) ) Lise Bazinet Plaintiff – v. –, 2017 ONSC 5194

CITATION : Bazinet v. CompuCom Canada Co., et al ., 2017 ONSC 5194 COURT FILE NO.: 14-61238 DATE: 2017/09/08 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Lise Bazinet Plaintiff – and – CompuCom Canada Co.; Jane Errington in her capacity as ESTATE TRUSTEE without a Will for Robert Errington; and John Errington in his capacity as ESTATE TRUSTEE without a Will for Robert Errington Defendants ) ) ) ) ) ) ) ) )))))) Rodrigue Escayola, for the Plaintiff/Respondent Kurt Pearson, for the Defendants/Moving Parties, the Estate Trustees James A. Lenoury, for the Defendant/Respondent, CompuCom ) ) ) HEARD: March 30 and June 16, 2016 RULING ON MOTION FOR

SUMMARY JUDGMENT CORTHORN J.: Overview [ 1 ] In January 2013, Robert Errington died without a will. Following his death, a dispute arose between the plaintiff and the trustees of Robert’s estate with respect to the proceeds of a life insurance policy. The life insurance was available to Robert as part of an employee benefits package. [ 2 ] When Robert first enrolled in the employee benefits package, his employer was General Electric. The life insurance portion of the package was provided by ManuLife. General Electric was subsequently purchased by the defendant, CompuCom Canada Co.

Sometime after acquiring General Electric, CompuCom changed the life insurance provider for its employee benefits package from ManuLife to the Sun Life Assurance Company of Canada. [ 3 ] The documents produced as of this stage of the action are limited. No designation form, signed by Robert and identifying a beneficiary of the life insurance policy, has been produced by any of the parties. [ 4 ] The plaintiff is Robert’s former common-law spouse. She claims entitlement to the proceeds of the life insurance policy on the basis of:

a) A designation form she says she witnessed Robert sign in the late 1990s, and in which she is identified as the beneficiary of the policy;

b) A conversation she had with Robert, years after they had separated, during which he confirmed that out of gratitude to the plaintiff he continued to designate her as the beneficiary of the policy; and

c) Computer records generated by CompuCom with respect to the status of Robert’s employee benefits package, including the designated beneficiary of the policy. [ 5 ] The plaintiff’s claim is advanced in the context of the administration of Robert’s estate (the “Estate”). [ 6 ] The Estate Trustees are Robert’s brother and sister, John and Jane. Robert has four surviving siblings, including John and Jane. With Robert having died without a will, his four siblings are the beneficiaries, in equal shares, of the Estate. [ 7 ] The Estate Trustees dispute the plaintiff’s claims.

The Estate Trustees rely on conversations that at least one of Robert’s siblings had with Robert in the weeks prior to his death. The Estate Trustees allege that Robert no longer wanted the plaintiff to be the

beneficiary of the policy. [ 8 ] The Estate Trustees’ position is that the documentary evidence, if any, is insufficient to support a finding that the plaintiff was the designated beneficiary of the policy. In the absence of such a designation, the proceeds of the policy are payable to the Estate. The Estate Trustees pursue relief to that effect by way of a counterclaim. [ 9 ] The other defendant in the action is CompuCom, Robert’s employer as of the date of his death.

Upon being made aware of the dispute between the plaintiff and the Estate Trustees, CompuCom advised the plaintiff’s counsel that it was not taking any position as to who is entitled to the proceeds of the policy. At CompuCom’s request, Sun Life paid the proceeds of the policy into Court. The proceeds remain paid into Court pending resolution of the dispute between the plaintiff and the Estate Trustees. The Litigation [ 10 ] The plaintiff claims entitlement to the proceeds of the policy (approximately $190,000 plus interest).

Her claim is based on a beneficiary designation form that she alleges was completed by Robert when the employee benefits package was first offered to him by his then employer, General Electric. The plaintiff alleges that Robert never changed the beneficiary designation, even after the couple’s relationship came to an end. [ 11 ] The plaintiff alleges that Robert, who never married or had children, was always grateful to her for the positive changes she helped him to make in his life.

