Hagan v. Drover et al., (2009) 291 Nfld. & P.E.I.R. 193 (NLTD)

• Judge: Adams, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: October 16, 2009
• Jurisdiction: Newfoundland and Labrador
• Citations: (2009), 291 Nfld. & P.E.I.R. 193 (NLTD)

Hagan v. Drover (2009), 291 Nfld. & P.E.I.R. 193 (NLTD);

    898 A.P.R. 193

MLB headnote and full text

Temp. Cite: [2009] Nfld. & P.E.I.R. TBEd. OC.033

Anne Marie Hagan (plaintiff) v. Edwin Drover (first defendant) and London Life Insurance Co. (second defendant)

(200501T9276; 2009 NLTD 160)

Indexed As: Hagan v. Drover et al.

Newfoundland and Labrador Supreme Court

Trial Division

Adams, J.

October 16, 2009.

Summary:

The plaintiff was a financial security advisor operating under a sales agreement with London Life Insurance. Drover was the Regional Director of Freedom 55 Financial, a division of London Life, and the plaintiff's supervisor. After the sales agreement was terminated, the plaintiff sued London Life and Drover for damages for wrongful dismissal, defamation, harassment and discrimination, breach of privacy and negligence.

The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the action in its entirety.

Civil Rights - Topic 7006

Federal, provincial or territorial legislation - General - Effect of human rights legislation on availability of court actions - The plaintiff was a financial security advisor operating under a sales agreement with London Life Insurance - The plaintiff and her supervisor had a heated argument in a meeting - A few months later she was terminated for failing to meet her annual sales target - The plaintiff sued London Life for damages, claiming that London Life had breached its internal harassment and discrimination policy - The Newfoundland and Labrador Supreme Court, Trial Division, rejected the plaintiff's claim - There was no independent tort of harassment - The Human Rights Code did not give rise to a civil action for harassment - In any event, the plaintiff never actually invoked the company's policy - Also there was no merit to her discrimination claim (i.e., that she was treated differently than others who failed to meet their sales goals) - Just as there was no independent tort of harassment, there was no independent tort of discrimination at common law - The Human Rights Code was a comprehensive scheme which removed consideration of such a claim from the courts and lodged it with the Human Rights Tribunal - The plaintiff did not pursue a remedy under that Code - In any event, there was no evidence of discrimination on any of the enumerated grounds set out in the Code - See paragraphs 93 to 105.

Company Law - Topic 9704

Actions against corporations and directors - Liability of company - Identification theory - "Directing mind and will" of company - The plaintiff was a financial security advisor operating under a sales agreement with London Life Insurance - Drover was the Regional Director of Freedom 55 Financial, a division of London Life, and the plaintiff's supervisor - After the sales agreement was terminated, the plaintiff sued London Life and Drover for damages for wrongful dismissal, defamation, harassment and discrimination, breach of privacy and negligence - The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the action against Drover in its entirety because London Life had taken full responsibility for any liability and because of Drover's position within London Life's corporate hierarchy - The court held that Drover, as Regional Director, was a directing mind of London Life and any words or actions spoken or committed by him respectively were actually the words and actions of London Life - He was not at any time acting in his personal capacity - He had full authority within the Regional Centre to commit London Life to contractual obligations - See paragraphs 72 to 75.

Damages - Topic 5706

Contracts - Breach of contract - Injured feelings or emotional upset - The plaintiff was a financial security advisor appointed under a sales agreement with London Life Insurance to represent, sell, service and perform related activities in connection with London Life products - When the plaintiff's appointment was subsequently terminated she sued London Life for damages for mental distress arising out of the wrongful termination of the contract - The Newfoundland and Labrador Supreme Court, Trial Division, noted that this claim was not properly pleaded, but opined that it would reject the claim in any event - The court stated that the sales agreement was a commercial contract which did not give rise to damages for mental distress in the ordinary course of things - The contract gave London Life the right to terminate it on written notice - Here the plaintiff had three months' notice that her performance had fallen below what was expected financially - Also the plaintiff failed to prove any mental illness suffered as a result of her termination - See paragraphs 88 to 92.

