Sraha-Yeboah v. Jewell, 2025 ONSC 988

Court File No.: Cv-24-00722752-0000/CV-24-00725152-0000
Date: 2025-02-12
Superior Court of Justice – Ontario
Between:
Lynn Sraha-Yeboah
and
Matthew Jewell
and
Gregory Jewell

Before: J.T. Akbarali

Counsel:
Christopher Du Vernet and Carlin McGoogan, for the plaintiff
Paul Portman, for the defendants

Heard: 2025-02-11

Endorsement

Overview

[1] The plaintiff has commenced claims against each defendant alleging intrusion upon seclusion. The claims allege that the defendants conducted audio and video monitoring of the plaintiff through visible and hidden video cameras placed in the home she co-owned and lived in with the defendant Gregory Jewell. The defendants in these related actions move to summarily dismiss the plaintiff’s claims, principally on the basis that she and Gregory Jewell signed a mutual full and final release.

Brief Background

[2] The plaintiff, Lynn Sraha-Yeboah, and the defendant Gregory Jewell were in a relationship together, during which they co-owned a property in which they resided. The defendant Matthew Jewell is Gregory Jewell’s son, and a police officer with York Regional Police Services. For ease of reference, I use the parties’ first names in these reasons.

[3] Lynn and Gregory purchased a house together on September 15, 2021, and took title as joint tenants. They began to argue over Gregory’s three sons attending the home uninvited and having free access to a key. By August 2022, the parties began living in separate rooms in the house.

[4] On November 9, 2022, the conflict between Lynn and Gregory escalated. Each has a different narrative of what occurred. According to Lynn, during their argument, Gregory violently grabbed her shoulders and pulled her down towards the ground. He then picked her up and threw her across the room against a door, which caused her an injury to her shoulder. The record includes a photograph of her bruised shoulder.

[5] Gregory deposes that Lynn assaulted him. He includes photographs showing an injury to his face.

[6] Lynn was arrested on November 10, 2024, for the alleged assault on Gregory Jewell. She was also charged with mischief for allegedly breaking his laptop, although she deposes that she saw him using the laptop after the alleged incident. In any event, because of the charges, she was restricted from communicating with Gregory or being at the property.

[7] Lynn moved into a motel, and thereafter a rental unit. She retained criminal counsel. She also retained family counsel with respect to her separation from Gregory. Due to the expenses of criminal counsel and having to pay her share of the property-related expenses while also funding another place to live while the charges were pending, Lynn discharged family law counsel in April 2023. She could no longer afford the expense.

[8] Lynn alleges that the criminal charges were falsified by Gregory to gain an advantage in their property division negotiations. The criminal charges were subsequently withdrawn by the Crown. Lynn completed a partner assault response program. She did not enter into a peace bond.

[9] On June 1, 2023, Lynn advised Gregory that she would be returning to the home. The charges having been withdrawn, she was entitled to move back in. She returned on June 4, 2023.

[10] At the time of her return, Lynn found surveillance cameras inside and outside the house. There was a sign outside the home indicating that the premises were under video surveillance. The sign did not indicate that the premises were also under audio surveillance, although they were.

[11] On the day she returned to the home, Lynn covered a camera in the dining room with a towel, and immediately thereafter, heard Matthew’s voice identifying himself as the police and directing her to uncover the camera. Matthew’s counsel indicates that it was a silly mistake for Matthew to have identified himself as the police, but there is no dispute that he did so while directing her to uncover the camera. During his cross-examination, Matthew insisted that Lynn covering a camera installed in the home in which she resided and which she co-owned amounted to criminal mischief.

[12] Gregory returned to the home a few days later. Lynn confronted him about the cameras. Gregory indicated that he was entitled to place surveillance cameras in the house as a co-owner, and to allow anyone he wanted, including Matthew, to view them. He indicated the cameras were for his protection. There is evidence in the record that indicates the Ontario Provincial Police advised Gregory to install the cameras. Gregory declined to remove the cameras.

[13] Lynn covered the cameras she was aware of or turned them to face the wall if covering them was not possible.

