Court File and Parties
COURT FILE NO.: CV-15-524467 DATE: 20190718 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N :
SAJJAD ASGHAR Plaintiff – and – DIAL AND FILE PROCESS SERVERS INC. Respondent
Sajjad Asghar representing himself P. Alex Rivard for the respondent HEARD: July 11, 2019
FAVREAU J. :
Introduction
[1] The plaintiff, Sajjad Asghar, claims that the defendant, Dial and File Process Servers Inc., acted fraudulently, in breach of contract and contrary to the Consumer Protection Act, 2002, S.O. 2002, c. 30, when it was unsuccessful in serving a statement of claim on his behalf in another action.
[2] On this motion, Mr. Asghar seeks summary judgment, arguing that his evidence on the motion supports his claim, and that a trial is not necessary to decide the issues. Dial and File submits that summary judgment should be granted in its favour or, alternatively, that a trial is required to decide the issues in the case.
Factual background
[3] Mr. Asghar swore two affidavits in support of the motion. He was also cross-examined by the defendant.
[4] Dial and File filed an affidavit sworn by its owner, Vibhor Jaggi. Mr. Jaggi was not cross-examined on his affidavit.
[5] There are some differences between the evidence of the parties, but generally the events leading up to the litigation are not in dispute.
[6] On January 19, 2015, Mr. Asghar hired the defendant to serve a statement of claim in an action he commenced in another matter. The defendant in the action was an employee of Rogers, and Mr. Asghar asked that Dial and File serve him at the Rogers corporate office. Mr. Asghar paid $67.80 that day to Dial and File, which was the fee charged for one attempted service and an affidavit of service.
[7] Mr. Asghar provided the statement of claim to Dial and File on January 22, 2015. Dial and File then attempted to serve the statement of claim on the Rogers employee on January 26 and 29, 2015, but both attempts were unsuccessful. In both cases, the security guard in the building tried to contact the employee, but did not receive a response.
[8] Dial and File then advised Mr. Asghar that it had not been able to serve the statement of claim, and Mr. Asghar asked that no further attempts be made. On February 19, 2015, Mr. Asghar sent an email to Dial and File asking that he be provided with an affidavit of attempted service so that he could bring a motion for substituted service.
[9] Mr. Asghar claims that he then contacted Dial and File a number of times to make arrangements to pick up the statement of claim and affidavit of attempted service, but that he did not get a response until March 16, 2015. Mr. Jaggi's evidence is that he tried to call Mr. Asghar after the February 19, 2015 email, but that Mr. Asghar did not respond to his calls. Regardless of this discrepancy in the evidence, there is no dispute that Mr. Jaggi did send an email to Mr. Asghar on March 16, 2015, in which he apologized for the delay and advised that the documents were ready for Mr. Asghar to pick up.
[10] Mr. Asghar claims that he never picked up the documents from the defendant. The defendant's evidence is that Mr. Asghar did pick them up. However, there is no dispute that Dial and File made the documents available to Mr. Asghar for pick up as of March 16, 2015.
[11] On March 20, 2015, Mr. Asghar commenced this action against Dial and File. In his claim, Mr. Asghar seeks $100,000, including punitive and aggravated damages. He lists many causes of action, but on the argument of the motion he focused on fraud, breach of contract and contravention of the Consumer Protection Act.
[12] Prior to starting the action, Mr. Asghar also made complaints to the police and to the Ministry of Consumer Services about Dial and File. The police determined that the matter was outside their scope and the Ministry advised Mr. Asghar that they would not deal with the matter because the dispute was over less than $500.
[13] In the context of the action against the Rogers employee, Mr. Asghar did bring a motion for substituted service, after which he successfully served the claim on the defendant in that action. His evidence is that the action is ongoing.
Test on a motion for summary judgment
[14] Under subrule 20.04(2) of the Rules of Civil Procedure, summary judgment is to be granted if the Court is satisfied that there is no genuine issue requiring a trial.
[15] As set out in Hryniak v. Mauldin, 2014 SCC 7, at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This is the case when the process: "(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result."
[16] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1). If there appears to be a genuine issue requiring a trial, Rule 20.04(2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the "interest of justice" for these powers to be exercised only at trial: Hryniak v. Mauldin, at para. 66. The motion judge is also permitted to use the expanded powers under Rule 20.04(2.2) to direct a procedure such as a mini-trial, rather than a full trial.
[17] The responding party may not rely on the prospect of additional evidence that may be tendered at trial; the respondent must put its best foot forward in response to the motion for summary judgment: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (Ont. S.C.J.), at para. 26, aff'd 2014 ONCA 878 (Ont. C.A.), leave to appeal to SCC refused, [2015] S.C.C.A. No. 97 (S.C.C.).
[18] On a motion for summary judgment, the Court is entitled to grant summary judgment in favour of the responding party if warranted by the record and if it is in the interests of justice and proportionate to do so: Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, at para. 52; King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, at paras. 14-15; and Meridian Credit Union Ltd. v. Bain, 2016 ONCA 150, at para. 17.
Analysis
[19] As indicated above, the three causes of action the plaintiff focused on during the argument of the motion are fraud, breach of contract and breach of the Consumer Protection Act.
