Barata v Intact Insurance Company, 2021 ABQB 419

Court of Queen’s Bench of Alberta Citation: Barata v Intact Insurance Company, 2021 ABQB 419 Date: 20210528 Docket: 1903 14800 Registry: Edmonton Between: Diana Barata Plaintiff - and - Intact Insurance Company and David Ross Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice G.S. Dunlop _______________________________________________________ 1.

Overview [ 1 ] Four questions are set out in a consent order of Master Summers dated September 21, 2020: Did the Defendants breach any duties owing to the Plaintiff when they disclosed the contents of their investigation and conversation with the Plaintiff to the RCMP as particularized in the within Statement of Claim?

If so, was such disclosure authorized by the Personal Information Protection Act, SA 2003, c. P-6.5 or otherwise justified in thecircumstances? If the Defendants breached any duties owing to the Plaintiff without authorization or other valid reason for doing so, did such conductcause the Plaintiff any damages? If the Plaintiff is entitled to damages, did such damages constitute bad faith and entitle the Plaintiff to punitive damages? [2] In accordance with the consent order, the hearing of those issues proceeded by way of a special chambers application onMarch 17, 2021, based on agreed facts.

References in square brackets in these reasons are to page numbers in the Statement of AgreedFacts and Exhibits. [3] The Defendant, Intact Insurance Company, is an automobile insurer. It provided automobile insurance to the Plaintiff, DianaBarata. The Defendant, David Ross, is an Intact employee who investigated a collision between Ms. Barata’s vehicle and a pedestrian,Cesar Vandamme. [4] On July 9, 2017, Diana Barata and Daniel Barata, were in Ms. Barata’s vehicle when it struck and injured Mr. Vandamme. (The Baratas were engaged at the time and have since married.) They stopped and spoke to Mr.

Vandamme’s companions, but they gotback in their vehicle and left the scene without waiting for the police or an ambulance to arrive. Later on July 9, 2017, the police arrivedat the Baratas’ home and arrested Mr. Barata on the assumption that he was the driver. Although Mr. Vandamme initially survived thecollision, he later died from his injuries in hospital. Mr. Barata was charged with impaired driving causing death and several othercriminal offences. [5] Ms. Barata reported the collision to Intact and Intact assigned Mr. Ross to investigate. He interviewed Ms.

Barata and shetold him that she was driving, not Mr. Barata. Mr. Ross volunteered that information to the police. The police later charged Ms. Baratawith failing to stop, provide her name and address, and offer assistance to Mr. Vandamme. Some of the charges against Mr. Barata werewithdrawn, resulting in both Mr. Barata and Ms. Barata being charged with the same offence of failing to stop and provide their namesand addresses and offer assistance, pursuant to s. 252(1)(

a) of the Criminal Code. They were tried separately and they were eachacquitted. [6] In brief, I find as follows on the four questions set out in the consent order: • Intact and Mr. Ross did not owe Ms. Barata a duty of confidentiality with respect to the information she provided, but they did oweher a duty of utmost good faith with respect to the investigation of her claim. They breached that duty by disclosing her compelledstatement to the RCMP, because that disclosure was not reasonably justified as part of Intact’s investigation of Ms.

Barata’s insuranceclaim. • The Personal Information Protection Act, does not authorize an insurer to disclose an insured’s compelled statement to the policein these circumstances, because doing so was a breach of Intact’s duty of utmost good faith, and because doing so undermined Ms.Barata’s right to remain silent. • The disclosure did not result in any damages to Ms. Barata because the police did not rely on the information from Mr. Ross incharging Ms. Barata. She was not charged until months later following Mr. Barata advising the police in a recorded telephone call thatMs.

Barata was the driver and following further investigation by the police. • Mr. Ross acted in good faith so punitive damages are not warranted. 2. Automobile Insurer’s Duties 2.1 duty of confidentiality [7] The legal relationship between an automobile owner and her insurer is heavily legislated. An owner is required to carryinsurance: Traffic Safety Act s. 54. Many of the terms of the policy are mandated by the Insurance Act and the policy itself is required tobe in a form approved by the Superintendent of Insurance: Insurance Act s. 551.

