Benison v McKinnon, 2021 ABQB 843

Court of Queen’s Bench of Alberta Citation: Benison v McKinnon, 2021 ABQB 843 Date: 20211026 Docket: 1903 24395 Registry: Edmonton Between: Denise Benison and Robert Benison Plaintiffs - and - Moira McKinnon and Rick Bidaisee Defendants _______________________________________________________ Reasons for Decision of Brian W. Summers, Master in Chambers _______________________________________________________ The Application [ 1 ] The Defendants apply for an order striking the Statement of Claim pursuant to Rule 3.68 of Alberta Rules of Court. The Action [ 2 ] The Statement of Claim alleges the following: (

a) The Plaintiffs resided in Jasper, Alberta with their two children (“Benison Home”). The Plaintiff Robert Benison is an

RCMP officer (“Cst. Benison”) and his wife the Plaintiff Denise Benison (“Mrs. Benison”) is an outreach worker. (

b) The Defendant Rick Bidaisee is the supervisor of the RCMP detachment where Robert Benison is stationed (“Sgt. Bidaisee”). (

c) The Defendant Moira McKinnon (“Ms. McKinnon”) is an employee of Parks Canada. (

d) The Plaintiffs leased the Benison Home from the Government of Canada under the Canada National Parks Act. Pursuant to that legislation, lessees are required to reside at the property and failure to do so is a breach of the statute and may result in a cancellation of the lease. (

e) In May of 2017 Cst. Benison commenced parental leave and approximately one month later he and his wife and children travelled to Nova Scotia to visit family. (

f) Prior to departing for Nova Scotia, the Plaintiffs made arrangements for house sitters to occupy the Benison Home. (

g) In or about early August 2017, while on duty, Sgt. Bidaisee learned from one Kathy Keogan that the Plaintiffs were charging their house sitters rent while they were in Nova Scotia. (

h) Sgt. Bidaisee contacted Ms. McKinnon to inquire whether the Plaintiffs were in breach of the National Park Regulations respecting the occupancy of the Benison Home and in so doing Sgt. Bidaisee was laying a complaint against Cst. Benison (“First Complaint”). (

i) Ms. McKinnon wrote to the Plaintiffs advising that she had received a complaint to the effect that the Plaintiffs were no longer residing at the Benison Home and it was being rented out. (

j) The Plaintiffs responded by email that they did in fact continue to occupy the Benison Home but while they were on parental leave and travelling they had engaged house sitters for insurance purposes. (

k) Ms. McKinnon sent two emails to the Plaintiffs demanding a Statutory Declaration but the Plaintiffs did not receive them. (

l) Sgt. Bidaisee called Ms. McKinnon asking about the response of the Plaintiffs to her inquiries. Ms. McKinnon said that Cst. Benison was not cooperative. (

m) Sgt. Bidaisee and Ms. MacKinnon continued to have communications about the Plaintiffs’ lack of response to the email inquiries of Ms. McKinnon. (

n) On February 12, 2018, Ms. McKinnon wrote to Sgt. Bidaisee to advise that Parks Canada had concerns with Cst. Benison regarding his lease (“Second Complaint”). (

o) Sometime before September 25, 2018 Sgt. Bidaisee made a complaint against Cst. Benison for unprofessional conduct arising from the Second Complaint and one other purported breach of professional conduct (“Third Complaint”). (

p) The RCMP conducted a formal review and found Cst. Benison guilty of unprofessional conduct. Cst. Benison is appealing that finding. (

q) The communications between Sgt. Bidaisee and Ms. McKinnon were contrary to the policies of the RCMP and Parks Canada and were done personally, beyond the scope of their authority. (

r) The complaints were a deliberate attempt by the Defendants and each of them to harass the Plaintiffs and pressure Cst. Benison into quitting the RCMP or to render him medically incapable of performing his duties. In so doing the Defendants, and each of them, conspired to cause injury to the Plaintiffs. (

