



COURT OF APPEAL FOR ONTARIO

CITATION: Wakeling v. Desjardins General Insurance

Group Inc., 2021 ONCA 672

DATE: 20210929

DOCKET: C68933

Strathy C.J.O., Pepall and Pardu
    JJ.A.

BETWEEN

Joan
    Wakeling and Barbara Evison

Appellants/Plaintiffs

and

Desjardins General Insurance
    Group Inc. and Nadia Lucia Constantino

Respondents/Defendants

Ashu Ismail, for the appellants

Gillian P. Kerr and William L. Main,
    for the respondents

Heard: September 17, 2021 by video conference

On appeal from the judgment of Justice Susan E. Healey of the Superior
    Court of Justice, dated November 6, 2020,

with reasons reported at 2020
    ONSC 6809.

Pardu J.A.:

OVERVIEW

[1]

In 2019, Barbara Evison attended a case
    conference with her close friend and supporter, Joan Wakeling, and notified opposing
    counsel that Ms. Wakeling would be a witness at the upcoming hearing. Ms.
    Evison was appealing her insurers decision to deny her accident benefits
    following a car accident. Her insurer, Desjardins General Insurance Group Inc.,
    had employed Ms. Wakeling for many years. When Desjardins management learned of
    Ms. Wakelings participation in the conference, they fired her. Both Ms.
    Wakeling and Ms. Evison brought an action in the Ontario Superior Court,
    arguing (among other things) that Desjardins and its counsel, Nadia
    Constantino, had invaded their privacy by revealing to Desjardins management
    that Wakeling had participated in the conference. Wakeling also argued that she
    had been wrongfully terminated. Justice Healey struck all their claims except
    Wakelings claims for wrongful termination and for aggravated and punitive
    damages against Desjardins.

OVERVIEW OF THE APPEAL

[2]

The appellants argue that Justice Healey erred
    by: (1) striking their claim for breach of privacy (intrusion upon seclusion)
    without leave to amend; (2) dismissing their entire action against the
    respondent Nadia Constantino without leave to amend; (3) striking certain of their
    claims for punitive damages; and (4) not permitting them to amend their claim
    to add new defendants and new causes of action.

BACKGROUND

[3]

Ms. Evison was involved in a car accident in
    2018. Her claim for accident benefits was denied by her insurer, Desjardins
    General Insurance Group Inc. Ms. Evison appealed the denial to the License
    Appeal Tribunal (the LAT).

[4]

A case conference was scheduled before the
    tribunal. Ms. Evison brought her long-time friend and neighbour, Ms. Wakeling,
    to assist her at the conference. Ms. Evison recorded Wakelings name on her
    witness list and gave the list to Desjardins counsel at the hearing, Nadia Constantino.
    Ms. Wakeling had been an employee of Desjardins and its predecessor companies
    for 24 years. At the conference, Ms. Evison asked Ms. Constantino if there
    would be any consequences for Ms. Wakelings employment with Desjardins. Ms. Constantino
    declined to answer, and Ms. Wakeling then left the conference.

[5]

On her first day back at work following the case
    conference, Ms. Wakeling was told that Desjardins was investigating her
    conduct, and she was escorted out of the building. Eleven business days later
    she was fired, because of her involvement in Evisons accident benefits claim
and alleged failure to comply with a
    company code of conduct
.


[6]

Wakeling and Evison brought claims against
    Desjardins and Constantino in the Superior Court of Justice for breach of
    privacy and punitive damages. The appellants pleaded that they had an
    expectation of privacy, which the respondents breached when Evisons witness
    list (containing Wakelings name) was revealed to Desjardins management. Wakeling
    alone brought claims against Desjardins for wrongful termination and for
    aggravated and punitive damages. These claims are not at issue in this appeal.

[7]

Wakeling and Evison filed a motion in the
    Ontario Superior Court of Justice to add to their Statement of Claim additional
    defendants (all employees of Desjardins in their personal capacities) and
    additional claims for breach of privacy, breach of confidence, and breach of
    the
Human Rights Code
, R.S.O.
    1990, c. H. 19
. Desjardins and Constantino simultaneously
    brought a motion to strike all claims related to breach of privacy, and to
    strike any residual claims against Constantino in her personal capacity. They
    also sought to block Wakeling and Evison from adding the new claims and new
    defendants.

The motion judges decision

[8]

The motion judge struck the appellants claims
    for breach of privacy and punitive damages. She dismissed the entire action
    against Nadia Constantino and denied the appellants leave to add new claims and
    defendants to their Statement of Claim.

(1)

Test for Motion to Strike

[9]

The motion judge noted that a pleading should be
    struck if it plainly and obviously discloses no reasonable cause of action,
    assuming all the facts pleaded to be true:
Potis Holdings Ltd. v. The Law
    Society of Upper Canada
,
2019
    ONCA 618,
at para. 18; and
Hunt v. Carey Canada
    Inc.,
[1990] 2 S.C.R. 959,
at p. 980.