An owner may choose from a few optionalendorsements and insurance limits beyond the statutory minimum, but otherwise owners and insurers have no ability to negotiatedifferent obligations than those required by legislation and the Superintendent of Insurance. None of the terms of the Standard Owner’sAutomobile Insurance Policy (SPF #1) by is a duty of confidentiality owed by the insurer to the insured. [8] The common law of insurance pre-dates automobile insurance legislation. In fact, it pre-dates automobiles.

One of thecommon law features of the relationship between an insurer and an insured is the reciprocal duty of utmost good faith: Carter v Boehm(1766) 97 ER 1162 (KB) and Bhasin v Hrynew 2014 SCC 71 at para 55. The duty of utmost good faith applies to all insurancecontracts, unless altered by legislation: Andrusiw v Aetna Life Insurance Co. (AB KB), [2001] AJ No 789 (QB) atpara 56. The duty of utmost good faith has not been removed by legislation from automobile insurance, so it continues to apply there. [9] Ms.

Barata submits that because the duty of utmost good faith is reciprocal, any duties imposed on an insurance relationshipby legislation must also be reciprocal. In particular, she submits that her obligation to provide all available particulars regarding aninjury accident, under statutory condition 3 (Insurance Act, s. 556), creates or implies a reciprocal duty on her insurer to keep theinformation she provides confidential. The only authority she cites for this proposition is Tercon Contractors v British Columbia(Minister of Transportation & Highways) 2010 SCC 4. In particular, Ms.

Barata cites the following passage from paragraph 64 of thatdecision: The key principle of contractual

interpretation here is that the words of one provision must not be read in isolation but should be

considered in harmony with the rest of the contract and in light of its purposes and commercial context. [10] The Supreme Court of Canada in Tercon was interpreting an exclusion of liability clause in a construction tendering contract. Tercon has nothing to do with insurance and nothing to do with interpreting insurance legislation. It does not stand for the propositionthat for every duty imposed on an insured by legislation there is an implicit reciprocal duty imposed on an insurer. No other authorityfor this proposition is cited by Ms. Barata. It is not a reasonable way to interpret insurance legislation.

If every duty explicitly imposedon an insured or an insurer by legislation necessarily implied a reciprocating duty on the other party, there would be enormousuncertainty regarding those unwritten implied duties. [11] I find that there is no duty on an automobile insurer to keep confidential the information an insured provides pursuant to herobligations to provide all available particulars of an accident under statutory condition 3. However, as set out in the next

section of thesereasons, an insurer remains bound by its duty of utmost good faith to its insured in investigating a claim, which limits what the insurermay do with information provided by its insured. 2.2 duty of utmost good faith in investigating a claim [12] The Supreme Court of Canada provides the following description of the duty of utmost good faith in Bhasin v Hrynew 2014SCC 71 at para 55: This Court has also affirmed the duty of good faith which requires an insurer to deal with its insured's claim fairly, both with respect tothe manner in which it investigates and assesses the claim and to the decision whether or not to pay it: Fidler v.

Sun Life Assurance Co.of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3 (S.C.C.), at para. 63, citing 702535 Ontario Inc. v. Non-Marine Underwriters, Lloyd'sLondon, England (2000), (ON CA), 184 D.L.R. (4th) 687 (Ont. C.A.), at para. 29. The breach of this duty maysupport an award of punitive damages: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 (S.C.C.).

This duty of goodfaith is also reciprocal: the insurer must not act in bad faith when dealing with a claim, which is typically made by someone in avulnerable situation, and the insured must act in good faith by disclosing facts material to the insurance policy (para. 83,citing Andrusiw v. Aetna Life Insurance Co. of Canada (2001), (AB KB), 289 A.R. 1 (Alta. Q.B.), at paras. 84-85, per Murray J.). emphasis added [13] Intact makes no submissions about an insurer’s duty of good faith.

However, one of the cases cited by Intact, Greenridge vAllstate Insurance Company 2018 ABQB 266 includes the following description of the duty of utmost good faith at para 20 – 21: 20 The Ontario Court of Appeal explained the duty of utmost good faith in 702535 Ontario Inc. v. Non-Marine Underwriters, Lloyd'sLondon, England (2000), (ON CA), 130 O.A.C. 373, [2000] O.J. No. 866 (Ont. C.A.), (cited with approval in Fidlerv. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3, 2006 SCC 30 (S.C.C.),): 27 The relationship between an insurer and an insured is contractual in nature.