[14] After Lynn returned to the home, she and Gregory continued negotiating their separation. While negotiations were ongoing, Gregory served an application for partition and sale of the property in June 2023. Lynn retained family law counsel on a limited retainer to advise her with respect to the application and the settlement negotiations.

[15] Lynn deposes that she had communications with family law counsel from the home on June 1, 2, 13, 15, 19, 20, 22, 23, 27 and 29, 2023. She had communications with her criminal counsel on June 1, 13, and 22, 2023. Her evidence is that she conducted these conversations throughout the main floor of the house when Gregory was not present, and she avoided having them in areas where she knew there were cameras.

[16] With the assistance of counsel, Lynn and Gregory negotiated the terms of a sale order for the property and the terms of a mutual release. The release was signed on June 23, 2023.

[17] On July 29, 2023, Lynn removed what she believed were all the cameras from the house.

[18] Between June and September 2023, Lynn had a number of telephone consultations with medical professionals about her health, including a psychiatrist, a social worker, and a registered psychotherapist. Before July 29, 2023, she had those conversations in areas she believed were free from monitoring by the cameras. After she removed the cameras on July 29, 2023, she believed she was not being monitored, and thereafter, when she was alone in the house, she continued to have private medical telephone consultations. She also had private conversations with friends and family about her separation from Gregory, and her health. She further deposes that she walked around in various states of undress around the house when she was alone.

[19] On September 23, 2023, Lynn was cleaning up the house to ready it for sale. She deposes that she discovered a hidden camera located under the bed in the guest bedroom. She had not been aware of its existence. She then searched the house for more hidden cameras. She deposes she discovered a camera concealed in a hall closet. She indicates that she is concerned that other cameras were hidden that she did not find. The placement of the camera in the hall closet meant that her private conversations with counsel, with her medical professionals, and with friends and family could have been overheard through audio monitoring.

[20] Matthew’s evidence is that no cameras were hidden. Gregory admits hiding a camera in the guest bedroom, where he slept, but states it was only there for an hour or so before he removed it. The evidence of the defendants on the question is thus inconsistent with Lynn’s and with each other’s.

[21] Matthew gave evidence in his affidavit that Gregory set up the cameras. The cameras were connected to an app that Matthew and Gregory had on their phones and which had the capability of notifying them when there was activity in the vicinity of the camera. According to Matthew, Gregory viewed notifications of his own accord. Matthew deposes that he “did not have a role in the placement of the cameras or the monitoring of same.” He also deposes that “Gregory installed a video camera system.” However, on cross-examination he admitted that he installed the cameras. I have already noted the evidence that Matthew directed Lynn to uncover the camera she covered, so there is some evidence that he was monitoring the cameras.

[22] Lynn commenced a claim against Matthew on June 25, 2024. She commenced a claim against Gregory on August 7, 2024. Before pleadings were closed, Gregory and Matthew indicated their intention to bring this summary judgment motion. In the course of preparing the motion, Lynn learned that Gregory’s other sons, Christopher Jewell and Jordan Jewell, also had access to the app which allowed them to monitor the cameras. She commenced a third claim against Jordan and Christopher on November 21, 2024. There is no summary judgment motion brought in that claim, as this motion was well underway when that claim was commenced.

Issues

[23] The principal issue raised in this motion is whether Lynn’s claims should be dismissed summarily on the basis of the release she and Gregory signed. The defendants raised certain other issues in passing that I address at the end of these reasons.

Principles Applicable to Motions for Summary Judgment

[24] In determining whether summary judgment is appropriate, I am guided by the principles set out by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7. Where there is no genuine issue requiring a trial, summary judgment must be granted. There will be no genuine issue requiring a trial where the motion process allows the judge to make the necessary findings of fact, apply the law to the facts, and the process is a proportionate, more expeditious and cost-effective means to achieve a just result: Hryniak, at para. 49.

The Release

[25] Both Gregory and Matthew rely on the release signed between Lynn and Gregory. They argue that by signing it, Lynn released the claims she has made in the actions against them.

