Court File and Parties
COURT FILE NO.: CV-18-77773
DATE: 2019/01/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHRISTOPHER ALLEN ZIKA
Plaintiff
– and –
FRANCINE MARTEL
Defendant
Tracy Nanziri, for the Plaintiff
No one appearing for the Defendant
HEARD: October 30, 2018
RULING ON SUMMARY JUDGMENT MOTION
Corthorn J.
Introduction
[1] Mr. Zika and Ms. Martel were involved in a relationship for one and a half years. While the couple was still together, Ms. Martel moved from Ontario to Virginia to be with Mr. Zika. The relationship ended in 2016. It did not end well.
[2] Subsequent to the couple’s break-up, Ms. Martel commenced litigation in Virginia. The originating process was filed with Circuit Court of Loudoun County on September 20, 2016. Ms. Martel sought damages totalling $90,000.
[3] Mr. Zika commenced an action in Ontario. A statement of claim was issued on September 28, 2016. The action was commenced in Toronto, even though neither party appear to have had any connection with Toronto at that time. Later in the fall of 2016, Mr. Zika’s action was stayed pending resolution of the Virginia litigation.
[4] With his Ontario action stayed, Mr. Zika delivered a statement of defence and advanced a counterclaim in the Virginia litigation. He sought the return of both a Jaguar vehicle and an engagement ring; he also sought damages.
[5] In July 2017, following a three-day trial before a judge and jury in Virginia, Ms. Martel’s claim for damages was dismissed. The jury determined that the Jaguar and engagement ring should be returned to Mr. Zika. The jury found that Mr. Zika was entitled to damages totalling $11,999.99 (USD) from Ms. Martel.
[6] A copy of the Final Order from the Circuit Court of Loudoun County is included as an exhibit to Mr. Zika’s affidavit filed in support of the motion for summary judgment. The Final Order is four pages. Page 3 of the Final Order is missing. It is the page on which the relief granted is set out.
[7] In early 2018, the Jaguar and engagement ring were returned to Mr. Zika. Ms. Martel paid $1,999.99 (USD) towards the monetary judgment. As of March 2018, $10,000 (USD) remained outstanding on the monetary judgment. Nothing further has been paid by Ms. Martel towards the balance owing on the judgment.
[8] Mr. Zika brings this motion for summary judgment for an order enforcing the 2017 judgment of the Circuit Court for Loudoun County. Mr. Zika intends to pursue Ms. Martel, in Ontario, for payment of the balance owed on the monetary portion of the Virginia judgment.
[9] Ms. Martel appears to be self-represented. She did not respond to the motion for summary judgment. Neither Ms. Martel nor anyone on her behalf attended on the return of the motion.
Procedural History
a) Venue
[10] There is no evidence before the court as to why Mr. Zika’s action was commenced in Toronto. A copy of an amended statement of claim is included in the record. The pleading bears court file no. CV-16-561493.
[11] Ms. Martel’s address appears on page 2 of Mr. Zika’s pleading. It is an Orleans, Ontario address and has not been the subject of amendment.
[12] In the fall of 2016, Ms. Martel brought a motion for a stay of the Ontario proceeding. She was successful. The November 30, 2016 handwritten endorsement of the motion judge says, “This action is stayed pending further order of the court once the Va. issues are resolved.” If an order to that effect was taken out, a copy of the order is not included in the record for the motion for summary judgment.
[13] The motion judge added that, “Any party may also move to lift the stay in order to schedule a further motion if urgent, interim relief cannot await a motion in Va.”
[14] In the same endorsement, the motion judge said, “The court remains available to assist and demonstrate the fullest of comity to the Va. Court at its request.”
[15] Ms. Martel’s motion for a stay, although determined in November 2016, originally came before the same motion judge in October 2016. The motion for a stay was adjourned to November.
[16] In his October handwritten endorsement the motion judge referred to Ms. Martel’s request for a change of venue of the Ontario action: “Ms. Martel seeks a change of venue. She shall apply in writing to R.S.J. McNamara in Ottawa in accordance with the province-wide Practice Direction on the Court’s website.”
