REASONS FOR DECISION

CHARNEY J.:

[1] This is a motion for summary judgment by the defendants, asking that the plaintiff’s action be dismissed.

Facts

[2] The plaintiff commenced this action on August 20, 2018. The defendants served their Statement of Defence on September 5, 2018.

[3] The Statement of Claim seeks a total of approximately $14 million in damages for a variety of torts, including breach of confidence, fraud, violation of human rights, theft, conspiracy and invasion of privacy.

[4] The Statement of Claim is 50 pages long. While several causes of action are pled, they all relate to the plaintiff’s allegations that, beginning in 1999, the defendants conspired with the Canada Revenue Agency and the Real Estate Council of Ontario to falsely accuse the plaintiff of tax evasion. These conspiracies included the forgery of documents that were used against the plaintiff in court proceedings. The Statement of Claim further alleges that the plaintiff was wrongfully convicted of tax evasion.

[5] The plaintiff also alleges that the defendant, Jasvir Dhillon (“Dhillon”), illegally opened his mail and transferred the plaintiff’s government issued Teraview software and licence to himself through forgery and, in December 2008, stole the plaintiff’s licence, money and software through identity theft.

[6] The Statement of Claim also includes allegations that the defendants violated various provisions of the Criminal Code, and that the defendants violated the plaintiff’s constitutional rights by conspiring with employees of the Canada Revenue Agency.

Motion for Summary Judgment

[7] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides: “The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”.

[8] Rule 20.04(2.1) sets out the court’s powers on a motion for summary judgment:

In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.

[9] These powers were extensively reviewed by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, where it laid out a two-part roadmap for summary judgment motions at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [Emphasis in original]

[10] Even with these extended powers, a motion for summary judgment is appropriate only if the material provided on the motion “gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (Hryniak, at para. 50).

[11] In Hryniak, the Supreme Court held (at para. 49) that there will be no genuine issue for trial when the summary judgment 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”.

[12] To defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of the party’s pleadings, but must set out—in affidavit material or other evidence—specific facts establishing a genuine issue requiring a trial.

[13] The motion judge is entitled to assume that the record contains all of the evidence that would be introduced by both parties at trial. A summary judgment motion cannot be defeated by vague references as to what may be adduced if the matter is allowed to proceed to trial.

[14] Pursuant to Rule 20.02(1), affidavits may be made on information and belief, but the court may, if appropriate, draw an adverse inference from a party’s failure to provide evidence of any person having personal knowledge of contested facts.

[15] Where summary judgment is refused or is granted only in part, Rule 20.05 provides that “the court may make an order specifying what material facts are not in dispute and defining the issues to be tried, and order that the action proceed to trial expeditiously” and give directions or impose such terms as are just.

[16] It is now well settled that “both parties on a summary judgment motion have an obligation to put their best foot forward” (see Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9). Given the onus placed on the moving party to provide supporting affidavit or other evidence under Rule 20.01, “it is not just the responding party who has an obligation to ‘lead trump or risk losing’” (see Ipex Inc. v. Lubrizol Advanced Materials Canada, 2015 ONSC 6580, at para. 28).

[17] See also: Crawford v. Toronto (City), 2018 ONSC 1729, at para. 38:

Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment.

[18] A plaintiff or defendant bringing a motion for summary judgment does not thereby reverse the onus of proof. See for example, Sanzone v. Schechter, 2016 ONCA 566, at paras. 30-32, confirming the initial evidentiary obligation borne by the moving party (in that case the defendant) on a summary judgment motion.

[19] While Rule 20.04 provides the court hearing a summary judgment motion with “enhanced forensic tools” to deal with conflicting evidence on factual matters, the court should employ these tools and decide a motion for summary judgment only where it leads to “a fair process and just adjudication”: Mason v. Perras Mongenais, 2018 ONCA 978, at para. 44; Eastwood Square Kitchener Inc. v. Value Village Stores, Inc., 2017 ONSC 832, at paras. 3-6 (and cases cited therein).

[20] For reasons I will explain later in this decision, the facts relevant to the plaintiff’s various claims can be resolved on the basis of the principles set out in Rule 20. Having reviewed the affidavit evidence filed by the plaintiff and the defendant, I am satisfied that I can fairly make the relevant factual findings to permit me to apply the relevant legal principles and resolve the legal dispute. There is no genuine issue requiring a trial in this case, and a motion for summary judgment is “a proportionate, more expeditious and less expensive means to achieve a just result”.

Analysis

[21] The defendant, Dhillon, filed an affidavit with the following facts:

[22] The plaintiff was employed as a real estate salesman by the defendant Sutton Group Commitment Realty Ltd. (Sutton) from 1999 to 2009.

[23] The plaintiff was charged by the government with multiple counts of tax evasion and evasion of the Goods and Services Tax.

[24] On May 11, 2004, the defendants Dhillon and Sutton were served with a search warrant by officers of the Crown enabling them to enter and seize the plaintiff’s and Sutton’s documents. The defendants complied with the search warrant and cooperated with the CRA investigators.

