



COURT OF APPEAL FOR ONTARIO

CITATION: Edgeworth v. Shapira, 2021 ONCA
    871

DATE: 20211207

DOCKET: C67654

Doherty,
    Benotto and Huscroft JJ.A.

BETWEEN

Annabelle
    Maritza Edgeworth

Plaintiff (Appellant)

and

Karyn Shapira, Brian Levine, Northbridge
    General Insurance
Corporation and Andrew Evangelista

Defendants (Respondents)

Rocco Galati, for
Annabelle Maritza Edgeworth

Thomas M. Slahta, for Karyn Shapira and
    Andrew Evangelista

Todd J. Burke, for Brian Levine

David Zuber and David J. Olevson, for
    Northbridge Insurance Corporation

Heard: December 3, 2021

On
    appeal from the order of Justice Lorne Sossin of the Superior Court of Justice,
    dated October 11, 2019, with reasons reported at 2019 ONSC 5792.

REASONS FOR DECISION

[1]

Annabelle Maritza Edgeworth appeals an order
    which dismissed most of the claims in her action.

[2]

Having been injured in a bicycle accident, Ms.
    Edgeworth retained Campisi LLP to commence an action against a person who was
    insured by the respondent Northbridge General Insurance. Northbridge retained
    Karyn Shapira, of Evangelista Barristers and Solicitors, to defend the action.

[3]

On October 3, 2016, Ms. Edgeworth made an offer
    to settle. In January 2017, Brian Levine was retained to conduct a defence
    medical assessment. The assessment was completed in April 2017. No medical
    report was ever delivered. On June 7, 2017, Ms. Edgeworths outstanding
    settlement offer was accepted by the defence and the action was formally
    dismissed on October 12, 2017.

[4]

Two years later Ms. Edgeworth brought this
    action alleging that the respondents Ms. Shapira, Dr. Levine, Northbridge and
    Andrew Evangelista conspired to suppress Dr. Levines expert report. She sought
    damages for unlawful means conspiracy, intrusion on seclusion, conspiracy to
    injure, and misrepresentation. Campisi LLP represented her.

[5]

The respondents moved to strike the pleadings
    against them under rr. 21 and 25 of the
Rules of Civil Procedure
and
    to have Campisi LLP removed as solicitor of record.

[6]


The motion judge granted the motions as
    follows:

1.

The action was dismissed entirely against
Dr.
    Levine, Northbridge and Andrew Evangelista.

2.

The
    claims against Ms. Shapira were dismissed, except for the misrepresentation
    claim.

3.

Campisi
    LLP was removed as solicitor of record.

[7]

On appeal, Ms. Edgeworth submits that the motion
    judge:

(i)

erred in striking the claims for conspiracy and
    intrusion on seclusion;

(ii)

applied the wrong test on a motion to strike;

(iii)

disregarded the facts alleged in the pleadings; and

(iv)

erred in removing Campisi LLP from the record.

[8]

We do not accept the appellants submissions.

[9]

The appellant relies on a failure to comply with
    r. 33.06 to ground the unlawful means component conspiracy. That rule  limited
    to a medical report consented to in writing or ordered by the court  requires
    that the examining health practitioner prepare a written report of any
    examination and share it with the parties. The motion judge held that this was
    not the kind of wrongful act envisioned in the jurisprudence dealing with
    unlawful means conspiracy: see
Agribrands Purina Canada Inc. v. Kasamekas
    et al.
, 2011 ONCA 460, 334 D.L.R. (4th) 714 and
Beaird v.
Westinghouse
(
1999), 43 O.R. (3d)
    581 (C.A.). The motion judge also rejected the argument that a failure to
    comply with the rules constituted the crime of obstructing justice under
    the
Criminal Code
, R.S.C.
    1985, c. C-46
, and thus was actionable.

[10]

With respect to the claim of intrusion upon
    seclusion, the motion judge held that the appellant had submitted to the
    medical examination requested by the defence willingly and with justification,
    in the context of her own personal injury claim. Therefore, the tort was not
    made out.

[11]

Finally, the motion judge held that even if the
    causes of action were established, the appellant would have the insurmountable
    barrier of establishing damages. The damages in this case were the result of
    her choice, with the advice of counsel, to finalize the settlement even though
    she knew that a written medical report had not been completed.

[12]

The motion judge reviewed each of the
    appellants causes of action, considered the facts pleaded and found that it
    was plain and obvious that they could not succeed. He correctly identified the
    essential elements of each cause of action, considered the facts and applied
    the correct test under the rules.

[13]

Nor did the motion judge err in removing
Campisi LLP as
    solicitor of record. The misrepresentation claim turns on what was said between
    Campisi and Ms. Shapira. As the motion judge said at para. 91, it is hard to
    imagine a scenario where he would not be required to testify. There is an
    obvious conflict requiring that he be removed from the record.

[14]

The
    appeal is dismissed. As agreed, costs are payable to the respondents in the
    global amount of $15,000 inclusive of disbursements and HST.

Doherty J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


