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In Derenzis v. Gore Mutual et al., 2024 ONSC 5367, the Ontario Superior Court dealt with a significant case where the plaintiff, Lucia Derenzis, sought over $10 million in damages from her insurer, Gore Mutual Insurance Company, and several co-defendants. The plaintiff had been injured in a motor vehicle accident on November 24, 2015, and claimed that Gore Mutual and its subcontractors had wrongfully limited her entitlement to Statutory Accident Benefits (SABS).

Gore Mutual, along with Rapid Interactive Disability Management (RIDM), argued that the Licence Appeal Tribunal (LAT) has exclusive jurisdiction over disputes regarding SABS, as prescribed under the Statutory Accident Benefits Schedule. The defendants maintained that the LAT, not the civil Court, was the proper forum to resolve such matters. Accordingly, they filed a Rule 21 motion to strike out the claims brought by Derenzis.

Justice Mandhane agreed with much of Gore Mutual’s position, dismissing the majority of the claims against the insurer. The Court found that most of the plaintiff’s tort claims—including allegations of battery, harassment, breach of privacy, and abuse of legal process—had no reasonable prospect of success and were properly within the LAT’s jurisdiction. Importantly, the Court struck down these claims without leave to amend, signaling their lack of legal merit.

Battery

The Court dismissed this claim noting that batter requires the plaintiff to prove a direct interference with a person that is harmful, offensive or non-trivial, and without consent. The Plaintiff did not articulate how Gore or its employees could be held liable for battery but the therapist subcontracted by RIDM. No employee of Gore ever touched the plaintiff, nor was there evidence of any injury that was an “immediate consequence” of an action “set in motion” by Gore. With a claim directly against that therapist, it was noted that that the limitation period had passed and there was no exception.

Harassment

The Court did allow one narrow claim to proceed—the intentional infliction of emotional distress. Justice Mandhane notes that the Plaintiff conceded in oral arguments that the cause of action she was pleading was meant to be “intentional infliction of emotional distress” – there is no tort of harassment.

Justice Mandhane notes that  “To succeed on a claim for intentional infliction of emotional distress, the plaintiff must show that: (a) the defendant engaged in flagrant or outrageous conduct; (b) the conduct was calculated to produce harm; and (c) the conduct resulted in mental or psychological injury.”

Even so, it remains to be proven whether Gore Mutual’s actions amounted to anything more than standard insurance practices and it was not plain and obvious that the claim was “doomed to fail” assuming the facts, as pled, it is possible the moving defendants could be held liable. Gore had sent the plaintiff for medical assessments and conducted surveillance in response to her significant claims, both of which are common practices in the insurance industry to protect against fraud and ensure claims are legitimate and, in this case, to “to determine her levels of activity and determine what assistance she required [LAT decision]”.

Breach of Privacy

Again, the Plaintiff conceded in oral argument that this cause of action was improperly framed and it ought to be the tort of inclusion upon seclusion, which requires her to prove that the “the defendant’s conduct was intentional or reckless; that the defendant invaded, without lawful justification, the plaintiff’s private affairs or concerns; and that a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish (emphasis of the writer)”.

Justice Mandhane dismissed this claim as nowhere in the claim were sufficient facts pled which indicated that the defendants accessed personal information without legal justification. It was noted that she would have signed a consent when she applied for SABS. The plaintiff’s primary issue was how her information was used after it was lawfully accessed – the proper recourse being a complaint to the Federal Privacy Commissioner.

Breach of Good Faith

This claim was summarily dismissed as the Court found it was not a “freestanding cause of action” rather a principle of contract law that would be considered in the context of punitive damages.

Abuse of Process

The tort of abuse of process has four elements:

  1. The defendant must initiate the process with the plaintiff as a party
  2. The defendant must initiate the process for some indirect, collateral and improper objective
  3. the defendant must have taken or made a definite act or threat in furtherance of the improper purpose
  4. Some measure of special damage must result.

The Court found this cause of action “destined to fail” on the first element where Derenzis initiated the action and legal process, not the defendants.

Dasilva Claims

Moreover, the Court dismissed entirely the claims brought by the plaintiff’s son-in-law, Joshua DaSilva, who sought over $3 million in damages. DaSilva alleged that he was injured during a surveillance operation, but the Court found no reasonable connection between the actions of Gore Mutual or its employees and DaSilva’s alleged injuries nor the actions of the investigator. Justice Mandhane stated,

“While DaSilva may have a claim for battery or negligence against Wright and Whitehall, it is plain and obvious that his claim against the moving defendants must fail. There is no immediate connection between Gore and its employees or Rapid Disability, on the one hand, and the intentional application of force to DaSilva, on the other. Even if Wright were found to be negligent, the Plaintiffs do not plead a sufficient basis to hold Gore or Rapid Disability liable given that they are separately incorporated entities.”

Constitutional Challenge/Abuse of Process

One of the most critical aspects of the case was the plaintiff’s attempt to challenge the constitutionality of sections of the SABS and the Insurance Act. While the Court declined to dismiss the constitutional challenge outright, it made clear that such claims face an uphill battle. Gore Mutual’s defence team rightly argued that these statutory frameworks are well-established in Ontario’s legal landscape, and the Court did not appear inclined to disrupt the current insurance regime without strong evidence. Justice Mandhane deemed the constitutional question raised with the Court as an abuse of process as it had already been raised at the LAT,

“Rather than following through with the notice of constitutional question that she filed with the LAT, Derenzis has launched a duplicative proceeding before me. This is an abuse of process. Derenzis’ challenge to s. 55 of the SABS shall be struck without leave to amend as an abuse of process.”

The decision underscores the importance of proper jurisdictional channels in accident benefits disputes. Gore Mutual’s stance that the LAT is the correct forum for resolving such matters was largely vindicated. The Court refused to dismiss the claim fully on the basis of jurisdiction until the constitutionality of section 280 of the Insurance Act was determined (the exclusive jurisdiction legislation). The Court reaffirmed that the LAT has exclusive jurisdiction over statutory accident benefits disputes, protecting insurers like Gore Mutual from being drawn into complex and costly civil litigation when regulatory processes are already in place. This ruling highlights the challenges claimants face when attempting to sidestep statutory processes, in favor of civil litigation.

Peter Durant and Adel Pippo are the authors of this blog and members of the Licence Appeal Tribunal practice group at the firm. If you have a question about this blog or a similar file, please contact Peter at 416-777-5234 or Adel at 416-624-3280