SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-426288
DATE: 20120813

RE: Jin Mo

and

Eric Johnson

BEFORE: Justice E.M. Morgan

COUNSEL: Joseph Kary, for the Plaintiff

Lea Nebel, for the Defendant

DATE HEARD: August 13, 2012

E N D O R S E M E N T

[ 1 ] This is a summary judgment motion brought by the Defendant under Rule 20.01(3) to dismiss the action.

[ 2 ] The Defendant is a security guard at the condominium building where the Plaintiff resides. The claim is based on an allegation that the Defendant failed to notify the Plaintiff of two FedEx packages delivered to him at the condominium building on Dec. 30, 2010 and Jan. 20, 2011. The Statement of Claim says the Defendant was negligent or intentionally failed to inform the Plaintiff of the deliveries. The Plaintiff also alleges that he was mistreated by the Defendant on another occasion when they had a face-to-face encounter with each other in the lobby of the building.

[ 3 ] The Defendant’s affidavit explains that the receipt records show that he signed for the packages on the two occasions in question, and that the usual practice at the building is to place the delivery slips in residents’ mailboxes. The Plaintiff had signed the usual waiver form authorizing the concierge and security staff to sign for and receive delivery packages for him.

[ 4 ] The Defendant has no specific memory of these two packages, but assumes that the Plaintiff was notified in the usual course. The log book shows that although the Defendant received the parcels when he was on duty, another security guard that has the shift after him logged them into the log book. This, the Defendant explains, sometimes occurs when a security guard is otherwise busy. The Defendant also states in his affidavit that he explained to the Plaintiff that sometimes the delivery slips get mixed up in the mail when Canada Post puts mail in the mailbox, and that they can get crumpled or buried under the mail. Security guards cannot open the mailboxes; they can only insert the slip in the slot in the front of each box.

[ 5 ] The Plaintiff states that he found one slip a month after the delivery date, crumpled in the mailbox, and that he never found the second slip. Plaintiff’s counsel argues that the Defendant was negligent and fell below the standard of care required of him in failing to notify the Plaintiff of the parcels in a proper way.

[ 6 ] The Plaintiff also claims that he was treated rudely by the Defendant on January 26, 2012, when he inquired about the deliveries. For his part, the Defendant states that at the January 26 th encounter the Plaintiff was belligerent and smelled of alcohol. The Defendant wrote up an ‘incident report’ at the time, which forms an exhibit to his affidavit.

[ 7 ] In all, the Plaintiff is seeking $100,000.00 for negligence and intentional infliction of emotional distress, and $200,000.00 in exemplary damages “for committing said torts willfully and maliciously.”

[ 8 ] This is a case where it is possible on the affidavits and cross-examination transcripts to achieve a full appreciation of the evidence and issues required to make dispositive findings. The evidence is relatively straightforward, and is composed of two missed deliveries and one encounter between the parties. It is susceptible to being weighed and inferences drawn from it without the benefit of live witnesses at trial. Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 , paras. 73-75 (Ont CA).

[ 9 ] In assessing the evidence and the issues, I am mindful of the fact that the onus is on the moving party to show that there is no genuine issue requiring a trial. At the same time, the responding party is obliged to present its best case at this stage. Pizza Pizza Ltd. v. Gillespie (1990), 1990 4023 (ON SC) , 75 OR (2d) 225 (Ont Gen Div).

[ 10 ] The record shows that the Plaintiff did not find the delivery slips on the dates the packages were delivered to the condominium building and that he simply assumed, without more, that the security guard who signed for the deliveries is at fault. It should be noted that when Plaintiff asked at the security desk whether he had received any deliveries, the Defendant looked for the packages and found them there. No one had misappropriated them or misplaced them; only the delivery slips (or at least one of them) had gone astray. There is simply nothing in the evidentiary record to suggest that the missing delivery slips was anything but an accident with no one at fault.

[ 11 ] Further, there is also nothing to suggest that the January 26, 2012 encounter between the parties was anything but a slightly testy conversation between a demanding resident of the building and a harried security guard. Plaintiff’s counsel argues that the Defendant’s incident report that records this conversation is a self-serving document designed to make the Defendant look good. Defendant’s counsel argues that whatever words were exchanged between the two parties, the Plaintiff suffered no actionable harm in this incident. Both appear to me to be correct; a brief encounter with no legal consequences has been magnified out of proportion by both parties.

[ 12 ] I find that in all of these small incidents, there is no discernible evidence of injury to the Plaintiff. Mr. Kary has made a valiant advocacy effort on the Plaintiff’s behalf, but the Plaintiff, who was self-represented up until this hearing, produced a very weak evidentiary record.

[ 13 ] The Plaintiff is a lawyer who claims that he lost income as a result of the missing delivery slips and the encounter with the Defendant, but on cross-examination he refused to provide any details of his claimed losses in billings or revenue. The Plaintiff claims that one of the deliveries contained a significant investment opportunity in a Korean public company that he lost out on, but in cross-examination he refused to identify the company or to say what the nature of the business or investment was. The Plaintiff asserts that the investment documentation was urgent and time-impacted, but he will not disclose the deadline for the investment. The Plaintiff further claims that the other delivery contained financial loan documents that failed to reach him in a timely fashion and that he missed out on that loan, but he has refused to produce copies of those documents.

[ 14 ] Furthermore, the Plaintiff claims he has suffered emotional distress from the January 26 th encounter with the Defendant, but he has refused to provide any medical records or other evidence of that distress. Plaintiff’s counsel argues that for the tort of intentional infliction of emotional distress there is no need for a medical report. That may be the case, but there is a need to put forward at least some shred of evidence that harm has occurred. The Plaintiff claims to have had to go on medication because of the trauma inflicted by the Defendant, but he refuses to say what that medication might be. The Plaintiff swears that his friends have all been witness to his suffering, but he has refused to disclose who those friends are.

[ 15 ] The Defendant’s position is that he has been sued in his personal capacity for acts done only as employee of G4S Secure Solutions (Canada) Ltd., and that the claim should be dismissed on that legal basis. Defendant’s counsel, citing ScotiaMcLeod Inc. v. Peoples Jewellers Limited , 1995 ONCA 1301 (Ont CA), argues that there is no indication that the acts of the Defendant exhibit a separate identity or interest from that of the corporation that he works for so as to make the acts alleged against him in the Statement of Claim his own.

[ 16 ] I would agree that the Defendant only acted in his employment capacity. But more importantly, the fact is that there is simply no indication that the acts of the Defendant were tortious at all. The Plaintiff has submitted two affidavits, was cross-examined extensively, and cross-examined the Defendant on his affidavit as well. In all of that, he has failed to produce any credible evidence that the Defendant acted wrongfully or that any losses have flowed from the Defendant’s conduct.

[ 17 ] A party facing a motion for summary judgment must, as the saying goes, lead trump or risk losing. As Sharpe J. put it in a description that is particularly apt given the Plaintiff’s posture here, “a party is no longer entitled to sit back and rely on the possibility that more favourable facts may develop at trial.” Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co ., 1996 7979 , para. 29 (Ont SC).

[ 18 ] Assuming that the parties have put their best evidence forward in the motion before me today, the Statement of Claim contains little more than bald assertions. I find no evidence on which to base a sustainable claim. Summary judgment is therefore granted, and the action is dismissed.

[ 19 ] The parties have 14 days from the date of this endorsement to make written submissions as to costs.

Morgan J.

DATE: August 14, 2012