In Wakeling v. Desjardins General Insurance,[1] the Ontario Court of Appeal upheld the Ontario Superior Court’s decision to strike a claim for intrusion upon seclusion in a motion against an insurer and its counsel . The case is notable for its discussion of the interplay of counsel’s duty to provide information to his or her client about an ongoing proceeding to which it is a party, and the determination of whether information about a case conference is private.
Facts
The plaintiff brought a proceeding before the Licence and Appeal Tribunal (LAT) against the insurer. As part of the proceeding, a case conference was scheduled. In attendance were the plaintiff, along with a close friend and supporter, Joan Wakeling, who was a 24-year employee of insurer.
At the conference, the plaintiff asked if there would be any consequence for Ms. Wakeling’s employment with the insurer, and when the insurer’s counsel declined to answer, Ms. Wakeling left the conference. Shortly after the insurer learned of Ms. Wakeling’s participation in the conference, Ms. Wakeling’s employment was terminated due to her participation and for allegedly failing to comply with a company code of conduct.
The motion judge, after applying the test as set out in Jones v. Tsige (“Jones”) found that intrusion upon seclusion could not be made out on the facts pleaded against both insurer and the insurer’s counsel. The test for the tort of intrusion upon seclusion requires (i) intentional conduct by the defendant; (ii) an invasion without lawful jurisdiction of the plaintiff’s private affairs or concerns; and (iii) an invasion that would be regarded by as reasonable person as highly offensive causing distress.[2]
The appellate court upheld the lower court’s decision to strike the claim for intrusion upon seclusion against both parties. Considering there was no reasonable cause of action for intrusion upon seclusion, the claim for the punitive damages for that wrong was also struck, as a claim for punitive damages is not a free-standing cause of action and must be tied to an independent actionable wrong.
The appellate judges assessed the motion’s judge’s decision on the standard of correctness. Four specific events were reviewed to support the judges’ decision: the initial transmission of the information by the plaintiff to the insurer’s counsel, the interaction between her and other insurer employees and the appellants at the appearance before the LAT, the insurer’s counsel’s reporting of the events at the appearance to her client, and the insurer’ use of the information to terminate Ms. Wakeling’s employment.
This cause of action was intended, as explained in Jones, for deliberate and significant invasions of personal privacy, and not to open the floodgates, as “claims from individuals who are sensitive or unusually concerned about their privacy are excluded. […] It is only intrusions into matters such as one’s financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.”[3]
The first element of the tort: The intentional conduct by the defendants
The tort of inclusion upon seclusion requires that intentionality be demonstrated in the conduct of the defendant.
In this matter, the acts were not intentional. The respondents did not compel or cause Ms. Wakeling to appear at the conference – Ms. Wakeling showed up voluntarily as the plaintiff’s aid – nor did the respondents compel or cause the plaintiff to provide the witness list containing Ms. Wakeling’s name, as this was part of mandatory disclosure requirements mandated by the rules of the LAT.
The second element of the tort: An invasion, without lawful jurisdiction, of the plaintiff’s private affairs or concerns
“The invasion”
An invasion is required to establish the tort. In fact, earlier this year in Owsianik v. Equifax Canada Co., Justice Ramsey even said that intrusion is the “central element of the tort” and that it is the intrusion that has to be intentional or reckless.[4]
The appellants claimed that the insurer “went into” or “intruded” into the accident benefits file in order to obtain the witness list, which was then used to terminate Ms. Wakeling’s employment. The appellants further claimed that the insurer’ counsel committed an invasion of privacy by disclosing the witness list without authorization to the insurer and that the insurer, as Ms. Wakeling’s employer, then misused this information to terminate her employment.
The Court determined that the conduct did not amount to an invasion, as they were “passively” provided with the information from the plaintiff herself.
“Without lawful jurisdiction”
Further, as a party to the LAT proceeding, the insurer was lawfully entitled to the information. Although the insurer was not present at the conference, the Court recognized that the insurer’s counsel owed a duty to her client (and employer) to report the events of the conference which include disseminating the witness list. As a result, the insurer’ counsel was justified and lawfully authorized to pass on the information to Insurer.
