Koeppen v. LoVecchio et al., 2001 ABPC 89

• Judge: Hess, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: April 27, 2001
• Citations: 2001 ABPC 89;(2001), 290 A.R. 1 (ProvCt)

Koeppen v. LoVecchio (2001), 290 A.R. 1 (ProvCt)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. MY.118

Andrew Koeppen v. Liz LoVecchio, Judy Tilston, Jennifer Pollock and Diane Danielson

(P0090103495; 2001 ABPC 89)

Indexed As: Koeppen v. LoVecchio et al.

Alberta Provincial Court

Hess, P.C.J.

April 27, 2001.

Summary:

The defendants were trustees with the Calgary Board of Education (CBE). The plaintiff claimed that letters that he wrote to two of the defendants were released to a newspaper reporter. The plaintiff sued the defendants for breach of his reasonable expectation of privacy, breach of fiduciary duty, conspiracy to injure, abuse of public office and violation of the Freedom of Information and Protection of Privacy Act. In a separate proceeding, the Information and Privacy Commissioner allowed a complaint by the plaintiff against the CBE, found that the CBE breached the plaintiff's statutory privacy rights and determined that the CBE and its board of trustees were one and the same. The plaintiff concluded a settlement with the CBE. The defendants applied for a nonsuit under rule 260 of the Consolidated Rules of the Court of Queen's Bench.

The Alberta Provincial Court allowed the application and dismissed the action.

Courts - Topic 8406

Provincial courts - Alberta - Provincial Court - Jurisdiction - Monetary - The defendants were trustees of the Calgary Board of Education (CBE) - The plaintiff claimed that letters that he wrote to two of the defendants were released to a newspaper reporter - The plaintiff concluded a settlement with the CBE - The Alberta Provincial Court dismissed the action against the defendants - The court held, inter alia, that the plaintiff failed to prove any damages - Further, any money received under the CBE settlement would have been credited against any damages assessed against the defendants, providing the starting point for damages in the action, thus exceeding the court's monetary jurisdiction - This was so whether or not the CBE and the defendants were joint tortfeasors - See paragraphs 58 and 67.

Damages - Topic 1296

Exemplary or punitive damages - General -The Alberta Provincial Court held that punitive damages could not be imposed in the abstract (i.e., in the absence of real and measurable damage) - See paragraphs 64 to 67.

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - The defendants were Board of Education trustees - The plaintiff claimed that letters that he wrote to two of the defendants were released to a newspaper reporter - The plaintiff sued the defendants for, inter alia, breach of fiduciary duty - The Alberta Provincial Court found no evidentiary basis that a fiduciary relationship existed - There was no evidence that the plaintiff relied upon the defendants for guidance or advice or that the defendants had any interest or derived any benefit from the plaintiff sharing his opinions or personal information with them - See paragraphs 40 to 42.

Equity - Topic 3904

Fiduciary or confidential relationships - Breach of confidence - Elements of action for - The defendants were Board of Education trustees - The plaintiff claimed that letters that he wrote to two of the defendants were released to a newspaper reporter - He sued the defendants for, inter alia, breach of confidence - The Alberta Provincial Court dismissed the action - The plaintiff gave the defendants no notice of a claim for confidence and the defendants had no policy of confidentiality with respect to the subject matter of the letters (a public policy issue) - In any event, the plaintiff released the information prior to the defendants' alleged conduct - Thus, if the information ever was confidential, it ceased to be so before the defendants' alleged breach of confidence - See paragraphs 30 to 37.

Equity - Topic 3910

Fiduciary or confidential relationships - Breach of confidence - Defences - [See Equity - Topic 3904 ].

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - The defendants were trustees of the Calgary Board of Education (CBE) - The plaintiff claimed that letters that he wrote to two of the defendants were released to a newspaper reporter - In a separate proceeding, the Information and Privacy Commissioner allowed a complaint by the plaintiff against the CBE, found that the CBE breached the plaintiff's statutory privacy rights and determined that the CBE and its board of trustees were one and the same - The plaintiff concluded a settlement with the CBE - The Alberta Provincial Court held that the plaintiff could not now maintain an action against the defendants - He had already put all matters in issue before the Commissioner, received the remedy that he sought and taken benefit from that decision - The defendants were privies to the proceeding before the Commissioner; it was their alleged wrongdoing of which the plaintiff complained - See paragraphs 51 to 53.

Practice - Topic 5390.1

Dismissal of action - Application or motion for dismissal - Nonsuit - At close of plaintiff's case - When available (incl. grounds) - Defendants applied under rule 260 for a nonsuit at the end of the plaintiff's case - The plaintiff argued that this would deny him the opportunity to prove essential elements of his claim by putting questions to the defendants - The Alberta Provincial Court rejected the plaintiff's argument for two reasons - First, the defendants could elect to simply not call any evidence, without reliance upon rule 260 - Second, pretrial applications could be entertained in Provincial Court and orders granted for limited discovery and for interrogatories - See paragraphs 25 to 26.

Practice - Topic 9853

Settlements - By one of multiple defendants or joint tortfeasors - Effect of - [See Releases - Topic 4066 ].