s) The filing of the three complaints was unlawful as it was contrary to the established policies of the Defendants’ employers and the Defendants knew or ought to have known that their actions would injure the Plaintiffs. (

t) The Plaintiffs arrangements regarding the Benison Home were of a private nature and they had a reasonable expectation of privacy. The solicitation of information by Sgt. Bidaisee from Ms. McKinnon was an invasion of the Plaintiffs’ private affairs, as was the exchange of information between them. (

u) As a result of the Defendants’ actions, Cst. Benison suffered serious mental and emotional anguish--in particular anxiety and depression. Rule 3.68 [ 3 ] Rule 3.68 provides: Court options to deal with significant deficiencies 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside;

(

c) that judgment or an order be entered; (

d) that an action, an application or a proceeding be stayed. 2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim.

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b).

(4) The Court may (

a) strike out all or part of an affidavit that contains frivolous, irrelevant or improper information; (

b) strike out all or any pleadings if a party without sufficient cause does not (

i) serve an affidavit of records in accordance with rule 5.5, (ii) comply with rule 5.10, or (iii) comply with an order under rule 5.11. [ 4 ] The Defendants assert that the Statement of Claim discloses no reasonable claim and is an abuse of process. [ 5 ] Pursuant to Rule 3.68(3) no evidence may be submitted with respect to an application that the Statement of Claim discloses no reasonable claim. No reasonable claim [ 6 ] The Plaintiffs assert that their Statement of Claim discloses four potential causes of action, as follows: (

a) Breach of privacy; (

b) Harassment; (

c) Intentional infliction of mental suffering; and (

d) Conspiracy. Breach of Privacy [ 7 ] Counsel for the Plaintiffs refers extensively to the decision of the Ontario Court of Appeal in Jones v Tsige, 2012 ONCA 32 to support his clients’ claim to breach of privacy. [ 8 ] In that case the Court referred to an

article by Professor William L. Prosser, entitled “Privacy” (1960), 48 Cal L. Rev. 383 where the learned author suggested, from his review of American jurisprudence, that there is not one tort of breach of privacy, but rather four, as follows (at paragraph 18): (

a) Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (

b) Public disclosure of embarrassing private facts about the plaintiff; (

c) Publicity which places the plaintiff in a false light in the public eye; (

d) Appropriation for the defendant’s advantage of the plaintiff’s name or likeness. [ 9 ] In the Jones v Tsige case the Court ruled that, in the province of Ontario, there is a tort of intrusion upon seclusion, the elements of which are (at paragraph 70): One who intentionally intrudes, physically or otherwise, upon the seclusion of another, or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person. [ 10 ] The Court went on to state:

[71] The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would includereckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third,that a reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish.... [72] These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion uponseclusion will arise only for deliberate and significant invasions of personal privacy.

Claims from individuals who are sensitive orunusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexualpractices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, canbe described as highly offensive. [11] The Plaintiffs argue that the tort of intrusion upon seclusion is made out in this case as: (

a) The conduct of the Defendants was intentional. They used private information against the Plaintiffs; (

b) The Plaintiffs’ information was used most improperly in the advancement of complaints outside the usual protocols; (

c) The Defendants used personal information gleaned from the performance of their employment duties to ruin one of thePlaintiffs. Such behaviour is utterly reprehensible to the average person; and (

d) The Plaintiffs have sustained damages due to this violation. Cst. Benison has experienced mental incapacity. [12] The Defendants reply that there is no common law tort of breach of privacy in Alberta and cite Al-Ghamdi v Alberta, 2017ABQB 684, aff’d 2020 ABCA 81 as authority. I agree with that assertion. I also agree with counsel for the Defendants that the case isbinding upon me. [13] Furthermore, even if there were a common law tort of breach of privacy in Alberta, I do not think that the facts of this casereach the threshold identified by the Court of Appeal in Ontario. Here, Ms.