The assistance provided by the plaintiff included that she put her continued education on hold to provide financial support to Robert in order for him to better his level of education. The end result of Robert’s continued education was a change in his career path, including the job he secured at General Electric. [ 12 ] The plaintiff alleges that the documents produced by CompuCom are sufficient to satisfy the evidentiary requirements in support of (

a) a finding that she was, as of the date of Robert’s death, the designated beneficiary of the policy, and (

b) a declaration that she is entitled to the proceeds from the policy. [ 13 ] In the alternative, the plaintiff pleads that it was clearly always Robert’s intention that she be the beneficiary of the policy. She requests that, if necessary, the policy be rectified to reflect that intention. [ 14 ] The plaintiff’s claim is broader than the declaratory relief sought with respect to the proceeds of the policy. She also advances a claim for punitive damages in the amount of $250,000. In the prayer for relief, the claim for punitive damages is made against “the Defendants”.

That term is not defined anywhere in the statement of claim. In the absence of a definition of the term, and based on the manner in which the relief sought is particularized in the pleading, it could be inferred that the claim for punitive damages is made against all of the defendants. [ 15 ] I note, however, that the only specific allegations of intentional or malicious conduct are those involving the Estate Trustees. When the substantive portions of the statement of claim are considered, it could be inferred that the plaintiff is claiming punitive damages as against only the Estate Trustees.

Further support for that inference is found at paragraph 2 of the prayer for relief. In that paragraph the plaintiff claims “alternatively…as against CompuCom” for general damages only and in the amount of $250,000. The claim for general damages is based on negligence, breach of contract, negligent misrepresentation, and/or breach of fiduciary duties. [ 16 ] CompuCom denies that it was negligent, breached contracts, made any negligent misrepresentations, or breached a fiduciary duty (if any was owed).

CompuCom requests that the action against it be dismissed. [ 17 ] The Estate Trustees deny the allegations made against them, deny the plaintiff’s entitlement to the proceeds of the policy, and advance a claim on behalf of the Estate by way of counterclaim. The Estate Trustees seek a declaration that (

a) no valid beneficiary designation was ever made by Robert, and (

b) the beneficiary of the policy is therefore the Estate. Motion for

Summary Judgment [ 18 ] The Estate Trustees bring the motion for

summary judgment. They seek an order dismissing the plaintiff’s claims against them and granting the declaratory and other relief they are seeking by way of counterclaim. [ 19 ] The plaintiff’s response to the motion for

summary judgment is that the motion should be dismissed. She also responds by requesting that partial

summary judgment be granted in her favour. The plaintiff requests a declaration that she is the designated beneficiary of the policy. She also requests an order directing that the proceeds of the policy be paid to her. [ 20 ] CompuCom’s response to the motion for

summary judgment is twofold. Its primary position is that, in the context of the litigation as a whole, this is not an appropriate case for

summary judgment. CompuCom’s position is that:

a) Findings of credibility and reliability are crucial to the determination of the issues;

b) Summary judgment as requested by either the Estate Trustees or the plaintiff will not be dispositive of the proceeding because the plaintiff’s claim against CompuCom will remain to be determined. (I pause to note that the plaintiff’s claim against the Estate Trustees for punitive damages would not be disposed of if partial

summary judgment as requested by the plaintiff were granted.); and

c) A trial is required to ensure a fair and efficient determination of all of the issues. [ 21 ] CompuCom’s alternative position is that if the Court finds that this is an appropriate case for

summary judgment, then the evidence supports granting partial

summary judgment in favour of the plaintiff against the Estate Trustees and dismissing the latter’s counterclaim. Disposition

[22] I agree with the primary position of CompuCom. In the context of the litigation as a whole, it would not be appropriate togrant

summary judgment in this case.

Summary judgment, whether granted in favour of the plaintiff or the Estate Trustees, would notfully dispose of the action: • If

summary judgment were granted in favour of the Estate Trustees, the plaintiff’s claim against CompuCom would remain to bedetermined; and • If partial

summary judgment were granted in favour of the plaintiff, her claims against CompuCom and her claim against theEstate Trustees, the latter for punitive damages, would remain to be determined. [23] I also agree with CompuCom that there is a risk of duplicative proceedings and inconsistent findings. The evidentiary issuesto be resolved on the motion for

summary judgment would, regardless of the party in whose favour

summary judgment might be granted,remain to be determined with respect to the balance of the plaintiff’s claims. [24] The motion by the Estate Trustees for

summary judgment (

a) dismissing the plaintiff’s claims against them, and (

b) grantingsummary judgment in their favour on the counterclaim is dismissed. [25] The plaintiff’s request (although no formal cross-motion was made) for partial