(2)

Breach of Privacy

[10]

She also set out the test for the tort of
    intrusion upon seclusion (breach of privacy): (1) intentional conduct by the
    defendant; (2) an invasion, without lawful justification, of the plaintiffs
    private affairs or concerns; and (3) an invasion that would be regarded by a
    reasonable person as highly offensive causing distress, humiliation, or
    anguish:
Jones v. Tsige
,
2012 ONCA 32, 108 O.R. (3d) 241,
at paras. 71-72.

[11]

The motion judge found that a breach of privacy
    could not be made out on the facts pleaded. The respondents conduct was not
    intentional, because the respondents never compelled or caused Wakeling to
    appear at the conference and never compelled or caused Evison to turn over the
    witness list with Wakelings name on it. The respondents did not invade the plaintiffs
    private affairs; they passively received information from the appellants. They
    were lawfully entitled to receive a witness list from Evison in the context of the
    LAT proceeding. The appellants did not plead any facts to support the third
    prong of the
Jones
test; but in any case, the motion judge found that
    a reasonable person would never consider the alleged intrusion to be highly
    offensive. The decision to disseminate the witness list to Desjardins
    management could not be considered an intrusion, because breach of privacy is
    not concerned with the dissemination of information:
Jones
at para.
    57.

[12]

The motion judge gave alternative bases for
    striking the claim for breach of privacy, including that the claim was legally
    untenable and therefore an abuse of process because it would have required an
    impermissible incursion into privileged communications between Constantino and
    Desjardins.

(3)

Punitive Damages

[13]

The motion judge struck the punitive damages
    claims because they were based on the struck breach of privacy claims. She
    noted that claims for punitive damages could not stand on their own:
Ferme
    Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co
.
    (2002),
61 O.R. (3d) 481 (Ont.
    C.A.)
, leave to appeal refused, [2002] S.C.C.A. No.
    488, at para. 113. She noted several alternative bases for striking the
    punitive damages claims. Constantinos conduct occurred within the course of
    her employment with Desjardins and could not give rise to personal liability.
    Constantinos communication of the witness list to her client, Desjardins, was
    privileged. The communication also arose in the context of a quasi-judicial
    proceeding and was therefore protected by absolute immunity.

(4)

Other Claims Against Constantino

[14]

The remaining claims against Constantino were
    predicated on a theory that Constantino was under a duty to protect the
    appellants and breached that duty by revealing the witness list to her client.
    The motion judge rejected this theory, because a partys solicitor owes no duty
    of care to the other party:
Davy Estate v. CIBC World Markets Inc
.
,
2009 ONCA 763, 97 O.R. (3d) 401,
at para. 19.

(5)

Motion for Leave to Amend

[15]

The motion judge did not grant leave for the
    appellants to add more parties and claims to their Statement of Claim. She
    denied leave to add more breach of privacy claims for substantially the reasons
    above. She denied leave to add more Desjardins employees in their personal
    capacities for substantially the same reasons that had led her to dismiss the
    claims against Constantino.

[16]

She also denied leave for two new claims: breach
    of confidence and breach of the
Human Rights Code
. She found that a
    reasonable person would not expect the fact of Wakelings attendance at the
    case conference to have the quality of confidentiality required by
Lac
    Minerals Ltd. v. International Corona Resources Ltd.
,
[1989] 2 S.C.R. 574
.
    She found that the
Human Rights Code
claim had no possibility of
    success because it could not possibly relate to one of the particular social
    areas targeted by the Code (services, accommodation of minors, contracts,
    employment, and vocational associations).

ANALYSIS

[17]

The standard of review on a rule 21.01(1)(b)
    motion to strike is correctness:
McCreight v. Canada (Attorney General)
,
2013 ONCA 483, 116 O.R. (3d)
    429,
at para. 38.

[18]

A motion judges decision not to grant leave to
    amend a pleading is discretionary, and an appellate court should not interfere with
    it unless the motion judge erred in principle or acted unreasonably:
Mortazavi
    v. University of Toronto
,
2013
    ONCA 655,
leave to appeal refused, 2014 S.C.C.A. No.
    190, at para. 3.

[19]

The claims made require examination of four
    different events:

1.

The initial transmission of the information to
    Ms. Constantino.

2.

The interaction by her and other Desjardins
    employees with the appellants at the appearance before the LAT.

3.

Ms. Constantinos reporting of the events at
    the appearance to her employer.

4.

Desjardins use of the information to terminate
    Ms. Wakelings employment.

