COURT FILE NO.: CV-21-00000311-0000 DATE: 20230817
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Andrew Athanassiades Plaintiff (Responding Party) – and – Rogers Communications Canada Inc. Defendant (Moving Party)
COUNSEL: R. Konduros, for the Plaintiff (Responding Party) C. Spry and B. Monahan, for the Defendant (Moving Party)
HEARD: March 28 and April 28 2023
THE HONOURABLE JUSTICE R. B. REID
REASONS FOR JUDGMENT
Introduction
1The plaintiff, Andrew Athanassiades, (“Mr. Athanassiades”) has sued the defendant, Rogers Communications Canada Inc. (“Rogers”) for damages arising from its failure to provide internet service to him and from its actions in attempting to collect its outstanding account. He alleges that there was intentional infliction of mental suffering, defamation, a breach of contract, and an entitlement to punitive and aggravated damages. Total damages of $1 million are claimed.
2Pleadings and affidavits of documents have been exchanged, and examinations for discovery have been held. Mr. Athanassiades set the matter down for trial in approximately May 2022.
3On November 24, 2022, Rogers served and filed this motion for summary judgment requesting a dismissal of the claim. The request is opposed by Mr Athanassiades.
Background facts
4Mr. Athanassiades resides in the town of Tillsonburg, Ontario. Rogers is a communications and broadcasting services company incorporated under the laws of Canada.
5In March 2020, Rogers began to provide home phone and internet service in the plaintiff’s neighbourhood. There were unsuccessful attempts by the plaintiff to secure Rogers’ services for internet and home phone after an initial solicitation by Rogers.
6Mr. Athanassiades alleges that in his initial discussions with Rogers, he advised of previous unsatisfactory experiences with it and warned that further problems could cause him stress which in turn could cause flareups of his Crohn’s disease. He says that the Rogers representative provided reassurances that the experience would be positive.
7Mr. Athanassiades terminated internet services with his existing provider, anticipating connection with Rogers the following day. However, the Rogers service was not installed promptly, and on April 28, 2020, Mr. Athanassiades cancelled it.
8As a result of the pandemic, Mr. Athanassiades was required to work remotely as a high school teacher and required an internet connection to do so. Following the failed installation, he moved into his mother’s house in Waterloo to conduct his online classes.
9A further contact was made between the parties. Mr. Athanassiades ordered a bundle on or about July 25, 2020, which included internet access, home phone, cable television and smart home monitoring.
10Mr. Athanassiades alleges that the installation did not occur when promised. The Rogers representative eventually attended and provided Mr. Athanassiades with equipment but did not install it. Despite telephone assistance from Rogers, Mr. Athanassiades was unsuccessful in a self-installation. A Rogers technician attended on August 21, 2020 but did not solve the problem.
11Mr. Athanassiades was dissatisfied and called Rogers to cancel the services. Rogers accepted the cancellation request and gave him instructions about the return of its equipment. He shipped the items on or about September 12, 2020, and they were received by Rogers on September 27.
12On September 7, 2020, Rogers issued an invoice in the amount of $174.24 which indicated that Mr. Athanassiades had used internet services during the billing period. He made a complaint about being invoiced for payment despite his cancellation of the services. Rogers explained that the invoice had been generated automatically and that he would continue to receive bills and automated messages for up to two further billing cycles.
13On October 7, 2020, Rogers issued a second invoice including new charges of $326.90 which was an early cancellation penalty plus the unpaid balance from September for a total of $501.14.
14On November 7, 2020, Rogers issued another invoice to Mr. Athanassiades. There were no new charges, but it included a late payment charge of $15.04 for a total of $560.18.
15A final invoice was issued on December 7, 2020, carrying forward the prior unpaid balance without new charges.
16According to Rogers, the invoices and collection calls were generated through its standard automated billing and collections process. Between October 13 and November 27, 2020, Rogers records show that Mr. Athanassiades received approximately 24 contacts from its internal collections department.
17On December 16, 2020, Mr. Athanassiades’ outstanding account was assigned by Rogers to a collection agency called Gatestone & Co. (“Gatestone”).
