Court File: CV-18-00608158
MOTION FILED: 20181210
REASONS RELEASED: 20190123
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
HERSHEY CANADA INC.
Plaintiff
and
TONINO DONATO VALENTINI a.k.a.
ANTHONY VALENTINI d.b.a JUST CLEAROUTS
Defendant
BEFORE: MASTER D. E. SHORT
COUNSEL: Timothy Law & Assunta Mazzotta F (416) 367-6749
-for moving plaintiff
RELEASED: January 23, 2019
Reasons for Decision on ex parte In-writing Motion
I. Overview
[1] In this action the plaintiff seeks payment for goods sold and delivered and now moves for default judgment.
[2] I am not satisfied that the claim has as yet been properly served; and I am therefore denying the motion.
[3] That determination turns in part on a consideration of the appropriate characterization and identification of the defendant by the drafter of pleading.
[4] It will be observed that the style includes both an “A.K.A.” and a “D.B.A.”. From the current form of identification of the defendant I understand the Tonino may be also known as Anthony. As well it is asserted that he is doing business as “Just Clearouts”.
[5] The Simplified Statement of Claim reads in part:
The Defendant, Tonino Donato Valentini, who is also known as Anthony Valentini ("Valentini"), is an individual residing in Toronto, Ontario and is a sole proprietor who does business under the name "Just Clearouts" as a discount retailer/supplier.
Valentini applied for an account with Hershey, as a sole proprietorship doing business as Just Clearouts, which was approved by Hershey based on the information provided.
[6] I do not believe there has been proper service because in this case, the defendant is identified as individual person.
[7] If the plaintiff had only sued “Just Clearouts” there would arguably have been proper service. However by using the aka and the dba they would still need to serve Mr. Valentini personally as he is the sole identified defendant.
III. Purported Service
[8] The operative portions of the Affidavit filed before me in support of the motion regarding service made on a Sunday evening read:
“1. On NOVEMBER 11, 2018 at approximately 8:12 P.M., I served TONINO DONATO VALENTINI a.k.a. ANTHONY VALENTINI d.b.a JUST CLEAROUTS with the STATEMENT OF CLAIM, by leaving a copy with AN ADULT FEMALE WHO REFUSED TO PROVIDE HER NAME OR POSITION, a person who
Appeared to be in care and control or management of the place of business at 140 MAYBOURNE AVENUE, TORONTO, ONTARIO.
- I was able to identify the person by means of verbal acknowledgement. ”
[9] I have some difficulty understanding what “verbal acknowledgement” the person who refused to give her name or position made. What is clear is that there is no assertion that the named defendant, Mr Valentini was personally served, as required by Rule 16.02(1)(a).
[10] Apparently the Court’s counter staff had additional concerns which are identified in the Simplified Rules Notice of Motion form filed by the plaintiff:
“4. The Defendant did not defend the action.
- The lawyers for the Plaintiff sought to note the Defendant in default and file a Requisition for default Judgment on or about December 7, 2018. This was rejected by the court staff on the basis that the Affidavit of Service did not state the name or position of the person in management or control who was served with the Statement of Claim.”
IV. Proper Service: First Principles
[11] Rule 16 deals with Service and provides in part:
16.02 (1) Where a document is to be served personally; the service shall be made,
INDIVIDUAL
(a) on an individual, other than a person under disability, .by leaving a copy of the document with the individual;
SOLE PROPRIETORSHIP
(n) on a sole proprietorship, by leaving a copy of the document with the sole proprietor or with a person at the principal place of business of the sole proprietorship who appears to be in control or management of the place of business.
(2) A person effecting personal service of a document need not produce the original document or have it in his or her possession.
[12] In any event if the plaintiff wants to ultimately enforce against Mr. Valentini personally he would have to be served personally in accord with Rules 8.07 and 8.06 and particularly Rule 8.03.
[13] The Rules contemplate suing a sole proprietorship using the business name to identify the defendant:
SOLE PROPRIETORSHIPS
8.07 (1) Where a person carries on business in a business name other than his or her own name, a proceeding may be commenced by or against the person using the business name. [my emphasis]
[14] The initial portions of Rule 8 focus on Partnerships. Rule 8.07 continues:
(2) Rules 8.01 to 8.06 apply, with necessary modifications, .to a proceeding by or against a sole proprietor using a business name, as though the sole proprietor were a partner and the business name were the firm name of a partnership.
[15] The purported affidavit of service is insufficient to establish any personal responsibility when to Rule 8.03 as modified by Rule 8.07:
NOTICE TO ALLEGED PARTNER WHERE ENFORCEMENT SOUGHT AGAINST PARTNER
8.03 (1) In a proceeding against a partnership using the firm name, where a plaintiff or applicant seeks an order that will be enforceable personally against a person as a partner, the plaintiff or applicant may serve the person with the originating process, together with a notice to alleged partner (Form 8A) stating that the person was a partner at a material time specified in the notice.
(2) A person served as provided in subrule (1) shall be deemed to have been a partner at the material time, unless the person defends the proceeding separately denying that he or she was a partner at the material time.
IX. Conclusion
[16] The motion for judgment is therefore dismissed.
[17] The present action was commenced in November of 2018. More than half of the six month period established by Rule 14.08 has yet to run. Therefore I see no need to extend the time for proper service.
R. 268/DS __________________
Master D.E. Short