The contract is one of utmost good faith. In addition to theexpress provisions in the policy and the statutorily mandated conditions, there is an implied obligation in every insurance contractthat the insurer will deal with claims from its insured in good faith: Whiten v. Pilot Insurance Co. (1999), (ONCA), 42 O.R. (3d) 641 (Ont. C.A.). The duty of good faith requires an insurer to act both promptly and fairly when investigating,assessing and attempting to resolve claims made by its insureds. . . . 29 . . .

The duty to act fairly applies both to the manner in which the insurer investigates and assesses the claim and to the decisionwhether or not to pay the claim. In making a decision whether to refuse payment of a claim from its insured, an insurer must assess themerits of the claim in a balanced and reasonable manner. It must not deny coverage or delay payment in order to take advantage of theinsured's economic vulnerability or to gain bargaining leverage in negotiating a settlement. A decision by an insurer to refuse paymentshould be based on a reasonable

interpretation of its obligations under the policy. 21 Gordon G Hilliker, Insurance Bad Faith, 3d ed (Markham, Ont: LexisNexis Canada, 2015) at 49-50 states that in order for there tobe a finding of a breach of the duty of good faith by the insurer, it must have acted in some way without reasonable justification.Hilliker lists types of bad faith conduct by the insurer including bias in selection and use of experts, and placing unwarranted conditionson payment of benefits. emphasis added [14] Relying on those authorities, I find that an insurer has a duty to investigate an insured’s claim in utmost good faith, whichincludes what it does with the information it obtains during that investigation, and that it breaches that duty if it acts without reasonablejustification. [15] In many cases following a serious car accident, both the police and one or more insurers investigate, but those investigationshave different purposes and there are separate legal regimes regarding what each may do in the course of their investigations, and whatinformation an insured driver or owner is required to disclose to the police, on the one hand, and her insurer on the other. [16] Statements given by an owner to her insurer under compulsion are not admissible against her in a criminal trial and they arenot admissible as the basis for reasonable and probable grounds in support of a search warrant: R v Porter 2014 ABQB 359 affd 2015ABCA 279. [17] Shelley, J. in the trial decision in Porter at para 110 identifies the harm which would flow if automobile insurers routinelydisclosed their insured’s compelled statements to police:

If the insurer were at liberty to routinely provide such statements to the police, they would essentially be operating as agents for the police, collecting information relevant to and for use in the criminal investigation. That would put the insured and insurer in an adversarial relationship. [ 18 ] There may be cases where an insurer would be reasonably justified in disclosing some or all of its insured’s compelled statement to the police, particularly if it is for the purpose of seeking information to assist the insurer’s investigation of an accident.

Whether it is reasonable will depend on the facts in each case. A purely gratuitous disclosure to police, which does nothing to further the insurer’s investigation, would not be reasonably justified, and therefore would be a breach of the insured’s duty of utmost good faith to the insured. 3. Breach of Duty of Utmost Good Faith [ 19 ] The facts relevant to whether Intact’s disclosure to police in this case was reasonable are: • On July 17, 2017 Ms. Barata reported the July 9, 2017 collision to Intact. [33] • On July 20, 2017, Ms.

Barata provided a telephone statement to Intact’s adjuster, Thomas Kent, and admitted that she had been driving at the time of the collision and had consumed two alcoholic beverages prior to the collision. She said that she had panicked and left the scene before the ambulance arrived. [33, 35] • On July 21, 2017, Intact emailed a Non-Waiver Agreement [42] and Police Report Authorization Form [106] to Ms. Barata. She signed neither document. • On July 25, 2017, David LeMarquand, an Intact employee, called the Morinville detachment of the RCMP and requested confirmation that Ms.

Barata was listed as the driver in the RCMP report. The RCMP receptionist did not provide that information because Intact had not provided a request for the police report. [36] • On July 25, 2017, Intact assigned David Ross to investigate Ms. Barata’s insurance claim. [36] • On July 27 and August 2, 2017, Intact again forwarded Police Report Authorizations to Ms. Barata. She never signed. [59; 100] • On August 1, 2017, Mr. Ross spoke to a person with the RCMP who advised Mr. Ross that Mr. Barata had been charged with three offences based on the assumption that he was driving when Ms. Barata’s vehicle struck Mr.

