr. Smith's ex-wife's counsel; iv) The plaintiff had no contractual relationship with any of the defendants; v) Ms. Bodington accessed the confidential and personal information of one of the plaintiff’s sons by reading a single entry concerning the son, then immediately closing the file. Ms. Bodington spent no more than two minutes reviewing this chart; vi) Ms. Bodington did not breach the client's confidentiality as she never read his file; and vii) Mr. Smith never received treatment from any of the defendants.

[41] The eighth fact in the request to admit is that the plaintiff has not received any medical care or psychological counselling in respect of the matters alleged in the statement of claim. Mr. Smith is deemed to admit this fact. In addition, the only evidence provided of alleged medical sequelae suffered by Mr. Smith are records of a sleep apnea clinic and a cardiologist. Both records pre-date the incident in question and therefore have no bearing on any damages purportedly suffered as a result of the incident. There is no evidence of any kind that Mr. Smith has received counselling or medical care as a result of the matters alleged in the statement of claim. As noted above, on a motion for summary judgment, parties are required to put their best foot forward.

[42] The only factual assertion in the plaintiff’s affidavit that was uploaded to Case Center the day before the motion is that “the files breached were family files containing information not only of the children but also information of me the father. Including interviews and observations by the authorized staff of fountain and associates”. This reflects the belief of the plaintiff but is not supported by any evidence.

Analysis and disposition

[43] I find that the factual record is such that I am able to make findings of fact based on the record before me, without the necessity of a trial. I am confident that I am able to find the facts and apply the necessary law and that this is a fair, just, and proportionate process for determining the matter before me.

[44] Indeed, the plaintiff concedes that if the court does not set aside the request to admit, the defendants’ summary judgment motion should succeed.

[45] The claim seeks damages on the bases of:

i) Negligence; ii) Intrusion upon seclusion; and/or iii) Breach of privacy; iv) Breach of confidence; v) Misrepresentation; and vi) Breach of contract.

[46] Elsewhere in the pleading, reference is made to intentional infliction of emotional distress.

[47] The claims are primarily against Ms. Bodington. The Fountain defendants are said to have facilitated Ms. Bodington’s wrongdoing, and to have failed to take appropriate steps to restrict access to confidential information.

[48] Mr. Smith pleads that the intrusion upon seclusion was committed “for the purpose of obtaining illicit access to the personal information of the plaintiff, which [Ms. Bodington] was furnishing to the plaintiff’s spouse possibly for profit.” It is alleged that Ms. Bodington surreptitiously accessed the children’s personal information hundreds, and possibly thousands, of times.

[49] As noted, Mr. Smith does not bring this action in the capacity of litigation guardian for his children. Nor does he assert a Family Law Act claim for himself. He was never a client of the clinic; the information in the child’s record emanated from the child, not the plaintiff. It is not an intrusion upon his seclusion, or his right to privacy, given that it was not his information. It was not his private affairs that were the subject of the intrusion, and it was not the plaintiff’s records that were accessed.

[50] No details of any misrepresentation are pleaded.

[51] Ms. Bodington shared no information contained in the file entry with anyone. The defendants had no confidential information belonging to Mr. Smith. They could not have, and did not, disseminate any of Mr. Smith’s confidential information.

[52] To the degree the pleading sets forth a claim based on intentional infliction of emotional distress, there is no support for the position that the claim was calculated to produce harm to Mr. Smith. Further, there is no visible or provable injury. Mr. Smith put forward no evidence of any damages sustained. The medical information he did provide to the defendants pre-dates the actions of Ms. Bodington and cannot result from her actions.

[53] The facts as stated in the evidence of Ms. Bodington and the request to admit also establish that no contract existed between the defendants and the plaintiff. Ms. Bodington accessed a child’s single file entry on a single occasion. The allegations against the Fountain defendants are that they did not adequately train Ms. Bodington on privacy issues or did not establish adequate systems to protect privacy. The negligence claim appears to be made against the Fountain defendants alone and depends upon a finding that the claim against Ms. Bodington succeeds.

[54] As the claim against Ms. Bodington fails, so too must the claim against the Fountain defendants fail.

[55] The defendant’s motion for summary judgment is granted. The claim against the defendants is dismissed in its entirety.

Costs

[56] Ms. Bodington’s partial indemnity costs claimed are $39,410.95. The Fountain defendants’ costs on the same scale are $14,949.90. The plaintiff’s costs outline, uploaded after the motion, show partial indemnity costs of $6320.

[57] Fixing costs is a discretionary exercise under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Rule 57.01(1) of the Rules of Civil Procedure outlines, in a non-comprehensive list, factors that guide the exercise of this discretion. Relevant factors include the results of the proceeding, the principle of indemnity, the amount an unsuccessful party could reasonably expect to pay, the complexity of the proceeding, the importance of the issues, and the conduct of any party that tended to lengthen the proceeding.

[58] Ultimately, I must fix an amount of costs that is proportionate, and that is fair and reasonable for the unsuccessful party to pay: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, at para. 26. A costs award should “reflect what is reasonably predictable and warranted for the type of activity undertaken in the circumstances of the case, rather than the amount of time that a party’s lawyer is willing or permitted to expend”: Apotex Inc. v. Eli Lilly Canada Inc., 2022 ONCA 587, 2022 CarswellOnt 11528, at para. 65.

[59] This case was not particularly complicated, although it raised important issues for the parties. The defendants sought to reduce steps by relying on a request to admit and bringing the motion early in the proceedings. The plaintiff’s procedural machinations, outlined above, rendered the hearing more complex and time-consuming.

[60] Taking these factors into account, I fix costs payable by the plaintiff to Ms. Bodington at $30,000 and to the Fountain defendants at $10,000.

L. Brownstone J. Date: October 8, 2024