CITATION: Yim v. Rogers Communications Partnership, 2016 ONSC 2105
DIVISIONAL COURT FILE NO.: 343/15 DATE: 20160324
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
JYUNG DUCK YIM Appellant (Plaintiff)
– and –
ROGERS COMMUNICATIONS PARTNERSHIP Respondent (Defendant)
In Person Samantha Gordon, for the Respondent, Rogers Communications Partnership
HEARD at Toronto: March 24, 2016
C. HORKINS J. (ORALLY)
[1] The appellant, Jyung Duck Yim, appeals the decision of Deputy Judge Tait dated June 11, 2015. The Deputy Judge dismissed the appellant’s claim against Rogers Communications Partnership without costs.
[2] The background is as follows.
[3] Mr. Yim commenced a Small Claims Court action against Rogers seeking general and punitive damages. He alleged a breach of statute, intentional infliction of emotional harm and invasion of privacy.
[4] The impugned conduct arises from a series of collection calls from Rogers to Mr. Yim from February 26, 2014 to April 28, 2014 and a collection letter dated April 28, 2014.
[5] Rogers was seeking payment of Mr. Yim’s overdue accounts that were owed to Rogers. Rogers credit department requests payment when an account is overdue by 33 days and the customer owes more than $50.00. That was the case for Mr. Yim. These facts are not in dispute.
[6] Mr. Yim said that he was upset by Rogers collection telephone calls. Eventually Mr. Yim paid the outstanding bills and the telephone calls ceased.
[7] The Deputy Judge gave oral reasons. He found that it was not reasonably foreseeable that such collection calls would cause a customer psychiatric damage. He rejected Mr. Yim’s position that Rogers conduct “amounted to a deliberate infliction of mental suffering.” As he stated in his reasons: “There is absolutely nothing deliberate about [Rogers] staff activities other than the performance of their obligation to make sure that clients pay their bills.” The telephone calls had a “perfectly logical justification”.
[8] Finally, he found that, “any lingering problem” Mr. Yim may have had was “the result of his own conduct and not in any sense the intended result of the defendant’s conduct.”
[9] The Deputy Judge rejected the argument that a collection call was an invasion of privacy and found that “there was insufficient evidence to support the damages claimed.” On this point, Mr. Yim filed a “one sentence” letter from Mr. Yim’s family doctor that was dated a year after the collection calls. The letter was characterized by the Deputy Judge as a doctor simply taking a patient’s word and recording what the patient told the doctor.
[10] The letter states as follows:
This letter is confirm that Mr. Yim was seen in the clinic today and he suffer from adjustment disorder with anxiety and depression related to the telephone calls harassment that he has been receiving since February 2014.
(For the record, there are grammatical errors in that sentence. I have read it verbatim as it was typed by Dr. H. Youssef).
[11] The trial judge assessed this letter as follows:
I have not overlooked the medical report consisting of one sentence provided by Mr. Yim’s family doctor, he went to see that doctor on the 20 March, 2015, and frankly admitted that what provoked his attendance was the upsetting annoyance he felt as a result of attending the pretrial action of the conference. It was a year after the event, of which he sues, and I am not prepared to accept as easily as the doctor did, Mr. Yim’s assertion that he was suffering an adjustment disorder as a result of the telephone calls. I can only see this as a doctor taking his patient’s word for it, and writing a letter that the patient wanted. I do not consider to be considerably probative.”
Standard of Review
[12] The standard of review of an appeal from a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[13] On questions of law the standard is correctness. On questions of fact the standard is palpable and overriding error. On questions of mixed fact and law the Court stated in Housen that there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principle to the evidence, the standard is palpable and overriding error.
[14] Mr. Yim focused his submissions today on his claim that Rogers committed the tort of intentional infliction of mental suffering. It is his position that the Deputy Judge erred in law because he did not apply the correct test as set out in Prinzo v. Baycrest Centre for Geriatric Care, 2002 45005 (ON CA), [2002] 60 O.R. (3d) 474.
[15] At paragraph 48 of the Prinzo decision, the Court set out the essential elements of this tort:
A review of the case-law and the commentators confirms the existence of the tort of the intentional infliction of mental suffering, the elements of which may be summarized as: (1) flagrant and outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible and provable illness.
[16] Rogers agreed that the essential elements of this tort are as stated in Prinzo and more recently in the case of Piresferreira v. Ayotte [2010] ONCA 384.
