Date: 20061024
Docket: T-1722-05
Citation: 2006
FC 1266
Ottawa, Ontario, October 24,
2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
LORNE
FUNK
Applicant
and
BANK OF MONTREAL
Respondent
REASONS FOR ORDER AND ORDER
[1]
In this
proceeding Lorne Funk is seeking damages from the Bank of Montreal (Bank) for
an alleged violation of his privacy interests.
[2]
Mr. Funk’s
concern stems from a telephone call he received from the Bank asking him
whether, as a bank customer and mortgagor, he might like to purchase life and
disability insurance coverage. This call appears to be the type of direct
marketing solicitation that is well known to most Canadians.
[3]
Mr. Funk
concedes that the Bank representative asked him his name and brought up the
matter of his mortgage. He was nevertheless upset that his business
relationship with the Bank was not clearly established before the details of
his mortgage were disclosed in the conversation.
[4]
Mr. Funk
was sufficiently troubled by the Bank’s conduct that he made an official complaint
to the Privacy Commissioner (Commissioner) on July 9, 2004. The Commissioner
conducted an investigation under the Personal Information Protection and
Electronic Documents Act S.C. 2000, c. 5 (Act) and, following discussions, the
Bank agreed to modify its telephone protocols to clearly confirm customer
identity before disclosing confidential information. The Commissioner found
this improvement in the Bank’s telephone procedures to be satisfactory.
[5]
The
Commissioner’s investigation report also noted that the Bank had not used Mr.
Funk’s personal information inappropriately because he had consented to contact
from the Bank. His “use” complaint was, accordingly, dismissed. The
Commissioner’s report also indicated that she was not satisfied with the Bank’s
procedure for allowing its customers to opt-out of direct marketing programs.
She therefore recommended to the Bank that it simplify the opt-out process for
its customers.
[6]
Apparently
Mr. Funk was not satisfied with the Commissioner’s response because on October
11, 2005, he brought an application in this Court seeking damages from the Bank
for legal expenses, loss of time and revenue and for humiliation.
[7]
Although
Mr. Funk’s Notice of Application is somewhat obtuse, it is apparent that he is
seeking relief under section 16 of the Act which does allow the Court to
award damages in appropriate cases for a breach of the statutory privacy
obligations. Section 17 of the Act provides for the summary
determination of such applications unless the Court directs otherwise. In the
usual course such an application would, therefore, proceed with affidavits and
argument and not with an oral hearing.
[8]
On this
motion the Bank is seeking an order dismissing Mr. Funk’s application on a
preliminary basis. The Bank says that Mr. Funk’s application is so bereft of
merit that it should be struck out now. It points out that the only evidence
offered by Mr. Funk in his supporting affidavit is a bare assertion that “I
have suffered damages” in the form of “legal expenses, loss of time and revenue
and for humiliation suffered”.
[9]
The
likelihood of Mr. Funk obtaining damages on the strength of what he has filed
with the Court to date would have to be considered remote. The absence of any
meaningful supporting evidence may be explained by Mr. Funk’s mistaken belief
that he would be entitled to an oral hearing with an opportunity to
testify. While that is a theoretical possibility it, too, is unlikely.
[10]
Although the
Bank’s concerns about the adequacy of Mr. Funk’s pleaded claim have
considerable force, the circumstances where this Court will strike out an
application on a preliminary motion to dismiss are required to be exceptional:
see Hamilton-Wentworth (Regional Municipality) v. Canada (Minister of the
Environment), [2000] F.C.J. No. 440, (2000) 187 F.T.R..
[11]
Many of
the reasons for the Court’s reluctance to dismiss an application in advance of
a full hearing on the merits are expressed in the leading case of David Bull
Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588, [1994]
F.C.J. No. 1629 (F.C.A.) where Justice Barry Strayer held at paragraph 10:
10 The basic explanation for the
lack of a provision in the Federal Court Rules for striking out notices of
motion can be found in the differences between actions and other proceedings.
