In the recent decision in Wakeling v. Desjardins General Insurance Group Inc., 2021 ONCA 672, the Court of Appeal considered, among other things, whether the dissemination of information about an employee to an employer through public adjudicative proceedings, and the subsequent use of said information by the employer as a basis to terminate the employee, amounts to a breach of privacy.


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

In 2019, Ms. Evison attended at a case conference before the LAT with her friend and neighbour, Joan Wakeling. Ms. Wakeling was a long-time employee at Desjardins and had worked there for 24 years.

At the hearing, Ms. Evison put Ms. Wakeling's name on the witness list and provided the list to Desjardin's counsel. Ms. Evison asked counsel for Desjardins whether there would be any consequences for Ms. Wakeling's employment at Desjardins, but was given no answer.

Upon her return to work after the the case conference, Ms. Wakeling was escorted from the building and later fired because of her involvement in Ms. Evison's accident benefits claim and her alleged failure to comply with the company's code of conduct. 

The Superior Court Action

Evison and Wakeling brought claims in the Superior Court against Desjardins and its lawyer for the LAT proceedings for breach of privacy and punitive damages. The plaintiffs claimed they had an expectation of privacy which the defendants breached when Evison's witness list was revealed to Desjardins management. Wakeling also brought separate claims against Desjardins for wrongful termination and for aggravated and punitive damages, which were not at issue on appeal.

The plaintiffs brought a motion to add the involved employees at Desjardins and other individuals as additional defendants, and to add other claims for breach of privacy, breach of confidence, and breach of the Ontario Human Rights Code.

At the same time, the defendants brought a motion to strike all claims related to breach of privacy and any residual claims against the lawyer for Desjardins in her personal capacity. They further sought to prevent the plaintiffs from adding the new claims and new defendants.

The Motion Judge's Decision

The motion judge struck the plaintiffs' claims for breach of privacy and punitive damages, and dismissed the entire claim against the lawyer for Desjardins and denied the plaintiffs leave to add new claims and defendants to their claim.

The plaintiffs appealed this decision to the Court of Appeal.

Issues on Appeal

  1. Did the motion judge err by striking the plaintiffs' claim for breach of privacy (intrusion upon seclusion) without leave to amend?
  2. Did the motion judge err by dismissing the plaintiff's entire action against the lawyer for Desjardins without leave to amend?
  3. Did the motion judge err by striking certain of the plaintiffs' claims for punitive damages?
  4. Did the motion judge err by not permitting the plaintiffs to amend their claim to add new defendants and new causes of action?

The Court of Appeal's Decision

The Court of Appeal dismissed the appeal in its entirety and awarded the respondents costs on a partial indemnity basis.


Issue 1: Did the motion judge err by striking the plaintiffs' claim for breach of privacy (intrusion upon seclusion) without leave to amend?

The standard of review on a motion to strike is correctness. A motion judge's decision not to grant leave to amend a pleading is discretionary, and an appellant court should not interfere with this decision unless the motion judge erred in principle or acted unreasonably.

The motion judge acknowledged that a pleading should be struck if it is plain and obvious that it discloses no reasonable cause of action, assuming all the facts pleaded are true. Her Honour set out the test for the tort of breach of privacy (intrusion upon seclusion: (1) intentional conduct by the defendant; (2) an invasion, without lawful justification, of the plaintiff's private affairs or concerns; and (3) an invasion that would be regarded by a reasonable person as highly offensive causing distress, humiliation, or anguish.

The Court agreed with the motion judge's finding that Ms. Wakeling's attendance at a case conference in an adjudicative proceeding was not a private event, and the receipt of a witness list by the lawyer for Desjardins, which named Ms. Wakeling as a witness, did not amount to an intrusion. Indeed, the information itself was not private information. Further, the respondents' conduct was not intentional, as the respondents neither compelled Ms. Wakeling at the LAT hearing or compelled Ms. Evison to provide the witness list. 

On this basis, the Court held it was plain and obvious that the plaintiffs had no cause of action against Desjardin's lawyer for her receipt and subsequent transmission of this information to Desjardins. Desjardins, as a party to the proceeding, was entitled to this information.

For the same reasons, the Court also rejected that Desjardin's receipt of the information, which was provided by Ms. Evison's counsel at the LAT hearing, amounted to an intrusion upon Ms. Evison's privacy interests. The Court remarked that Desjardin's use of that information and subsequent termination was a separate issue that would be addressed in Ms. Wakeling's claim for damages for wrongful dismissal.

The Court considered whether Ms. Evison had a cause of action against Desjardins for its use of the information about Ms. Wakeling's participation in the LAT proceedings. The Court acknowledged that an insurer has a duty to act in good faith in the manner in which it handles a claim, and that a breach of this duty could support an independent cause of action for damages. Further, the Court stated "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 insured's claim.

However, the Court noted that even if a claim for bad faith treatment by Desjardins of Ms. Evison's claim could be made out from the pleadings, section 280 of the Insurance Act barred any such proceedings. Section 280 bars court proceedings pertaining to accident benefits and requires these be resolved by the LAT, including claims that the insurer acted in bad faith in its treatment of the insured's application for benefits.

Issue 2: Did the motion judge err by dismissing the plaintiff's entire action against the lawyer for Desjardins without leave to amend?

The Court rejected that the appellant's arguments that Desjardin's lawyer owed them a duty of care, and agreed with the motion judge's finding that the lawyer's duty was to her employer. As such, the Court did not interfere with the motion judge's decision to dismiss the action against the lawyer for Desjardins and refusal to grant leave to amend the statement of claim.

Issue 3: Did the motion judge err by striking certain of the plaintiffs' claims for punitive damages?

The Court noted that a claim for punitive damages is not a free-standing cause of action, and that it must be tied to an independent actionable wrong. The Court held that as the Statement of Claim did not disclose a reasonable cause of action for intrusion upon seclusion, the claim for punitive damages related to that claim must fail.

The Court rejected the appellant's arguments that the respondents' receipt and subsequent use of the information provided amounted to a breach of a contractual duty of good faith which amounted to an independent actionable wrong.

Issue 4: Did the motion judge err by not permitting the plaintiffs' to amend their claim to add new defendants and new causes of action?

The plaintiffs proposed to add four individual defendants, who they alleged had access to and/or misused the plaintiff's personal information to harass and improperly terminate Ms. Wakeling. 

The Court noted that access to the information at the LAT case conference could not amount to an intrusion upon seclusion for the reasons previously explained, and that there were no other facts which could form the basis of an action against said defendants.

The Court agreed with the motion judge's finding that the plaintiffs could not add claims for breach of confidence, as there could be no expectation of confidentiality connected to the communication of the witness list, or to the information as to the identity of an individual attending the proceedings.

Finally, the Court denied that Ms. Evison was entitled to advance a claim for a breach of the Human Rights Code. In its analysis, the Court noted that the Code provides that a claim for breach of the Code may be advanced in a Court proceeding when ancillary to another valid claim. In this case, no valid claim had been established.

In addition, Ms. Evison did not articulate in the statement of claim how the conduct of the defendants was discriminatory, in contravention of section 1 of the Code. Accordingly, absent a claim of discrimination, the claim could not stand.

Rogers Partners LLP is an experienced civil litigation firm in Toronto, Ontario. The firm represents insurers and self-insured companies in numerous areas, including motor vehicle negligence, occupiers' liability, product liability, professional negligence, construction claims, statutory accident benefits, disability benefits, municipal liability, medical negligence, sexual abuse, and insurance coverage disputes.

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