On December 24th, the Court of Appeal for Ontario affirmed￼ the dismissal of a breach of confidence claim because the plaintiff did not make out a “detriment.”￼ Despite its affirmation, the Court held that the trial judge erroneously said that a breach of confidence plaintiff must prove “financial loss.”￼ It explained, “The concept of detriment is not tied to only financial loss, but is afforded a broad definition, including emotional or psychological distress, loss of bargaining advantage, and loss of potential profits.”
CTT Pharmaceutical Holdings, Inc. v. Rapid Dose Therapeutics Inc., 2019 ONCA 1018 (CanLII).
On February 19th, the Ontario Superior Court of Justice declined to strike a pleading that alleged a company unlawfully interfered with a competitor’s economic relations by receiving confidential information about a client (BC Cancer) that was sought after by both organizations. The Court held that the pleading was sustainable because BC Cancer had an arguable claim against the recipient organization based on the “intrusion upon seclusion” tort, suggesting that the tort is available to natural persons and corporations. As stressed by the Court, on a motion to strike a court errs on the side of permitting a novel but arguable claim to proceed to trial.
Fundraising Initiatives v Globalfaces Direct, 2015 ONSC 1334 (CanLII).
On August 28th, the Ontario Superior Court of Justice held that LawPro (who insures Ontario lawyers) was entitled to report various allegations made against an insured to the Law Society of Upper Canada.
LawPro made the report after the insured was sued and before it denied him coverage. The Court held that LawPro wrongly denied coverage but dismissed the insured’s breach of confidence and privacy claim.
The Court held that LawPro did not breach PIPEDA because it is not engaged in commercial activity. It explained:
Counsel for LawPro submits, correctly in my view, that the providing of mandatory professional liability insurance to the province’s lawyers is not a commercial activity within the meaning of section 4(1)(a) of PIPEDA. Although LawPro is designed to conduct itself in a financially viable manner, its principal shareholder is the Law Society – a regulatory body – and its mandate entails “a commitment to working with the bar in the public interest over the long term”. LawPro, Our Story: 15 Years of Making a Difference (Lawyers Professional Indemnity Company, 2010), online: http://www.practicepro.ca/LawPROmag/15Anniversary Booklet.pdf, at p. 4. That mandate takes LawPro outside of the type of activities to which PIPEDA applies.
The Court also held that LawPro acted properly in making the report notwithstanding the insured’s argument that his communications with LawPro were made to a solicitor in his and LawPro’s common interest and were therefore subject to solicitor-client privilege. The Court held that LawPro had a duty to report that superseded solicitor-client privilege.
(Is there really such a duty? I question whether the decision merely suggests that LawPro was entitled, as a matter of public interest, to report.)
Cusack v The Lawyers’ Professional Indemnity Co., 2013 ONSC 5511 (CanLII).