Evidence - Topic 1591.1

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Doctor's opinion or notes - [See Evidence - Topic 1591.2 ].

Evidence - Topic 1591.2

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Medical records - The plaintiff sued the defendants for damages for wrongful dismissal, defamation, harassment and discrimination, breach of privacy and negligence - The defendants sought to admit the plaintiff's medical chart from her doctor's clinic as proof of its content without the physician who made the chart note being called as a witness by the defendants so that the physician could be cross-examined on it - The Newfoundland and Labrador Supreme Court, Trial Division, noted that under Ares v. Venner (SCC 1970), hospital records could be admitted as an exception to the hearsay rule - The court opined that there was no principled distinction to be drawn between hospital records and medical clinic records of a treating physician - Therefore, the chart was admissible, subject to the right of the plaintiff to challenge the chart, except in respect of any expert reports which were contained in the chart which were not admissible without the expert being available to be challenged on his or her opinion - The court commented that as it turned out, it did not have to refer to the chart for purposes of making its decision - See paragraphs 61 to 71.

Libel and Slander - Topic 746

The statement - What constitutes defamatory statement - Slander - Statements which are not slanderous - The plaintiff was a financial security advisor with London Life Insurance - The plaintiff had a heated argument in a meeting with her supervisor, Drover, part of which was in the presence of another employee, Quinn, at the supervisor's request - Drover repeatedly asked the plaintiff to leave his office and at one point told her to "Get the fuck out of my office!" - A few months later her contract was terminated - The plaintiff sued London Life for damages for defamation, claiming that the statements made in front of Quinn defamed her - These included an alleged statement that the plaintiff was unproductive and the worst of a list of unproductive financial security advisors - The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the defamation claim because the pleadings were inadequate - However, the court opined that to tell someone to "Fuck off" or "Get the fuck out of my office" was not defamatory on its face - Here, the defences of justification and qualified privilege presented a complete bar to the claim arising from this incident - The evidence showed that the plaintiff had previously acted inappropriately and unprofessionally from which it could be imputed that she was among the worst of the security advisors in the office - The occasion was one of qualified privilege and the plaintiff failed to establish malice - See paragraphs 117 to 121.

Libel and Slander - Topic 746

The statement - What constitutes defamatory statement - Slander - Statements which are not slanderous - The plaintiff was a financial security advisor with London Life Insurance - The plaintiff had a heated argument in a meeting with her supervisor, Drover - Thereafter Drover, in his capacity as Regional Director, wrote the plaintiff a letter expressing dissatisfaction and reprimanding her for her behaviour at the meeting and for unspecified previous behaviour - He also indicated that the letter would be put in her contract file - The letter also warned her that she had three months to meet annual sales targets or she would be terminated - When the targets were not met, her contract was terminated - The plaintiff sued London Life, claiming that the letter was defamatory - The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the defamation claim because the pleadings were inadequate - However, the court opined that on the evidence all the statements in the letter were true or, at least, constituted fair commentary drawn from proven facts where the fact warranted the imputation drawn - The court was also satisfied that the defence of qualified privilege was established respecting the letter - Also, the plaintiff failed to show that malice was the dominant purpose of the statements made in the letter - The fact that the letter had a dual purpose (i.e., a reprimand and a warning) was not enough to prove malice - See paragraphs 122 to 135.

Libel and Slander - Topic 746

The statement - What constitutes defamatory statement - Slander - Statements which are not slanderous - The plaintiff was a financial security advisor with London Life Insurance whose contract was terminated - The plaintiff sued London Life alleging that the retention in local files by London Life of emails and other notes from employees and management complaining about the plaintiff (the so-called "secret files") defamed her - The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the defamation claim because the pleadings were inadequate - However, the court opined that London Life had the right to keep a copy of the complaints in the fashion that it did - On the evidence, the substance of the complaints was true or was fair commentary drawn from the facts or recorded memories of events which warranted the imputation which was drawn - Further, the statements were published on an occasion of qualified privilege and the plaintiff failed to show that malice was the dominant purpose for their publication - There was no evidence that the information contained in these files was published by London Life outside of its corporate management team - See paragraphs 136 to 144.