[25] On November 23, 2007, the plaintiff was found guilty of three counts of Income Tax Evasion for a total of $24,593, and four counts of GST evasion for a total of $19,191. On January 15, 2008, the plaintiff was sentenced to pay a fine of 100% of the taxes evaded.

[26] The plaintiff subsequently appealed his assessments. His appeals were dismissed by the Ontario and Federal Courts of Appeal, and leave to appeal was denied by the Supreme Court of Canada on June 30, 2011 and November 7, 2013 respectively.

[27] Dhillon’s affidavit also explains that the plaintiff obtained the Teraview software in 2000 by applying for the licence without authorization under the Sutton name. At the time, the plaintiff was a Sutton employee. When Dhillon discovered that the plaintiff had improperly used Sutton’s name to obtain the Teraview account, he requested the Ministry of Government Services to transfer the account/software to Sutton and Dhillon, and the transfer was made by the Ministry. Dhillon’s affidavit includes an email from Senior Legal Counsel at Teranet Inc. confirming that the Teraview account in issue was transferred to Dhillon because Dhillon has the authority to bind Sutton Group.

[28] The defendants’ first argument is that the plaintiff’s claim is barred by the two year limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002 c. 24, which provides:

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[29] The defendant argues that there is no genuine issue regarding the date that the plaintiff discovered the claim. The plaintiff’s own motion record includes a letter dated July 6, 2009, from the plaintiff to the Ministry of Government Services complaining that Dhillon transferred the Teraview account without his knowledge or consent in December 2008. There is, therefore, no dispute that the plaintiff discovered the facts giving rise to the alleged fraud/theft of the Teraview account by July 6, 2009. The Statement of Claim was not issued until more than nine years later, on August 20, 2018. The claims relating to Teraview are, therefore, statute-barred.

[30] In the present case, the facts relevant to the determination of the limitation period issue are not disputed. There is no genuine issue requiring a trial with respect to the limitation period issue.

[31] The plaintiff argues that there is no statute of limitations with respect to violations of the Criminal Code. That is correct with respect to Criminal Code prosecutions. The plaintiff’s case is not a prosecution; it is a civil proceeding and is therefore subject to the Limitations Act.

[32] In the alternative, the defendants have provided evidence that the plaintiff did not have the authority to apply for the Teraview software under Sutton’s name in 2000, and the Ministry of Government Services properly transferred the account to Sutton under Dhillon’s name in 2008.

[33] There is, therefore, no cause of action against the defendants in relation to this transfer.

[34] Nor is there a cause of action against the defendants for complying with the terms of a lawful warrant, or cooperating with the authorities in legal proceedings against the plaintiff. While the plaintiff refers to his claims as “fraud”, “breach of confidence” and “conspiracy”, they are, in substance, claims for malicious prosecution, since they are all based on the premise that he was wrongfully convicted.

[35] The test for malicious prosecution was set out by the Supreme Court of Canada in Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170, at pp. 192-193:

There are four necessary elements which must be proven for a plaintiff to succeed in an action for malicious prosecution:

a) the proceedings must have been initiated by the defendant;

b) the proceedings must have terminated in favour of the plaintiff;

c) the absence of reasonable and probable cause;

d) malice, or a primary purpose other than that of carrying the law into effect.

[36] See also: Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669, at para. 21.

[37] In this case, the first and second elements of the tort of malicious prosecution are neither established nor pled.

[38] Dealing with the second element - that the proceedings have terminated in favour of the plaintiff - the plaintiff was found guilty, and his appeals were dismissed. He cannot allege that he was wrongfully convicted in the face of these court decisions.

[39] Dealing with the first element, the evidence presented by the defendants demonstrates that all the proceedings complained of were initiated by the CRA, and the defendants were simply complying with the terms of a lawful warrant. There is no cause of action for such conduct.

[40] Accordingly, all of the plaintiff’s claims based on the allegation that he was wrongfully convicted, and that the defendants are somehow responsible for this conviction, must be dismissed.

[41] Finally, the defendants have provided correspondence from counsel for the Real Estate Council of Ontario (“RECO”), dated September 28, 2018, confirming that they searched RECO’s records, and the defendant Dhillon was never listed as a complainant against the plaintiff.

[42] The affidavit evidence filed by the plaintiff simply repeats the allegations contained in the Statement of Claim. None of this evidence can cure the deficiencies noted above.

Conclusion

[43] The motion for summary judgment is granted and the plaintiff’s claim is dismissed.

[44] Costs for the action and the motion are fixed at $4,000, payable by the plaintiff to the defendants within 30 days.

Justice R.E. Charney

Released: September 3, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BRADMAN LEE

Plaintiff

– and –

JASVIR DHILLON, SUTTON GROUP COMMITMENT REALTY LTD., and 923944 ONTARIO LTD.

Defendants

REASONS FOR DECISION

Justice R.E. Charney

Released: September 3, 2019

Lee v. Dhillon, 2019 ONSC 5114

Case Summary

REASONS FOR DECISION

Facts

Motion for Summary Judgment

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 2

Legislation 3