Intrusion Upon Seclusion

One of the more recent torts that has been developing is the tort of intrusion upon seclusion.  The Court of Appeal recently commented on this developing tort. 

In Hopkins v. Kay, 2015 ONCA 112 (C.A.), the plaintiffs brought a proposed class action alleging that their records as patients of the Peterborough Regional Health Centre were improperly accessed.

The hospital brought a r. 21 motion to dismiss the claim on the ground that the Personal Health Information Protection Act ("PHIPA") is an exhaustive code that ousts the jurisdiction of the Superior Court to entertain any common law claim for invasion of privacy rights in relation to patient records.  The motions judge dismissed the motion and the hospital appealed.

The Court of Appeal held that PHIPA is not an exhaustive code, and the plaintiffs were not precluded from asserting a common law claim for intrusion upon seclusion.  There is no express intention in PHIPA to create an exhaustive code and it contemplates other proceedings.  The commissioner has no power to award damages so an individual must commence an action in the Superior Court to seek damages.  PHIPA is tailored to deal with systemic issues rather than individual complaints. 

The Court of Appeal dismissed the appeal.

The Importance of Credibility in Threshold Motions

When a defendant brings a threshold motion at the end of trial, the plaintiff bears the onus of proving his injuries meet substantially interfere with work or activities of daily living.  As a result, the plaintiff's credibility can be highly relevant.  One such example is Berfi v. Muthusamy, 2015 ONSC 981 (S.C.J.). 

The plaintiff brought an action as a result of a pedestrian-motor vehicle accident that occurred on October 28, 2010.  The jury found the defendant 80% at fault and the plaintiff 20%, and awarded $43,000 in general damages, $6,000 for past loss of income and nil for future loss of income.  The defendant brought a threshold motion.  The plaintiff alleged he sustained injuries to his left shoulder, arm and hand.  He continued to work full time, apart from a 17-day period following surgery.  He testified he did so in order to reach age 55 when he could retire and receive a union pension.  His anticipated retirement date was March 1, 2015.

After the plaintiff testified, counsel received the union file which included a Notice of Election form which indicated he planned on returning to work in April 2015.  A union representative testified the plaintiff contacted her the day before to withdraw the Notice of Election.

Stinson J. held the plaintiff had not met threshold.  There were a number of conflicts in the plaintiff's testimony, and he had continued to work in the same job for four years after the accident; Stinson J. described this factor as a "strong indication" the injuries had not substantially interfered with the plaintiff's ability to continue his regular employment.  In addition, the award of zero for future income loss was consistent with the jury finding the plaintiff was capable of working.  Finally, Stinson J. held that the limitations the plaintiff had with respect to household chores, and social and sporting activities were related to problems that pre-dated the accident.

The defendant's motion was granted.

Principles Relating to the Threshold

A helpful discussion of the principles relating to the Insurance Act threshold can be found in Malfara v. Vukojevic, 2015 ONSC 78 (S.C.J.).  The arose out of a 2006 motor vehicle accident.  A jury awarded $7,700 in general damages, $1,326 for past income loss and nil for future loss of income.  Justice Firestone heard a threshold motion while the jury was deliberating.  He held that the plaintiff had not met threshold.

Justice Firestone set out a number of principles with respect to threshold motions, including:

• the trial judge is not bound by the jury's verdict, but is a factor he or she can consider in determining the threshold motion;
• "permanent" does not necessarily mean forever until death; a permanent impairment is a weakened condition lasting into the indefinite future without end or limit;
• "serious" relates to the seriousness of the impairment to the person and not to the injury itself;
• the degree of the impairment must go beyond tolerable to be serious;
• it is the effect of the injury and not the type of injury that is the focus of the threshold inquiry.

The evidence was that the plaintiff was 24 years old at the time of the collision and was completing a plumbing apprenticeship.  He alleged he sustained chronic neck and back pain as a result of the accident.  He was off work for 2-3 weeks then returned to his apprenticeship, ultimately becoming a fully licenced plumber.  He currently performs all of his job duties but with pain.  He no longer participates in sporting activities, partly because of his injuries and partly because he is busy.  He continues to cut grass, shovel snow and help in the kitchen, although with pain.

Justice Firestone granted the defendant's motion, stating "I accept that the legislature intended that injured persons in motor vehicle collisions may experience some negative or detrimental impact on their lives without the ability to recover non-pecuniary damages".  The evidence did not support that the injuries and impairments had a significant effect on the plaintiff's enjoyment of life, or that they substantially interfered with his capacity for work or pleasurable activities. The impairments were not serious.

Plaintiffs May Provide Corroborating Evidence of Threshold Impairment

The Insurance Act provides that in order to prove they meet threshold, plaintiffs must lead evidence from a qualified physician as well as “adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.”  The Court of Appeal recently held that plaintiffs may provide such corroboration themselves. 

In Gyorffy v. Drury, 2015 ONCA 31 (C.A.), the plaintiff was in a car accident in November 2003.  The defence brought a threshold motion while the jury was deliberating.  The plaintiff and three physicians testified.  The trial judge ruled the plaintiff's injuries has satisfied the impairment threshold, but held that the plaintiff could not provide the corroborating evidence that ss. 4.2 and 4.3 of Ontario Regulation 461/96 required.  Accordingly, the action was dismissed.