McKinnon was investigating whether residence eligibilityrequirements for lands in Jasper National Park were being followed. The Plaintiffs do not assert that Ms. McKinnon’s job did not includemaking the inquiries that she did regarding occupation of the Benison Home. Likewise, it is not asserted that Sgt. Bidaisee consideringthe professional conduct of a member of his detachment is outside his authority. [14] Rather, the essence of the Plaintiffs’ complaint is that there should not have been communication between the Defendants as itwas not within the policies of their respective employers to do so.

Even if such communication is not within the respective policies ofParks Canada and the RCMP, I do not see such communication as highly offensive. The sole subject of the communication was whetherCst. Bidaisee was breaching the Canada National Parks Act and Regulations by renting out the Benison Home, which would be aconcern to both. I do not find this communication to be highly offensive. [15] I did want to note that counsel for the Plaintiffs brought to my attention the recent decision of Madam Justice Inglis in ES vShillington, 2021 ABQB 739.

In that case Madam Justice Inglis recognized the second category of breach of privacy: public disclosureof embarrassing private facts of the plaintiff. That decision does not affect my determination in this case.

Harassment [16] Counsel for the Plaintiffs referred to the statement by Madam Justice Horner in Sunshine Village Corporation v Chevalier,2018 ABQB 484 (“Sunshine”) (at paragraph 27) that if the tort of harassment exists, the requirements to establish it are: Outrageous conduct by the defendant; The defendant’s intention of causing or reckless disregard of causing emotional distress; The plaintiff suffered severe or extreme emotional distress; and Actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. [17] However, the Plaintiffs also acknowledge that: (

a) the tort of harassment has not been recognized because it is entirelyencompassed by the tort of intentional infliction of mental suffering (“IIMS”); and (

b) the courts will not consider a novel nominate tortif there is an existing legal remedy to redress the conduct which is the subject of complaint. Merrifield v Canada (Attorney General),2019 ONCA 205 (“Merrifield”) and Nevsun Resources v Araya, 2020 SCC 5. [18] In his Brief, counsel for the Plaintiffs states that the tests for harassment and IIMS are “essentially the same”. Since IIMS is atort recognized in our common law, I will turn to a consideration as to whether its requirements are met in this case. Intentional infliction of mental suffering (“IIMS”) [19] The elements of this cause of action are that the plaintiff establishes conduct that is: (

a) flagrant and outrageous; (

b) calculated to harm, and which (

c) results in visible and provable illness. [20] See Merrifield at paragraph 44 quoting Prinzo v Baycrest Centre for Geriatric Care, (ON CA), 2002 60

O.R. (3d) 474 , at paragraph 48 . Also see Boucher v Wal-Mart Canada Corp, 2014 ONCA 419 . [ 21 ] The parties have not provided me with any authority on what is considered “flagrant and outrageous” conduct. I have reviewed the case law with respect to this intentional tort to determine if there is any guidance as to what conduct on the part of a defendant amounts to “flagrant and outrageous”. [ 22 ] The recent Alberta cases of Dubé v RCMP, 2021 ABQB 451 and Sun v Huang, 2021 ABQB 782 both confirm the three part test for IIMS, but do not consider what conduct amounts to flagrant and outrageous.

As with a number of other reported cases with respect to IIMS, the cases consider what constitutes “a visible provable illness”. [ 23 ] In the case of Young v Borzoni, 2007 BCCA 16 the defendant Borzoni applied to strike the Plaintiffs’ claim against him under British Columbia’s equivalent of our Rule 3.68. The essence of the cause of action was that the defendants, consisting of neighbours, police and Mr. Borzoni, a lawyer acting for the neighbours, had driven the plaintiffs out of their apartment because of their smoking of marijuana. One of the claims was for intentional infliction of mental suffering.