“Of the plaintiff’s private affairs or concerns”
The appellate court also stated in the decision that “the tort of intrusion upon seclusion protects private information from unauthorized prying eyes.”
The court held that it was plain and obvious that Ms. Wakeling’s attendance at the case conference in an adjudicative proceeding before an administrative tribunal is not considered a private event, and the information in question – specifically, the list of witnesses present at the case conference – was not considered as private. Additionally, the information was provided to the insurer’s counsel by the plaintiff herself, who never indicated that this information was subject to any restrictions or that it was confidential.
The third element of the tort: An invasion that would be regarded by as reasonable person as highly offensive causing distress
The third and final element of the tort requires establishing that the invasion would be considered highly offensive, causing distress, humiliation or anguish to the reasonable person.
The plaintiff pled that she experienced significant distress upon learning of the investigation and termination of her friend, while Ms. Wakeling pled that she was “emotionally traumatized as a result of her abrupt and/or improper termination” and that she suffers from anxiety, paranoia, worry, nightmares and post-traumatic stress. Note that these claims broadly describe distress felt as a result of the investigation and termination of Ms. Wakeling, and are not specifically related to the alleged intrusion, as required to meet the elements of the tort.
The standard to meet is an objective one. The court determined that the alleged intrusion, when the insurer learned of Ms. Wakeling’s intention to act as a witness in the LAT proceeding via the information provided by the plaintiff, was not considered as “highly offensive”. The Court further noted that if the information was considered as sensitive and that it was accessed by someone with no lawful authority to access it, the conclusion may differ. As a result, the appellants’ claim was insufficient in demonstrating this element.
Final remarks: a dissemination is not an intrusion
The motion judge went further to make it clear that when the insurer’s counsel relayed the witness list to the insurer’s management, this sharing of information could not be considered an intrusion as intended by the tort, because the tort of intrusion upon seclusion is not concerned with the dissemination of information.
Earlier this year, in Del Giudice v. Thompson, the Court stated that “if the tort of intrusion on seclusion would assign liability without an intrusion, then it would assign liability to categories of misconduct that are adequately controlled by an assortment of other possible torts, by statutory provisions, and by actions for breach of contract. The Court of Appeal in Jones, however, intended intrusion on seclusion to fill gaps in the law of privacy not pave them over.”[5]
What does this means for employers?
The inapplicability of the tort of inclusion upon seclusion in the case does not mean that employers will be safe from successful claims if they misuse information obtained in the course of proceedings for purposes beyond the proceeding.
Although the breach of privacy claim was not successful, there was a discussion on the use of the information obtained by the employer in the context of the LAT proceedings for other purposes, namely to terminate Ms. Wakeling’s employment.
The appellate court states that the use of the information by the insurer in order to terminate Ms. Wakeling’s employment will be addressed in a separate proceeding for wrongful dismissal. What makes it notable is that later in the decision, the appellate court circles back to the insurer’ use of the information to fire Ms. Wakeling, and it questions whether the plaintiff would have any recourse against the insurer’ use of that information. In debating this point, the appellate court makes it clear they are not ruling out other ways in which a claim could be brought, stating “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.” In that regard, Justice Pardu noted that: “[A]n insurer does have a duty to act in good faith in the manner in which it handles a claim.”
[1] Wakeling v. Insurer General Insurance Group Inc., 2020 ONSC 6809 and 2021 ONCA 672.
[2] Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, at paras 71-72.
[3] Ibid, at para. 72.
[4]Owsianik v. Equifax Canada Co., 2021 ONSC 4112, at para. 55.
[5] Del Giudice v. Thompson, 2021 ONSC 5379, at para. 138.
For more information about Denton’s data expertise and how we can help, please see our Transformative Technologies and Data Strategy page and our unique Dentons Data suite of data solutions for every business, including enterprise privacy audits, privacy program reviews and implementation, data mapping and gap analysis, and training in respect of personal information.
This blog post was co-authored by Sydney Prince, an Articling Student in our Ottawa office.