[17] While the Deputy Judge did not refer to these cases in his oral reasons, it is clear in my view from the reasons, that he considered the essential elements of the tort as stated in Prinzo. He found facts that led him to conclude that the tort was not committed.
[18] Addressing these three essential elements, first there is a conduct with Rogers and it must be “flagrant and outrageous.”
[19] The judge considered Rogers’ conduct and found that its business necessitates the collection of overdue accounts. The calls for payment had a “perfectly logical justification.” Based on these findings of fact the first element of the tort was not satisfied.
[20] The second element requires that the conduct be calculated to produce harm. The judge found that the calls for payment were necessary and justified. On this finding of fact the second element was not proven.
[21] On the third element, Mr. Yim had to prove that the conduct resulted in a visible and provable injury. I have already reviewed the doctor’s letter and the judge’s rejection of this evidence.
[22] In this regard the judge applied the correct test to the facts and in my view made no palpable and overriding error.
[23] Finally, Mr. Yim argues that because the judge used language of foreseeability, this shows that the judge did not apply the Prinzo test. I disagree. I have already explained how the judge followed the Prinzo test. Nevertheless, the concept of foreseeability is part of the analysis when considering part 2 of the test (see para. 45 of Prinzo).
[24] In summary, it is clear from the totality of the judge’s reasons that he correctly applied the test in Prinzo and made no error in law in applying the facts to this test. He did not make a palpable and overriding error.
[25] There are other grounds of appeal that are in the Notice of Appeal that were not the focus of the submissions today. First, I wish to state that the ground of appeal that can be characterized as an allegation of bias against the Deputy Judge, has been withdrawn by the appellant. The remaining ground of appeal in the Notice of Appeal have not been withdrawn and I will deal with them now.
[26] The first ground of appeal is titled in the Notice of Appeal, “Pre-Determination of Credibility of Medical Expert Opinion Evidence.” This ground deals with the judge’s rejection of the doctor’s letter. As I have already stated, this evidence was considered and assessed and then rejected by the judge. I have found that he made no palpable and overriding error in doing so.
Tort of Invasion of Privacy
[27] It would appear from the Notice of Appeal that the appellant is arguing that the judge did not apply the law correctly. The leading case on this tort is Jones v. Tsige [2012] ONCA 32. At paragraph 71 of the decision of the Court of Appeal set out the essential elements of this tort:
The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
[28] While the judge did not refer to the decision, it is clear that it was considered by him since the findings of fact that he made track the essential elements of the tort as stated in Jones. I find that the judge made findings of fact and correctly found that the plaintiff failed to satisfy the essential elements of this tort. Specifically, he found that the conduct of Rogers was justified, it was part of its business and in no way reckless. He also found that Mr. Yim failed to prove the stress, humiliation or anguish. This follows from his rejection of the only medical report that was filed.
Breach of Statute
[29] Mr. Yim argues that the judge erred in concluding that Rogers had no duty under the Collections Agencies Act. The judge considered this claim in his reasons and he found as follows:
Rogers is not a collection agency. The statutory provision does not apply to it but it offers some guidance as to what the legislature has considered reasonable in the particular profession of bill collecting. Rogers was performing somewhat similar circumstances in house and not for an agency, so it does not have to answer to that statute.
[30] I find that the judge correctly interpreted the statute in question and made no error in law in finding that it did not apply to Rogers.
[31] For all of the reasons that I have provided, I conclude that the appeal shall be dismissed.
Costs
[32] I have endorsed the Appeal Book, “The appeal is dismissed. Costs shall be paid by the appellant to the respondent fixed at $2,000 all inclusive. Oral Reasons provided in Court today.”
___________________________ C. HORKINS J.
Date of Reasons for Judgment: March 24, 2016
Date of Release: April 12, 2016
CITATION: Yim v. Rogers Communications Partnership, 2016 ONSC 2105
DIVISIONAL COURT FILE NO.: 343/15 DATE: 20160324
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
JYUNG DUCK YIM Appellant (Plaintiff)
– and –
ROGERS COMMUNICATIONS PARTNERSHIP Respondent (Defendant)
ORAL REASONS FOR JUDGMENT
C. HORKINS J.
Date of Reasons for Judgment: March 24, 2016
Date of Release: April 12, 2016