Releases - Topic 4066

Operation - Persons released - Joint or joint and several obligors - Effect of release of one - The defendants were trustees of the Calgary Board of Education (CBE) - The plaintiff claimed that letters that he wrote to two of the defendants were released to a newspaper reporter - In a separate proceeding, the Information and Privacy Commissioner allowed a complaint by the plaintiff against the CBE, found that the CBE breached the plaintiff's statutory privacy rights and determined that the CBE and its board of trustees were one and the same - The plaintiff concluded a settlement with the CBE, wherein his right to pursue a remedy against the trustees was specifically reserved - The Alberta Provincial Court dismissed the action against the defendants - The court held that the settlement also released the defendants because they were joint tortfeasors with the CBE - See paragraphs 54 to 57.

Torts - Topic 5401

Invasion of privacy - General - The defendants were Board of Education trustees - The plaintiff claimed that letters that he wrote to two of the defendants were released to a newspaper reporter - The plaintiff sued the defendants for, inter alia, invasion of privacy - The Alberta Provincial Court found no evidence of any invasion of privacy - The defendants had no contact with the plaintiff, except to respond to his letters and in some cases to return his telephone calls - The plaintiff invited this communication and took no issue with the responses of the defendants who answered - There was no evidence that the defendants initiated any contact with the plaintiff or did anything to harass or interfere with the plaintiff or to disrupt his enjoyment of life - See paragraphs 27 to 29.

Torts - Topic 5703

Conspiracy - General - Elements - The defendants were Board of Education trustees - The plaintiff claimed that letters that he wrote to two of the defendants were released to a newspaper reporter - The plaintiff sued the defendants for, inter alia, conspiracy to injure - The Alberta Provincial Court dismissed the action - The elements of conspiracy were not proved - There was no proof that more than one defendant was involved in the release of the letters - There was no evidence that the defendants knew or ought to have known that the release of the plaintiff's address and telephone number would concern him (i.e., knowledge that injury to the plaintiff would ensue) - Finally, the plaintiff failed to demonstrate actual damage - See paragraphs 38 to 39.

Torts - Topic 7165

Joint and concurrent tortfeasors - Joint tortfeasors - Release of one - Effect of - [See Releases - Topic 4066 ].

Torts - Topic 9163

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Education authorities - The defendants were trustees of the Calgary Board of Education (CBE) - The plaintiff claimed that letters that he wrote to two of the defendants were released to a newspaper reporter - In a separate proceeding, the Information and Privacy Commissioner allowed a complaint by the plaintiff against the CBE, held that the CBE breached the plaintiff's statutory privacy rights by disclosing his letters and determined that the CBE and its board of trustees were one and the same - The plaintiff concluded a settlement with the CBE - The plaintiff's action against the defendants included a claim for breach of public duty - The Alberta Provincial Court dismissed the action - The statute did not provide a civil remedy for its breach - See paragraphs 43 to 48.

Cases Noticed:

Wentzell v. Spidle (1987), 81 N.S.R.(2d) 200; 203 A.P.R. 200 (C.A.), refd to. [para. 24].

Motherwell v. Motherwell (1976), 1 A.R. 47 (C.A.), refd to. [para. 27].

Dyne Holdings Ltd. et al. v. Royal Insurance Co. of Canada et al. (1996), 138 Nfld. & P.E.I.R. 318; 431 A.P.R. 318; 34 C.C.L.I.(2d) 180 (P.E.I.C.A.), refd to. [para. 28].

Saccone v. Orr (1981), 34 O.R.(2d) 317; 19 C.C.L.T. 37 (Co. Ct.), refd to. [para. 28].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57; 61 D.L.R.(4th) 14; 35 E.T.R. 1; 44 B.L.R. 1, refd to. [para. 30].

United Kingdom (Attorney General) v. Observer Ltd. et al., [1990] 1 A.C. 109; 99 N.R. 241 (H.L.), refd to. [para. 32].

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191; 145 D.L.R.(3d) 385, refd to. [para. 38].

Burns et al. v. Kelly Peters & Associates Ltd. et al. (1987), 41 C.C.L.T. 257 (B.C.C.A.), refd to. [para. 41].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425; 143 D.L.R.(3d) 9; [1983] 3 W.W.R. 97, refd to. [para. 48].

Alberta v. Nilsson (1999), 246 A.R. 201; 70 Alta. L.R.(3d) 267 (Q.B.), refd to. [para. 49].

Ringrose v. College of Physicians and Surgeons and Employees, Council of et al. (1984), 53 A.R. 372 (C.A.), leave to appeal denied (1984), 56 N.R. 319; 54 A.R. 160 (S.C.C.), refd to. [para. 52].

Dodsworth v. Holt and Buckler (1964), 47 W.W.R. 243 (Alta. S.C.), appld. [para. 55].

Duwyn et al. v. Kaprielian (1979), 22 O.R.(2d) 736; 7 C.C.L.T. 121; 94 D.L.R.(3d) 424 (Ont. C.A.), refd to. [para. 60].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321; [1989] 4 W.W.R. 218; 58 D.L.R.(4th) 193; 36 B.C.L.R.(2d) 273; 90 C.L.L.C. 14,035; 25 C.C.E.L. 81, refd to. [para. 62].

Guarantee Trust Co. of Canada v. Public Trustee et al. (1978), 87 D.L.R.(3d) 417 (Ont. H.C.), appld. [para. 65].

Authors and Works Noticed:

Sopinka, John, Lederman, S.N., and Bryant, A.W., The Law of Evidence in Canada, p. 521 [para. 24].

Counsel:

John V. Carpay, for the plaintiff;

Clive O. Llewellyn, for the defendants.

This action was heard by Hess, P.C.J., of the Alberta Provincial Court, who delivered the following decision on April 27, 2001.