Howell, McDonnell v. Freire, Aviva Insurance, Echelon Insurance, 2024 ONSC 586

2024 ONSC 586 BARRIE COURT FILE NO: CV-21-1476 DATE: 20240126 CORRIGENDA : 20240201 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Tristian Howell, Kim McDonnell, Patrick McDonnell Plaintiffs – and – Jolene Freire, Aviva Insurance Company of Canada, Echelon Insurance Company Respondents

Counsel: Harrison Cooper for the Plaintiffs/Responding Parties Matthew Samuels for the Defendants/Moving Parties

HEARD: January 16, 2024

REVISED REASONS ON MOTION The text of the original Reasons has been corrected with the text of the corrigendum (released February 1, 2024)

HEALEY, J.:

NATURE OF THE MOTION

[1] Sean McDonnell was killed in a motor vehicle accident on May 16, 2020, approximately three years and five months after he and the plaintiff, Tristian Howell, met one another. It is not disputed that Sean and Tristian were romantic partners. However, the defendant Jolene Freire challenges whether they were “spouses” as defined in Part III of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). They were not married and so will not qualify as spouses unless they had cohabited continuously for a period of 3 years before Sean’s death.

[2] In this action, Tristian claims $2.5M damages pursuant to s. 61 of the FLA, based on being Sean’s spouse at the time of his death. The other plaintiffs, Kim and Patrick McDonnell, who are Sean’s mother and brother, have also made claims under the FLA.

[3] Ms. Freire was impaired and speeding and crossed the center line before striking Sean. She pled guilty to impaired driving causing death and is presently serving a four-year prison sentence.

[4] At his discovery, Tristian was asked to produce all electronic communications that were sent by text message, email, WhatsApp and Snapchat passing between himself and Sean from the inception of their relationship to the date of death. The question was taken under advisement, and later refused.

[5] The defendant has brought this motion for an order that Tristian provide the answers to “outstanding questions taken under advisement and improperly refused at his examination for discovery”, referencing a Schedule A that was not in fact attached to the motion. The issue of the electronic communications was the only refusal that was before the court on this motion. However, at the outset of the motion Mr. Samuels advised that it was only the electronic communications for a five-month period between December 2016 and May 2017 that were being pursued.

ISSUE

[6] Whether Tristian should be required to produce the private electronic messages exchanged between himself and Sean between December 2016 to May 2017.

PARTIES’ POSITIONS

[7] The defendant seeks the electronic communications to find discussions between Sean and Tristian confirming the date they formed an intention to cohabit. Her counsel argues that this documentation is required to substantiate the allegation that they were spouses, and that the defendant will be prejudiced if forced to proceed to trial without an opportunity to examine the messages and ask further questions arising from their production.

[8] Counsel for Tristian argues that a consideration of the factors under r. 29.2.03 of the Rules of Civil Procedure results in this motion being dismissed. The time and expense would be considerable, as the defendant is seeking five months (originally three years and five months) of electronic communications across four different platforms, and the volume likely to be overwhelming. It is prejudicial to Tristian because the messages were all sent with an expectation of privacy, and these are intimate and private messages. Further, he is experiencing psychological symptoms resulting from Sean’s death, and requiring him to gather their private messages, and share them with the person who killed Sean, will cause him further trauma.

EVIDENCE

[9] At Tristian’s discovery he provided the following background to their relationship: They went on their first date in December 2016. When they first met, Tristian was renting a room in a house in Barrie, and Sean was renting a room at his mother’s house at 47 Rutherford Road, Bradford. In January 2017, they agreed that they were in an exclusive and monogamous relationship.

[10] On January 21 2017, Tristian signed a rental agreement to rent the lower unit at 207 Penn Avenue, Newmarket to move closer to work, to start on March 1, 2017. Despite the formal date on that agreement, he took possession on February 15. In the meantime, Tristian moved into 47 Rutherford Road to live with Sean. After February 15, 2017, Tristian began to live at 207 Penn Avenue, and Sean began to slowly move his personal items there also. Tristian is a nurse who held a job Southlake Regional Health Centre in Newmarket at the time. Whether the pair spent the night together at 207 Penn Avenue, or at 47 Rutherford Road, largely depended on his work schedule. At that time, Tristian worked four days at a time and then had five days off.