An action involves, once the pleadings are filed, discovery of documents,
examinations for discovery, and then trials with viva voce evidence. It is
obviously important that parties not be put to the delay and expense involved
in taking a matter to trial if it is “plain and obvious’ (the test for striking
out pleadings) that the pleading in question cannot amount to a cause of action
or a defence to a cause of action. Even though it is important both to the
parties and the Court that futile claims or defences not be carried forward to
trial, it is still the rare case where a judge is prepared to strike out a
pleading under Rule 419. Further, the process of striking out is much more
feasible in the case of actions because there are numerous rules which require
precise pleadings as to the nature of the claim or the defence and the facts
upon which it is based. There are no comparable rules with respect to notices
of motion. Both Rule 319(1) [as am. By SOR/88-221, s.4], the general provision
with respect to applications to the Court, and Rule 1602(2) [as enacted by
SOR/92-43, s. 19], the relevant rule in the present case which involves an
application for judicial review, merely require that the notice of motion
identify ‘the precise relief’ being sought, and “the grounds intended to be
argued.” The lack of requirements for precise allegations of fact in notices of
motion would make it far more risky for a court to strike such documents.
Further, the disposition of an application commenced by originating notice of
motion does not involve discovery and trial, matters which can be avoided in
actions by a decision to strike. In fact, the disposition of an originating
notice proceeds in much the same way that an application to strike the notice
of motion would proceed: on the basis of affidavit evidence and argument
before a single judge of the Court. Thus, the direct and proper way to contest
an originating notice of motion which the respondent thinks to be without merit
is to appear and argue at the hearing of the motion itself. This case well
illustrates the waste of resources and time in adding on to what is supposed to
be a summary judicial review proceeding the process of an interlocutory motion
to strike. This motion to strike has involved a hearing before a trial judge
and over one half day before the Court of Appeal, the latter involving the
filing of several hundred pages of material, all to no avail. The originating
notice of motion itself can and will be dealt with definitively on its merits
at a hearing before a judge of the Trial Division now fixed for January 17,
1995.
[12]
Justice
Strayer went on to state that preliminary motions to strike can only be
justified in very exceptional cases and not where there exists a debatable
issue as to the adequacy of the allegations in the notice of application (see
paragraph 15).
[13]
I would
add to this that it is always open to a party to request an amendment to the
notice of application to seek additional relief or to request leave to file
further affidavit evidence. Here, too, the Act at least recognises the
possibility of an oral hearing to supplement the evidentiary record. However
remote that latter possibility may be, it is appropriately a matter for the
hearing Judge to decide and should not be determined at this stage. While this
matter has been before the Court for some time, the possibility for bolstering
the application record remains and I am not disposed to strike the application
out at this point. I made a similar point in the case of The John McKellar
Charitable Foundation v. Canada Revenue Agency, [2006] F.C.J. No.
938, 2006 FC 733:
[17] I am also not unmindful that the
problem of a missed filing deadline is curable by a motion for an extension
that can be brought after the deadline has passed. This motion by the CRA, if
allowed, would foreclose that opportunity by McKellar to seek an extension. In
Vancouver Island Peace Society, above, at paragraph 24 Justice MacKay alluded
to the possibility of a preliminary dismissal of an application where there
existed a procedural irregularity which could not be corrected. The inference
which I take from that remark is that a procedural irregularity which may be
corrected is not sufficient to support the preliminary dismissal of an
application.
[18] In short, this is not a problem
which should be resolved on the basis of which party gets to the Court first
with its argument. Instead, it is a problem that should be resolved at the time
of the hearing of the application on the merits. In the absence of a motion by
McKellar at that time for an extension of time it obviously runs the risk that
its application for judicial review will be dismissed on that basis.
[14]
While the
strength of Mr. Funk’s application as presently documented is certainly
tenuous, the potential inconvenience to the Bank of having to deal with a
matter on the merits may be ameliorated by the summary nature of the process
and by an award of costs if appropriate.
[15]
The Bank’s
motion is, therefore, dismissed with costs payable in any event of the cause at
the conclusion of the application to Mr. Funk in the amount of $250.00.
ORDER
THIS COURT ORDERS THAT the motion for summary
dismissal of the application is hereby dismissed with costs payable to the
Applicant, Lorne Funk, in any event of the cause at the conclusion of the
application in the amount of $250.00.
"R.
L. Barnes"
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