[17] It appears that the exchange of pleadings was completed while Mr. Zika’s action remained in Toronto. I note the following:
• The statement of claim was issued in Toronto in September 2016;
• The amended statement of claim bears court file no. CV-16-561493;
• The amended statement of claim bears a stamp identifying that the amendments to the pleading were made on December 5, 2017. The court office at which the amendments were effected is not identified by the stamp. The amendments did not result in a change in the court file number;
• The amendments made to the plaintiff’s pleading include the following:
▪ The addition of the following paragraph as paragraph “1a.” to the prayer for relief: “The recognition and enforcement by this Honourable Court, of the final order of Judge Douglas L. Fleming of the Virginia Circuit Court of Loudoun County, dated September 12, 2017, for case number 103981, to which the parties to this action are also party”; and
▪ In addition, new paragraphs 4 to 8, both inclusive, were added to Mr. Zika’s pleading. Those paragraphs fall under the newly added heading of “Final Order of the Loudoun County Circuit Court”;
• A copy of Ms. Martel’s statement of defence is included in the record. The statement of defence responds to the amended statement of claim. Although undated, Ms. Martel’s pleading appears to have been prepared and served in December 2017. Her pleading bears the same court file number as the statement of claim (CV-16-561493);
• In her statement of defence, Ms. Martel makes a request for the action to be transferred to “the Ottawa Courthouse”; and
• Mr. Zika’s reply, dated December 29, 2017, bears the same court file number as the amended statement of claim and the statement of defence.
[18] No explanation is provided by Mr. Zika as to how the action bearing the title of proceeding “Zika v. Martel”, commenced in Toronto, and bearing court file number CV-16-561493, is now before the court in Ottawa under court file number CV-18-77773.
[19] There is some evidence before the court to support a conclusion that Mr. Zika’s action was transferred from Toronto to Ottawa in 2018. The supplementary motion record includes an affidavit from an assistant in the office of Mr. Zika’s counsel (“the Cristillo Affidavit”). Included as exhibits to the Cristillo Affidavit are copies of two emails between the office of Mr. Zika’s counsel and Ms. Martel.
[20] The first email is dated April 2018, is from Ms. Martel and addressed to each of counsel for Mr. Zika, an employee of the Ministry of the Attorney General (presumably a member of the courthouse staff), and a second individual at the office of Mr. Zika’s counsel. That email reads as follows in its entirety: “My priority is to ensure thst (sic) both the courts and opposing counsel are made aware of my responses and will refrain once the matter has been moved as per my request and instructions.” I draw an inference and find that (a) “the matter” to which Ms. Martel refers is Mr. Zika’s Toronto action, and (b) the move is from Toronto to Ottawa.
[21] The second email is dated August 9, 2018. It is from the individual in the office of Mr. Zika’s counsel who received the April 2018 email and is addressed to Ms. Martel. The email, in its entirety, reads as follows: “To update you, the Order has been granted to move the subject matter to Ottawa. We are in the process of moving the file from the Toronto Court to Ottawa court house. We were able to secure a motion date for the 30th October, 2018 at 10 am.” The subject line of the August 2018 email is “Zika v. Martel”.
[22] The order to which reference is made in the August 2018 email is neither attached to the email nor included in the record for the motion for summary judgment. There is no evidence that a copy of the order was served on Ms. Martel.
[23] It appears that the Toronto-based action commenced by Mr. Zika has been transferred to Ottawa. There is, however, nothing in the record on the motion for summary judgment to support a finding that Ms. Martel was served with a copy of the order granting the transfer. Service of a copy of that order on Ms. Martel is a prerequisite to Mr. Zika being permitted to proceed in Ottawa with his motion for summary judgment.
b) Stay of Proceeding
[24] There is no evidence that either of the parties ever sought and obtained an order lifting the stay of proceeding ordered on November 30, 2016.
[25] Mr. Zika’s evidence is that the order reflecting the outcome of the Virginia trial was issued on September 12, 2017. In October 2017, Mr. Zika was served with a notice of Ms. Martel’s appeal from that order.
[26] Copies of the appeal documents are said by Mr. Zika to be attached as exhibit “G” to his affidavit in support of the motion for summary judgment (“the Zika affidavit”). The only document included at Tab 2G of the motion record is an exhibit stamp. I assume that the documents intended to be exhibit “G” are those found upside down at the front of Tab 2H of the motion record.
[27] The appeal documents include an undated notice of appearance of counsel for Ms. Martel, an undated notice of appeal by Ms. Martel, and certificates of service with respect to each notice. The certificates indicate that each notice was served on October 9, 2017.
[28] In her statement of defence, Ms. Martel alleges that the appeal deadline with respect to the judgment in the Virginia action expired on December 11, 2017. Mr. Zika does not dispute that allegation.
