Employee not entitled to defence in claims alleging tort of intrusion upon exclusion

Insurance law – Commercial general liability insurance – Duty to defend – Practice – Leave to appeal – Summary judgments

Demme v. Healthcare Insurance Reciprocal of Canada, [2022] O.J. No. 2976, 2022 ONCA 503, Ontario Court of Appeal, June 30, 2022, E.E. Gillese, G.I. Pardu and D.M. Brown JJ.A.

An employee of a hospital, a former registered nurse, misused an automatic medication dispensing unity over a period of 10 years to obtain approximately 24,000 percocet tablets. The employee used patient records to wrongfully dispense the medication. The medical records of over 11,000 patients were affected.

Many of the patients brought claims against the hospital and its employee. The hospital’s insurer agreed to defend the hospital, but not its employee. The employee brought an action against the insurer seeking a declaration of a duty to defend. The employee then moved for summary judgment. The application was dismissed and she appealed.

Although the claims against the employee varied, the common claim was based on the tort of intrusion upon seclusion, which in this case was alleged to involve the surreptitious accessing of health care records. Other allegations included negligence, breach of fiduciary duty, and negligent infliction of mental and emotional distress. The Court of Appeal found no error with the motion’s judge’s reasoning and dismissed the appeal.

This case was digested by Cameron B. Elder, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Cameron B. Elder at celder@harpergrey.com.

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