summary judgment in the form of (

a) adeclaration that she is the designated beneficiary of the policy, and (

b) an order directing that she be paid the proceeds of the policy isalso dismissed. Consideration of the Litigation as a Whole [26] It has been slightly more than 3.5 years since the Supreme Court of Canada released its decision in Hryniak v. Mauldin (2014SCC 7 , 2014 S.C.C. 7, [2014] 1 S.C.R. 87). In her decision, Karakatsanis, J. called for “a shift in culture” (para. 20). Sherecognized that the adjudication of civil disputes by way of a full trial has become illusory for many litigants (para. 24). She encouragedlitigants and members of the judiciary to consider alternatives to a trial, including motions for

summary judgment. [27] Karakatsanis, J. began her analysis of the issue of access to justice by emphasizing that “Our civil justice system is premisedupon the values that the process of adjudication must be fair and just. This cannot be compromised.” (See para. 23.) [28] The principles of fairness and justice, the latter in particular, are reflected in Rule 20 of the Rules of Civil Procedure, R.R.O.1990, O. Reg. 194. In determining whether there is a genuine issue requiring a trial, a judge hearing a motion for

summary judgment isentitled to exercise fact-finding powers “unless it is in the interest of justice for such powers to be exercised only at a trial” (rule 20.04(2.1)). [29] With respect to the interest of justice, Karakatsanis, J. concluded that, “What is fair and just turns on the nature of the issues,the nature and the strength of the evidence and what is the proportional procedure” (para. 59). She also emphasized consideration of thelitigation as a whole: The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as awhole.

For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest ofjustice to use the new fact-finding powers to grant

summary judgment against a single defendant. Such partial

summary judgment mayrun the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest ofjustice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and bethe most proportionate, timely and cost effective approach. (para. 60) [30] The Ontario Court of Appeal has, in a number of recent decisions, emphasized the obligation on a judge hearing a motion forsummary judgment “to assess the advisability of the

summary judgment process in the context of the litigation as a whole”. (See: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, at para. 35 and Hamilton (City) v. Thier & Curran Architects Inc., 2015ONCA 64, at para. 22.) [31] I turn to assessment of the advisability of the

summary judgment process in the context of this action as a whole (the claimand counterclaim).

a) The Nature of the Claims [32] In

summary, the plaintiff’s claims are for (

a) declaratory relief as against all defendants, (

b) punitive damages against all orsome of the defendants, and (

c) general damages against CompuCom. Her claims require or may require: • The application of the law of statutory

interpretation to the relevant provisions of the Insurance Act; • A determination as to whether the policy requires rectification and, if so, whether the policy is to be rectified; • The laws of negligence including the existence of a duty of care and, if a duty is found to exist, the standard of care to be met (byCompuCom); • Whether CompuCom had a fiduciary duty towards Robert and/or the plaintiff and, if so, whether that duty was breached; • Whether CompuCom breached the contract of employment that it had with Robert; • Whether CompuCom made negligent misrepresentations to Robert with respect to the plaintiff’s status as designated beneficiary ofthe policy and, if so, whether Robert relied on the representations; and • The law of punitive damages as relates to the allegations of intentional and malicious conduct on the part of the Estate Trustees.

[ 33 ] I find that the majority of the claims listed above and the assessment of damages (general and punitive), if any, to which the plaintiff is entitled, would remain to be determined at trial if

summary judgment were granted in favour of the Estate Trustees or if partial

summary judgment were granted in favour of the plaintiff.

b) Potential for Inconsistent Findings [ 34 ] The motion record delivered on behalf of the Estate Trustees is 894 pages. It includes an affidavit from each of the two Estate Trustees. One such affidavit is 55 paragraphs and includes 26 exhibits. The other affidavit is 51 paragraphs and includes 11 exhibits. Neither of the Estate Trustees was cross-examined on their respective affidavits. [ 35 ] The plaintiff’s responding affidavit is 64 paragraphs and includes 26 exhibits. The plaintiff was cross-examined on her affidavit. The transcript of the cross-examination is 105 pages.

