The insurer’s lawyer owes a duty of care to the employer, not the appellant, according to court rules

The Ontario Court of Appeal upheld a lower court ruling quashing claims against an insurer and its lawyer, in a case that touches on lawyers’ duty to their employers, expectations of confidentiality in litigation. a case conference and unfair dismissal.

In Wakeling v. Desjardins General Insurance Group Inc.., 2021 ONCA 672, the court heard that one of the appellants, Barbara Evison, had gone to a case conference to appeal “the decision of her insurer to deny her accident benefits as a result. of a car accident ”. According to court documents, she brought her “close friend and partisan, Joan Wakeling” with her. Evison told opposing counsel that Wakeling “will be a witness at the next hearing.”

Wakeling was employed by Desjardins General Insurance Group Inc., which was also Evison’s insurer.

The court noted that when Evison asked Desjardins lawyer Nadia Constantino at the case conference if “there would be consequences for Ms. Wakeling’s employment at Desjardins. Ms. Constantino refused to answer and Ms. Wakeling then left the conference.

However, when Wakeling returned to work after the conference, she “was informed that Desjardins was investigating her conduct and she was escorted out of the building.”

According to court documents, Wakeling was fired 11 days later “because of her involvement in Evison’s accident benefits claim and alleged breach of a company code of conduct.”

Wakeling and Evison launched an action claiming that Desjardins and Constantino had “invaded their privacy by revealing to the management of Desjardins that Wakeling had participated in the conference”.

According to court documents, “Wakeling also argued that she was wrongly dismissed.”

They also filed a motion to “add to their statement additional defendants (all employees of Desjardins in a personal capacity) and additional claims for invasion of privacy, breach of trust and breach of privacy. Human Rights Code. “

According to court documents, Desjardins and Constantino filed a motion to “strike out all claims related to the breach of privacy and to strike out any residual claims against Constantino in a personal capacity” and “seek to prevent Wakeling and Evison from adding new claims and new defendants. “

Judge Susan Healey of the Superior Court of Justice struck out all of the claims “except Wakeling’s claims for unfair dismissal and for aggravated and punitive damages against Desjardins.”

She concluded that “a breach of privacy could not be established on the facts invoked”. She noted that “the respondents’ conduct was not intentional, as the respondents never compelled or called Wakeling to appear at the conference and never coerced or induced Evison to hand over the witness list with Wakeling’s name. above “.

Healey J. determined that the “respondents had not invaded the private affairs of the applicants; they passively received information from callers. They were legally entitled to receive a witness list from Evison as part of the LAT proceeding.

Evison and Wakeling appealed, arguing that Justice Healey “erred in: (1) quashing their request for invasion of privacy (solitary confinement) without leave to modify; (2) dismissing without leave all of their action against respondent Nadia Constantino; (3) strike out some of their claims for punitive damages; and (4) not allow them to modify their claim to add new defendants and new causes of action.

In a September 29 decision, Judge Gladys Pardu, writing on behalf of the Court of Appeal, dismissed the appeal with Judges George Strathy and Sarah Pepall agreed.

Judge Pardu noted that the “solitary confinement offense protects private information from unauthorized prying eyes.”

“It is clear and obvious,” she wrote, that Wakeling’s presence “in person at a case conference in a judicial proceeding before an administrative tribunal was not a private event”.

“Furthermore, Ms. Constantino’s receipt of information consisting of a witness list provided by Ms. Evison did not constitute an intrusion; it was authorized by Ms Evison herself and it was not private information. Further, the appellants argued at para. 11 of their statement that the court’s disclosure requirements require witness lists to be exchanged prior to the case conference, ”she added, noting that“ as a party to the proceedings, Desjardins had right to information ”and Constantino“ had a duty to his client to report the progress of the case conference to Desjardins.

Judge Pardu noted that, as Judge Healey “correctly” noted, Constantino’s duty was “to her employer, Desjardins, for whom she was acting as counsel. She owed no duty of care to the appellant.

The Court of Appeal rejected the appellants’ arguments on breach of trust, Human Rights Code claims and their motion to amend the declaration, which proposed four new defendants.

As to whether Evison had a “cause of action against Desjardins for its use of information about Ms. Wakeling’s participation in LAT proceedings to terminate Ms. Wakeling’s employment,” Justice Pardu noted that : “[A]The insurer has a duty to act in good faith in the way it handles a claim.

However, she wrote that the “gravamen of Ms Evison’s action is an invasion of privacy or a breach of trust.”

“In her proposed amended statement, Ms Evison explicitly seeks damages for ‘invasion of privacy / trust'”, explained Judge Pardu, stressing that “[E]although a claim for bad faith handling of his accident compensation claim could be reconstructed from the appellants’ pleadings in this case, s. 280 of Insurance Act, RSO 1990, c. I.8, is an obstacle to any such procedure when accident benefits are involved. “

“Section 280 prohibits court proceedings relating to accident benefits and requires that these be resolved by the License Appeal Tribunal. As determined in Stegenga, this includes allegations that the insurer acted in bad faith in its handling of the insured’s claim, ”she concluded, noting that this was a“ sufficient basis for dismiss the appeal ”.

Counsel for the respondents declined to comment on the decision. Counsel for the appellants did not comment until print time.

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