Court of Appeal for Ontario

Citation: Rudan v. Nightwatch Security and Surveillance Inc. (Night Watch Security), 2020 ONCA 409

Date: 2020-06-24

Docket: C67024

Before: MacPherson, Pardu and Huscroft JJ.A.

Between:

Simo Rudan Plaintiff (Appellant)

and

Nightwatch Security and Surveillance Inc. o.a. Night Watch Security and Anthony Armenti a.k.a. Tony Armenti Defendants (Respondents)

Counsel: J. Leigh Daboll, for the appellant Michael J. Valente and Kaushik Parameswaran, for the respondents

Heard: In writing

On appeal from the judgment of Justice Dale Parayeski of the Superior Court of Justice, dated May 3, 2019.

REASONS FOR DECISION

[1] The motion judge granted summary judgment to the respondents, a security company and its principal, dismissing the appellant’s claim for trespass and the intentional infliction of mental anguish arising out of their installation of a security system at a home he owned. The system was installed at the request of the appellant’s estranged common law partner, Ms. Cardenas, who had sole possession of the home. The appellant had been charged with assaulting Ms. Cardenas and was subject to bail conditions and a peace bond that restricted him from contact with her and required him to stay away from the home.

[2] The appellant says that the motion judge erred in law in determining that Ms. Cardenas had authority to permit the respondents to enter the premise and to effect alterations and that there were genuine issues for trial that rendered summary judgment inappropriate.

[3] We disagree.

[4] It is not disputed that Ms. Cardenas had exclusive possession of the home and that the appellant was prohibited from having contact with her and prohibited from attending at the home. As exclusive possessor, Ms. Cardenas had the authority to permit the respondents access to the home and nothing turns on the motion judge’s use of the term “ostensible”. In any event, we note that the motion judge disbelieved the appellant’s allegations that the respondents knew about the appellant’s title to the home.

[5] The motion judge made no error in concluding that there was no trespass. Ms. Cardenas’s authority to order the work and admit the respondents into the home also precluded the appellant’s claim for intentional infliction of mental suffering, as the respondents’ conduct could not have been flagrant and deliberate.

[6] In summary, the appellant has failed to demonstrate that the motion judge made any error that would justify intervention on appeal.

[7] The appeal is dismissed.

[8] If the parties cannot agree upon costs, they may make brief (2 pages) written submissions to the court within 10 days of this decision.

“J.C. MacPherson J.A.”

“G. Pardu J.A.”

“Grant Huscroft J.A.”