18On December 22, 2020, after review by Rogers’ executive office, all charges and the late fees were reversed resulting in a nil balance to Mr. Athanassiades’ account. That resolution was communicated to Mr. Athanassiades on December 22, 2020. Gatestone was instructed by Rogers to close the file and it did so as of January 5, 2021.
The Test for Summary Judgment
19Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires that the court grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
20In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, the Supreme Court of Canada made it clear that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination of the merits on a motion for summary judgment. As the Court held at paragraph 49, “[t]his will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result”.
21The first step as described in Hryniak at para. 66 is to determine whether there is a genuine issue requiring a trial based only on the evidence presented by the parties, without using the enhanced fact-finding powers under rule 20.04(2.1). Next, if there appears to be a genuine issue requiring a trial, the court must determine whether the need for a trial could be avoided by use of the enhanced powers available under rule 20.04(2.1), which allows the weighing of evidence, evaluation of credibility, and the drawing of any reasonable inference from the evidence. In exercising those enhanced powers, the court may order that oral evidence be presented, pursuant to rule 20.04(2.2).
22In a summary judgment motion, each of the parties is expected to put their best foot forward and the court can assume that all necessary evidence has been tendered in support of and in opposition to the motion: Da Silva v. Gomes, 2018 ONCA 610, at para. 18. The judge must then take a hard look at the entire record on the motion to determine whether there is a genuine issue requiring a trial, or whether the case can be decided by summary judgment: Demetriou v. AIG Insurance Company of Canada, 2019 ONCA 855, at para. 9.
12Ultimately, whether using the expanded fact-finding powers or not, the motions judge must determine if there is a genuine issue requiring a trial.
Issues to be determined
23Rogers submits that the claim is a simple one, suitable for summary judgment, based on the lack of evidence supporting any cause of action relied on by the plaintiff. Mr. Athanassiades responds that the case is not appropriate for summary judgment in that it is complex, there are many disputed facts, and credibility is an issue such that there are genuine issues requiring a trial.
24To determine whether there is one or more genuine issues requiring a trial or whether it is possible to reach a fair and just determination of the merits on summary judgment, I have reviewed the entire record. As is inevitable in most litigation, there are many individual facts in dispute. However, it is unnecessary that they all be resolved except to examine the individual causes of action relied on by Mr. Athanassiades and the evidence supporting the constituent elements of each to determine whether there is a genuine issue requiring trial.
Preliminary Issue: Spoliation
25Mr. Athanassiades alleges that hundreds of contacts by telephone were initiated by Rogers relating to the collection of what Rogers considered to be his outstanding account.
26Rogers recorded interactions with Mr. Athanassiades, both as to his arrangements for services and the collection of his account. Recordings were made available through the production of documents. According to Rogers, no further recordings exist. Rogers does not say that no others were made. In examination for discovery, the deponent for Rogers stated that “we do aim for full capture of all interactions.” In addition, Rogers’ representatives made notes of their interactions with Mr. Athanassiades. Those have also been produced. While Mr. Athanassiades does not dispute the authenticity of the recordings that were provided, he combines his recollection of the standard preamble to the calls from Rogers that they were being recorded with his recollection of the number of calls made and concludes that Rogers failed to preserve recordings of many interactions. In effect, he says that while he does not have any evidence of the “hundreds” of non-disclosed contacts with Rogers other than his own recollections, Rogers can be criticized for failing to preserve the number of recordings that coincide with his recollection.
27The information produced by Rogers included either or both recordings and notes of interactions as follows: from 2013 through 2018: 75; from March 31, 2020 to January 18, 2021: 73.
28In Catalyst Capital Group Inc. v Moyse, 2016 ONSC 5271, at paras. 135-138, Newbould J. summarized the law relating to spoliation:
Spoliation is an evidentiary rule that gives rise to a rebuttable presumption that destroyed evidence would be unfavourable to the party that destroyed it. …
The parties agree that a finding of spoliation requires four elements to be established on a balance of probabilities, namely:
(1) the missing evidence must be relevant; (2) the missing evidence must have been destroyed intentionally; (3) at the time of destruction, litigation must have been ongoing or contemplated; and (4) it must be reasonable to infer that the evidence was destroyed in order to affect the outcome of the litigation.
