A defendant’s insurer accepted a plaintiff’s offer in circumstances where a defence independent medical examination report had not been served on the plaintiff (in breach of the Rules), the plaintiff’s subsequent action against the defendant’s insurer and counsel and the IME expert for conspiracy and breach of privacy was struck out.
Edgeworth v Shapira, 2019 ONSC 5792, per Sossin, J.
Facts + Issues
The plaintiff Edgeworth, commenced a personal injury action against Mazzoli after she was involved in an accident with Mazzoli while riding her bicycle. Edgeworth retained the law firm Campisi LLP to commence the Mazzoli action, and Mazzoli’s insurer, Northbridge General Insurance Company, retained Shapira of the Evangelista law firm to defend the action.
The parties engaged in an unsuccessful mediation and Edgeworth then delivered an offer to settle, dated October 3, 2016. Mazzoli accepted the offer on June 7, 2017, but only after retaining Dr. Brian Levine in January 2017 to conduct a neuropsychological defence medical assessment of Edgeworth. Dr. Levine conducted the IME on February 16, 2017 and completed it on April 17, 2017, but no written defence medical report was ever delivered to the plaintiff.
The settlement of the Mazzoli action, including costs and disbursements, was finalized on July 31, 2017 and the action was formally dismissed on October 12, 2017. However, this was not the end of the dispute.
In February 2019, Edgeworth commenced a second action (the “conspiracy action”) against Shapira, Andrew Evangelista (“Evangelista”), the principal of the Evangelista firm which employs Shapira, Dr. Levine, and Northbridge (collectively, the Defendants). Edgeworth alleged the Defendants had conspired to suppress Dr. Levine’s expert report, in breach of r. 33.06 of the Rules of Civil Procedure, RRO 1990, Reg. 194, among other torts, and sought non-pecuniary damages of $5,000, pecuniary damages of $1,185,425, and punitive damages of $10,000,000.
Edgeworth further alleged that defence counsel Shapira was liable in misrepresentation. Specifically, Edgeworth alleged that she agreed to attend the defence IME on the basis that the expert’s report would be created and provided to the plaintiff’s counsel forthwith. Edgeworth alleged that in conversations with the plaintiff’s counsel Campisi LLP, Shapira had misrepresented that the agreement had been complied with by indicating that the report had not been “received “yet, when in fact, the expert had been instructed not to create a report.
The Defendants applied to strike Edgeworth’s allegations of conspiracy on the basis that Edgeworth had disclosed no reasonable cause of action, and also sought to have Edgeworth’s lawyers, Campisi LLP, removed as solicitor of record on the basis of a conflict of interest in that its personnel would be required as witnesses in the misrepresentation claim against defence counsel Shapira.
HELD: For the Defendants; claims against them with the exception of the claim for misrepresentation as alleged against Shapira were struck and the plaintiff’s counsel was disqualified for conflict of interest.
The Court analyzed Edgeworth’s claim and applying r. 21 of the Rules of Civil Procedure, determined it was plain and obvious that the conspiracy claim against the Defendants as pleaded could not succeed.
- The Court started out by noting that there a two types of conspiracy, so the question was whether, assuming all facts alleged by Edgeworth’s pleadings were true, Edgeworth’s conspiracy claim could succeed:
29 There are two types of conspiracy recognized at law: 1) first, where the defendants agree to use lawful means to injure the plaintiff; and 2) second, where the defendants use unlawful means to harm the plaintiff.
- It was plain and obvious that the facts as pled in Edgeworth’s claim did not satisfy the first form of conspiracy, because the claim did not set out that the Defendants intended to injure Edgeworth with their actions:
36 In this case, there are no facts pled setting out that the actions of the Defendants were undertaken in order to injure Edgeworth. The Defendants agreed to the offer which Edgeworth made. Offers to settle may be accepted for many reasons, whether or not a party believes there is a chance if the matter went to trial, the ultimate result may be better or worse for the party. All that can be presumed from the fact of the settlement is that Edgeworth believed it would advance her interest to make the offer to settle, and Mr. Mazzoli believed it would be in his interests to accept the offer.
- The Court also found that it was
plain and obvious that Defendants’ claim did not make out
unlawful act conspiracy based on the Defendants’ failure to
provide the written medical defence report for the following
- The failure to provide a written medical report to Edgeworth was a breach of r. 33.06 of the Rules of Civil Procedure, but this did not constitute a “wrongful act” supporting a finding of conspiracy:
53 In light of the internal enforcement and curing provisions within the Rules of Civil Procedure, and absent some other factor demonstrating the breach could not be cured, such as a finding of contempt, the failure to follow a step set out in the Rules of Civil Procedure in these circumstances does not constitute an unlawful act capable of being the foundation for the civil tort of conspiracy or the criminal act of obstruction of justice.
- Edgeworth’s allegation that Dr. Levine and Shapira had failed to comply with PIPEDA in how they dealt with her personal information was not sufficient. For one, a “plaintiff in a personal injury case must acknowledge some diminishing of her right to privacy by entering into litigation” (at para 58), and any potential PIPEDA breach would be a matter for Federal Court. Therefore, the Court found that PIPEDA could not form the basis of liability for conspiracy in this action.
- The Court found that Edgeworth’s pleadings did not make out the tort of intrusion on seclusion which requires there to be 1) an intention to invade in the private affairs of another; 2) an intrusion without lawful justification; and 3) a reasonable person would conclude this led to anguish.
- Edgeworth’s allegation of a “systemic” concern in the way the Defendants routinely communicated and interacted within the context of insurance litigation did not meet the threshold for an unlawful act on which unlawful act conspiracy could be found.
- The Court found that even if the pleadings included the necessary elements of conspiracy, Edgeworth would not have been able to establish actual damages for her claim because the settlement she characterized as the basis of her loss was of her own making (it was she who made the settlement offer).
The Court granted the Defendants’ motions to have Campisi LLP removed as solicitors of record for Edgeworth due to the conflict of interest arising from the likelihood of a lawyer from the firm being a witness in the litigation.
- The Court found it very likely that a lawyer from Campisi LLP who had been involved in the communication with Shapira in the Mazzoli litigation would have to testify to establish Edgeworth’s claim for misrepresentation, and this would create a conflict of interest that could not be waived.
This decision is notable in part because it shows how a failure to comply strictly with the requirement to provide a written medical report to the plaintiff in a personal injury action following an IME may not give sufficient grounds for finding liability in conspiracy.
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