Why the court denied this auto insurer’s ‘shockingly intrusive’ motion

Ontario’s Superior Court has denied a motion by an insurer in an auto liability case to require the spouse of the man killed by the insurer’s defendant to produce ‘shockingly intrusive’ private messages to prove his relationship status with the deceased.

“At his discovery, Tristian [Howell] was asked to produce all electronic communications that were sent by text message, email, WhatsApp, and Snapchat passing between himself and Sean [McDonnell] from the inception of their relationship to the date of death,” the court noted. “The question was taken under advisement, and later refused.”

When the insurer petitioned the court to require Tristian to produce five months’ worth of the communications (the original request was for three years and five months), the court refused on the basis that evidence already existed proving the spousal relationship between Tristian and Sean.

“A plaintiff must usually be prepared to bear some upsetting moments while pursuing a lawsuit,” the court ruled in a decision released Friday. “But what is being asked here is shockingly intrusive. The idea that other litigants and their lawyers should be able to read through the written evidence of Sean and Tristian’s private life is impossible to justify in the circumstances of this case.

“Even though Mr. Samuels [who initiated the motion to produce the private messages] argued that his firm acts for Echelon Insurance Company, and that Ms. [Jolene] Freire [who pled guilty to impaired driving causing death] is not likely to ever see the messages, it is understandable that the prospect of releasing the messages to the party defending on behalf of the person who killed Sean cannot be anything less than emotionally wrenching for Tristian.”

Sean McDonnell was killed in a motor vehicle accident on May 16, 2020, approximately three years and five months after he and Tristian Howell met one another.

“[Jolene] Freire was impaired and speeding and crossed the center line before striking Sean,” the court observed. “She pled guilty to impaired driving causing death and is presently serving a four-year prison sentence.”

The issue before the court was whether to require Tristian to produce his personal messages to Sean to prove his relationship status.

“It is not disputed that Sean and Tristian were romantic partners,” the court found. However, Freire challenged whether Sean and Tristian were ‘spouses,’ as defined in the Family Law Act.

“They were not married and so will not qualify as spouses unless they had cohabited continuously for a period of three years before Sean’s death,” the court observed.

In the main court action, which has not yet been decided, Tristian claims $2.5 million in damages based on being Sean’s spouse at the time of his death.

The court found Tristian did not have to produce his personal messages to Sean, because evidence already disclosed proved Sean was his spouse.

At Tristian’s discovery, he said the couple went on their first date in December 2016. When they first met, Tristian was renting a room in a house in Barrie, Ont., and Sean was renting a room at his mother’s house at 47 Rutherford Rd. in Bradford, Ont.

In January 2017, they agreed that they were in an exclusive and monogamous relationship.

The pair eventually moved in together at 207 Penn Avenue in Newmarket, Ont.

“On Apr. 1, 2017, Sean was added to the rental agreement for 207 Penn Avenue,” the court found. “[Tristian’s] evidence is that by Apr. 1, 2017, they were spending seven nights a week together.”

The couple also spent time together at the McDonnell residence in Bradford on weekends.

The court found “there is already ample evidence that there were two residences that were the sites of their cohabitation during the more than three years before Sean’s death.

“Further, Tristian and Sean were treated as a couple in all respects by family and friends, they were in a committed and exclusive relationship, and they had plans for their future together that had family support and involvement.

“Despite examining all members of the family in these related lawsuits, the defendant has not produced any contradictory evidence. It is difficult to imagine that information could possibly exist in the messages [sought] that would be more compelling than the jointly signed tenancy agreement for 207 Penn Avenue on Apr. 1, 2017, and the landlord’s verification of the couple’s residency.

“The information that the defendant now seeks to explore is available from other sources, which is from the evidence of individuals who were closest to Sean and Tristian during the relevant period and who have provided no evidence to contradict a cohabitation period in excess of three years.”

The court ordered the insurer to pay $18,000 for the cost of the litigation. Tristian’s lawyer initially made a $1,000 settlement offer for the insurer to withdraw the motion. But the insurer refused, triggering the cost award, the court ruled.