[26] The release releases “Gregory Jewell and Lynn Sraha-Yeboah (which term includes their respective heirs, servants, agent, and administrators, representatives, successors and assigns).” It releases:

any and all claims, actions, demands, manner of actions, causes of actions, suits, debts, duties, accounts, bonds, warranties, claims over, indemnities, contracts, losses, injuries, undertakings, sums of money, damages, covenants and liabilities of whatever nature and kind at law or in equity, whether actual, pending or potential, which they now have or may hereafter can or shall have, jointly or severally, one against the other, for or by reason or cause of any matter or thing arising out of (directly or indirectly, foreseeable or unforeseeable), connected with or in any way related to the separation of the parties and the application commenced in the Ontario Superior Court of Justice…

[27] The release provides that it is “not intended to cover any future claim by either party based upon an event occurring in the future which is in breach of the draft order agreed upon.”

[28] The release also includes a claim-over clause, by which Gregory and Lynn agreed not to make claim or to commence or take proceedings against any other person who might claim contribution from, or be indemnified by, the releasors. In these actions, no claims for contribution and indemnity have been made.

[29] As noted, Gregory and Matthew each claim the benefit of the release. I consider the applicability of the release to each of them in turn.

Does the release apply to bar Lynn’s claim against Gregory for intrusion upon seclusion?

[30] At the time the release was signed, Lynn’s evidence is that she was unaware that there were hidden cameras in the house. She negotiated the settlement of her property matters with Gregory, including the terms of the release, while having confidential conversations with counsel that were monitored by Gregory and Matthew through the hidden video cameras. I note that neither Matthew nor Gregory have deposed that they did not hear Lynn’s confidential conversations with counsel, although she squarely raised the issue of those conversations being monitored in her affidavit. Only Gregory and Matthew would know what they heard. Their failure to deny hearing Lynn’s confidential and privileged communications in the evidence they filed on their motion leads me to conclude that they did hear Lynn’s privileged conversations.

[31] In Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, the Supreme Court of Canada described solicitor-client privilege as an important civil and legal right, and a principle of fundamental justice. “Confidential communications to a lawyer represent an important exercise of the right to privacy, and they are central to the administration of justice in an adversarial system”: Lavallee, at para. 49. See also Mahjoub (Re), 2012 FC 669, paras. 64-65, where the Federal Court of Canada held that courts are compelled to adopt stringent norms to ensure the protection of solicitor-client privilege.

[32] Permitting Gregory to rely on a release he negotiated while breaching Lynn’s solicitor-client privilege about the very release on which he seeks to rely would be to countenance an attack on the integrity of solicitor-client privilege, and on the administration of justice. It would encourage widespread snooping, particularly in matrimonial litigation, where accessible technology and shared spaces present easy opportunities for snooping.

[33] I agree with the plaintiff that given the violations of solicitor-client privilege, the release cannot operate to bar a claim against Gregory for those violations. I do not address whether the entire release fails, because that question is not before me. But in my view, Gregory cannot rely on the release he procured while violating Lynn’s solicitor-client privilege to protect his violation of her solicitor-client privilege. I conclude that the release does not apply to bar Lynn’s claim for intrusion upon seclusion.

[34] If I am wrong on this point, I would not grant summary judgment in favour of Gregory because of the release for another reason. Gregory argues that Lynn was aware that there were cameras present at the property when she signed the release, and must therefore be found to have released any claim against him arising from the cameras. However, Gregory’s argument does not account for Lynn’s evidence, at least some of which Gregory admitted, that there were hidden cameras at the property, about which she did not know, because Gregory had deliberately concealed them from her.

[35] The Supreme Court of Canada has held that “the general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given”: Hill v. Nova Scotia (Attorney General).

[36] The placement of hidden cameras, and the duration of their placement, is a factual issue in dispute. Determining these issues requires making findings of credibility, not least because of the conflicting evidence between the defendants about whether cameras were hidden. Whether Lynn contemplated releasing Gregory with respect to cameras at the property about which she was unaware is an issue directly related to the factual issue in dispute about the cameras, which in turn may impact the proper scope of the release.