The drawing of an inference was described in Spasic Estate v. Imperial Tobacco Ltd. (2000), 49 O.R. (3d) 699 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 547, at para. 10 as:
The spoliation inference represents a factual inference or a legal presumption that because a litigant destroyed a particular piece of evidence, that evidence would have been damaging to the litigant.
Thus there must be evidence of a particular piece of evidence that was destroyed.
29On the facts of this case, spoliation had not been established. There is no evidence that recordings were destroyed, let alone destroyed intentionally. There is only an assumption by Mr. Athanassiades that because his recollection is not supported by the evidence produced by Rogers, it must have purposefully destroyed the recordings. Although the purported recordings could have been relevant, it is not possible to determine whether actions by Rogers were taken in order to affect the outcome of the litigation without evidence about if or when they were destroyed.
Preliminary Issue: Punitive and Aggravated Damages/Mental Distress
30Part of Mr. Athanassiades’ claim is for punitive and aggravated/exemplary damages, and for damages for mental distress. Those claims are not independent causes of action. They are aspects of his overall damage claim, assuming proof of another cause of action in which such damages may be awarded.
31Neither of those damage claims are relevant to the question before this court about whether the establishment of a reasonable cause of action is a genuine issue requiring a trial.
Was there Intentional Infliction of Mental Suffering?
32Mr. Athanassiades claims damages arising from the intentional infliction of mental suffering. He alleges that he received harassing telephone calls, including “robo-calls”, numbering in the hundreds from Rogers as well as emails. As noted above, he has no evidence to rely on other than his recollection of the number of calls received.
33There is a conflict in the evidence in that Rogers’ records show only approximately 73 involvements by Rogers representatives with Mr. Athanassiades’ file between March 2020 and January 2021, which were logged by the Rogers internal record-keeping system. Some were contacts with Mr. Athanassiades and some were other actions in relation to his account. In his affidavit filed in support of this motion, the Rogers representative opined that Mr. Athanassiades must be mistaken in his recollection as to the number of calls because they could not have been in the hundreds as alleged.
34A review of the evidence discloses that the interactions between Rogers and Mr. Athanassiades occurred for one of two reasons: the arrangements for and attempted establishment of Rogers services and the attempted collection of accounts.
35It is clear that Mr. Athanassiades had an unsatisfactory experience with Rogers in securing services. He spent more time waiting on the phone for assistance than he felt was reasonable. The products and services were not delivered in a timely way, resulting in more wasted time for him, and when products were ultimately provided, they did not work properly or could not be set up effectively, despite his best efforts.
36Thereafter, Mr. Athanassiades invested more of his time and became frustrated in arranging for the cancellation of the services and the return of the products. In some respects, he was the author of his own misfortune. For example, he wanted to return the products to a local Rogers store because he did not want to deal with shipping the items. He was told the store was not equipped for that action. Rogers offered to courier a box to be left on his doorstep so that he could use it to re-package the products, then call a courier company for pick-up. He objected, because he was not prepared to wait at home for the empty box to be received, (because courier companies could not guarantee the exact time of delivery), and he did not want the empty box to be susceptible to “porch piracy”. However, Rogers added to his frustration in subsequent contacts, advising that it no longer used courier services, and instead required Mr. Athanassiades to package the products and take the box to a local Canada Post outlet to be shipped. Those interactions were with Rogers customer service representatives.
37As to the collection procedures adopted by Rogers, once an account shows as past due, the system triggers computer-generated calls to the customer. A Rogers representative is then assigned to the call and deals with the customer. In the contacts with Mr. Athanassiades, he typically had to explain that the services had been cancelled and that there was an understanding that no money was due. He became frustrated by having to repeat his story. It was explained to him that the system would automatically generate such calls until the account cancellation was finalized, which would follow the receipt by Rogers of the returned products. It was also explained that he would likely receive accounts in two further monthly billing cycles. He was not happy with either the need for those interactions or the information he was receiving, and on multiple occasions threatened legal action. Those interactions were with the Rogers collections department.
38Mr. Athanassiades was hospitalized on September 5 and October 6, 2020, for issues apparently related to his on-going Crohn’s disease. He links his hospitalization to the stressful contacts he had been having with Rogers. Based on the timing of the hospitalizations as compared with the dates of the contacts, it appears that the calls that occurred before the hospitalizations were with the Rogers customer service representatives, and not the collections department. As such, if there is a link between the contacts and the hospitalizations, it relates to the frustrations Mr. Athanassiades had with the service from Rogers, not from its collection efforts.
