Court File and Parties
COURT FILE NO.: CV-18-00599462-0000 DATE: 20190513 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: THANH NGUYEN, Plaintiff AND: THIEN P. DAM, THE TORONTO DOMINION BANK, ONTARIO LOTTERY AND GAMING CORPORATION, MINH NUYGEN, JEAN NGUYEN and TINH NGUYEN, Defendants
BEFORE: Justice S. Nakatsuru
COUNSEL: Thanh Nguyen, Self-Represented Plaintiff James R. G. Cook and Chris A. Junior, for the Defendant/Moving Party Phuong Thien Dam also known as Thien P. Dam Nicholas E. Fitz., for the Defendant Toronto Dominion Bank Chenyang Li, for the Defendant/Moving Party Ontario Lottery and Gaming Corporation
HEARD: April 25, 2019
Endorsement
[1] Ms. Thanh Nguyen is suing the Defendants. Ms. Nguyen is representing herself. Toronto Dominion Bank (“TDB”), Ontario Lottery and Gaming Corporation (“OLG”), and Ms. Thien Dam, a lawyer, bring this summary judgment motion to have the lawsuits against them dismissed. Ms. Nguyen’s Statement of Claim is short. It is really about one page. It essentially claims that these Defendants acted negligently.
[2] The other Defendants, Minh Nguyen, Jean Nguyen, and Tinh Nguyen are not bringing a summary judgment motion. I understand that they are related to Ms. Nguyen. The claim made against them in the Statement of Claim is only that they have accused Ms. Nguyen of stealing her brother’s assets. The trial against these Defendants will continue.
[3] Before I get to the decisions I must make, I want to say this. This case has some history. I will not go through it all. When this motion came before me, Ms. Nguyen appeared acting for herself. Her sister also was there. I allowed her sister to help her. But she could not represent her. There were reasons for this. I explained it in court. In a previous case management conference, Ms. Nguyen was told to bring an interpreter. She did not. But one of the Defendants hired a court interpreter for her for the motion. Both Ms. Nguyen and I are thankful for that.
[4] At the hearing, Ms. Nguyen asked for an adjournment. We spent some time on this. I did not grant her an adjournment. I explained the reasons for this in court. I know Ms. Nguyen did not agree with this. I began hearing the motion. The lawyer for Toronto Dominion Bank was arguing when Ms. Nguyen asked to use the washroom. We broke for that. When I came back, Ms. Nguyen’s sister told me that Ms. Nguyen had left and was not coming back. No good reason was given why. The sister then left. I want Ms. Nguyen to know that I thought about what was the fair and right thing to do given her actions. I want Ms. Nguyen to know that I decided that it was right to continue in her absence. In my view, Ms. Nguyen left because she did not want this hearing to continue. In short, she did that in hopes that it will delay the motion. I also believe that I can still do justice in this case even though Ms. Nguyen did not stay and take part. I found that to do other than continue with the motion would only have brought the administration of civil justice into disrepute.
[5] For the reasons I will explain to Ms. Nguyen, I agree with TDB, OLG, and Ms. Dam. I grant the motion. The lawsuits against them are dismissed.
[6] I will deal with each Defendant separately. The law requires that I do. But I find that for each moving Defendant, the legal test for summary judgment is met. For each moving Defendant, I find there is no genuine issue requiring trial.
[7] Ms. Nguyen, to be clear, there really is no chance that you will be successful at trial. To say this another way, to dismiss your claims now will do no injustice to you.
[8] I understand that you may not be happy with this. Although, I do recognize that you told me in court you wanted to discontinue the lawsuit against these three Defendants. But no agreement was reached on this. On this motion, I have ignored any discussion about this. I have decided the motions on their merits.
[9] Plus, I know that by granting summary judgment to these Defendants will not end the case. This is what is called “partial summary judgment”. Partial summary judgment is not given often. It is rare. This is because the trial will still go on. However, here the legal test for it has been met by TDB, OLG, and Ms. Dam. The claims against them are very separate from each other. They are very separate from the claims against the Nguyen Defendants. There is no danger that decisions made later will be inconsistent with the decision I make on this motion. There is no risk of inconsistent findings. I also find that by making this decision, the trial will not be delayed. The time, energy, and cost spent on this motion will be worth it. It will save time at trial. Granting summary judgment is a quick, cost-effective, and the right way of dealing with these claims.
[10] One thing I have thought seriously about is this. Ms. Nguyen did not present any evidence at this motion. I understand that if the case continued to trial, the evidence from her may be more. However, I do not find this should stop me from granting summary judgment.