[37] I considered whether the factual disputes can be resolved by resort to the court’s enhanced fact-finding powers. As the Court held in Hryniak, the enhanced fact-finding powers may not be employed on a summary judgment motion unless it is in the interests of justice for them to be exercised only at trial: Hryniak, at para. 52. In making this determination, the court must ask itself whether the full appreciation of the evidence and issues that is required to make dispositive findings can only be achieved by way of a trial: Hryniak, at para. 53. A court ought to compare the cost and speed of summary judgment and trial, the evidence that will be available at each, and the opportunity to fairly evaluate it. The power to hear oral evidence should only be exercised when, among other things, the issue is narrow and discrete: Hryniak, at para. 62.

[38] In my view, it is not in the interests of justice to resort to the court’s enhanced fact-finding powers in this case. The question of the extent and duration of video and audio monitoring of the plaintiff is not a discrete issue, but will require significant evidence from multiple parties. That evidence is also relevant to the plaintiff’s claim for intrusion upon seclusion, not just the claim with respect to the scope of the release. In my view, the full appreciation of the evidence required to make dispositive findings in this case, including with respect to the scope of the release, requires a trial.

[39] Finally, I note that the release is retrospective. It specifically carves out claims that arise in the future that are related to the subject matter of the parties’ draft order. Much of the monitoring of Lynn’s privileged, personal, and private conversations happened after the release was signed. Thus, even if the release were to operate to bar Lynn’s claim against Gregory, it would do so with respect to the monitoring to which she was subjected after the release was signed.

Does the release apply to Lynn’s claim against Matthew?

[40] The release does not apply to bar Lynn’s claim against Matthew, for reasons which I describe below.

[41] First, if the release does not protect Gregory, as I have found, it cannot protect Matthew, whose claim under the release cannot be stronger than the claim of the releasee (Gregory) under the release.

[42] Second, at the risk of repeating myself, Matthew is not a party to the release. Matthew claims the benefit of the release as Gregory’s “heir.”

[43] I have great difficulty with this argument. The releasors and releasees in the mutual release are Gregory and Lynn. The paragraph that extends the benefit of the release to their “heirs,” among others, is a common paragraph used to protect those people who, for one reason or another, stand in the shoes of the releasee. It is a derivative benefit that arises on being placed in the position of the releasee. It is not a free pass to a releasee’s family member in respect of their own, independent, wrongful conduct. A person who is being released in their own capacity as an individual for their own actions is named in the release specifically.

[44] There are other, more technical, problems with the argument that Matthew is Gregory’s “heir”. The parties refer me to Black’s Law Dictionary’s definition of “heir,” which includes:

At common law, the person appointed by law to succeed to the estate in case of intestacy. One who inherits property, whether real or personal. … Moreover, the term is frequently used in a popular sense to designate a successor to property either by will or by law.

[45] The problems with defining Matthew as an “heir” for purposes of the applicability of the release include:

a. There is no evidence that Gregory has a will that names Matthew. If he does, Matthew would be at most a prospective heir, because Gregory could change his will at any time to disinherit Matthew. An heir has inherited property; an heir is not someone who may inherit property.

b. There is no evidence that Gregory does not have a will. If Gregory dies without a will, by operation of law on an intestacy, Matthew will become one of the people appointed by law to succeed to his estate. But until there is an intestacy, Matthew is not an heir as a “person appointed by law to succeed to the estate in case of intestacy.”

c. Matthew asks me to infer that Gregory has no will. Gregory gave evidence on this application. It was within the power of the defendants, who are represented by the same counsel, to lead evidence about Matthew’s status as Gregory’s prospective heir, whether by will or intestacy, but Gregory did not lead any evidence about his testamentary arrangements, including whether he has any. I decline to make any inference about Gregory’s testamentary arrangements or lack thereof.

d. Gregory is not dead. There is no intestacy. Matthew has not inherited property under a will made by Gregory.