39In order to establish the tort of intentional infliction of mental suffering, it must be shown that the impugned conduct was flagrant and outrageous, calculated to produce harm, and that it actually caused the person to suffer visible and provable illness.
40There is no evidence that Rogers’ conduct was flagrant and outrageous. All the recorded interactions indicate polite and respectful communications with Mr. Athanassiades. He alleges that there were more contacts than disclosed, but there is no evidence and no reason to expect that if they occurred, they were different in nature from those that have been detailed in support of this motion. At most, the calls can be characterized as frustrating and irritating to him. That conclusion applies even if the disputed evidence as to the number of calls recalled by Mr. Athanassiades is accepted. Despite his characterization that the calls amounted to harassment, under no circumstances do the contacts rise to the level of “flagrant and outrageous” conduct.
41There is no evidence that the contacts by Rogers with Mr. Athanassiades were calculated to produce harm. The contacts were either instigated by Mr. Athanassiades in relation to his arrangements for or cancellation of services, or by Rogers in order to secure payment of what it considered to be outstanding accounts.
42As to calls relating to services, it defies common sense to conclude that Rogers intended to cause harm by providing bad customer service.
43As to the collection calls, in the case of Yim v. Rogers Communications Partnership, 2016 ONSC 2105, the Divisional Court found no error on the part of the Small Claims Court judge who determined that the collection of outstanding accounts was a necessary part of Rogers’ business and that telephone calls for payment were necessary and justified. I agree with that common-sense conclusion. It is not reasonable inference that the calls were intended to produce harm.
44The factual disputes are irrelevant to the need to establish the basic facts required as elements of the tort.
45I am able to make the necessary findings of fact, and to apply the law to the facts. I conclude that making a summary decision on the point is a proportionate, more expeditious and less expensive means to achieve a just result. It is a waste of resources to allow the claim of intentional infliction of mental distress to proceed further.
46As a result, and without the need to consider whether visible and provable illness was suffered as a result of Rogers’ conduct, the claim for intentional infliction of mental suffering must fail.
Was there Defamation?
47Mr. Athanassiades alleges that Rogers libelled him when the credit bureau was advised about his outstanding accounts. Gatestone did send Mr. Athanassiades a “Notice of Intention to Pursue Collection Activity” and followed up with several telephone calls to him requesting payment and advising that without payment, the matter would be referred to the credit bureau. Mr. Athanassiades alleges that as a result, his credit rating suffered and that he was unable, for a time, to secure internet and cellular phone services from other providers.
48There is no question that the account was referred by Rogers to Gatestone which then made collection calls to Mr. Athanassiades. The evidence was that Gatestone was retained on December 16, 2020.
49Rogers denies that a referral to the credit bureau was made, but in the email from David Prabakram in the Office of the President of Rogers to Mr. Athanassiades’ counsel dated December 29, 2020, he stated: “Request has already sent [sic] to the credit bureau to remove all negative remarks. It can take up to 30 days for the request to be completed.” The note by a Rogers representative dated December 30, 2020, states: “Sent request to credit bureau specialist to have derogs removed from March to present as OOP [7] requested.”
50Mr. Athanassiades deposed that at some point he went to a Freedom Mobile kiosk at the Cambridge Centre Mall to secure cellular service and was advised that his application was rejected following a credit check. He said he was shown a screen with a message from Met Credit on behalf of Rogers relating to an outstanding Rogers account. He said he saw the amount of “$500 something” which was consistent with what he had seen in the latest email sent by Rogers requesting payment. He claimed to have called other cellular service providers requesting service and to having been rejected.
51Mr. Athanassiades alleges that he received calls on his cell phone from a collection agency known as Met Credit in November 2020 requesting that he return the calls “regarding personal business”. He did not do so and cannot confirm why that agency was calling. He assumes that the calls were prompted by his ostensibly outstanding account with Rogers. Rogers denies referring the collection of Mr. Athanassiades’ account to Met Credit. Notes from the Rogers representative dated March 31, 2020, following Mr. Athanassiades’ contact show that: “Customer failed credit evaluation for Ignite Products.” One possible inference to explain the Met Credit calls is that Mr. Athanassiades had outstanding credit issues with other entities.
