



COURT OF APPEAL FOR ONTARIO

CITATION: Baines v. Sigurdson Courtlander Burns and
    Silverstone Barristers & Solicitors, 2015 ONCA 80

DATE: 20150204

DOCKET: C59081

Feldman, Cronk and Hourigan JJ.A.

BETWEEN

Eleanor Denise Baines

Appellant/Plaintiff

and

Sigurdson
    Courtlander Burns and Silverstone

Barristers
    & Solicitors

Respondent/Defendant

Eleanor D. Baines, acting in person

Adam Pantel, for the respondent

Heard and released orally: January 23, 2015

On appeal from the order of Justice Carole J. Brown the
    Superior Court of Justice, dated May 12, 2014.

ENDORSEMENT

[1]

The appellant was the unsuccessful plaintiff in an action arising from a
    motor vehicle accident. She subsequently commenced an action against the
    respondent, the lawyers who represented the defendants in the motor vehicle
    litigation, for the tort of intrusion upon seclusion, breach of privacy and
    negligence.

[2]

The appellant alleges that the respondent violated her privacy by: (a)
    providing her medical information to defence experts without her consent for
    the purpose of the trial and obtaining addendum reports from the defence experts
    based on her medical information; (b) serving copies of a rule 30.10 motion
    record on her former employer and the Ontario Disabilities Support Program
    without her consent; and (c) obtaining official transcripts of her marks from
    the University of Waterloo without her consent.

[3]

The respondent brought a motion for summary judgment to dismiss the
    appellants claim. The motion judge granted the motion and awarded the
    respondent $3,500 in costs.  The appellant appeals that order.

[4]

We see no basis to interfere with the order of the motion judge.

[5]

The appellants claim in the underlying personal injury action put in
    issue her medical and psychological injuries, as well as her ability to work
    and pursue her studies.  She thereby waived any privacy interest in her medical
    records and academic records for the purpose of the litigation.

[6]

Moreover, the respondents impugned conduct throughout, including
    service of the rule 30.10 motion, was justified by law as it was undertaken for
    the purposes of the litigation pursuant to the Rules of Civil Procedure. In
    these circumstances, there was no breach of the appellants privacy and the
    tort of intrusion upon seclusion cannot be established.

[7]

The respondents reference to the appellants medical condition during
    the trial also does not amount to negligence or any breach of duty by the
    respondent.  The respondent owed no duty to the appellant.

[8]

The appellant also alleges a breach of her right to natural justice on
    the basis that the respondent raised an issue  that it was improperly named in
    the statement of claim  for the first time on the return of the motion. 
    However, the naming issue is not relevant to the summary judgment motion
    because the respondent agreed that it was properly named for the purposes of
    that motion.  There was, therefore, no breach of natural justice.

[9]

Finally, the appellant submits that the motion judge ignored evidence of
    her impecuniosity in making the costs award. The evidentiary onus is on the
    party asserting impecuniosity and we see no grounds to interfere with the
    motion judges ruling. The appellant did not meet her onus. There is also no
    basis to interfere with the quantum of the costs award, which was entirely
    reasonable and far below the respondent's actual costs.

[10]

The
    appeal is dismissed.  The respondent is entitled to its costs, which we fix at $2,000,
    inclusive of HST and disbursements.

K.
    Feldman J.A.

E.A.
    Cronk J.A.

C.W.
    Hourigan J.A.


