Dufferin Communications Inc. v. Ducic & Fleming Fitness Inc., 2023 ONSC 4390

Court File and Parties

COURT FILE NO.: CV-19-652612 DATE: July 27, 2023

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dufferin Communications Inc. v. Ducic & Fleming Fitness Inc., Elma Ducic and Paulo A. Almos;

BEFORE: ASSOCIATE JUSTICE C. WIEBE

COUNSEL: Shannon Bennett for Dufferin Communications Inc.;

PARTIES: Elma Ducic for herself and Ducic & Fleming Fitness Inc.;

HEARD: July 26, 2023.

REASONS FOR DECISION

1Dufferin Communications Inc. (“Dufferin”) is a radio station and sues the defendants for unpaid four 2017 invoices for advertising services. These invoices total $30,510. The last one is dated June 25, 2017. On January 16, 2019 Dufferin sued the defendants in the Superior Court for this amount plus $5,000 in punitive damages. At that time the monetary limit of the Small Claims Court was $25,000. It changed to $35,000 on January 1, 2020. Ducic & Fleming Fitness Inc. (“DFF”) and Ms. Ducic were served and have defended. The issue is the service on the third defendant, Paulo A. Almos.

2The affidavit of Seyd Refique in the motion material shows that Dufferin unsuccessfully tried to serve Mr. Almos personally at the DFF head office and at an address shown on cheques Mr. Almos delivered to Dufferin during the course of their business relationship. Then on March 4, 2019 Mr. Almos, using an email address he had used in correspondence with Dufferin during the business relationship, emailed Thang Nguyen, Dufferin’s in-house counsel, admitting the debt and advising that he resided in Dubai until July 20, 2019, when he “would be back.”

3On August 4, 2019 Mr Almos sent another email from that email address to Mr. Nguyen now denying the debt. On August 9, 2019 Mr. Almos emailed Mr. Nguyen using the same address advising that he was in Toronto, but not disclosing the location. On the same day, August 9, 2019, using the same email address for Mr. Almos, Mr. Nguyen emailed Mr. Almos the statement of claim and Dufferin’s reply to the Ducic statement of defence. Nine minutes later and using the same email address, Mr. Almost replied denying the debt. In the same reply email Mr. Almos stated that he was working in Dubai.

4August 9, 2019 fell outside the six months under the Rules for serving the statement of claim and service of original process by email is not allowed without leave. According to the Refique affidavit, Dufferin intended in 2019 to bring this motion. However, there was a substantial delay in bringing the motion.

5Almost four year later, on July 26, 2023, Dufferin moved for an order before me inter alia validating the email delivery of the statement of claim to Mr. Almos on August 9, 2019 as valid service effective that day, extending the time for service of the statement of claim to August 10, 2019 to allow that service to take place, amending the relief claimed in the statement of claim by reducing it enough to fall within the new monetary limit of the Small Claims Court, and transferring the action to the Small Claims Court. I granted the order, and now give these written reasons in support of that order.

6Work on the motion did not start for 3 ½ years after August 9, 2019. The Refique affidavit stated that Mr. Nguyen left Dufferin in the fall of 2019, that there were staffing deficiencies and staffing and operational issues within Dufferin’s legal department thereafter, and that these issues were exacerbated by the pandemic and the advent of remote operation from March, 2020 to March, 2022. The affidavit indicates that when Ms. Bennett became in-house counsel in 2022, she had to work through a collections backlog and in February, 2023 took steps to schedule this motion and bring it forward.

7I note that on April 18, 2023 Ms. Bennett sent an email notice that this motion was being brought to Mr. Almos through his same old email address, and that Mr. Almos replied that same day again denying the debt and advising that he is now living in Paris. This shows that Mr. Almos continues to use that email address. There is a supplementary affidavit of Seyd Refique showing that the motion record was delivered to Mr. Almos through that email address on July 14, 2023. Ms. Ducic appeared on July 26, 2023 at the argument of motion, while Mr. Almos did not.

8The lengthy delay in bringing the motion for service validation and service time extension gave me pause. However, Ms. Bennett reminded me that, as stated by the Court of Appeal in the leading case of Chiarelli v. Weins at paragraph 12, the core issue in a service time extension motion is whether the requested time extension will advance the just resolution of the dispute without prejudice and unfairness. The onus to prove that there is no prejudice or unfairness rests on the plaintiff.

9The Refique affidavits establish to my satisfaction that this action can still be resolved fairly and without prejudice to any party, including Mr. Almos. The necessary witnesses for Dufferin are still alive and capable of being summoned. Dufferin has kept the relevant documents. Mr. Almos and Ms. Ducic are obviously alive and capable of appearing. The action itself is a simple action modest in size involving a contract debt for alleged unpaid advertising services. The only defence to date is from Ms. Ducic and her primary defence is that Mr. Almos is the one with the debt. Finally, and most importantly, Mr. Almos has been aware of this statement of claim for four years. I fail to see any prejudice to Mr. Almos that should stand in the way of this action proceeding against him. I note that Mr. Almos was not present at the motion to prove otherwise. Therefore, I granted the requested time extension even after this almost four year delay in bringing the motion.

10I was also satisfied for the purposes of Rule 16.08 that the requested validation of service should be granted. The evidence was clear that Mr. Almos received the Nguyen email on August 9, 2019 enclosing the statement of claim and reply. Mr. Almos replied to that email nine minutes later denying the debt. I, therefore, granted the requested service validation effective August 9, 2019. This is of course on condition that Mr. Almos be given leave to serve a statement of defence within 60 days of being served with these reasons and my order.

11The fact that Mr. Almos resided in Dubai in 2019 caused me momentary concern about the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters. However, this concern did not last long. The United Arab Emirates is not a Convention state. This means that Rule 17.05(2) applies. Validation of service under Ontario law is valid service under that rule.

12The fact that Mr. Almos appears to live now in France, a Convention state, should also not be a concern going forward. The Convention Article 1 specifies that the Convention requirements for service on Convention states, including the restriction against substitutional service and validation of service, do not apply where the address of the person to be served cannot be found; Petrovic v. Petrovic, 2019 ONSC 5838 at paragraph 9. This would appear to be the case with Mr. Almos. He fled Canada in 2019 and has moved from country to country always being careful not to divulge his whereabouts.

13The claimed relief concerning the Small Claims Court is clearly acceptable for a case of this size. I granted the requested pleading amendment and the transfer to the Small Claims Court. I am also prepared to add an order that the amended statement of claim can be substitutionally served on Mr. Almos at his email address.

14Dufferin did not seek costs, and, therefore, I did not award any.

15Ms. Bennett undertook to provide me with a draft order for issuance. I look forward to receiving it.