52The tort of defamation requires the plaintiff to prove three elements: (1) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) the words in fact refer to the plaintiff; and (3) the words were communicated to at least one person other than the plaintiff. Gaur v. Datta, 2015 ONCA 151, at para. 8. It is the existence of first element that is contested by the parties.
53Based on the evidentiary conflicts noted above which exist in the material filed in support of or in response to this motion, there may be a genuine issue requiring a trial. However, this is a case where use of the expanded power requiring that oral evidence be presented, as permitted by rule 20.04(2.2), may well allow this court to make the necessary findings of fact, and apply the law to the facts so as to provide a proportionate, more expeditious and less expensive means to achieve a just result than would be the case by simply dismissing the summary judgment motion and allowing the matter to proceed to trial.
54Both parties are required to present oral evidence focused on the following issues:
a. Did Rogers refer the account of Mr. Athanassiades for collection to Met Credit? b. If so, did Met Credit refer the matter to the credit bureau or any other credit-reporting organization or in some other way cause Mr. Athanassiades’ credit to be negatively affected? c. Did Mr. Athanassiades have outstanding credit issues with entities other than Rogers that had been reported to the credit bureau or any other credit-reporting organization that were evident on his credit profile in August through December 2020? d. Did Gatestone or Rogers refer the matter of Mr. Athanassiades’ Rogers account to the credit bureau or any other credit-reporting organization or in some other way cause Mr. Athanassiades’ credit to be negatively affected? e. If so, was there a request to remove any negative comment about Mr. Athanassiades and by whom? When was any such request made and to whom? When was any negative comment removed?
55In my view, the presentation of oral evidence on the foregoing narrow points and through a modest number of witnesses is likely to have a significant impact on whether the summary judgment motion is granted or whether, alternatively, there is a genuine issue requiring a trial.
Was There a Breach of Contract?
56Mr. Athanassiades asserts that Rogers breached its contract to provide him with a bundle of services. He cancelled the contract within the “buyer’s remorse” period.
57Rogers denies that it breached any contractual obligations owed to Mr. Athanassiades.
58The facts are clear that Mr. Athanassiades became dissatisfied with his service from Rogers at an early stage in their post-March 2020 relationship and that Rogers agreed to discontinue the services. The equipment was returned by Mr. Athanassiades in September 2020.
59There appears to have been a mutual agreement to rescind the contract.
60No submissions were made by either party about whether, in the circumstances of a mutual agreement to rescind, an actionable breach of contract existed, or whether, in those circumstances, damages arising from breach of contract were available.
61Before I can make a decision about whether a genuine issue for trial exists arising from the claimed breach of contract, further submissions are necessary. Given my previous requirement that oral evidence be provided on the defamation claim, those submissions can be made on the same occasion.
Other Issues
62In the amended Statement of Claim, allegations were added to the effect that in 2021, as a result of a delay in repair to a damaged internet cable near his home, Mr. Athanassiades was deprived of the internet and telephone services he had been receiving from another telecommunications company, Primus Telecommunications Canada. He alleges that Primus had an arrangement with Rogers to maintain the lines, and that it was Rogers that was responsible for the delay.
63Even if those allegations are true, they do not relate to the causes of action described in the Statement of Claim. There is no privity of contract between Mr. Athanassiades and Rogers as regards the establishment or maintenance of Primus services. If any claim exists, it is between Mr. Athanassiades and Primus. There is no defamation, and no intentional infliction of mental distress.
Conclusion
64For the reasons set out above:
a. Rogers is entitled to summary judgment dismissing the claim for intentional infliction of mental suffering; b. The parties are to attend in person to provide oral evidence on the issues relating to the claim for defamation; and c. The parties are to make further submissions as to the claim for breach of contract and the effect of an agreement as to rescission.
65Counsel can arrange for a date for evidence and submissions by contacting the trial co-ordinator at Kitchener.
Costs
66Because this summary judgment motion cannot be completed until oral evidence has been presented and further submissions on the merits received, the issue of costs is deferred to the conclusion of the motion.
Reid J.
Released: August 17, 2023