COURT OF APPEAL SUMMARIES (OCTOBER 21 – OCTOBER 25, 2019)Donovan v. Waterloo Regional Police Services Board, 2019 ONCA 845 (CanLII)
[Hoy A.C.J.O., van Rensburg and Roberts JJ.A.]
KD, acting in person
Donald B. Jarvis and Cassandra Ma, for the respondents
Keywords: Determination of an Issue Before Trial, Absolute Privilege, Self-Represented Litigant, Fleming v. Massey, 2016 ONCA 70, Amato v. Welsh, 2013 ONCA 258, Odhavji Estate v. Woodhouse, 2003 SCC 69, Rules of Civil Procedure, Workplace Safety and Insurance Act, 1997, SO 1997, c. 16, Sched. A
KD commenced an action alleging that the Waterloo Regional Police Service Board (the “Board”) and the Chief of the Waterloo Regional Police Service (the “Chief”) (collectively the “Respondents”) breached a settlement agreement between the two parties by appealing her claim for benefits to the Workplace Safety and Insurance Board (“WSIB”) and by disclosing the settlement in an affidavit. On a motion, the WSIB claim was struck because an employer cannot contract out of the Workplace Safety and Insurance Act, 1997, SO 1997, c. 16, Sched. A (“WSIA”). The confidentiality claim was struck because the affidavit was used by the Board in defending a class action in court and as such was covered by absolute privilege. Finally, the motion judge concluded that the pleading did not contain sufficient allegations to establish independent claims against the Chief. KD appeals the motion judge’s dispositive order dismissing her action against the Respondents for disclosing no reasonable cause of action without leave to amend.
(1) Is it plain and obvious that the appellant’s claims about the Board cannot succeed?
(2) Do the pleadings contain a tenable claim against the Chief?
The motions judge relied on the ruling in Fleming v. Massey, 2016 ONCA 70 to find that the settlement agreement could not preclude the Board from exercising its rights or discharging its obligations under the WSIA and that as a matter of law, the parties could not contract out of the scheme under the WSIA. The settlement agreement, however, is not contrary to the objectives of the WSIA which, as noted in Fleming, are in part to ensure that injured workers have access to compensation. KD continued to receive benefits after her resignation and it wasn’t until after the parties signed the settlement that the Board initiated the appeal. These facts differ significantly from Fleming and so it is not plain and obvious that Fleming would stand in the way of KD’s claim.
The motions judge struck the confidentiality claim because he was of the view that it could not be based solely on an affidavit prepared for a court proceeding. It is not, however, plain and obvious that the Chief’s affidavit is subject to absolute privilege. There are competing interests at stake, absolute privilege and confidentiality, and because of this, the matter should be decided with an evidentiary record and not on a pleadings motion (Amato v. Welsh, 2013 ONCA 258).
(2) Even though the appellant only framed her pleadings in contract and did not include tort (Odhavji Estate v. Woodhouse, 2003 SCC 69), she is self-represented and should be granted leave to amend her claim.
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