



COURT OF APPEAL FOR ONTARIO

CITATION: Hordo v. State Farm Mutual Automobile Insurance
    Company,

2016 ONCA 238

DATE: 20160331

DOCKET: C60767

Doherty, Cronk and Pepall JJ.A.

BETWEEN

Diana Michelle Daniella Hordo

Applicant (Appellant)

and

State
    Farm Mutual Automobile Insurance Company

(A
    United States of America Illinois Registered Mutual Insurer),

Barbara Bellissimo and
    Edward B. Rust Jr.

Respondents (Respondents)

Robert Besunder, for the appellant

Mark Gelowitz and Karin Sachar, for the respondents

Heard and released orally: March 29, 2016

On appeal from the order of Justice Andra Pollak of the
    Superior Court of Justice, dated June 15, 2015.

ENDORSEMENT

[1]

The appellant appeals, on numerous grounds, from the motion judges
    decision striking her application for declaratory relief against the
    respondents as an abuse of process.  At heart, the appellant claims that
    confidential and private health-related information provided by her to the
    respondent State Farm in support of her claim for statutory accident benefits
    was wrongly transmitted to persons outside Ontario without her prior knowledge
    or consent.

[2]

The motion judge accepted State Farms position that the appellants
    complaints against State Farm have also been asserted in her pending action
    against it for accident benefits.  In addition, the appellant has lodged similar
    complaints on essentially the same basis under the
Insurance Act
,
    R.S.O. 1990, c. I.8 and the
Personal Information Protection and Electronic
    Documents Act
, S.C. 2000, c. 5 (
PIPEDA
), both of which provide comprehensive
    dispute resolution schemes.  In these circumstances, the motion judge accepted
    State Farms submission that declaratory relief should not be granted where it
    will not resolve the disputes between the parties and there are other
    reasonably effective procedures available for dealing with those disputes.

[3]

We agree with the motion judges conclusion.

[4]

The appellants allegations that State Farm misrepresented its status
    and the location of its adjusters to the appellant and wrongly transmitted her
    personal and confidential medical information to State Farm representatives in
    the United States without her consent are squarely pleaded in the appellants statutory
    accident benefits action.  There is clear overlap between that action and the
    appellants application for declaratory relief.

[5]

Moreover, the detailed dispute resolution procedures in the
Insurance
    Act
and
PIPEDA
furnish a statutory framework for resolution of
    the appellants claim that her privacy rights have been breached and her
    additional allegation that State Farm has engaged in unfair business practices. 
    In these circumstances, in our view, the appellants application is
    misconceived and designed to circumvent these mandatory statutory schemes.

[6]

The proposed fresh evidence sought to be filed by the appellant is
    irrelevant to the core issues described above.  It wholly fails to meet the
    test for admission of fresh evidence on appeal.  Further, it contains serious
    allegations of impropriety against the respondents.  Given our conclusion that
    the proposed fresh evidence is irrelevant, we need not deal with those
    allegations.  That said, we see nothing to support those allegations, which the
    respondents strongly dispute, save for the bald and unsubstantiated assertions
    of the appellants father.

[7]

We note that the appellant has not sought leave to appeal costs in her
    notice of appeal.  Nevertheless, we have considered the arguments advanced in
    her factum on this issue.  We see no basis for appellate interference with the
    motion judges costs award.  It is neither plainly wrong nor tainted by any
    error in principle.

[8]

The motion for leave to file fresh evidence on appeal is therefore
    dismissed, as is the appeal.  The respondents are entitled to their costs of
    the appeal and the motion, which we fix in the total amount of $20,000,
    inclusive of disbursements and relevant taxes.

Doherty J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


