Court of Appeal for Ontario

Date: 2021-12-10 Docket: C69049

Judges: Lauwers, Paciocco and Thorburn JJ.A.

Between:

Gladys Milena Segura Mosquera Plaintiff/Applicant (Appellant)

And:

Rogers Communications Inc. Defendant/Respondent (Respondent)

And:

Canadian Radio-Television and Telecommunications Commission and Commission for Complaints for Telecom-Television Services Proposed Defendants/Respondents (Respondents)

Counsel:

Gladys Milena Segura Mosquera, acting in person Marie-Eve Jean and Kyle Lambert, for the respondent Rogers Communication Inc. Samar Musallam, for the Attorney General of Canada representing the respondent the Canadian Radio-Television and Telecommunications Commission Jaime Wilson, for the respondent Commission for Complaints for Telecom-Television Services

Heard: December 6, 2021 by video conference

On appeal from the order of Justice Sally A. Gomery of the Superior Court of Justice, dated October 5, 2020.

Reasons for Decision

[1] Gladys Segura (“Ms. Segura”) appeals the dismissal of her application to transfer her Small Claims Court action to the Superior Court of Justice and to add the Canadian Radio-Television and Telecommunications Commission (CRTC) and Commission for Complaints for Telecom-Television Services (CCTTS) as defendants.

The Small Claims Court Action

[2] In January 2017, Ms. Segura commenced a Small Claims Court action against Rogers Communications Inc. (“Rogers”), as operator of Fido Solutions Inc. Ms. Segura claimed that (i) she was overcharged for wireless services between 2013 and 2016, (ii) her wireless services were improperly terminated, and (iii) after she brought her phone to a mall kiosk for repairs in 2013 she got a different phone back. She sought damages in the amount of $1,858.83 (the amount she says she was overcharged by Rogers between 2013 and 2016) and the restoration of services to her phone.

[3] Rogers filed a defence to the Small Claims action in February 2017. It took the position that Ms. Segura was accurately charged for wireless services and that any claims for overcharges prior to January 13, 2015 were in any event time‑barred. Rogers said it was entitled to terminate its services on 30 days’ notice and that Ms. Segura was given two opportunities to transfer her cellphone number for her use in a contract with another wireless provider but declined to do so.

[4] On May 10, 2018, a month before the trial was scheduled to begin, Rogers filed a motion to strike and dismiss the claim on the grounds that Ms. Segura had failed to produce any evidence in support of her claims and that the action was frivolous and vexatious.

[5] Subsequently, Ms. Segura advised that she was no longer satisfied with the relief she had requested in the Small Claims action and would be seeking a transfer of the case to the Superior Court. The Small Claims Court judge therefore adjourned the trial pending the Superior Court’s determination of Ms. Segura’s application for transfer. Ms. Segura filed her notice of application on June 16, 2018, seeking a transfer of the case to the Superior Court and the addition of the CCTTS and the CRTC as defendants.

Other Complaints Raised by Ms. Segura

[6] Around the same time that she began her Small Claims Court action, Ms. Segura says she learned that the cellphone number associated with her Rogers account had been transferred to another subscriber. She alleges that, as a result of this transfer, the new user was able to open the front door of her apartment building. She asked her landlord to disconnect her buzzer and says she has been unable to open the front door remotely since then.

[7] Ms. Segura filed several complaints with the CCTTS concerning her disputes between herself and Fido.

[8] She also attempted to lay criminal charges against Fido and one of its employees on the basis that when brought in for repair, her phone was allegedly taken and exchanged for another but no criminal charges were laid for taking the phone.

Analysis of the Application Judge’s Reasons and Conclusion

[9] In her notice of application, Ms. Segura sought the transferal of her application to the Superior Court, the addition of the CCTTS and CRTC as defendants, orders for disclosure of information from the respondent Rogers and her landlord, a waiver of the fees for the audio digital records in relation to hearings, an order that the Ministry of the Attorney General disclose the legislation supporting a denial of a fee waiver, and an order that Rogers not reassign her phone number to other subscribers until the matter was dealt with.

[10] In her request to transfer, Ms. Segura submitted that she intended to seek:

a) additional damages for malice and intentional infliction of emotional distress as a result of Rogers’ assignment of her cellphone number to other users and possible violations of her constitutional and privacy rights;

b) equitable remedies and to take advantage of pre-trial discovery rights unavailable to her in a Small Claims action; and

c) the addition of the CCTTS and the CRTC as defendants for “[t]he decisions, inaction and eventual negligence” of both bodies, without providing particulars.

[11] She also argued that her claim raises issues of public importance, because many Canadians are disadvantaged by the current system in place for consumer complaints about the practices of wireless service providers.

[12] The application judge carefully outlined the principles governing the transfer of cases from the Small Claims Court to the Superior Court. She noted that transfers are permitted only where a claim is not capable of being justly and fairly resolved using the procedures available in the Small Claims Court: Autometric Autobody Inc. v. High Performance Coatings Inc., 2014 ONSC 6073 (Div. Ct.), 328 O.A.C. 197, at paras. 9-10. She noted that the discretion to transfer should be exercised rarely: Crane Canada Co. v. Montis Sorgic Associates Inc., [2006] O.J. No. 1999 (Ont. C.A.), at para. 2. She noted that the onus is on the party seeking a transfer. Considerations in such cases include:

a) the complexity of the litigation,

b) the role and importance of pre-trial discovery and expert evidence,

c) whether the case raises issues of general importance, and

d) the desire for a just and fair determination.