Vandamme. [36] • On August 3, 2017, Ms. Barata attended the RCMP detachment with her lawyer and Sgt. Courtorielle attempted to interview her. She declined to answer any questions. [16] • Mr. Ross interviewed Ms. Barata on August 30, 2017. Ms. Barata told Mr. Ross she was driving at the time of the July 9, 2017 collision. [106 ff] (Some parts of the Agreed Facts and Exhibits give the date of this interview as August 27, 2017. Nothing turns on the precise date of the interview.) • At the beginning of the interview, Mr. Ross asked Ms. Barata to sign a form consenting to the police releasing information to Intact.

Ms. Barata did not sign it. She told Mr. Ross that she had received a similar form from someone at Intact and had returned it unsigned but with the notation that she had not spoken to anyone about the accident. Mr. Ross pressed her to sign the form and Ms. Barata said she would discuss it with her lawyer. [106; 109 – 111] • On August 31, 2017, Mr. Ross telephoned the RCMP and spoke to Sgt. Courtorielle. Mr. Ross told Sgt Courtorielle some of what Ms. Barata had told Mr. Ross, including that she and Mr. Barata were at a wedding reception earlier on July 9, 2017, that she was driving her vehicle when she struck Mr.

Vandamme, that she and Mr. Barata got out and observed Mr. Vandamme snoring, and then they went home. Mr. Ross also told Sgt. Coutorielle that he would forward his notes and report to the lead RCMP investigator, Cpl. Charron. [18] Later that day Mr. Ross provided someone at the RCMP with a copy of his August 30, 2017 interview of Ms. Barata. This may have been in the form of an audio recording. [209] • On September 18, 2017, Cpl. Charron of the RCMP telephoned Mr. Ross. Mr. Ross told Cpl. Charron that Ms. Barata had told him she was driving. During that conversation, Mr.

Ross offered to provide the RCMP with all of the documents he had relating to his investigation. Cpl. Charron recorded Mr. Ross’s rationale as follows: With concern over truthfulness, Ross said privacy over the documents was waived and as such, he would be able to provide me with all of the documents he currently has. [14] • On September 20, 2017, Cpl Charron emailed Mr. Ross and asked him not to send any information regarding Ms. Barata. [21] • At no point did Ms.

Barata authorize Intact to release to third parties any information she provided to Intact, nor did she ever authorize the police to release information to Intact. [ 20 ] Intact submits the following with respect to Mr. Ross’s disclosure to the RCMP of the information Ms. Barata provided to him: Ross’ concern with the circumstances of the accident were the possible alcohol use of the operator of the vehicle and the identity of the driver of the Plaintiff’s vehicle. Ross believed that disclosure to the RCMP was warranted because there may have been a coverage issue or breach of statutory condition.

Ross believed that the Plaintiff may have committed a criminal offence in failing to remain at the scene of a collision and that could have justified a waiver of any right to privacy the Plaintiff had. Ross suggested that his understanding in this regard came from PIPA. Ross indicated that one of the factors in his decision to make the disclosure to the RCMP was to provide them with a different set of circumstances than they were apparently operating under. Intact’s brief, p. 5 [ 21 ] Ms. Ross clearly wanted to help the police, but the central issue here is whether Mr.

Ross’s actions are reasonably justifiable as part of the insurance investigation. [ 22 ] I find that Mr. Ross’s disclosure to Sgt. Courtorielle served no purpose in the insurance investigation, because it did not seek any information for Intact; rather it provided information in the other direction. Sgt. Courtorielle records the conversation as follows in his notes: 2017-08-31 @ 1320hrs Writer was asked to take a phone call from an insurance investigator from lntact Insurance. Writer spoke with the investigator who identified himself as Dave ROSS.

ROSS advised he spoke with Diana BAETA earlier concerning the collision that happened on July 9, 2017. ROSS Informed that BAETA said she was the driver of the vehicle on the night in question. BAETA disclosed that she was driving, her fiancé was the passenger, when they struck the pedestrian walking on the road, She further advised after the collision, they exited the vehicle, noted the person was snoring, left and went home. BAETA stated they were at the Meridian Hall on the south side of Edmonton at a wedding reception.

