



COURT OF APPEAL FOR ONTARIO

CITATION: Oliveira v. Aviva Canada Inc., 2018 ONCA 321

DATE: 20180328

DOCKET: C64609

MacFarland, Huscroft and Nordheimer JJ.A.

BETWEEN

Nancy Oliveira

Applicant (Respondent)

and

Aviva Canada Inc. and Scottish & York
    Insurance Co. Limited

Respondents (Appellants)

Deborah Berlach, for the appellants

Stephen J. Moreau and Michael Mandarino, for the
    respondent

Heard and released orally: March 23, 2018

On appeal from the judgment of Justice Markus Koehnen of
    the Superior Court, dated October 17, 2017.

REASONS FOR DECISION

[1]

We agree substantially with the reasons of the application judge. There
    can be no dispute that the legal test for the interpretive exercise he set out
    at para. 12 of his reasons is the correct one. The language of the policy
    clearly covers claims for the invasion of privacy which includes intrusion upon
    seclusion. By its policy language the appellants agree to pay those sums that
    the insured becomes legally obligated to pay as damages because of personal
    injury to which this insurance applies. The policy defines who is insured
    under the policy as follows:

The unqualified word Insured includes the Named Insured and
    also include the following additional Insureds but only in respect of liability
    arising from the operations of the Named Insured:

(ix) all employees of the Insured while acting under the
    direction of the Named Insured.

[2]

The Statement of Claim pleads that the applicant was at all material
    times employed in her capacity as a nurse at the hospital when she repeatedly
    accessed J.L.s private hospital records despite the fact that she, the
    applicant, was not involved in J.L.s care. The appellant argues that such
    unlawful unauthorized conduct cannot arise from the operations of a hospital,
    nor be considered to be at the direction of the name insured.

[3]

We disagree. In our view this is precisely the sort of conduct the
    policy was intended to respond to. The applicant was employed by the hospital
    as a nurse and while on duty, in the course of the hospitals operations, to
    use the language of the policy (which would include the maintenance of
    patients health records), she accessed the records that she had apparently no
    business doing because she was not involved in J.L.s care. The applicant was
    employed by the hospital, (she was essentially an employee 24/7) but was only
    acting under the direction of the hospital when she was on duty as such.

[4]

In our view the common sense interpretation of the language can only
    have this meaning. To hold as the appellant argues that unauthorized access to
    medical records does not arise out of the hospitals operations, or under the
    direction of the hospital because it would never direct such conduct, would
    negate the coverage intended. It is plain that the policy, in covering invasion
    of privacy, is intended to cover the type of conduct that is alleged in the
    Statement of Claim.

[5]

This was an application to determine the appellants duty to defend only,
    which requires a broader interpretive approach than does the obligation to
    indemnify. See
Monenco Ltd. v. Commonwealth Insurance Co.
, 2001 SCC 49
    at para. 29.

[6]

The appeal is dismissed. Costs to the respondent fixed in the sum of
    $7,500 inclusive of disbursements and HST in accordance with the agreement of
    counsel.

J. MacFarland J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