[29] In her pleading, Ms. Martel addresses the date on which her appeal rights expired. She does so in relation to (a) the date on which the statement of claim was amended (December 5, 2017), and (b) the terms of the November 2016 order staying Mr. Zika’s action. Ms. Martel appears to question how Mr. Zika was able to amend his pleading on December 5, 2017—specifically because the Virginia issues were not “resolved” until December 11, 2017, when her appeal rights expired. Ms. Martel’s position appears to be that Mr. Zika was not entitled to an order lifting the stay at any time prior to December 11, 2017.
[30] Mr. Zika’s evidence is that Ms. Martel did not take any steps towards an appeal other than to serve the notice of appeal and notice of appearance of counsel in October 2017. In the absence of any other evidence, Mr. Zika asks the court to infer that Ms. Martel’s appeal did not proceed.
[31] Mr. Zika has not provided evidence as to any documents indicative of the status of the appeal, which he received from or filed with the appellate court in Virginia. Nor does Mr. Zika provide any evidence of telephone or other inquiries made by him, or on his behalf, with the appellate court in Virginia as to the status of the appeal. There is no evidence from Mr. Zika’s counsel in Virginia as to the status of the appeal.
[32] Mr. Zika’s evidence is that by January 2018, he was in possession of the Jaguar and the engagement ring. In the circumstances, I am not prepared to rely on that evidence alone in support of an inference being drawn that Ms. Martel abandoned her appeal in its entirety.
[33] Ms. Martel may have abandoned the portion of her appeal related to the Jaguar and the engagement ring, but not the portion of her appeal related to the monetary aspects of the judgment. The latter included not only the award of damages to Mr. Zika ($11,999.99), but also the dismissal of Ms. Martel’s claim for $90,000 in damages.
[34] The motion for summary judgment is based on the amended portions of the statement of claim (paras. 1a and 4-8). Ms. Martel’s pleading raises the issue of whether the amendments were properly made. Before Mr. Zika is entitled to proceed with the motion for summary judgment, evidence is required with respect to:
a) When and how an order lifting the stay of proceedings was secured;
b) Service on Ms. Martel of a copy of the order lifting the stay; and
c) How the amendments to the statement of claim were made.
c) Service of Documents
[35] The original affidavit of service indicates that the motion record, factum, and book of authorities were served on Ms. Martel by regular mail on October 11, 2018. The original affidavit of service does not identify the address to which the documents were mailed. The affiant does not state why she believes that the address to which the documents were mailed, even though not identified, is the last known address for Ms. Martel. Lastly, the affiant did not request or receive an acknowledgement of receipt card in Form 16A pursuant to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[36] Service of a motion record does not need to be made personally (r. 37.07(1)). Service by mail, as an alternative to personal service, is only effective if the sender receives a signed acknowledgement of receipt card (r. 16.03(4)). Service at Ms. Martel’s residence was not attempted. Mailing the documents to Ms. Martel (at whatever undisclosed address was used) was not valid service (r. 16.03(5)(a) and (b)).
[37] The deficiency in the service of the motion record, etc. was raised with counsel for Mr. Zika on the return of the motion. In response, a request was made for relief with respect to the method of service used. The request was based on historical orders made in the Toronto action with respect to substituted service. Mr. Zika was given an opportunity to file additional evidence in support of the request for an order validating service of the documents on Ms. Martel by regular mail on October 11, 2017.
[38] A supplementary motion record was filed. The affidavit of service with respect to the supplementary motion record addresses service of that record and of the motion record, factum, and book of authorities for the motion heard in October 2018. Both the original motion materials and the supplementary motion record are said to have been sent by regular mail to the address for Ms. Martel, set out on page 2 of the statement of claim (i.e. in Orleans, Ontario).
[39] The affiant of the most recent affidavit of service does not set out her belief, or the basis for it, that the address to which the documents were mailed is Ms. Martel’s last known address. The affiant does not indicate that on either occasion she relied on an acknowledgement of receipt card. The affidavit of service does not include such a card or cards as an exhibit.
[40] In support of the request to validate the service of documents in October 2017, Mr. Zika relies on three handwritten endorsements of Firestone J. in the Toronto action. The endorsements are dated October 17, 2016 and February 20, 2018. The third handwritten endorsement is not dated.