BAETA told ROSS that a guy named Mark drove them to their vehicle from the wedding reception. [18] (Ms. Barata is referred to as BAETA in Sgt. Courtorielle’s notes because Baeta was her surname before she married Mr. Barata.) [ 23 ] Mr. Ross testified regarding his motivation in making the disclosure to Sgt. Courtorielle. [209 – 212]. He believed that Ms.

Barata had lied to him about who was driving, which engaged exclusions under the insurance policy and the Insurance Act , and he believed that he was authorized to disclose her statement to police under the Insurance Act, the Personal Information Protection Act and pursuant to criminal law. Mr. Ross did not ask Sgt Courtorielle for any information about the police investigation of the accident. [ 24 ] I find that Mr. Ross’s disclosure of the information he had obtained from Ms.

Barata was not intended by him to further his investigation of the accident and it in fact did nothing to further the insurance investigation. Mr. Ross was trying to help the police with their investigation, and nothing more. The disclosure was purely gratuitous and consequently is not reasonably justifiable as part of an insurance investigation. It was a breach of the duty of utmost good faith which both Mr. Ross and Intact owed to Ms.

Barata. [ 25 ] The first question in Master Summers September 21, 2020 order is: Did the Defendants breach any duties owing to the Plaintiff when they disclosed the contents of their investigation and conversation with the Plaintiff to the RCMP as particularized in the within Statement of Claim? [ 26 ] The answer is yes. The Defendants breached their duty of utmost good faith. 4.

Authorization pursuant to the Personal Information Protection Act [ 27 ] On the second question, relating to authorization and justification, both parties confined their submissions to the Personal Information Protection Act . [ 28 ] The Personal Information Privacy Act regulates the collection, use and disclosure of personal information, which is defined in s. 1(1)(

k) as “information about an identifiable individual”. Ms. Barata submits that the information Mr. Ross disclosed to the RCMP is not her personal information. She relies on a decision of the Privacy Commissioner in Law Society of Alberta, Re [2006] AIPCD No. 38 at paragraph 12, where the Commissioner notes that information about a person is narrower than information related to a person. However, as submitted by Intact, the Privacy Commissioner provided further

interpretation of personal information in Davidson and Williams LLP, Re 2011 CarswellAlta 2571 at paragraph 30 : What is "about him" is information such as what he has said or expressed as an opinion, the fact he has done certain things or taken certain steps, details of his personal history, and personal details about him such as his name and other associated information such as where he lives or his telephone number.

This is not meant to be an exhaustive list, but is provided to illustrate the type of information that is personal information, in contrast to information other than this type of information, that was generated or gathered by the law firm or its client for the purpose of pursuing the litigation. [ 29 ] I find that Ms. Barata’s statements to Mr. Ross that she was driving when the accident happened are what she said and what she did and therefore those statements are her personal information. [ 30 ] An insurance corporation is an organization, as defined in s. 1(1) (

i) of the Personal Information Protection Act . Consequently, automobile insurers are subject to the Act’s provisions regarding the use and disclosure or personal information [ 31 ] Intact submits that

section 20(

f) or 20(

m) of the Act authorized its disclosure of Ms. Barata’s compelled statement to the RCMP. These sections read: 20 An organization may disclose personal information about an individual without the consent of the individual but only if one or more of the following are applicable:

… (

f) the disclosure of the information is to a public body or a law enforcement agency in Canada to assist in an investigation (

i) undertaken with a view to a law enforcement proceeding, or (ii) from which a law enforcement proceeding is likely to result; … (

m) the disclosure of the information is reasonable for the purposes of an investigation or legal proceeding. [ 32 ] For the reasons set out in

section 3 above, the disclosure of Ms. Barata’s compelled statement to the RCMP did nothing to advance Intact’s investigation, because Intact sought no information from the RCMP. Consequently, the disclosure was not reasonable for the purposes of Intact’s investigation and not authorized by s. 20 (

m) of the Personal Information Protection Act . [ 33 ] As is also set out in

section 3 above, Mr. Ross’s purpose in disclosing Ms. Barata’s compelled statement to the police was to assist the police with their investigation. This falls squarely within s. 20 (

f) of the Personal Information Protection Act . [ 34 ] However, in addition to meeting the requirements of s. 20 (f), any disclosure to the police must also be reasonable, by reading ss. 20 (

f) and 20 (

m) together: R v La 2012 ABQB 192 at para 44 . Alternatively, a reasonableness requirement is created by s. 19 of the Act which reads: 19(1) An organization may disclose personal information only for purposes that are reasonable.