[11] On April 1, 2017, Sean was added to the rental agreement for 207 Penn Avenue. Tristian’s evidence is that the reason for this was that Sean was staying there so frequently, just as Tristian was still spending time with Sean and his family at 47 Rutherford Road. Sean moved some of his belongings to Newmarket, and some remained at his mother’s house in Bradford. Sean continued to be responsible for paying rent to his mother in Bradford, and Tristian paid for the rent in Newmarket. They continued to pay rent to Sean’s mother because they were still going back and forth between residences.

[12] His evidence is that by April 1, 2017, they were spending seven nights a week together. This arrangement of residing between Bradford and Newmarket continued until about June 2018. By that time, they were only going to Bradford to spend time with the other members of the McDonnell family on weekends.

[13] Tristian confirmed on discovery that he and Sean exchanged electronic messages about Tristian’s initial move to Penn Avenue and their decision about payment of rent over the time that they were residing either in Bradford or Newmarket.

[14] On August 1, 2018, the pair moved to a larger house at 7 Baleberry Crescent, East Gwillimbury. They had a roommate, Ashley Mallais, and the three of them split the rent in thirds. They remained living together in a romantic relationship until the date of Sean’s death.

[15] Sean’s father and his half-sister Shannon McDonnell have advanced their own action arising out of his death. Global examinations for discovery were held. The defendant’s counsel did not elicit any evidence from any of the other parties in either action that contradicts the relationship history provided by Tristian.

[16] Independent corroboration of their cohabitation has been provided. This documentation is:

1. The tenancy agreement for 207 Penn Avenue dated April 1, 2017, signed by both men;
2. A letter from the landlord for 207 Penn Avenue, which states that Sean and Tristian lived together from the inception of the rental agreement until they moved out on July 31, 2018;
3. A letter from the landlord for 7 Baleberry Crescent, which states that they lived together from the inception of the rental agreement until Sean’s death;
4. Proof that both were named as insureds under the property insurance police commencing August 1, 2018;
5. 2019 Income Tax and Benefit Returns for both men indicating that they listed one another as common-law spouses;
6. Ashley Mallais has provided a letter describing Sean and Tristian as common-law partners, and confirming that they lived together at 7 Baleberry Crescent until Sean’s death; and
7. On July 2, 2020, Tristian provided a “Statutory Declaration of Common-Law Union” to Service Canada. He declared that they had lived together for three continuous years since April 1, 2017, and he provided a copy of the rental agreement from 207 Penn Avenue.

[17] Various entities have recognized their common-law status, and supporting documentation has been provided to Ms. Freire’s counsel. This includes:

1. Sean’s death certificate lists Tristian as his common-law husband;
2. In 2020, Service Canada determined that Tristian was entitled to the CPP Death Benefit and Survivor’s Pension;
3. Sean had a pension plan through his employment with Seneca College. In August 2020, the CAAT Pension Plan determined that Tristian was his spouse. A lump sum was issued to Tristian as the beneficiary of Sean’s pension plan;
4. Tristian applied for and received the death and funeral benefit from Echelon Insurance Company following that company’s determination that they were spouses;
5. At Ms. Freire’s sentencing hearing, the presiding judge referred to Tristian as Sean’s husband;
6. In his victim impact statement, Tristian described himself as Sean’s husband and spoke of the intertwining of their lives and families and the depth of his loss.

[18] Further evidence of their relationship exists. They had discussed becoming parents, something that Tristian spoke of in his victim impact statement. Sean’s sister-in-law, Patrick’s wife Kayla, offered to be their surrogate. Despite Sean’s death, Kayla continued to offer to carry through with that plan. She underwent an implantation procedure in May 2023 and became pregnant, but later miscarried.

ANALYSIS

[19] A dependant may sue in tort under s. 61 of the Family Law Act if they are, among other relationships, a spouse as defined in Part III of that Act.

[20] The definition of spouse under Part III is found in s. 29, which provides:

…“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years…

[21] The applicable Rules of Civil Procedure are:

30.02(1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.

29.2.02 This Rule applies to any determination by the court under any of the following Rules as to whether a party or other person must answer a question or produce a document:

1. Rule 30 (discovery of documents)…

29.2.03 (1) In making a determination as to whether a party or other person must answer a question or produce a document the court shall consider whether,

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;

(b) the expense associated with answering the question or producing the document would be unjustified;

(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;

(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and

(e) the information or the document is readily available to the party requesting it from another source.

(2) In addition to the considerations listed in subrule (1), in determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.