Libel and Slander - Topic 2864

Defences - Justification or truth - Evidence and proof - [See first Libel and Slander - Topic 746 ].

Libel and Slander - Topic 2987

Defences - Qualified privilege - Employment relationship - [See all Libel and Slander - Topic 746 ].

Libel and Slander - Topic 3114

Defences - Fair comment - What constitutes fair comment - [See second and third Libel and Slander - Topic 746 ].

Libel and Slander - Topic 4063

Malice - As a bar to defence of fair comment or qualified privilege - Requirement of express or actual malice - [See all Libel and Slander - Topic 746 ].

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - The plaintiff was a financial security advisor for London Life Insurance - When the plaintiff's appointment was terminated she sued London Life for damages for defamation, arising from, inter alia, statements made by her supervisor in a heated meeting - The Newfoundland and Labrador Supreme Court, Trial Division, held that the matter was not properly pleaded - The court stated that "It is insufficient to simply make general descriptions of what may have been said and then ascribe to that description some defamatory imputation. It is not defamatory to tell someone to 'fuck off' (supposing this was proven to have been said) nor to tell someone to 'get the fuck out of my office!'" - However, notwithstanding the lack of pleading, the court stated that it would prefer to conclude that the issue had been properly pleaded and deal with the allegations that the plaintiff had been defamed in the meeting, in a reprimand letter and by the retention of documents in her personal files by London Life - See paragraphs 106 to 113.

Master and Servant - Topic 303

Nature of relationship - What constitutes and employer-employee relationship - The plaintiff was a financial security advisor appointed under a sales agreement with London Life Insurance to represent, sell, service and perform related activities in connection with London Life products - When the plaintiff's appointment was subsequently terminated she sued London Life for damages for wrongful dismissal - London Life claimed that the plaintiff was an independent contractor and thus she could not have been wrongfully terminated as the status of employer-employee was a prerequisite for a wrongful dismissal action - The Newfoundland and Labrador Supreme Court, Trial Division, held that the plaintiff was an independent contractor and therefore her wrongful dismissal claim had to be dismissed - The court considered that the contract described the parties as independent contractors and the plaintiff filed her income tax statements as an independent contractor - She was also allowed to set her own hours, the location from which she worked and the manner in which she carried out her activities - Her compensation came exclusively from commissions - She was responsible for all her operating expenses including any licensing requirements, office space at London Life and managerial assistance - See paragraphs 76 to 87.

Master and Servant - Topic 307

Nature of relationship - Contract for services - [See Master and Servant - Topic 303 ].

Torts - Topic 92.1

Negligence - Duty of care - Contract for services (i.e., independent contractors) - The plaintiff was a financial security advisor operating under a contract for services (sales agreement) with London Life Insurance - When the contract was terminated she sued London Life for damages for negligence, complaining, inter alia, that her supervisor managed through bullying and intimidation tactics and that London Life did not adequately investigate her complaints in that regard - The Newfoundland and Labrador Supreme Court, Trial Division, stated that since it had found the plaintiff to be an independent contractor, any duty of care owed her had to be found in the contract with London Life - The court stated that while London Life owed her a duty to provide a work environment free of harassment within the provincial human rights legislation, no action based on those principles could be maintained in the Supreme Court - No other duty of care arose in the context of the sales agreement - The court opined that even if such a duty of care existed, on the circumstances of this case, London Life had discharged it - Further the investigation was adequate in the circumstances - The court therefore dismissed the plaintiff's claim grounded in negligence - See paragraphs 165 to 174.