(2) Where an organization discloses personal information, it may do so only to the extent that is reasonable for meeting the purposes for which the information is disclosed. [ 35 ] The Act defines what is reasonable: 2 Where in this Act anything or any matter: (

a) is described, characterized or referred to as reasonable or unreasonable, or (

b) is required or directed to be carried out or otherwise dealt with reasonably or in a reasonable manner, the standard to be applied under this Act in determining whether the thing or matter is reasonable or unreasonable, or has been carried out or otherwise dealt with reasonably or in a reasonable manner, is what a reasonable person would consider appropriate in the circumstances. [ 36 ] Ms. Barata submits that because her compelled statement was inadmissible against her, pursuant to Porter , it was unreasonable for Intact to provide it to the police. I agree.

As set out in Porter , routine disclosure of insureds’ statements to their insurers, compelled by legislation, to police would turn those insurers into agents of the police, undermining both the insurance relationship, and the insured’s fundamental right to remain silent. In addition, Intact repeatedly asked Ms. Barata to authorize the police to release information to Intact and she steadfastly declined. Ms. Barata clearly did not want Intact to exchange information with the police. It is also significant in considering reasonableness that Mr.

Ross was not attempting to advance Intact’s investigation when he disclosed Ms. Barata’s compelled statement. Applying the reasonableness standard set out in s. 2 of the Act , I find that a reasonable person would not consider it appropriate in these circumstances for Intact to disclose Ms. Barata’s compelled statement to the police. [ 37 ] Even if Intact’s disclosure were authorized under the Act , that would not necessarily absolve Intact of liability for breaching its duty of utmost good faith: Bishop & McKenzie LLP, Re, 2017 CaswellAlta 2596 at para 20.

I will not explore that issue because it is not one of the questions posed in the September 21, 2020 order. [ 38 ] The second question in Master Summers September 21, 2020 order is: If so, was such disclosure authorized by the Personal Information Protection Act , SA 2003, c. P-6.5 or otherwise justified in the circumstances? [ 39 ] The answer is no, because the disclosure was not appropriate in the circumstances. 5. Causation [ 40 ] The facts relevant to whether Intact’s disclosure caused any harm to Ms. Barata are: • On August 31, 2017, Mr. Ross telephoned the RCMP and told Sgt Courtorielle that Ms.

Barata was driving at the time of the accident. [18] • On September 18, 2017, Mr. Ross told Cpl. Charron that Ms. Barata had told him she was driving at the time of the accident. [14] • On September 20, 2017, Cpl Charron emailed Mr. Ross and asked him not to send any information regarding Ms. Barata. [21] • On or before September 20, 2017, Mr. Barata called the RCMP detachment in St. Albert looking for a damage sticker for Ms. Barata’s vehicle. During that call, which was recorded by the RCMP, Mr. Barata said his wife was driving at the time of the collision. [21]

• On January 10, 2018 Ms. Barata was charged with: having care, charge or control of a vehicle that was involved in an accident with Cesar Vandamme, and with intent to escape civil or criminal liability, unlawfully failing to stop her vehicle, give her name and address and offer assistance to any person injured or appearing to require assistance, contrary to section 252(1) (

A) of the Criminal Code of Canada . [3] • On February 8, 2018 a Provincial Court Judge granted a production order requiring Intact to produce its documents relating to Ms. Barata’s insurance claim including her statement to Mr. Ross. The production order was based on information sworn to by peace officer Scott William McKee on February 7, 2018. Officer McKee’s affidavit is not in evidence before me. His name does not appear in the RCMP reports which are in evidence.