[11] First of all, there were a number of times when the parties appeared before a judge before this motion was set. It was appreciated by these judges that this was only going to be a motion for partial summary judgment. Justice Stewart gave very thoughtful reasons why the scheduling of this motion should be allowed despite this. Partial summary judgment motions are looked over before they are scheduled. For good reason since they should be rare. Not commonly argued. Not often granted. Schedules were set up. Changes made. I have looked over the history. I find that Ms. Nguyen knew from all of this that she had the right to present evidence. That it was important to do so. And that I had to decide this case only on the evidence before me. Not on evidence you might call later if the case was allowed to go to trial.
[12] Secondly, I have looked over the evidence that was presented. As I will explain, it is clear to me that there are no genuine issues requiring a trial. Any further evidence will not likely change this. Again, to decide this case in this way, rather than have a complete trial, is the right thing to do.
[13] Credibility means which witness to believe. It can also mean if the witness is correctly testifying about something. In this case, there is no issue about credibility findings. First, Ms. Nguyen has not presented any evidence. No credibility issue arises from that. Secondly, none of the Defendants’ affiants were cross-examined. I also have assessed the evidence given by them. I accept it. It is plausible, straightforward, mostly confirmed with documents, and reliable. No credibility concerns arise from this. Finally, the kind of issue presented by the claims and the defences in this case are ones that do not depend on credibility. A trial is not required for this reason.
[14] Before going further, I want to say this. While each claim is separate and independent, the types of arguments raised on the motion by each Defendant is the same. All the Defendants argue: 1) the claim is statute-barred by the limitation period; 2) the claim should be dismissed as an abuse of process, and; 3) there is no genuine issue requiring a trial as the test for negligence has not been met.
[15] I will not go through the evidence on the motion in detail. I have considered it. I find it most important in these reasons to try and explain the “why” I have decided to Ms. Nguyen.
A. THE MOTION BY TDB
[16] Ms. Nguyen claims that TDB negligently cashed her brother, Liem Ngyuen’s Canada Savings Bond of $41,601.50 to someone who was not her brother without her brother’s consent or knowledge. Since her brother was living with Ms. Nguyen and had promised he would give her a portion of his assets during this time, Ms. Nguyen claims she has suffered damages.
[17] First of all, this claim should be dismissed because it was started beyond the two-year limitation period. Generally, the law does not allow lawsuits to be started after two years from the day a person first knew or ought to have known an injury, loss, or damage was caused by the defendant and a lawsuit was the way to remedy it. This Statement of Claim was issued on June 11, 2018. The alleged negligent cashing of the Canada Savings Bonds (“Bond”) happened in December 2015. The law says there is a rebuttable presumption that a claim is discovered on the date of the events that gave rise to it. The test for rebutting this presumption is low. But it is Ms. Nguyen who must rebut it. Here Ms. Nguyen led no evidence. I appreciate that the evidence to rebut this can come from any source of evidence. Even evidence from TDB’s affidavit. Even from the circumstances of the case. However, I find there to be no such evidence here. Thus, the presumption applies. The case is statute-barred.
[18] Even if the presumption did not apply, when I consider the issue of discoverability - that is when the legal test on when the claim was “discovered”- I find that the evidence does not show that this is a genuine issue requiring a trial. Ms. Nguyen started a Small Claims Court action on December 23, 2016, against TDB and the Nguyen Defendants. As against TDB the claim is essentially the same. About cashing the Bonds. In this Small Claims Statement of Claim, Ms. Nguyen pleads that she lived with Liem Nguyen. Liem Nguyen pleaded in his Small Claims action he discovered his Bonds were cashed on January 8, 2016. The same family member represented both in their claims. In light of these circumstances, while I fully appreciate that Ms. Nguyen is unrepresented, I am prepared to draw an adverse inference from the fact that Ms. Nguyen failed to submit any evidence on this motion about “discoverability”. I find that she ought to have known suing was the right thing to do within the two years. Indeed, she did properly start the Small Claims Action within the period. This action falls outside of the two-year limitation period. For this reason too, it should be dismissed.
[19] I also find that TDB should succeed because there is no duty of care owed by TDB to Ms. Nguyen. This duty of care is essential in order to prove negligence. Part of the legal test required to find a duty of care is a relationship of proximity. Here Ms. Nguyen had no relationship whatsoever with TDB. She was a stranger. Not a customer. There was no commercial relationship. The only thing in her claim is a pleading that her brother gave her a promise to share his assets. There is no evidence that TDB knew of any promise that was made to Ms. Nguyen. There is no evidence TDB even knew of her existence. There is no reason to believe that any alleged wrongful cashing of the Bonds to Liem could have caused harm to Ms. Nguyen. Thus, I am certain I can find the facts. I am certain I can apply the law to those facts. There is no duty of care owed. The action against TDB should be dismissed for this reason.