The receipt of the information

[20]

The tort of intrusion upon seclusion protects
    private information from unauthorized prying eyes. It is plain and obvious that
    Ms. Wakelings attendance in person at a case conference in an adjudicative
    proceeding before an administrative tribunal was not a private event. Further,
    Ms. Constantinos receipt of information consisting of a witness list provided
    by Ms. Evison did not amount to an intrusion; it was authorized by Ms. Evison
    herself, and it was not private information. Moreover, the appellants pleaded
    in para. 11 of their statement of claim that tribunal disclosure requirements
    mandate that witness lists be exchanged in advance of the case conference.

[21]

On this basis it is plain and obvious that no
    cause of action lies against Ms. Constantino for her receipt of that
    information.

Transmission of the information to Desjardins

[22]

Further, as a party to the proceeding, Desjardins
    was entitled to the information and Ms. Constantino owed a duty to her client
    to report the unfolding of the case conference to Desjardins.

[23]

It is plain and obvious that there was no cause
    of action against Ms. Constantino for intrusion upon seclusion, for either her
    receipt of the information or her transmission of the information to her
    employer.

Claims for other breaches of duty by Ms.
    Constantino

[24]

The statement of claim pleads in diverse
    respects variations on a theme that Desjardins counsel owed a duty to the
    appellants, and in some cases is premised on a duty said to exist after the
    case conference and after the report to Desjardins. For example, the appellants
    pleaded that counsel breached her obligations to the administration of justice
    when she failed to counsel her client on the impropriety of terminating Ms.
    Wakelings employment and failed to recognize she had a conflict of interest
    when she later learned that her employer had acted on the information provided.

[25]

As the motion judge correctly noted, Ms.
    Constantinos duty was to her employer, Desjardins, for whom she was acting as
    counsel. She did not owe a duty of care to the appellant.

Claims against Desjardins for intrusion upon
    seclusion

[26]

For the same reasons, the receipt by Desjardins
    from its counsel of information, provided to that counsel by the appellant
    Evison, does not amount to an intrusion upon Ms. Evisons privacy interests. Ms.
    Evison provided the information to Desjardins counsel in the course of
    attendance before an administrative tribunal.

[27]

The use Desjardins made of that information and
    the termination of Ms. Wakelings employment will be addressed in the latters
    claim for damages for wrongful dismissal, a proceeding that is continuing.
    Desjardins does not challenge the pleadings in relation to the claims for
    wrongful dismissal.

Claim for punitive damages

[28]

Desjardins takes no issue with respect to Ms.
    Wakelings claim for punitive damages related to termination of her employment.
    The statement of claim also included claims for punitive damages by Ms. Evison
    against Desjardins, and by both appellants against Ms. Constantino.

[29]

The claim for punitive damages is not a
    free-standing cause of action. It must be tied to an independent actionable
    wrong. The plaintiffs alleged that the manner in which the defendants breached
    Evisons privacy interests was so egregious and high-handed that punitive
    damages are appropriate to further sanction the wrongs committed. If the
    statement of claim does not disclose a reasonable cause of action for intrusion
    upon seclusion then the claim for punitive damages for that wrong must also
    fall. On appeal the appellants attempt to characterize the wrong supporting the
    claim for punitive damages as a breach of the contractual duty of good faith. It
    is plain that receipt of the information provided by Ms. Evison by counsel and
    Desjardins could not amount to a breach of a contractual duty of good faith. I
    discuss Desjardins use of the information at paras. 41 and following in these
    reasons.

Four new proposed defendants

[30]

The appellants motion to amend the statement of
    claim proposed to add four defendants: Risha Maharaj, Joe Crngarov, Tara
    Davidson, and Jacqueline Thompson. It appears that the first two named were
    adjusters who also attended the conference before the LAT. The proposed amended
    statement of claim alleges that Ms. Evison had an expectation that individuals
    providing her assistance and/or her potential witness would be held in
    confidence by the lawyer, Ms. Constantino, adjusters Risha Maharaj and Joe
    Crngarov and the information would not be disclosed and/or used in any manner
    outside the proceeding. The statement of claim alleges that the four named
    individuals had access to and/or misused the plaintiffs personal information
    to harass and eventually improperly terminate Ms. Wakelings employment.

[31]

The access to the information at the case
    conference cannot amount to an intrusion upon seclusion for reasons already
    explained. There is no other particular fact alleged which could form the basis
    of an action against the four proposed new defendants.

Breach of confidence

[32]

The plaintiffs also sought to add claims for
    breach of confidence. There could be no expectation of confidentiality here
    attaching to communication of a witness list, or to information as to the
    identity of a person attending the proceedings.

Human Rights Code
Claims

[33]

Ms. Evison also advanced a claim for breach of
    the
Human Rights Code
.