Time, Expense and Volume: r. 29.2.03(1)(a) and (b) and r. 29.2.03(2)

[22] Even limiting the time frame to five months is likely to result in a large volume of messages that will have to be processed by Tristian and his lawyers. The evidence suggests that Tristian and Sean communicated by electronic message; this motion arises from Tristian confirming that fact on discovery. The frequency of their communication was addressed by Tristian in his victim impact statement, where he repeated the five messages exchanged between them during the day of Sean’s death during the few hours when Sean was riding his motorcycle and Tristian was at work.

[23] Time and expense cannot be weighed in a vacuum, but rather, should be looked at against the potential probative value of the information sought. It appears that the defendant hopes that the messages will reveal, in Mr. Samuel’s words, a “concrete timeline” in which the defendants were either living together or formed an intention to cohabit. But such absolute evidence is not needed to establish the cohabitation element required by the FLA. This was made clear by the Court of Appeal in Stephen v. Stawecki, at para. 4, where the court stated:

… The case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible. In our view, to accept the appellant’s argument would be inconsistent with the flexible approach taken by the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3 in this area. We agree with the respondent that the jurisprudence interprets “live together in a conjugal relationship” as a unitary concept, and that these specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship.

[24] More recently, the principle that lack of a shared residence is not determinative of the issue of cohabitation was affirmed in Climans v. Latner, 2020 ONCA 554, at paras. 51-62.

[25] In this case there is already ample evidence that there were two residences that were the sites of their cohabitation during the more than three years before Sean’s death. Further, Tristian and Sean were treated as a couple in all respects by family and friends, they were in a committed and exclusive relationship, and they had plans for their future together that had family support and involvement. Despite examining all members of the family in these related lawsuits, the defendant has not produced any contradictory evidence. It is difficult to imagine that information could possibly exist in the messages that would be more compelling than the jointly signed tenancy agreement for 207 Penn Avenue on April 1, 2017, and the landlord’s verification of the couple’s residency.

[26] The information that the defendant now seeks to explore is available from other sources, which is from the evidence of individuals who were closest to Sean and Tristian during the relevant period and who have provided no evidence to contradict a cohabitation period in excess of three years. While the discovery evidence of other family members was not before the court, had there been evidence supporting the defendant’s position, it undoubtedly would have been included in the defendant’s record.

[27] The time and expense that will ensue from ordering production is exceedingly difficult to justify in the face of all the other evidence presented to the defendant, and in the context of the state of the law interpreting the term “cohabited”.

Prejudice to Tristian: r. 29.2.03(c)

[28] The plaintiffs’ counsel argues that there is enormous prejudice to Tristian; I agree.

[29] First, the request is not for messages that have formerly been publicly shared in any way. These are not Facebook messages or pictures that have been shared with other individuals in the past, which distinguishes this case from others in which disclosure has been ordered. They are messages sent between two partners that carry an extremely high expectation of privacy, on platforms or applications that are designed to be private. In fact, Snapchat is designed so that the content disappears after a set period. In considering whether to produce the messages, this expectation of privacy must be borne in mind: Murphy v. Perger, [2007] O.J. No. 5511 (ONSC), at paras. 17 and 20; Leduc v. Roman at para. 31; Isacov v. Schwaertzberg, 2018 ONSC 5933; Mohamud v. Juskey, 2023 ONSC 4414, at paras. 62-91.

[30] The defendant relies on Bacchus v. Munn, 2021 ONSC 5820 to support of its position. I agree with the plaintiffs’ counsel that Bacchus is unlike the one before me. In Bacchus the plaintiff had already produced WhatsApp messages exchanged between himself and the defendant from 2017 to 2020. The defendant alleged that their relationship began in 2014, and sought production of the WhatsApp messages from 2014. In ordering the plaintiff to produce them, LeMay J. found that there was no prejudice to the plaintiff to produce the additional messages given that he had already revealed the later messages.

[31] In M. (A.) v. Ryan, [1997] 1 S.C.R. 157, at para. 38, Justice McLachlin articulated the Court’s view on a litigant’s right to maintain privacy:

I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.

[32] In Mohamud v. Juskey, Boswell J. was faced with the question of whether to grant the defendant’s motion to compel the plaintiff to disclose the entirety of her Facebook and Instagram accounts. He concluded that the concept of “prejudice” in r. 29.2.03(c) is broad enough to include intrusions into a party’s privacy interests.

[33] He proposed, at para. 77, that courts faced with a litigant who is resisting disclosure must “engage in a balancing of the probative value of the records sought against the prejudice that will inure to the party resisting disclosure, or to the litigation process, should the production be compelled”.

[34] I have already stated why I assess that the electronic exchanges are likely to have minimal probative value when viewed with the evidence that has been produced to the defendant.