[20] There is no evidence that Dial and File impeded Mr. Asghar's ability to pursue the claim against the Rogers employee. Rather, the focus of Mr. Asghar's claim is his allegation that Dial and File did not respond to his request for the affidavit of attempted service and that the statement of claim be returned to him in a timely manner.
[21] In my view, the evidence on the motion does not support a finding that Dial and File is liable to Mr. Asghar for any of the causes of action asserted.
Whether the plaintiff has made out a claim for fraud
[22] In support of his claim for fraud, the plaintiff argues that the defendant's website fraudulently misrepresented the quality of services provided by the defendant.
[23] As set out in Hryniak, at para. 87, in order to succeed on a claim of civil fraud, the plaintiff must demonstrate the following four elements:
a. false representation by the defendant; b. some level of knowledge of the falsehood of the representation on the part of the defendant (whether knowledge or recklessness); c. the false representation caused the plaintiff to act; and d. the plaintiff's actions resulted in a loss.
[24] There is no evidence to support the plaintiff's claim of fraud. The defendant's website contains general statements about the quality and reliability of its services. There is no evidence that these statement were false or that the defendant made them knowing they were false.
[25] More significantly, Mr. Asghar has not suffered any damages. He hired the defendant to attempt to serve a claim. While the defendant was unable to serve the claim, it prepared an affidavit of attempted service and ultimately made that affidavit available to the plaintiff. There is no evidence of any damage due to the defendant's alleged lack of communication or delay in making the affidavit of attempted service and statement of claim available. Mr. Asghar was able to bring a motion for substituted service and serve the claim, and he continues to pursue the action. During the argument of the motion, Mr. Asghar suggested that the statement of claim was highly confidential, which is why he expected Dial and File to return the statement of claim to him quickly after the failed service. However, the statement of claim had been issued and is therefore a public document. In addition, there is no evidence that Dial and File misused or in any way caused damage to Mr. Asghar by retaining the statement of claim until March 16, 2015.
[26] Accordingly, I do not find that Mr. Asghar has established his claim in fraud.
Whether the plaintiff has made out a claim for breach of contract
[27] Mr. Asghar's claim for breach of contract is similar to his claim of fraud.
[28] Relying on the decision in Bhasin v. Hrynew, 2014 SCC 71, Mr. Asghar argues that the defendant did not act in good faith in performing the contract. There is no evidence in support of this argument. Dial and File did what it agreed to do. It attempted to serve the Rogers' employee, and then prepared an affidavit of attempted service. In fact, while Mr. Asghar paid for one attempt, Dial and File attempted twice, and only charged for one attempt. In my view, the delay in providing Mr. Asghar with his statement of claim and affidavit of attempted service is not sufficient to make a finding of bad faith. There is no evidence that Mr. Asghar advised the defendant that time was of the essence and, in fact, there is no evidence that time was of the essence.
[29] In any event, as with the fraud claim, there is no evidence that Mr. Asghar suffered any damages.
Whether the plaintiff has made out a claim based on a breach of the Consumer Protection Act
[30] Mr. Asghar makes a general claim that Dial and File breached the Consumer Protection Act through false advertising. Assuming the Consumer Protection Act can give rise to a civil cause of action, again there is no evidence of false advertising by Dial and File, or that Mr. Asghar suffered any damages.
Whether there is any basis for the other causes of action asserted by the plaintiff
[31] As mentioned above, the statement of claim lists numerous causes of action. Mr. Asghar did not pursue these additional causes of action in argument on the motion. In any event, none of them have any merit given that Mr. Asghar has not suffered any damages.
Whether this is an appropriate case for summary judgment against the plaintiff
[32] As referred to above, in Kassburg, King Lofts Toronto and Meridian Credit Union, the Court of Appeal held that granting summary judgment to the responding party on a motion for summary judgment may be appropriate in some cases where the evidentiary record is complete and it is proportionate and in the interests of justice to do so.
[33] I am satisfied that this is such a case. While Mr. Asghar seeks damages in the amount $100,000, his claim is about a service for which he was charged $67.00. It would be completely disproportionate to allow this matter to continue and to go to trial. As reviewed above, even on Ms. Asghar's evidence, Dial and File performed the service but was somewhat delayed in returning the statement of claim and making the affidavit of attempted service available to him. Mr. Asghar has not established any damage or prejudice flowing from this delay. Under the circumstances, I am satisfied that a trial is not necessary, and that it is fair and just to grant summary judgment to the defendant and to dismiss the claim.
Costs
[34] At the conclusion of the hearing, the defendant’s counsel provided me with a cost outline, in which defendant seeks $4,934.90 for the motion and the action. In my view, this is a reasonable amount, and the defendant is therefore entitled to costs in the amount of $4,924.90 inclusive of disbursements and HST.
Conclusion
[35] For the reasons above, I order that:
a. The plaintiff's motion for summary judgment is dismissed; b. Summary judgment is granted to the defendant; c. The plaintiff's action is dismissed; and d. The plaintiff is to pay costs in the amount of $4,924.90 to the defendant within 30 days of the date of this decision.
FAVREAU J.