[34]

Section 46.1(2) of the
Human Rights Code
provides that a claim for breach of the
Code
may be advanced in a
    court proceeding when ancillary to another valid claim. Under those
    circumstances a court may direct the infringing party to pay monetary
    compensation to the party whose right was infringed. The appellant concedes
    that without another valid claim there can be no claim based only on a breach
    of the
Human Rights Code
.

[35]

This court noted in
Jaffer v. York
    University
, 2010 ONCA 654, leave to appeal refused, [2010] S.C.C.A. No.
    402, at para. 44:

Although a person
    may not commence an action based solely on an infringement of a right under
    Part I of the Code, breach of the Code may be properly raised in an action if
    the claim is otherwise properly before the court. Thus, whether or not a claim
    for breach of the duty to accommodate disabilities can proceed in the Superior
    Court depends upon whether or not the pleading discloses a reasonable cause of
    action that does not arise solely from a breach of the Code.

[36]

There is no other valid claim pleaded by Ms.
    Evison against Desjardins or Ms. Constantino; that is sufficient to dismiss her
    claim based on the
Human Rights Code
.

[37]

Further, s. 1 of the
Human Rights Code
provides
    that every person has a right to equal treatment with respect to services,
    goods and facilities, without discrimination because of specified personal
    characteristics.

[38]

The appellant does not articulate in her
    statement of claim how the conduct attributed to Desjardins and Ms. Constantino
    was discriminatory. Ms. Evison also does not claim that she was subjected to
    adverse treatment because of her disability. As the motion judge pointed out,
    such a connection is absent both within the pleading and on the facts of this
    case. There is no connection made between Evisons disability and Constantinos
    response to Wakeling. In fact, the proposed amendments do not outline how the
    defendants are alleged to have subjected Evison to adverse treatment, or to
    have done so as a result of her disability, by Constantinos inability to
    provide Wakeling with employment assurances.

[39]

An insurer may set requirements for disability
    benefits but must apply these in a non-discriminatory manner.
Knight v.
    Surrey Place Centre
, 2017 HRTO 281, at para. 24.

[40]

Absent any claim of discrimination, this claim
    cannot stand.

Desjardins use of the information

[41]

The question remains whether Ms. Evison has a
    cause of action against Desjardins for its use of the information about Ms.
    Wakelings participation in the LAT proceedings  in order to terminate Ms.
    Wakelings employment.

[42]

An insurer does have a duty to act in good faith
    in the manner in which it handles a claim.
Fidler v. Sun Life Assurance Co.
    of Canada
, 2006 SCC 30, [2006] 2 S.C.R. 3., at para. 63, referring to
702535
    Ontario Inc. v. Non-Marine Underwriters, Lloyds London England
(2000),
    184 D.L.R. (4th) 687 (Ont. C.A.), at para. 29; and
Brandiferri v. Wawanesa
    Mutual Insurance, et al.
, 2012 ONSC 2206, 16 C.L.R. (4th) 44, at para. 204.
    A breach of this duty can support an independent cause of action for damages,
    including punitive damages at common law, apart from and in addition to
    entitlement under the contract of insurance.
Stegenga v. Economical Mutual
    Insurance Company
, 2019 ONCA 615, 147 O.R. (3d) 65, at para. 55(a), (b). It
    is not difficult to envision circumstances in which interference with a witness
    or misuse of confidential information could amount to bad faith handling of an
    insureds claim. See, e.g.,
Barata v. Intact Insurance Company
, 2021
    ABQB 419; and
Dervisholli et al. and Cervenak and State Farm
, 2015
    ONSC 2286, 333 O.A.C. 367.

[43]

The gravamen of Ms. Evisons action is invasion
    of privacy or breach of confidence. In her proposed amended Statement of Claim,
    Ms. Evison explicitly claims damages for breach of privacy/confidence.

[44]

Even if  a claim for bad faith treatment of her
    accident benefit claim could be pieced together from the appellants pleadings
    here, s. 280 of the
Insurance Act
, R.S.O. 1990, c. I.8, is a bar to
    any such proceedings where accident benefits are in issue. Section 280 bars
    court proceedings about accident benefits and requires that these be resolved
    by the Licence Appeal Tribunal. As determined in
Stegenga
, this
    includes claims that the insurer acted in bad faith in its treatment of the
    insureds application for benefits.
Stegenga
, at para. 6.

[45]

This is a sufficient basis to dismiss the appeal.
    I need not address whether I agree with other reasons given by the motion judge.

[46]

Accordingly, I would dismiss the appeal, with
    costs payable by the appellant to the respondent fixed at $30,000.00 all
    inclusive, on a partial indemnity basis.

Released: September 29, 2021 GRS

G.
    Pardu J.A.

I
    agree G.R. Strathy C.J.O.

I
    agree S.E. Pepall J.A.