The Divisional Court allowed the appeal, and the Court of Appeal dismissed a further appeal.  It confirmed that a plaintiff can provide corroborating evidence in order to prove he or she meets threshold.  The evidence that has to be corroborated is the physician's, not the plaintiff's.

Given the conclusion in Gyorffy, it is perhaps more important to focus on the quality of the evidence provided by the plaintiff rather than on the need for corroboration.

 

 

 

The Calculation of Pre-judgment Interest in Motor Vehicle Claims

On January 1, 2015, s. 258.3(8.1) of the Insurance Act was amended to change the rate at which pre-judgment interest ("PJI") in motor vehicle claims.  A recent Superior Court of Justice decision held that the change is retrospective, meaning it will apply to all motor vehicle claims, regardless of the date of loss.

The effect of the amendment is that the provision in r. 53.10 which sets PJI for non-pecuniary loss at 5% no longer applies.  Accordingly, PJI is to be calculated at the rates set out for each quarter in s. 127(1) of the Courts of Justice Act.

In Cirillo v. Rizzo, 2015 ONSC 2440 (S.C.J.), the plaintiff was in a motor vehicle accident on October 1, 2005.  In January 2015 the plaintiff accepted the defendant's offer of $50,000.  The question was how PJI should be calculated.  The defendant argued the amendment should have retrospective application because it is procedural in nature; the plaintiff argued it should not, as it is substantive in nature.

Justice MacKenzie agreed with the defendant.  Although entitlement to interest is a substantive right, the means by which the entitlement can be quantified are procedural.  As a result, the rates set out in s. 127 applied, which had the effect of reducing PJI from 5% to 4.5%.

Given the low interest rates in recent years, the changes to the way PJI is calculated could have a substantial impact on the amount of interest defendants must pay.

The Standard of Care for Grocery Stores

The Court of Appeal has once again confirmed that the standard of care for occupiers is reasonableness, not perfection.

In Saisho v. Loblaw Companies Ltd., 2015 ONCA 172 (C.A.) the elderly plaintiff was hit in 2007 by a customer pushing an overloaded shopping cart.  One customer (Beardy) paid for his purchases and loaded his cart.  His friend, Sakakeep, paid for his purchases independently as he was paying, Beardy loaded Sakakeep's purchases into the same cart.  As they moved toward the exit, Beardy bumped into the plaintiff.  The plaintiff suffered severe injuries and was in hospitalized from the date of the incident to his death in 2010.  The claim was dismissed at trial and the plaintiff appealed, alleging that the store should have had a specific policy on overloaded carts and required cashiers to specifically look to ensure customers did not overload the carts.

The Court of Appealed disagreed.  The store had a general policy to be alert for potentially dangerous activities.  Staff were aware that overloaded carts had the potential to cause injury or harm, and if they saw one, they would intervene.  The Court held that to require a standard specifically addressing the problem of overloaded shopping carts would present a standard of perfection, which is not what the law requires.

The trial judge concluded that it was not reasonable to expect a cashier to look behind her to ensure that two distinct customers were not loading their purchases into one cart.  He concluded it was reasonable for the cashier not to have intervened.   The Court of Appeal upheld the decision, holding that the standard of care is reasonableness in the circumstances, and the store met the standard.

Full Costs Awarded to Defendant Where Plaintiff Abandoned Case at Trial

Plaintiffs who make unsubstantiated allegations of fraud may be liable for substantial costs if they later decide to abandon their claim.

In Sienna v. State Farm, 2015 ONSC 786 (S.C.J.), the plaintiff sued her own insurer for failing to pay non-earners benefits.  The Statement of Claim sought $900,000 for punitive and aggravated damages caused by the defendant's bad faith.  It made allegations of "unlawful claims practices" and a "conspiracy" aimed at the plaintiff and other policyholders.  The matter was set for trial commencing January 26, 2015.  On January 14th, the plaintiff advised she was abandoning her case and would call no evidence.

The issue then became costs.  The defendant sought costs on a substantial indemnity basis, arguing the claim was without merit, it made a reasonable offer to settle, and the allegations against it were akin to fraud.  The plaintiff argued the allegations in her Statement of Claim were not outrageous and are commonly plead in accident benefits cases, that the defendant should have brought a motion to strike the allegations, and that the defendant should have ceased its trial preparation after a similar case ruled favourably for another insurer.

Justice Arrell did not accept the plaintiff's arguments.  He did not agree the allegations are common, when there is no foundation or evidence to support them.  They were akin to fraud.  The defendant should not be put to the expense of striking allegations made in the Statement of Claim; on the contrary, the plaintiff should have withdrawn the offensive portions.  There was no merit to the argument the defendant should have ceased trial preparation as the favourable analogous decision was being appealed, and the plaintiff had not abandoned her claim.

Justice Arrell awarded the defendant the total amount of its bill of costs, plus $2,000 for the costs motion, for a total of $35,92.97.