[20] TDB also argues that Ms. Nguyen’s claim is an abuse of process. The main point argued is that Liem Nguyen had also sued TDB for negligent cashing of his Canada Savings Bonds. This action was dismissed on consent without costs on January 6, 2017. I fully understand TDB’s argument that it is an abuse of process for Ms. Nguyen to re-litigate this issue once settled. That she is just stepping into the shoes of her brother. However, I do not agree. She is not re-litigating this on behalf of her brother. While their claims are factually connected, she is suing in her own right. She is making claims of liability and damages on her own behalf. She was not involved in the lawsuit started by her brother. I do not find she is doing this to bring her brother’s claim back to life. Therefore I disagree with TDB. I find this is not a reason to dismiss her action.
[21] Finally, TDB argues that I should dismiss or stay Ms. Nguyen’s Small Claims Court action. I accept I have the jurisdiction. However, this was not asked for in the Notice of Motion. The fact TDB requested other potential orders is too generic to provide actual notice. I know TDB has asked for it in its factum. But Ms. Nguyen is self-represented. It would not be fair to dismiss her Small Claims Court action given the lack of specific notice. Some things she and her sister said to me shows that they feel this motion has no effect on the Small Claims Court action. TDB will have to deal with this issue in Small Claims Court.
B. THE MOTION BY OLG
[22] Ms. Nguyen claims that OLG wrongfully paid out Mr. Liem Nguyen’s winning lottery ticket of $5,000 to someone who was not him. This negligence caused her damages since her brother was living with Ms. Nguyen and had promised he would give her a portion of his assets during this time.
[23] OLG paid out the money from this winning ticket to Ms. Nguyen’s father, Van Le Nguyen, on September 26, 2015. Mr. Van Le Nguyen presented the ticket and signed the proper forms. He got the $5,000.
[24] Like the claim against TDB, I find Ms. Nguyen’s claim to be beyond the limitation period of two years. It will be dismissed. There is no evidence or any reason not to apply the presumption here. I understand when Ms. Nguyen came to know about the “stolen” ticket could be an issue. But the presumption must be rebutted by some evidence. Ms. Nguyen has to present evidence or be prepared to lose on this motion. Here there is no such evidence. I apply the presumption. There is no genuine issue requiring trial.
[25] Even if the presumption is rebutted by the circumstances, I am prepared to draw an adverse inference against Ms. Nguyen for not presenting evidence on “discoverability”. Here, Mr. Liem Nguyen notified OLG his ticket had been stolen on November 6, 2015. On November 19, 2015, he reported it stolen to the police. The evidence is that Ms. Nguyen was living with her brother. The objective inference one could draw is that Ms. Nguyen knew or should have known if duly diligent, in and around that time that she suffered a loss and a lawsuit was the way to get the money back from OLG. In these circumstances, Ms. Nguyen’s failure to produce some evidence to the contrary, leads me to infer that she did in fact know around that time. Or at least, ought to have known if she was diligent. If she paid the kind of attention an ordinary person in her position would have.
[26] Also, I find that there is no cause of action against OLG. A trial is not required for me to conclude this. I can be certain of this on the evidence.
[27] There is no contract between Ms. Nguyen and OLG. It is not her ticket. There is also a legal rule, Rule 5.11 of the Gaming Rules that does not allow the owner of the winning ticket to give the right to a prize or payment under that prize to anyone else. Also, there is no evidence that OLG knew or should have known that there was a dispute about who actually won the prize before Mr. Van Le Nguyen claimed the prize. There is no evidence that Ms. Nguyen had any legal interest in the prize. She simply says her brother was to share his assets.
[28] There is also no cause of action in negligence. Like TDB, no duty of care is owed to Ms. Nguyen here. Again, there is no proximity in the relationship. There is no reasonably foreseeable harm that OLG’s alleged negligent act would cause harm to a person who is not the owner of the ticket. While a duty of care will exist to a person owning the ticket, here OLG has no relationship whatsoever with Ms. Nguyen. It is like the TDB. Her only connection is she is a family member who lives with the person that a duty of care is owed to. This relationship to OLG is not close enough. It is not reasonably foreseeable she would be harmed.
[29] I did not explain this above when it came to TDB, but there are policy reasons not to recognize a new duty of care like this. Given how widespread gaming and lotteries are, to find there is this new duty of care would lead to indeterminate liability. That means broad and unpredictable liability for OLG. It will encourage a floodgate of litigation. This is a good reason not to recognize this duty of care.
[30] I find there is no genuine issue requiring a trial. Ms. Nguyen’s claim is certain to fail.
[31] OLB also argues abuse of process. Mr. Liem Nguyen had sued OLG in Small Claims Court for negligent payment of the prize. He chose to settle that action because he settled the dispute between himself and his father. The action was dismissed. Given this, OLG claims this action by Ms. Nguyen is an abuse of process. I again disagree. There is no evidence to support that Ms. Nguyen’s action is a part of a concerted strategy with her brother to restart or revive the action against the OLG. On its face, Ms. Nguyen is suing on her on behalf. This action is not an abuse of process. Suing OLG in this way does not result in an abuse of process because her brother chose to settle his claim in the way he did.