There is no evidence before me regarding whether the Provincial Court Judge was advised of the trial and appeal decisions in Porter . [23] • On March 5, 2018 Intact produced its file to the RCMP, which included Mr. Ross’s notes regarding his interview of Ms. Barata, but did not include a transcript of that interview. [26 – 107] • On June 8, 2018, Ms. Barata testified at Mr. Barata’s trial that she was driving on July 9, 2017. Mr. Barata was acquitted. [4] [ 41 ] Ms. Barata submits that the police charged her with a crime, the Crown prosecuted her and she endured a trial, as a result of Intact’s disclosure.

Other than the facts set out above, I have no evidence regarding why the police charged Ms. Barata or why the Crown prosecuted her. Ms. Barata submits that I can infer from the facts that the charges and the prosecution were the result of Intact’s disclosure. I disagree because the disclosure by Intact was only one source of the RCMP’s information that Ms. Barata was driving. The other source was Mr. Barata who phoned the RCMP on September 20, 2018 and told them that Ms. Barata was driving. Mr.

Barata’s evidence was stronger, because it was direct evidence of someone who was in the car, rather than hearsay provided by an insurance investigator. The RCMP had both pieces of evidence before they charged Ms. Barata on January 10, 2018. [ 42 ] The police notes in evidence cover the period July 21, 2017 to September 22, 2017. Those notes record investigative steps by the RCMP after August 31, 2017. I have no evidence regarding what, if any, investigative steps the police took between September 22, 2017 and January 10, 2018, when Ms.

Barata was charged. [ 43 ] Furthermore, the Crown had what the RCMP had on January 10, 2018, plus, from March 5, 2018 on, Mr. Ross’s notes obtained through a production order, and, from June 8, 2018 on, Ms. Barata’s sworn testimony at Mr. Barata’s trial that she was driving. [ 44 ] On the evidence before me, Ms. Barata has not proven, on a balance of probabilities, that either the charge against her or the prosecution of that charge resulted from Intact’s disclosure to the RCMP.

On the contrary, I find that Intact’s disclosure did not cause, or even contribute to, the charge and the prosecution, because more than four months passed between the disclosure on August 31, 2017 and the charge on January 10, 2018, and because in the meantime, Mr. Barata had told the RCMP directly that Ms. Barata was driving at the time of the accident. [ 45 ] Ms. Barata did not submit that Intact’s disclosure caused her any damages other than those that flowed from the criminal charge and prosecution.

On the evidence before me, it did not. [ 46 ] The third question in Master Summers September 21, 2020 order is: If the Defendants breached any duties owing to the Plaintiff without authorization or other valid reason for doing so, did such conduct cause the Plaintiff any damages? [ 47 ] The answer is no. 5. Punitive Damages [ 48 ] The consent order asks “did such damages constitute bad faith and entitle the Plaintiff to punitive damages”, but the parties’ submissions focus on whether Intact’s actions call for punitive damages.

Neither party submits that a breach of an insurer’s duty of utmost good faith necessarily means it acted in bad faith. Both parties rely on the Supreme Court of Canada’s decision in Whiten v Pilot Insurance Co 2002 SCC 18 . At paragraph 94 of that decision, the Court sets out suggested instructions to a jury on punitive damages. The first two are:

(1) Punitive damages are very much the exception rather than the rule, (2) imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behavior. [ 49 ] Bad faith is relevant, but not the only consideration. [ 50 ] In addition to the disclosure of Ms. Barata’s compelled statement to the RCMP, Ms. Barata cites the following as conduct warranting punitive damages: • Mr. Ross obtaining information from a police source that Mr. Barata had been charged, without having Ms.

Barata’s authorization to access the police file. This occurred on August 1, 2017. • Mr. Ross lying to Ms. Barata during his August 31, 2017 interview of her that other parties contradicted her version of events and that it is a criminal offence to lie to an insurance investigator. [ 51 ] Ms. Barata’s submissions that those actions warrant punitive damages assume the following:

• That it is unlawful for an insurer to obtain information from the police without the insured’s consent. • That it is unlawful for an insurance investigator to lie to an insured during an interview. • That it is not a criminal offence for an insured to lie to an insurance investigator. [ 52 ] Ms. Barata cites no authority for those propositions. They are not obviously correct. The evidence discloses that as a matter of practice, in 2017 the Morinville detachment of the RCMP would not release any information about an accident investigation to an insurer without the insured’s consent.

