Ottawa, Ontario, October 24, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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.