In concluding that the statement of claim did not plead the material facts to support a claim of IIMS, the Court stated (at paragraph 35): While intentional infliction of mental suffering may arise from a deliberate course of conduct over time...the conduct must not only be flagrant, outrageous and extreme, but also of a type calculated to cause a recognizable psychiatric illness in the plaintiff (emphasis of the British Columbia Court of Appeal). [ 24 ] Merriam Webster Dictionary (online) provides several different

definitions of “flagrant” including “conspicuously offensive” and “so obviously inconsistent with what is right or proper to appear to be a flouting of law or morality”. It also includes in its definition of “outrageous” as “going beyond all standards of what is right or decent.” I believe that it is these

definitions that were intended when the courts have indicated that the conduct of the defendant must be “flagrant and outrageous”. [ 25 ] I find that the facts pled in the Statement of Claim regarding the conduct of the Defendants do not reach the threshold of “flagrant and outrageous”. As I indicated in my comments with respect to the alleged tort of breach of privacy, the fact that Ms. McKinnon, investigated whether the residency requirements in the National Park were being followed with respect to the Benison Home is not surprising nor offensive. It was not a flouting of law or morality. It was not going beyond all standards of what is right or decent. Such conduct on Ms. McKinnon’s

part is not flagrant nor outrageous. Likewise, I find that Sgt Bidaisee’s inquiries of Ms. McKinnon as to the status of her investigation with respect to whether the Benison Home was meeting the National Park’s residency requirements is neither flagrant nor outrageous. [ 26 ] I conclude that the tort of IIMS is not made out in the Plaintiffs’ Statement of Claim. Conspiracy [ 27 ] Counsel for the Plaintiffs and the Defendants both cite Sunshine as setting out the necessary elements for this tort, as follows (at paragraph 13): (

a) An agreement between two or more persons; (

b) A concerted action taken pursuant to the agreement; (

c) Evidence of either the intention of the conspirators to cause damage to the plaintiff if the action is lawful, or evidence that the conspirators knew or ought to have known that their actions would injure the plaintiff if the action is unlawful; and (

d) The plaintiff must sustain actual damage. [ 28 ] The Plaintiffs direct the Court to paragraph 41 of their Statement of Claim with respect to this cause of action. That paragraph states: 41. These complaints were part of a deliberate attempt by the Defendants, and each of them, to harass the Plaintiffs and pressure the Plaintiff, Robert Benison, into quitting the RCMP or to render the Plaintiff, Robert, medically incapable of performing his duties.

In so doing, the Defendants, and each of them, conspired to cause injury to the Plaintiffs, and each of them. [ 29 ] The Plaintiffs say that paragraph 47 of their Statement of Claim sets out how Cst.

Benison sustained serious mental and emotional anguish as a result of the actions of the Defendants. [ 30 ] I agree with the position of the Defendants that the Statement of Claim fails to properly plead an action in conspiracy as it fails to state that there was an agreement between the Defendants and what the agreement was between them. [ 31 ] I conclude that the tort of conspiracy is not made out in the Statement of Claim. Abuse of process [ 32 ] In the alternative, Sgt. Bidaisee asserts that the action against him should be dismissed under Rule 3.68(2)(

d) as an abuse of process as it is a collateral attack on the RCMP internal conduct process. That process is ongoing as Cst. Benison is appealing the finding of unprofessional conduct. As the complaint against Cst Benison included the “Second Complaint” referenced in the Statement of Claim, I agree that this action against Sgt. Bidaisee is a collateral attack on the RCMP internal process and accordingly is an abuse of process.

Conclusion [ 33 ] The Defendants’ application to strike this action under and pursuant to Rule 3.68 is granted. If the parties cannot agree on costs, they may apply in morning Chambers for a determination of that issue. Heard on the 21 st day of September, 2021. Dated at the City of Edmonton, Alberta this 26 th day of October, 2021. Brian W. Summers M.C.Q.B.A. Appearances: Roger Stephens Simons and Stephens for the Plaintiffs James Elford Department of Justice Canada for the Defendants