



COURT OF APPEAL FOR ONTARIO

CITATION: Donovan v. Waterloo
    Regional Police Services Board, 2019 ONCA 845

DATE: 20191025

DOCKET: C66718

Hoy A.C.J.O., van Rensburg and Roberts JJ.A.

BETWEEN

Kelly Lynn Donovan

Plaintiff/Responding Party (Appellant)

and

Waterloo Regional Police Services Board and Bryan
    Larkin

Defendants/Moving Parties (Respondents)

Kelly Lynn Donovan, acting in person

Donald B. Jarvis and Cassandra Ma, for the respondents

Heard: October 11, 2019

On appeal from the order
    of Justice Michael T. Doi of the Superior Court of Justice, dated March 20,
    2019, with reasons reported at 2019 ONSC 1212.

REASONS FOR DECISION

I.

OVERVIEW

[1]

The appellant appeals from the motion judges order dismissing her
    action against the respondents under r. 21.01(1)(b) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, without leave to amend, and ordering her
    to pay costs to the respondents. For the reasons that follow, we allow the
    appeal, set aside the order of the motion judge, and grant the appellant leave
    to further amend her Amended Statement of Claim in respect of the claim against
    Bryan Larkin.


II.

bACKGROUND

[2]

In her Amended Statement of Claim, the appellant alleges that the
    respondents breached the terms of a Release and of a confidentiality provision
    contained in a settlement agreement (the Agreement), dated June 8, 2017. Under
    the Agreement, the appellant resigned her employment in June 2017, as a police
    officer with the respondent Waterloo Regional Police Services Board (the
    Board). She seeks damages against the Board and Bryan Larkin, the Chief of
    the Waterloo Regional Police Service.

[3]

The appellant alleges that the respondents (1) breached the Release by
    appealing her claim for benefits to the Workplace Safety and Insurance Board
    (WSIB) arising from a workplace injury; and (2) breached the confidentiality
    provisions of the Agreement by delivering an affidavit sworn by Chief Larkin,
    containing information about the Agreement, in defence of a class proceeding
    against the Board.

[4]

The motion judge struck the claim related to the WSIB appeal on the
    basis that an employer cannot contract out of the
Workplace Safety and
    Insurance Act, 1997
, S.O. 1997, c. 16, Sched. A (WSIA). Pursuant to the
    Release, the Board, among other things, release[s] and forever discharge[s]
    [the appellant] from any and allappeals. The appellant pleads that she applied
    to the WSIB in April 2017, before signing the Release, for benefits related to
    post-traumatic stress disorder (PTSD). After the Board signed the Release, it
    submitted an appeal of the WSIBs decision.

[5]

The motion judge accepted that it was at least arguable that the Release
    captured the Boards review of the WSIBs initial entitlement decision: at
    para. 20. His decision that it was plain and obvious that the Amended Statement
    of Claim failed to disclose a cause of action in respect of the alleged breach
    of the Release was based on his conclusion that the result was governed by this
    courts decision in
Fleming v. Massey
, 2016 ONCA 70, 128 O.R. (3d)
    401, leave to appeal refused, [2016] S.C.C.A. No. 113. The motion judge
    concluded that
Fleming
made it abundantly clear that the Release
    cannot operate to preclude the Board, or the [appellant] from exercising
    rights and discharging obligations under the WSIA, because as a matter of
    law, parties cannot contract out of the scheme under the WSIA: at para. 23.
    The motion judge also concluded that the privative clause in s. 118(4) of the WSIA,
    which provides, in relevant part, that an action or decision of the WSIB under
    the Act cannot be restrained by a court process or procedure, would preclude
    the appellants claim for breach of the Release in relation to the WSIB
    proceedings: at paras. 24-25.

[6]

The motion judge struck the claim related to the breach of
    confidentiality because he concluded that it could not be based solely on an
    affidavit prepared for a court proceeding. The Agreement required the parties, except
    where required by law, to keep the terms and existence of [the Agreement] in
    absolute and strict confidence at all times. While the motion judge found, at
    para. 33, that it seems less clear whether Chief Larkins affidavit
    sufficiently preserves the [appellants] confidentiality, he concluded that
    because his affidavit was used in defending a class action in court, it was
    covered by absolute privilege. Accordingly, the motion judge concluded that the
    appellants claim had no reasonable chance of success.

[7]

The motion judge further concluded that the pleading contained
    insufficient allegations to establish an independent cause of action against
    Bryan Larkin with respect to either of the appellants claims.

III.

aNALYSIS

[8]

We are not persuaded that it is plain and obvious that the appellants
    claims against the Board cannot succeed. We agree with the motion judge that
    the appellant did not plead a tenable claim against Chief Larkin, but in the
    circumstances of the case we would allow the appellant leave to amend this
    claim.

(1)

The Breach of Release Claim

[9]

As already indicated, the motion judge made his order dismissing the
    appellants action without leave to amend under r. 21.01(1)(b).  As a result,
    and as he acknowledged in his reasons, he could not consider anything extrinsic
    to the Amended Statement of Claim which was not referenced in the claim. 
    Moreover, he had to accept the pleaded facts as true for the purpose of the r.
    21 motion.