Torts - Topic 5410

Invasion of privacy - General - Violation of privacy - Statutory tort - The plaintiff was a financial security advisor operating under a contract for services with London Life Insurance - When the contract was terminated she sued London Life for damages for breach of privacy pursuant to the Privacy Act (NL) because London Life retained a reprimand letter in her private contract file at its head office - The Newfoundland and Labrador Supreme Court, Trial Division, held that the placing of the letter in the contract file was done for legitimate corporate purposes and not done "willfully and without claim of right" as set out in s. 3(1) of the Privacy Act - In any event, the the retention of the letter in the contract file was done on an occasion of qualified privilege - Section 5(2)(b) of the Act expressly exempted from its purview a publication that was protected by privilege - The court therefore dismissed the plaintiff's claim for breach of privacy in respect of the retention of the August letter in her contract file - The plaintiff's claim that there was a breach of her common law right to privacy similarly failed - See paragraphs 145 to 152, 163 and 164.

Torts - Topic 5410

Invasion of privacy - General - Violation of privacy - Statutory tort - The plaintiff was a financial security advisor operating under a contract for services with London Life Insurance - When the contract was terminated she sued London Life for damages for breach of privacy pursuant to the Privacy Act (NL) by photocopying the outside of unopened envelopes addressed to her at the Regional Centre for a few months after the plaintiff's contract was terminated - The Newfoundland and Labrador Supreme Court, Trial Division, found that the photocopying was done to ensure that the plaintiff was not doing business with other financial institutions contrary to her contract - She did not have a reasonable expectation of privacy in the outside of envelopes from other financial institutions addressed to her at London Life's office which appeared to conflict with her contractual obligations - Even if she had such an expectation of privacy, there was no evidence in the circumstances that London Life knew or ought to have known that it would have been a violation of her privacy (i.e., the plaintiff failed to prove that any violation was done "willfully and without claim of right") - The court therefore rejected the plaintiff's claim of breach of privacy on this ground - The plaintiff's claim that there was a breach of her common law right to privacy similarly failed - See paragraphs 153 to 157, 163 and 164.

Torts - Topic 5410

Invasion of privacy - General - Violation of privacy - Statutory tort - The plaintiff was a financial security advisor operating under a contract for services with London Life Insurance - When the contract was terminated she sued London Life for damages for breach of privacy pursuant to the Privacy Act (NL) by retaining in local files emails and other notes from employees and management complaining about the plaintiff (the so-called "secret files") - The Newfoundland and Labrador Supreme Court, Trial Division, held that London Life had a reasonable right to maintain such information pursuant to s. 3 of the Privacy Act and the plaintiff had no reasonable expectation of privacy thereto - Even if the plaintiff had a reasonable expectation of privacy in the circumstances, it could not be reasonably said that London Life acted willfully and without claim of right - Further, the information allegedly retained in the "secret files" was protected by qualified privilege and was therefore protected by the exemption provided in s. 5(2) of the Privacy Act - The plaintiff's claim that there was a breach of her common law right to privacy similarly failed - See paragraphs 158 to 164.

Torts - Topic 5545

Invasion of privacy - Collection and use of personal information - Actions - Common law - [See all Torts - Topic 5410 ].

Cases Noticed:

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 63].

Etienne v. McKellar General Hospital, 1994 CarswellOnt 1072 (Gen. Div.), dist. [para. 66].

Standard Investments Ltd. et al. v. Canadian Imperial Bank of Commerce (1985), 11 O.A.C. 318; 52 O.R.(2d) 473 (C.A.), leave to appeal denied (1986), 65 N.R. 78; 15 O.A.C. 237 (S.C.C.), refd to. [para. 73].

732311 Alberta Ltd. v. Paradise Bay Spa & Tub Warehouse Inc. et al. (2003), 339 A.R. 386; 312 W.A.C. 386; 2003 ABCA 362, refd to. [para. 74].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12, refd to. [para. 76].

Techform Products Ltd. v. Wolda (2000), 5 B.L.R.(3d) 111 (Ont. Sup. Ct.), revd. (2001), 150 O.A.C. 163; 206 D.L.R.(4th) 171 (C.A.), leave to appeal denied (2002), 295 N.R. 196; 171 O.A.C. 400 (S.C.C.), refd to. [para. 78].