[46] I also note the absurdity that results from extending the definition of “heir” in a release to potential heirs. While Matthew is likely to become Gregory’s heir at some point, there are also contingent heirs. For example, in certain cases, a deceased’s property will escheat to the Crown. Thus, the Crown is always a contingent heir. Yet it would be ridiculous to suggest that Lynn had released Ontario or Canada by virtue of her release with Gregory.

[47] Matthew is not Gregory’s heir. If I am wrong that the release would only apply to an heir qua heir, it would still not apply to Matthew, because he is not currently Gregory’s heir.

[48] I thus find that the release does not apply to bar Lynn’s claim against Matthew.

Conclusion on the Release

[49] I do not grant summary judgment against Lynn based on the release. The release does not apply to the claim of intrusion upon seclusion levied against Gregory. The benefit of the release does not extend to Matthew at all.

Other Issues Raised by the Defendants

Do Lynn’s claims for intrusion upon seclusion fail because she had no reasonable expectation of privacy in her home because she was aware of some of the cameras?

[50] The elements of the tort of intrusion upon seclusion were established by the Court of Appeal in Jones v. Tsige, 2012 ONCA 312, and described more recently in Owsianik v. Equifax Canada Co., 2022 ONCA 813, para. 54 as:

a. The defendant must have invaded, or intruded upon the plaintiff’s private affairs or concerns, without lawful excuse [the conduct requirement];

b. The conduct which constitutes the intrusion or invasion must have been done intentionally or recklessly [the state of mind requirement]; and

c. A reasonable person would regard the invasion of privacy as highly offensive, causing distress, humiliation, or anguish [the consequence requirement].

[51] At the hearing of the motion, the defendants argued that Lynn was aware of the cameras, and thus had no reasonable expectation of privacy in her home, such that the claim of intrusion upon seclusion cannot be made out.

[52] This argument is not made in the defendants’ factum, nor was it developed in a meaningful way during the hearing. I assume the argument is meant to suggest that the defendants could have not intruded upon the plaintiff’s private affairs because she could not have expected privacy, being aware of the cameras.

[53] Lynn’s evidence is that she held her private and privileged conversations away from the cameras while they were present in the home, and that she had covered or turned them to the wall. She deposes she was unaware of the two cameras she later found hidden, and is afraid there were more hidden cameras she never found.

[54] Lynn’s evidence is that she had privileged and private conversations in her own home, which she co-owned, and under circumstances where she believed she had guarded her privacy. Her evidence is she had no idea that Christopher and Jordan had access to the cameras until she learned that while preparing this motion. The evidence in the record does not support a conclusion that she had no reasonable expectation of privacy in those conversations. I would not grant summary judgment on this basis.

Damages

[55] The defendants argue that the claims should be dismissed because Lynn’s damages are remote and speculative. There are two reasons why this argument cannot succeed.

[56] First, the tort of intrusion upon seclusion does not require proof of actual loss; damages may be awarded to vindicate rights or symbolize recognition of their infringement: Jones, at paras. 71, 74-75.

[57] Second, Lynn deposes, supported to some extent by medical records, that the defendants’ actions have caused her actual harm in the form of a reactivation of post-traumatic stress disorder. The defendants criticize the lack of expert evidence on the point. Lynn advises that the motion timetable was aggressive, and there has simply not been sufficient time to obtain expert evidence. Given that the action against Gregory was commenced in August, and the matter has proceeded to a summary judgment motion in about six months, I accept that it would have been difficult to obtain expert medical evidence in accordance with the timetable. In any event, it is a secondary point, because no proof of actual loss is required to establish intrusion upon seclusion.

Abuse of Process

[58] The defendants raised a claim of abuse of process, alleging that Lynn’s claims were a collateral attack on the release. This argument depends on the applicability of the release, and thus is an extension of the claim that the release bars Lynn’s action. Since I have found the release does not apply to bar the claims against Gregory or Matthew, there is no collateral attack, and no abuse of process. I need say nothing further about this argument.

