Court File and Parties

CITATION: Xia v. His Majesty the King in right of Ontario, 2024 ONSC 5122

DIVISIONAL COURT FILE NO.: 092/24

DATE: 2024-09-18

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: HONG XIA, Appellant

AND:

HIS MAJESTY THE KING IN RIGHT OF ONTARIO, Respondent

BEFORE: Matheson J.

COUNSEL: Self-represented Appellant Eric Wagner, for the Respondent

HEARD at Toronto: August 27, 2024, by video-conference

Endorsement

[1] This is an appeal from the decision of Deputy Judge Chadwick of the Small Claims Court dated November 15, 2023 (the Decision), striking out the appellant’s claim. The appellant had sued the Family Responsibility Office (FRO) for negligence in relation to his communications with FRO and the steps FRO took regarding his child support payment history.

[2] The legislation that is central to this appeal is the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31. That Act is FRO’s governing statute. It sets out statutory duties, including the duty to enforce support orders filed with FRO and the criteria for ceasing to enforce a support order.

[3] Very briefly, the appellant paid child support of $800/month pursuant to a 2005 court order. In 2019, FRO sent the appellant a pre-enforcement warning letter about a shortfall. The appellant continued to pay the monthly $800 payment but not the outstanding $600. In May 2019, the appellant sent a letter to FRO with what he said was his final payment because his daughter was starting a full time job. In a “PS” (post-script) he said, “[i]f this is not a formal way to terminate my obligation, please advise what I should formally do” and he stopped making child support payments.

[4] In July 2019, FRO sent the appellant a letter informing him of the intention to report him to credit bureaus under s. 47 of the Act due to the child support arrears of then $3,000. The letter set out payment options, to be completed within 15 days, failing which the appellant would be reported to the credit bureau agencies. The letter set out the negative consequences of such a report and noted that once reported, and even after payment, the record would remain on the appellant’s credit history for six years.

[5] The appellant responded, disputing the accuracy of the amount and the authenticity of the letter. He did not make the payments and there was therefore a credit bureau report.

[6] The appellant consulted a lawyer and, in August 2019, the appellant’s then counsel wrote to FRO saying that they intended to bring a motion to change and requesting that the FRO not take any further action.

[7] In September 2019, counsel submitted a signed Notice of Withdrawal to FRO, indicating that the parties had agreed to withdraw the support order from FRO enforcement. FRO promptly processed the Notice. No further support accrued. There was then a December 2019 court order terminating the appellant’s child support obligations retroactively, as of May 1, 2019. FRO notified the appellant that it would provide an update to the credit bureau that the amount of support arrears was zero.

[8] In 2021, the appellant brought a negligence claim in the Small Claims Court alleging financial, mental and personal credit damage caused by the “mishandling” of his child support payment case and a “groundless wrongful negative credit score”.

[9] The respondent brought a motion to dismiss the claim under r. 12.02 of the Small Claims Court Rules. That rule asks whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be inflammatory, a waste of time or a nuisance: Van de Vrande v. Butkowsky, 2010 ONCA 230, at para. 19. Affidavit evidence is permitted: Van de Vrande, at para. 17. The respondent put forward an affidavit. Although the appellant did not do so, the Deputy Judge acknowledged his submissions.

[10] The motion was granted. The Deputy Judge found that there was no duty of care, and also agreed with the respondent’s alternative submission that even if there was, the standard of care had been satisfied.

[11] The appellant raises essentially the same arguments on this appeal that he raised before the Deputy Judge. The appellant submits that the issue is the service he did not receive from FRO because FRO did not reply to his communications in May 2019 and following. He submits that he should have had what he calls a normal level of service, analogizing that level of service to the relationship between a realtor and their client.

[12] Using the legal terminology that applies to a negligence claim, the appellant submits that FRO owed him a duty to reply to his correspondence, and failed to do so repeatedly, causing him damage.

[13] The issues are therefore whether FRO owed the appellant a duty and, if so, whether the standard of care was breached. The appellate standard of review applies to this appeal, specifically correctness for errors of law or extricable errors of principle, and palpable and overriding error for findings of fact or findings of mixed fact and law.

[14] The appellant has not shown that the Deputy Judge erred in granting the motion to dismiss. I understand that the appellant is drawing his analogy from his own experience with real estate transactions, but the duties of FRO are not comparable.

[15] The Deputy Judge correctly applied the legal principles regarding a r. 12.02 motion, properly assumed that the facts alleged in the claim were true and read the claim generously. The Deputy Judge also accepted the respondent’s affidavit evidence, as she was entitled to do.

[16] The Deputy Judge then applied the test to establish a duty of care as set out by the Supreme Court of Canada in Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79. She considered the relevant provisions of the Act and the specific interactions between the parties, in keeping with the principles in Am-Stat Corporation v. Ontario, 2018 ONCA 877, at para. 6. The Deputy Judge concluded that the appellant had not established a duty of care and made no error in doing so. The Decision is also consistent with other cases that were put forward by the respondent at the hearing (although not expressly referred to in the reasons for decision), in which FRO was found not to owe a duty of care.

[17] Since there was no duty of care owed to the appellant, there is no need to address the standard of care.

[18] This appeal is dismissed. The appellant shall pay the respondent costs in the agreed-on amount of $2,000, all inclusive.

Matheson J.

Date: September 18, 2024