Hub Financial Inc. v. Molinaro et al., [2002] O.T.C. 526; 18 C.C.E.L.(3d) 210 (Sup. Ct.), refd to. [para. 82].

Canada (Procureur général) v. Charbonneau (1996), 207 N.R. 299 (F.C.A.), refd to. [para. 85].

Therrien et al. v. True North Properties Ltd. et al. (2007), 418 A.R. 26; 2007 ABQB 312, refd to. [para. 87].

Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39, refd to. [para. 89].

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 93].

Keays v. Honda Canada Inc. (2008), 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 93].

Lieb v. Smith et al. (1994), 120 Nfld. & P.E.I.R. 201; 373 A.P.R. 201 (Nfld. T.D.), refd to. [para. 108].

Petten et al. v. E.Y.E. Marine Consultants et al. (1994), 120 Nfld. & P.E.I.R. 313; 373 A.P.R. 313 (Nfld. T.D.), refd to. [para. 109].

Lougheed v. Canadian Broadcasting Corp. (1979), 15 A.R. 201; 98 D.L.R.(3d) 264 (C.A.), refd to. [para. 109].

Kelsie v. Canada (Attorney General) (2003), 230 Nfld. & P.E.I.R. 255; 682 A.P.R. 255; 2003 NLSCTD 139, affd. [2005] Nfld. & P.E.I.R. Uned. 31; 2005 NLCA 27, refd to. [para. 115].

Wells v. Sears (2007), 264 Nfld. & P.E.I.R. 171; 801 A.P.R. 171 (N.L.C.A.), refd to. [para. 115].

Sidorsky et al. v. C.F.C.N. Communications Ltd. et al. (1994), 158 A.R. 161; 23 Alta. L.R.(3d) 116 (Q.B.), affd. (1997), 206 A.R. 382; 156 W.A.C. 382; 53 Alta. L.R.(3d) 255 (C.A.), refd to. [para. 116].

Henry v. Fox Ford (2004), 269 N.B.R.(2d) 63; 707 A.P.R. 63; 2004 NBCA 22, refd to. [para. 123].

Henry v. Foxco Ltd. - see Henry v. Fox Ford.

Moores v. Salter (1982), 37 Nfld. & P.E.I.R. 128; 104 A.P.R. 128 (Nfld. Dist. Ct.), refd to. [para. 131].

Hall v. Puchniak et al. (1997), 122 Man.R.(2d) 256 (Q.B. Master), affd. (1998), 42 C.P.C.(4th) 267 (Q.B.), affd. (1998), 131 Man.R.(2d) 130; 187 W.A.C. 130 (C.A.), refd to. [para. 131].

Rajakaruna v. Purdie and Stinson (1984), 34 Sask.R. 41 (Q.B.), refd to. [para. 131].

Hollinsworth v. BCTV et al. (1998), 113 B.C.A.C. 304; 184 W.A.C. 304; 34 C.C.L.T.(2d) 95 (C.A.), refd to. [para. 148].

Peters-Brown v. Regina District Health Board et al. (1995), 136 Sask.R. 126; 26 C.C.L.T.(2d) 316 (Q.B.), refd to. [para. 149].

Dawe v. Nova Collection Services (Nfld.) Ltd. (1998), 160 Nfld. & P.E.I.R. 266; 494 A.P.R. 266 (Nfld. Prov. Ct.), refd to. [para. 163].

Statutes Noticed:

Privacy Act, R.S.N.L. 1990, c. P-22, sect. 3, sect. 4 [para. 146]; sect. 5(2)(b) [para. 151].

Authors and Works Noticed:

Harris, David, Wrongful Dismissal (2007 Looseleaf Ed.), p. 2-2 [para. 87].

Counsel:

Robert B. Anstey, for the plaintiff;

Harold M. Smith, Q.C., and Graham Nattress, for the defendants.

This action was heard at St. John's, Nfld. and Lab., by Adams, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following reasons for judgment on October 16, 2009.