C. THE MOTION BY MS. DAM
[32] Ms. Nguyen claims that Ms. Dam, a lawyer, wrongfully transferred her brother’s house valued at $650,000 to his nephew, without her brother’s knowledge or consent. This misconduct caused her damages since her brother was living with Ms. Nguyen and had promised he would give her a portion of his assets during this time.
[33] On December 2, 2015, Ms. Dam was retained by Mr. Liem Nguyen and Mr. Andrew Nguyen to transfer the property at 26A Sandstone Lane, Toronto, Ontario. On December 29, 2015, this was done. At no time did Ms. Dam have any interaction with Ms. Nguyen. She was not retained by her. She never met her. She never gave help to her. She never received any instructions from her.
[34] I find there is no genuine issue requiring a trial on the negligence claim made by Ms. Nguyen. I am confident of the facts that need to be made. I can apply the law to them.
[35] First of all, I find that this case is beyond the limitation period. In this case, I apply the presumption given there is no evidence to the contrary. Just like I did with OLG and TDB.
[36] Secondly, if the presumption is rebutted from the circumstances, I find that Ms. Nguyen ought to have reasonably discovered this claim by February of 2016. On February 10, 2016, Mr. Liem Nguyen started a Land Registrar’s Investigation into the transfer of the property. A Caution Hearing was requested by him on February 24, 2016. The first hearing was held on April 7, 2016. Mr. Liem Nguyen was alleging the fraudulent transfer. The evidence is further that Ms. Nguyen was living with Mr. Liem Nguyen at the time. This house is a few houses away from the transferred property. The same family member represented Mr. Liem Nguyen at the Caution Hearing and had represented them both before. Again, in this situation, by failing to provide any evidence about when she “discovered” her claim, I will draw an adverse inference against her. Her claim can be dismissed for this reason.
[37] Also, I find there is no negligence. There is no duty of care owed by Ms. Dam to Ms. Nguyen here. It is only in limited cases that a lawyer will owe a duty of care to a non-client. In this case, there was no relationship of proximity. There was no interaction between Ms. Nguyen. No retainer. No contact. Again, there was no relationship whatsoever. Ms. Dam did not know of Ms. Nguyen at the relevant times. It was not foreseeable that a negligent act regarding the sale of this property would harm Ms. Nguyen.
[38] Also, there is no evidence that Ms. Nguyen reasonably relied on Ms. Dam and that Ms. Dam knew or ought to have known of her reasonable reliance. Thus, there is no duty of care in this solicitor’s negligence case. Thus, I am certain of the facts and how the law must be applied. The action against Ms. Dam must be dismissed for this reason too.
[39] Finally, the abuse of process argument. Mr. Liem Nguyen started two legal proceedings in 2016: the Caution Hearing and an Application in the Superior Court. Mr. Liem Nguyen refused to come to the Caution Hearing, it was dismissed, and Ms. Dam received $3,000 in costs. The Application with Ms. Dam as one of the named respondents, seeking the transfer of the property back from his nephew was discontinued on November 20, 2016. Like in TDB and OLG’s case, Ms. Dam submits this action is an abuse of process. Like in TDB and OLG, I do not agree for the same reasons I have already given.
D. CONCLUSION AND COSTS
[40] Summary judgment is granted. The lawsuits against TDB, OLG, and Ms. Dam are dismissed.
[41] In finding this, I know Ms. Nguyen feels a wrong has been done to her. But in this Statement of Claim, it is really a wrong done to her by her brother, if anyone. But she has not sued her brother, Mr. Liem Nguyen. That is her choice. I will say no more of this.
[42] At the end of the hearing, the lawyers gave me their costs outline as the rules say. I wish to tell Ms. Nguyen the following: Ms. Dam’s Bill of Costs is $26,863.05 on substantial indemnity and $18,495.40 on partial indemnity; TDB’s Bill of Costs is $22,722.36 on partial indemnity; OLG’s Bill of Costs is $22,036.30 on actual indemnity and $13,443.78 on partial indemnity.
[43] I know that Ms. Nguyen was worried about costs. She did not stay for the hearing. I want to give her a chance to tell me what I should do about costs. I also want to give OLG, TDB, and Ms. Dam a chance to make their submissions to me on costs. So, OLG, TDB, and Ms. Dam will have 10 days from the date of this decision to make a one page submission on costs to me. They will give this and their bill of costs to Ms. Nguyen as well. Ms. Nguyen will have 20 days from the date of this decision to make her submissions to me on costs. Her submissions will be no more than two pages. I will then send to the parties my written decision about costs.
Justice S. Nakatsuru Released: May 13, 2019