Insured had no expectation of privacy in relation to participation at case conference

Insurance law – Automobile insurance – Statutory Accident Benefits Schedule – Actions – Third parties – Practice – Appeals – Duties and liabilities of insured

Wakeling v. Desjardins General Insurance Group Inc., [2021] O.J. No. 4990, 2021 ONCA 672, Ontario Court of Appeal, September 29, 2021, G.R. Strathy C.J.O., S.E. Pepall and G.I. Pardu JJ.A.

The insured challenged the insurer’s decision to deny her accident benefits following a motor vehicle accident. The insured attended a case conference with a close friend as a witness on the insured’s behalf. The insured’s friend was an employee of the insurer. When the insurer learned its employee had participated in the case conference on behalf of the insured, the insurer terminated her employment.

The insured and her friend brought a claim against the insurer in which they alleged their privacy was invaded when the friend’s participation was revealed to the insurer. The friend also alleged she had been wrongfully terminated.

The insurer brought an application seeking a dismissal of the claims. The Superior Court judge struck all the claims except the claim for wrongful termination. The insured and her friend appealed.

On appeal, they argued the lower court erred in striking their claims for breach of privacy, dismissing the claim against the lawyer for the insurer who attended the case conference, striking certain of their claims for punitive damages, and not permitting them to amend their claim to add new defendants.

The Ontario Court of Appeal dismissed the appeal. In essence, there was nothing private about the insured’s participation in the case conference and her friend was identified as a witness. As a party to the proceeding, the insurer was entitled to the information.

This case was digested by Cameron B. Elder, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Cameron B. Elder at [email protected].

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