[41] The October 17, 2016 endorsement relates to Mr. Zika’s motion originally returnable on October 21, 2016. In that endorsement, Firestone J. required service of Mr. Zika’s materials on that motion “by email, regular mail, and registered mail”.
[42] The undated endorsement appears to have been made before the November 30, 2016 return date of Mr. Zika’s motion. At item 5 of that endorsement, Firestone J. wrote, “Service of motion materials by email is sufficient.”
[43] I find that the first and second endorsements relate exclusively to the motions heard in the fall of 2016. The first two endorsements do not, in any event, support validation of service by regular mail only for the purpose of the motion for summary judgment.
[44] The February 20, 2018 endorsement of Firestone J. relates to the motion now before the court. The endorsement begins, “Motion for Summary Judgment (enforce foreign judgment).” Firestone J. addresses the method of service for materials on the motion for summary judgment and orders as follows, “Service of motion material may be served by both email together with registered mail.”
[45] Firestone J. also ordered that Mr. Zika provide Ms. Martel with copies of the February 20, 2018 endorsement and of the “timetable”. I assume that the latter was a timetable set for the delivery of the balance of the materials on the motion and for cross-examinations. In the same endorsement, the motion for summary judgment was “fixed for March 28, 2018 for 1.5 hours.”
[46] Mr. Zika has an order for substituted service of the materials for the motion for summary judgment. Pursuant to the February 2018 order of Firestone J., Mr. Zika is to serve the motion materials by “both email together with registered mail”. If, as is suggested by the August 2018 email to Ms. Martel, the Toronto court file has been transferred to Ottawa, then Mr. Zika is required to comply with the order for substituted service already made. Ironically, the motion materials were not served using either of the requisite methods (let alone both methods as per the endorsement of Firestone J.).
[47] In summary, I decline to make the order requested for the validation of service of the motion documents by regular mail on the defendant.
Disposition
[48] I order as follows:
The motion for summary judgment is adjourned pending completion of the steps set out in paragraphs 2 to 7 below.
Mr. Zika shall serve Ms. Martel with:
a) A copy of this ruling;
b) A copy of the order pursuant to which the action was transferred from Toronto to Ottawa; and
c) A copy of the order lifting the stay of proceedings dated November 30, 2016.
In the event Mr. Zika has not obtained one or both of an order transferring the action from Toronto to Ottawa and an order lifting the stay of proceedings, he shall, before proceeding with the motion for summary judgment, bring the requisite motion(s). The motion(s) shall be returnable in Ottawa.
Once the requisite orders have been obtained and served on Ms. Martel, Mr. Zika may proceed with the motion for summary judgment and in doing so he shall serve Ms. Martel with the motion record, factum, and book of authorities with respect to the motion for summary judgment.
The motion record for the motion for summary judgment shall include:
a) Evidence explaining:
i) The circumstances under which the amendments to the statement of claim were made in December 5, 2017; and
ii) If an order lifting the stay has already been obtained, the circumstances under which that order was obtained; and
b) A copy of the order pursuant to which the action is transferred from Toronto to Ottawa; and
c) A complete copy of the Final Order from the Circuit Court of Loudoun County, Va., with respect to the three-day trial before a judge and jury.
The order for substituted service of Firestone J. dated February 20, 2018 remains in full force and effect. Mr. Zika shall serve all documents on Ms. Martel by (a) email, and (b) registered mail.
The affidavits of service with respect to service of documents on Ms. Martel shall include copies of:
a) The email under cover of which documents are sent to Ms. Martel;
b) A transmission confirmation form for the email;
c) A copy of the cover letter sent by registered mail together with the document(s) served;
d) A copy of the tracking document from Canada Post; and
e) A copy of the register signed by Ms. Martel confirming pick up of any document sent to her by registered mail.
[49] I remain seized of the motion for summary judgment. The motion for summary judgment, if pursued, shall be returnable before me. Counsel for the plaintiff shall communicate with the Office of the Trial Co-ordinator to secure a return date for the motion for summary judgment, if pursued.
Madam Justice Sylvia Corthorn
Released: January 30, 2019
COURT FILE NO.: CV-18-77773
DATE: 2019/01/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CHRISTOPHER ALLEN ZIKA
Plaintiff
– and –
FRANCINE MARTEL
Defendant
RULING ON MOTION FOR
SUMMARY JUDGMENT
Madam Justice Sylvia Corthorn
Released: January 30, 2019