Canadian Underwriter

The risk of supporting a friend against an insurer who is also your employer

March 28, 2022   by David Gambrill

Scales of justice

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People working for an insurance company should be aware of the risk of being a witness to support a close friend at an accident benefits case conference against their employer.

Canada’s top court has thrown out a case against Desjardins General Insurance, essentially upholding a decision by the Ontario Court of Appeal. The Court of Appeal found the privacy of Joan Wakeling and her friend, Barbara Evison, was not breached when Evison supplied the witness list — including Wakefield’s name on it — to counsel for Desjardins, who then shared it with the company’s executives, leading to Wakefield’s termination.

The courts have not ruled yet on whether Desjardins’ firing of Wakefield constitutes wrongful dismissal. That case is currently before the courts.

Barbara Evison attended a case conference with her close friend and supporter, Joan Wakeling, in 2019. She was appealing her insurer’s decision to deny her accident benefits following a car accident. She notified opposing counsel, Nadia Constantio, that Wakeling would be a witness at the upcoming hearing.

Wakeling had worked for Evison’s insurer, Desjardins General Insurance Group Inc., and its predecessor companies for 24 years. When Desjardins management learned of Wakeling’s participation in the conference, they fired her.

Both Wakeling and Evison brought an action in the Ontario Superior Court, arguing, among other things, that Desjardins and Constantino had invaded their privacy when Constantino revealed to Desjardins management that Wakeling had participated in the conference.

Wakeling also argued she had been wrongfully terminated. At trial, a judge struck all their claims except Wakeling’s claims for wrongful termination and aggravated and punitive damages against Desjardins.

Essentially, in striking the privacy part of the claim, the Ontario Court for Appeal found that Evison and Wakefield did not have a reasonable expectation of privacy.

“The tort of intrusion upon seclusion protects private information from unauthorized prying eyes,” the Ontario Appeal Court ruled. “It is plain and obvious that Ms. Wakeling’s attendance in person at a case conference in an adjudicative proceeding before an administrative tribunal was not a private event.

“Further, Ms. Constantino’s receipt of information consisting of a witness list provided by Ms. Evison did not amount to an intrusion; it was authorized by Ms. Evison herself, and it was not private information. Moreover…tribunal disclosure requirements mandate that witness lists be exchanged in advance of the case conference.

“On this basis it is plain and obvious that no cause of action lies against Ms. Constantino for her receipt of that information.”

What’s more, the court found, once Constantino received the information, her obligation was to her client, Desjardins General Insurance, not to Evison or Wakeling. So she did nothing wrong by sharing the information with the insurer.