There may be some legal obligation on the police in that regard, though none has been cited to me. Even if the police are prohibited from releasing information without someone’s consent, that does not necessarily make it unlawful or in any way inappropriate for an insurance investigator to receive that information. [ 53 ] Similarly, Ms. Barata cites no authority for the proposition that it is unlawful for an insurance investigator to lie to an insured, or that it is not a criminal offence for an insured to lie to an insurance investigator.

Fraud is a criminal offence, which an insured may commit if she lies to obtain an insurance benefit to which she is not entitled: Criminal Code s. 380 . On the other hand, a lie by an insurance investigator may be directed at obtaining a truthful statement from the insured, and may be lawful. [ 54 ] At one point in his interview of Ms. Barata, Mr. Ross talks about the criminal offence of mischief and says it includes lying to an insurance company, which is incorrect. [133] The criminal offence of mischief does not involve lying: Criminal Code s. 430 .

The criminal offence of public mischief does, but only lying to a peace officer: Criminal Code ss. 140 . Ms. Barata cites this as one of the circumstances that constitute bad faith by Mr. Ross and Intact. I disagree. Mr. Ross’ misstatement regarding mischief occurs in the middle of a long statement by him in which covers many things, including mischief. He correctly states that lying to the police may be public mischief. In context, and based on the entire interview I find that his inclusion of lying to an insurance company was an honest mistake. Furthermore, the whole point of Mr.

Ross’s lengthy exhortation to Ms. Barata was to get her to tell the truth. There is no bad faith in that. [ 55 ] Ms. Barata also cites the following circumstances as relevant to whether punitive damages are warranted: • Mr. Ross’ attempt to provide his complete file to the RCMP, which was rebuffed in September 2017. Later, in March 2018 the RCMP obtained his file pursuant to the production order. • Mr. Ross’ failure to record in his notes all of his interactions with the RCMP. • Mr. Ross’ concern that Ms. Barata would commit a criminal offence by misleading the police. • Mr.

Ross’ desire to assist the police investigation. • Mr. Ross’ view that dishonesty by Ms. Barata would be a factor in denying her claims. • Mr. Ross’ belief that he was allowed to disclose information if he believed it was fraudulent. • Mr. Ross’ concession in questioning that his phrasing of a question to Ms. Barata during his interview of her could have been better. [ 56 ] None of those things is significant in assessing whether punitive damages are warranted. They are all minor and inconsequential. None is evidence of bad faith. [ 57 ] Ms.

Barata has failed to establish “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behavior” by Mr Ross and Intact. Mr. Ross was trying to help the police investigate a fatal motor vehicle accident. His desire to do so is understandable. At the time, in August and September 2017, Mr. Ross understood that Mr. Barata had been charged with offences based on him being the driver at the time of the accident, yet Ms. Barata had told Mr. Ross that she was the driver. Her story did not align with the charges. Mr.

Ross was trying to help the police get to the truth. [ 58 ] Mr. Ross’s disclosure of Ms. Barata’s statement given under the compulsion of the Insurance Act , was a breach of Intact’s duty of utmost good faith in investigating Ms. Barata’s claim, but it was not reprehensible conduct and it caused Ms. Barata no harm. For those reasons Ms. Barata is not entitled to punitive damages. [ 59 ] The fourth question in Master Summers September 21, 2020 order is: If the Plaintiff is entitled to damages, did such damages constitute bad faith and entitle the Plaintiff to punitive damages? [ 60 ] The answer is no. 6.

Disposition [ 61 ] I find as follows: The Defendants breached their duty of utmost good faith owing to the Plaintiff when they disclosed the contents of their conversation with the Plaintiff to the RCMP. The disclosure was not authorized by the Personal Information Protection Act . The disclosure did not cause the Plaintiff any damages.

The Defendants’ conduct did not constitute bad faith and the Plaintiff is not entitled to punitive damages. [ 62 ] If the parties are not able to agree on costs, costs may be spoken to no later than August 31, 2021. Heard on the 17 th day of March, 2021. Dated at the City of Edmonton, Alberta this 28 th day of May, 2021. G.S. Dunlop J.C.Q.B.A. Appearances: James Raworth of Northcott Edgerton Barristers and Solicitors for the Plaintiff Damian Shepherd and Katherine Faught of Chomicki Baril Mah LLP for the Defendants