[10]

On
    a generous reading of the Amended Statement of Claim, the appellant had applied
    for and had been receiving WSIB benefits at the time the Agreement containing
    the Release was signed. She pleads, at paras. 9-10, that she was diagnosed with
    PTSD in December 2015, and that, starting in February 2017, she could not
    attend work due to the severity of her PTSD symptoms. She pleads that in April
    2017 she applied to the WSIB for benefits and that her claim was approved: at
    para. 11. Indeed, she pleads at para. 19 that after her resignation she
    continued to receive benefits from WSIB in the form of psychological
    treatment. The appellant pleads, at para. 20, that in August 2018 she was made
    aware by WSIB that on January 11, 2018 the Board submitted an appeal of her
    claim.

[11]

Fleming
was a case that involved uninsured employment under Part X of the WSIA. At
    issue was the enforceability of a waiver signed by Fleming, who was injured in
    a go-kart race in which he was the race director. The waiver purported to
    release all of the respondents from liability for all damages associated with participation
    in the event. This court concluded that Fleming was an employee, and that the
    waiver contravened s. 114 of the WSIA, which provides specifically that workers
    who are not insured under the workers compensation scheme, like Fleming, are
    permitted to sue their employers for workplace accidents. The court concluded
    that enforcement of the waiver would constitute a contracting out of the
    protections of the WSIA, and that contracting out of this protection would be contrary
    to public policy. At para. 34, Juriansz J.A. wrote the passage that the motion
    judge relied on:

Considering the sweeping overriding of the common law made by
    workers compensation legislation and the broad protection it is designed to
    provide to workers in the public interest,
it would be
    contrary to public policy to allow employers and workers to contract out of its
    regime
, absent some contrary legislative indication. [Emphasis added.]

[12]

However,
    Juriansz J.A. also wrote, at para. 45, that, [r]eading the WSIA as a whole, it
    is apparent its objective is to ensure injured workers have access to
    compensation.

[13]

The
    Release is not plainly contrary to the WSIAs objective, as identified by
    Juriansz J.A. Nor have the respondents identified any express statutory
    provision that the Release would contravene.

[14]

Respectfully,
    it is not plain and obvious that
Fleming
would stand in the way of the
    appellants claim in this case. Again, on the facts pleaded by the appellant, following
    her resignation, she continued to receive benefits from the WSIB in the form of
    psychological treatment, and it was not until several months after the parties
    signed an Agreement in respect of her resignation, which included the Release,
    that the Board initiated an appeal to the WSIB, to challenge her entitlement to
    benefits. This is very different from the
Fleming
case where the
    waiver signed by the employee violated a provision of the WSIA specifically
    providing for the employees right of action.

[15]

And
    with respect to the motion judges conclusion based on the privative clause in s.
    118(4) of the WSIA, in our view it is not plain and obvious that the
    appellants action in respect of the Release would contravene the WSIBs
    exclusive jurisdiction to determine matters set out in s. 118 of the WSIA and
    the privative clause contained in that section.

(2)

The Breach of Confidentiality Claim

[16]

Nor
    is it plain and obvious that Chief Larkins affidavit is subject to absolute
    privilege and that, accordingly, the appellants claim has no reasonable
    prospect of success.

[17]

There
    is arguably an important competing interest at stake that weighs against
    absolute privilege: there is a confidentiality provision that is part of a
    settlement agreement. There is an overriding public interest in favour of
    settlement; promoting settlements contributes to the effective administration
    of justice in this province:
Sable Offshore Energy Inc. v. Ameron
    International Corp.
, 2013 SCC 37, [2013] 2 S.C.R. 623, at para. 11. This
    is not a situation where a party seeks to rely on the provisions of a
    confidentiality agreement to shield itself from claims. Moreover, the statement
    at issue was not made by counsel and it is not apparent that it was necessary
    for the respondents to include the information that allegedly breached the
    Agreement in the affidavit for the Board to defend against the certification
    motion.

[18]

We
    conclude, as this court did in
Amato v. Welsh
, 2013 ONCA 258, 305
    O.A.C. 155, at paras. 68-69, 97, that because this matter arguably involves
    competing interests and privileges, it should be decided with an evidentiary
    record and not on a pleadings motion.

(3)

The Claim against Chief Larkin

[19]

The
    appellants claim against him is pleaded in contract and is based only on the
    fact that he swore the affidavit and signed the Release and Agreement on behalf
    of the Board. The appellant did not plead any facts showing that the Chiefs actions
    were tortious: see e.g.,
Odhavji Estate v. Woodhouse
, 2003 SCC 69,
    [2003] 2 S.C.R. 263.

[20]

However,
    the appellant represents herself in this matter. Having concluded that the
    motion judge erred in striking her claims against the Board, we would grant her
    leave to amend her claim against Chief Larkin to plead how his actions were
    tortious.

IV.

disposition

[21]

Accordingly,
    we would allow the appeal and set aside the order of the motion judge. If the
    appellant seeks costs of this appeal and of the motion before the motion judge,
    she shall, within 14 days, serve on the respondents and file with this court brief
    written submissions, including proof of any disbursements she has incurred and
    seeks to recover. The respondents shall serve on the appellant and file with
    this court their responding submissions within 10 days thereafter.

Alexandra Hoy
    A.C.J.O.

K. van Rensburg J.A.

L.B. Roberts J.A.