Estoppel

[59] The defendants argue that Lynn’s claims are “potentially barred by cause of action estoppel.” They allege that Lynn knew the material facts giving rise to the claims at the time of the first proceeding between her and Gregory that was resolved and in relation to which the release was signed. They allege that the “fundamental issue in both actions is damages arising from or in relation to events surrounding Gregory and the plaintiff’s separation”. They allege that intrusion upon seclusion could and should have been pleaded on the facts raised in the first proceeding.

[60] No argument was made at the hearing about estoppel. Even the written argument only asserts that estoppel “potentially” applies. I have not been able to locate a copy of the original application materials in the motion material before me. In these circumstances, I conclude that the estoppel argument is not seriously pursued, and I decline to address it further.

Costs

[61] At my request, the parties uploaded costs outlines and any relevant offers to settle prior to the hearing of the motions. At the hearing, I suggested to them that I would write my reasons on the merits of the motion, and thereafter, proceed to view the costs materials uploaded and determine costs without further submissions. The parties agreed that my suggestion was appropriate. This is the process I have followed.

[62] Lynn is the successful party on the motions and is presumptively entitled to her costs.

[63] On November 19, 2024, Lynn served an offer to settle the motions on the basis that the motions would be dismissed without costs, if the offer was accepted within ten days, and thereafter, that costs would be payable on a partial indemnity scale less $5,000. It is a rule 49 offer.

[64] Lynn has beaten the terms of her offer, and thus is entitled to substantial indemnity costs from November 19, 2024. The bulk of the fees Lynn incurred on the motion occurred after November 19, 2024.

[65] Lynn’s bill of costs supports substantial indemnity costs of $94,413.20, all-inclusive. Collectively, the defendants’ bills of costs support substantial indemnity costs of about $32,000.

[66] The three main purposes of modern costs rules are to indemnify successful litigants for the costs of litigation, to encourage settlement, and to discourage and sanction inappropriate behaviour by litigants: see Fong v. Chan, para. 22.

[67] Subject to the provisions of an act or the rules of this court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The court exercises its discretion considering the factors enumerated in r. 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, including the principle of indemnity, the reasonable expectations of the unsuccessful party, and the complexity and importance of the issues. Overall, costs must be fair and reasonable: see Boucher v. Public Accountants Council for the Province of Ontario, para. 38. A costs award should reflect what the court views as a fair and reasonable contribution by the unsuccessful party to the successful party rather than any exact measure of the actual costs to the successful litigant: see Zesta Engineering Ltd. v. Cloutier, para. 4.

[68] With respect to the fair and reasonable quantum of costs, I note the following:

a. The defendants needlessly complicated the motion by raising issues without thoroughly briefing them, and not pursuing them, or not pursuing them seriously, while still requiring the plaintiff to respond to all of them.

b. Matthew’s motion should not have been brought. There was no realistic possibility that he would be found to be entitled to the benefit of the release as Gregory’s “heir.”

c. Six cross-examinations were held and multiple affidavits filed.

d. The issues in the motions were important to all parties; whether the actions would continue or not was at stake.

e. Lynn’s counsel’s hourly rates are higher than the defendants’ counsel’s rates, reflecting their relative seniority. Lynn’s counsel spent more time on the motion than did defendants’ counsel, but as I have noted, some of that was to respond to arguments the defendants did not pursue.

f. Lynn had two counsel working on her file, and present at the hearing, while the defendants had only one counsel.

g. Lynn’s claim for costs is significantly higher than the costs the defendants incurred.

h. Some of Lynn’s fees were incurred before her offer to settle was served.

[69] Taking these factors into account, I conclude that costs of $50,000 are fair and reasonable in the circumstances.

Summary of Orders

[70] In conclusion, I make the following orders:

a. Matthew’s motion for summary judgment is dismissed;

b. Gregory’s motion for summary judgment is dismissed;

c. I declare that the release between Lynn and Gregory does not apply to bar Lynn’s claims for intrusion upon seclusion against either Gregory or Matthew;

d. Gregory and Matthew are jointly and severally liable for Lynn’s costs of these motions, fixed at $50,000 all inclusive. Gregory and Matthew shall pay Lynn’s costs of $50,000 within thirty days.

J.T. Akbarali
Date: 2025-02-12