Although counsel for CompuCom was present at the cross-examination, he did not cross-examine the plaintiff. [ 36 ] Two versions of an affidavit sworn by an employee of CompuCom (the “Rotto Affidavit”), were delivered in response to the motion for

summary judgment. The second version is said to be based on documents and information obtained by CompuCom as preparation for the motion for

summary judgment continued. The Estate Trustees highlight the differences between the two versions of the Rotto Affidavit. The Estate Trustees question the admissibility of at least some portions of the second version of the Rotto Affidavit because of (

a) the source of the information, and (

b) the timing of the delivery of that version of the affidavit. [ 37 ] Ms. Rotto is located in the Dallas, Texas office of CompuCom. She has been working at CompuCom since 2005.

The Rotto Affidavit addresses a number of subjects including: • The timing of CompuCom’s acquisition of General Electric, and how the administration of payroll and employee benefits was transferred from the latter to the former; • How records specific to Robert’s employee benefits were maintained over time, including who had access to change those records (i.e. electronic records); • Changes that were made over time to Robert’s records for the purpose of employee benefits; and • Her belief as to the validity of the plaintiff remaining, as of the date of Robert’s death, as the designated beneficiary of the policy. [ 38 ] Ms.

Rotto was not cross-examined on her affidavit. [ 39 ] I am asked to resolve some of the issues in this action on the basis of affidavit evidence, when only one of the four affiants has been cross-examined. For three of the four affiants, I am asked to rely on the contents of affidavits that were prepared by counsel. This type of evidence has been referred to as “decontextualized” evidence ( Baywood Homes , at para. 44). [ 40 ] The transcript from a cross-examination may offer more, in terms of the quality of the evidence, than does affidavit evidence.

Transcript evidence has, however, also been described as “decontextualized” ( Baywood Homes , para. 44). [ 41 ] I am not confident that it is possible in the circumstances of this motion for

summary judgment to assess credibility and reliability of the affiants without the benefit of a trial. As noted by Karakatsanis, J. at paragraph 50 of Hryniak , “a process that does not give a judge confidence in her conclusion can never be the proportionate way to resolve a dispute”. [ 42 ] To embark on such a process, make findings of credibility and reliability, and determine the issues raised on the motion for

summary judgment would run the risk that the trial judge would, based on the oral evidence from the affiants, (

a) make different findings of credibility and reliability than, (

b) make different findings of fact than, and (

c) reach conclusions that are inconsistent with, the findings made and conclusions reached on the motion for

summary judgment.

Summary [ 43 ] The motion on behalf of the Estate Trustees for

summary judgment is dismissed. The cross-motion of the plaintiff for partial

summary judgment is also dismissed. [ 44 ] At paragraph 70 of the decision in Hryniak , Karakatsanis J. directed that a judge who hears and dismisses a motion for

summary judgment should, in the absence of compelling reasons to the contrary, seize herself of the action as the trial judge. I find that the purpose intended by that direction would not be well-served in this case. I have not made any findings of fact. I have made no assessments of credibility or reliability of the affiants. There has been no narrowing of the issues to be determined at trial. If the parties agree or one or more of the parties are of the view that the action would benefit from case management, it is open to them to apply for case management. [ 45 ] In

summary, I decline to remain seized of the matter. Costs [ 46 ] In the event the parties are unable to agree upon costs of the motion for

summary judgment, they may make written submissions as follows:

a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs;

b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure ;

c) Hard copies of any case law or other authorities shall be provided with the submissions and shall comply with Rule 4 of the Rules

of Civil Procedure with respect to font size;

d) The submissions, the documents referred to therein, case law, and other authorities, shall be on single-sided pages;

e) Written submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this Ruling is released; and

f) In the event any party wishes to deliver a reply to the costs submissions of the opposing party, the reply submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this Ruling is released. Reply submissions shall comply with paragraphs (

a) to (

d) above. _________________________________________ Madam Justice Sylvia Corthorn Released: September 8, 2017 CITATION: Bazinet v. CompuCom Canada Co., et al. , 2017 ONSC 5194 COURT FILE NO.: 14-61238 DATE: 2017/09/08

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Lise Bazinet Plaintiff/Respondent – and – CompuCom Canada Co.; Jane Errington in her capacity as ESTATE TRUSTEE without a Will for Robert Errington; and John Errington in his capacity as ESTATE TRUSTEE without a Will for Robert Errington Defendants/Moving Parties and Respondent RULING ON MOTION FOR

SUMMARY JUDGMENT Madam Justice Sylvia Corthorn Released: September 8, 2017