Investigating and defending a claim does not amount to breach of privacy

Baines v. Sigurdson Courtlander Burns and Silverstone Barristers & Solicitors, 2015 ONCA 80:

[1]          The appellant was the unsuccessful plaintiff in an action arising from a motor vehicle accident. She subsequently commenced an action against the respondent, the lawyers who represented the defendants in the motor vehicle litigation, for the tort of intrusion upon seclusion, breach of privacy and negligence.

[2]          The appellant alleges that the respondent violated her privacy by: (a) providing her medical information to defence experts without her consent for the purpose of the trial and obtaining addendum reports from the defence experts based on her medical information; (b) serving copies of a rule 30.10 motion record on her former employer and the Ontario Disabilities Support Program without her consent; and (c) obtaining official transcripts of her marks from the University of Waterloo without her consent.

[3]          The respondent brought a motion for summary judgment to dismiss the appellant's claim. The motion judge granted the motion and awarded the respondent $3,500 in costs.  The appellant appeals that order.

[4]          We see no basis to interfere with the order of the motion judge. 

[5]          The appellant's claim in the underlying personal injury action put in issue her medical and psychological injuries, as well as her ability to work and pursue her studies.  She thereby waived any privacy interest in her medical records and academic records for the purpose of the litigation.  

[6]          Moreover, the respondent's impugned conduct throughout, including service of the rule 30.10 motion, was justified by law as it was undertaken for the purposes of the litigation pursuant to the Rules of Civil Procedure. In these circumstances, there was no breach of the appellant's privacy and the tort of intrusion upon seclusion cannot be established.

[7]          The respondent's reference to the appellant's medical condition during the trial also does not amount to negligence or any breach of duty by the respondent.  The respondent owed no duty to the appellant.