[35] There is evidence that Tristian has been treated by a psychiatrist for significant emotional and psychological symptoms since Sean’s death. As a result of his grief and depression, Tristian was unable to return to work until April 7, 2021. His victim impact statement reveals the extent to which he was disabled by grief for many months after his loss, and how his gains to get back into the world have been hard-fought.

[36] A plaintiff must usually be prepared to bear some upsetting moments while pursuing a lawsuit. But what is being asked here is shockingly intrusive. The idea that other litigants and their lawyers should be able to read through the written evidence of Sean and Tristian’s private life is impossible to justify in the circumstances of this case. Even though Mr. Samuels argued that his firm acts for Economical Insurance, and that Ms. Freire is not likely to ever see the messages, it is understandable that the prospect of releasing the messages to the party defending on behalf of the person who killed Sean cannot be anything less than emotionally wrenching for Tristian.

[37] While r. 29.2.03(c) only requires that the prejudice to Tristian be considered, a proper balancing should also look at the prejudice to the moving party if the motion is denied. The prejudice is not comparable. The defendant has already been allowed to ask all the questions that it wanted on this issue on discovery of all parties in both actions. Again, it seems highly improbable that electronic messages exist that are inconsistent with the timeline and quality of the relationship endorsed by all other parties in the actions, and supported by the documentary evidence.

DECISION

[38] A proper weighing of the factors in r. 29.2.03 in the context of this case results in any potentially probative value of the messages being far outweighed by the cost, time, and prejudice that would occur if Tristian were required to produce the messages sought.

[39] This court orders that the motion is dismissed.

COSTS

[40] Cost submissions were heard briefly following the conclusion of the motion, each party’s counsel being asked what they would be seeking if successful.

[41] The plaintiff seeks costs on a substantial indemnity basis in the amount of $22,400. Mr. Cooper advised that the scale was based on an offer to settle.

[42] Had the defendant been successful, Mr. Samuels submitted that his client would be seeking substantial indemnity costs of $8,346, or partial indemnity of $5,624.

[43] In approaching costs, I bear in mind that this motion sought three years and five months of communications, and that it was only as the argument began that Mr. Samuels advised that the request was being changed to cover five months only. The plaintiffs received no prior notification of the revised request.

[44] The plaintiffs’ offer was sent to the defendant on September 22, 2023, offering a time-limited opportunity to withdraw the motion without costs before September 29 at 5:00 p.m., after which the defendant could pay costs of $1,000 if the motion was withdrawn any time up to one minute after commencement of the motion. Mr. Cooper noted that the offer was being made to avoid the costs of preparing a responding record and factum.

[45] The plaintiffs obtained an order that is more favourable than their offer. Had the offer been accepted, the defendant would be liable for costs of only $1,000. Now, with the motion dismissed in its entirety, the defendant is presumptively exposed to paying costs on at least a partial indemnity basis.

[46] In these circumstances, the cost consequences of r. 49.10(1) apply. All the plaintiffs’ fees and disbursements were incurred after the date of the offer.

[47] I have reviewed the plaintiffs’ Cost Outline. It reveals that 82.2 hours were spent on the motion by the plaintiffs’ firm. Close to half of those were docketed by a student-at-law at a substantial indemnity rate of $90 per hour. Mr. Little, the senior lawyer with carriage, docketed only 2.2 hours and the balance of the work was undertaken by Mr. Cooper, who was called to the bar in 2015, for whom a substantial indemnity rate of $330 is applied.

[48] The approach to the allocation of the work taken by the plaintiffs’ firm is reasonable, and reflects the significant importance of this issue to Tristian. I am only reducing it somewhat to take into account that there is always duplication and inefficiencies when more than one person is involved in preparation, especially where one is a student.

[49] This matter was reasonably complex, and obviously involved a complete review of the evidence related to this issue, including the discovery transcript. A factum was filed by each party.

[50] Bearing in mind what is reasonable for a motion of this nature in all of the circumstances, while the docketed time is significant, an insurance litigant would reasonably expect that costs could run this high for this motion. Even after receiving the plaintiffs’ material, it was open to them to accept the offer and pay only $1,000.

[51] This court orders that the defendant will pay costs of this motion to the plaintiffs in the amount of $18,000 on a substantial indemnity basis and payable in 30 days.

Justice S.E. Healey

Released: February 1, 2024

CORRIGENDUM

1. Line 5 of paragraph 36 has been corrected to replace Echelon Insurance with Economical Insurance.