Farlow v. Hospital for Sick Children, 100 O.R. (3d) 213 (S.C.), at para. 20, citing Crane, at para. 8, Vigna v. Toronto Stock Exchange (1998), 115 O.A.C. 393 (C.J.), and Livingston v. Ould, 2 C.P.C. 41 (Ont. S.C.).

[13] The application judge explained that the court’s discretion to transfer should be exercised sparingly because Superior Court actions expose the parties to higher costs of pre-trial discovery and trial. Further, if the application is made just before trial, it may result in duplication of work. Absent compelling reasons for a transfer, permitting a transfer may undermine the jurisdictional legitimacy of the Small Claims Court.

[14] After reviewing the evidence before her and noting that no statement of claim had been provided by Ms. Segura, despite Master Kaufman’s order of March 9, 2020 requiring her to do so, the application judge concluded that Ms. Segura had not demonstrated that her claim could not be justly and fairly resolved by the Small Claims Court and declined to order the transfer.

[15] There were ample grounds to support this conclusion.

[16] First, she noted that Ms. Segura’s failure to file a proposed statement of claim with the application to transfer made it difficult for her to argue that her claim exceeded the Small Claims Court monetary cap. In the Small Claims Court application, Ms. Segura claimed less than $2,000 in damages, below the Small Claims Court monetary cap. There were no material facts that could ground awards for damages for any intentional tort or for violations of her constitutional and privacy rights. The application judge correctly held that, “She is… asking the court to speculate about what she could claim, based on her notice of application, supporting affidavit and factum.”

[17] Second, the materials provided by her did not support a claim for equitable relief:

a) Ms. Segura sought an order requiring Rogers to restore her wireless service as the discontinuation of services was unjustified and caused her inconvenience. She did not say she had been unable to obtain wireless services from another provider, that there was anything unique about the wireless services she received from Rogers, or that there was any other justification to order Rogers to restore her account as opposed to ordering damages if there were a finding of breach of contract. As such, there was no factual basis upon which specific performance could be ordered; and

b) The only other order for equitable relief sought by Ms. Segura is an order requiring Rogers not to further reassign her cellphone number to another subscriber “until this matter gets dealt with in its entirety”. This is an order sought in aid of specific performance, which, as indicated, is not a realistic remedy in the circumstances of this case and in any event, Rogers has agreed to hold the number in reserve pending the outcome of this litigation.

[18] Third, although Ms. Segura advised that she sought a declaratory order that the CCTTS is not independently constituted because members of the public are not adequately represented, and she would like to challenge its procedural code, she did not explain what order she would seek. More importantly, she failed to provide material facts to support a proposed claim against either the CCTTS or the CRTC or what relief she would seek if such an order were granted.

[19] Fourth, although Ms. Segura contends that she requires pre-trial discovery from Rogers to obtain, for example, records of how Fido dealt with her complaint about getting the wrong cellphone back (despite Rogers’ representations at settlement conferences that no such records exist) and disclosure from third parties such as her landlord, it is not clear what discovery Ms. Segura could obtain in a Superior Court action that she could not obtain in the Small Claims Court. Moreover, Ms. Segura failed to provide the application judge with any basis upon which any such orders could be made. (We note that it is not a proper exercise of the court’s discretion to transfer a proceeding in order to obtain information to advance other legal proceedings such as the criminal complaint against a Rogers employee for theft of the cellphone or the possible claim against her landlord in connection with the front door buzzer issue.) In any event, Ms. Segura has not sought a production order at any of the three settlement conferences she attended in the Small Claims Court action, as she could pursuant to r. 13.05(2) of the Rules of the Small Claims Court, O. Reg 258/98, nor is there any evidence that Rogers has withheld or failed to disclose relevant evidence.

[20] Fifth, the waiver of fees for audio digital recordings, the order permitting her to produce documents in digital format only, and the addition of proposed defendants and costs where warranted, can be addressed by the Small Claims Court.

[21] Finally, although Ms. Segura claims her experience with Rogers’ billing practices and the CCTTS complaints process are issues common to many Canadians, the application judge correctly noted that, “I cannot, however, gauge whether Ms. Segura’s grievances amount to a viable claim that would engage broader public interests, in the absence of a draft statement of claim that would set out exactly what she is complaining about and what remedies she is seeking.”

[22] We therefore see no error in the application judge’s conclusion that Ms. Segura has not shown that a transfer to the Superior Court is required for the just and fair resolution of her claim. The application judge correctly declined to exercise her discretion to transfer the proceeding and correctly noted that in declining the transfer, she had no jurisdiction to address possible amendments to pleadings, including the addition of new parties to the proceeding.

[23] The appellant submits that the application judge erred in law by denying to her the right to file reply costs submissions. However, the application judge noted that the appellant did not file any costs submissions. Therefore, we see no error with the application judge’s reasons.

[24] The appeal is therefore dismissed. The respondents are awarded their partial indemnity costs and disbursements in the nominal amounts they sought of $3,000 to Rogers, and $1,500 to each of CRTC and CCTTS, all-inclusive.

“P. Lauwers J.A.”

“David M. Paciocco J.A.”

“J.A. Thorburn J.A.”