COURT FILE NO.: CV-19-620967
DATE: 2019/12/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
OMEGA PROCESS SERVERS INC and OMEGA PROCESS SERVERS INC cob OMEGA PROCESS SERVERS
Plaintiffs
- and -
SERGIO GRILLONE, GRILLONE LAW FIRM, CHRISTINE PRESTON, HASAN FAHMI, MOHAMMAD YASIR FAHMI, RABIYA FAHMI, SAIRI FAHMI, SIDDQA SAMEEN FAHMI, GOPALANATHAN SATHASIVAM, AMRITPAL PANDHER, CATARINA PANARESE, MARGARET CHIODO, JOHN VLAJKOVIC, INDRA BUSHIN, RADINA MUSTAFA ALI ABDRABO, STEVEN TONY SOUSA, DAPHNE SHAND, NAIM AKBARI, MARCELLO DEGREGORIO, TERRY BALL, AGARTHA C. MANU, and MICHELLE MELISSA MEDEIROS
Defendants
Emilio Bisceglia for the Plaintiffs
Jillian Van Allen for the Defendants Sergio Grillone and Grillone Law Firm
HEARD: December 11, 2019
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] This is a most extraordinary motion for substitutional service of a Statement of Claim.
[2] A motion for substitutional service of originating process is typically made without notice to a Master of this Court. This motion for substitutional service, made to a judge of this Court, however, is remarkable not only because it is being resisted by a co-Defendant who has been served, but because the Plaintiff, as an alternative to substitutional service, is asking that the law firm who is acting for the co-Defendant be ordered (a mandatory injunction) to serve the unserved Defendants or to disclose their addresses so that personal or substitutional service can be affected.
[3] The already served co-Defendant, who is himself a lawyer, and his lawyer of record resist the motion. The already served co-Defendant, who is a lawyer who knows the addresses of the unserved Defendants, submits that the addresses of the unserved Defendants, his former clients, are privileged information and, in any event, the served co-Defendant submits that an order for substitutional service ought not to be made in the circumstances of the immediate case.
[4] To be more precise, in this most extraordinary motion, the Plaintiff, Omega Process Servers Inc. and Omega Process Servers Inc. c.o.b Omega Process Servers (hereinafter “Omega”) bring this motion for:
a. An Order for substituted service of the Statement of Claim on the "Unserved Defendants", by mailing a copy of the Statement of Claim or by sending a copy of the Statement of Claim via email to Beard Winter LLP (Counsel for the Defendants Sergio Grillone and Grillone Law Firm) with service to be effective 5 calendar days from the date of mailing or effective on the date the email was sent.
i. The Unserved Defendants are: Radina Mustafa Ali Abdrabo; Naim Akbari; Terry Ball; Indra Bishun; Agartha C. Manu; Catarina Panarese; Amritpal Pandher, Christine Preston; and John Vlajkovic.
b. In the alternative, an Order compelling Beard Winter LLP to serve the Statement of Claim upon the Unserved Defendants and to provide proof of service, redacted if necessary, of same to counsel for Omega within 15 days of the date of the Order.
c. In the further alternative, an Order compelling Beard Winter LLP, to provide the addresses for the Unserved Defendants, within 15 days of the date of the Order, so that proper service of the Statement of Claim can be made upon the Unserved Defendants, in a timely fashion by Omega.
[5] For the reasons that follow, I order that Mr. Grillone shall advise Omega, with the last known or current municipal address, if known to him, and the last known or current email address, if known to him, of: Radina Mustafa Ali Abdrabo; Naim Akbari; Terry Ball; Indra Bushin; Agartha C. Manu; Catarina Panarese; Amritpal Pandher, Christine Preston; and John Vlajkovic.
B. Facts
[6] Omega is a process serving company. Part of its business is to locate and serve parties to litigation with originating and other court documents. Another part of its business is to make litigation loans.
[7] Omega made litigation loans to: Radina Mustafa Ali Abdrabo; Naim Akbari; Terry Ball; Indra Bushin; Margaret Chiodo; Marcello DeGregorio; Hasan Fahmi; Mohammad Yasir Fahmi; Rabiya Fahmi; Sairi Fahmi; Siddqa Sameen Fahmi; Agartha C. Manu; Michelle Melissa Medeiros; Catarina Panarese; Amritpal Pandher; Christine Preston; Gopalanathan Sathasivam; Daphne Shand; Steven Tony Sousa; and John Vlajkovic.
[8] These 20 individuals are Defendants in the case at bar. These Defendants are former clients of the co-Defendants, Sergio Grillone and Grillone Law Firm.
[9] The litigation loans were advanced in trust to Mr. Grillone’s law firm. Omega pleads that Mr. Grillone negotiated and prepared Loan Agreements on behalf of both Omega and the Unserved Defendants. Mr. Grillone denies acting as the lawyer for Omega at any material time. In effect, he denies that there was any joint retainer. Omega pleads that Mr. Grillone had a principal agent relationship with his clients and that he controlled the disbursement of the loan funds.
[10] Using form contracts, Mr. Grillone did prepare the Loan Agreements. At the time the individual Loan Agreements were signed by Mr. Grillone on behalf of his clients, Omega did not ask Mr. Grillone to provide the dates of birth, occupation, and/or last known addresses of his clients.
[11] It is alleged that: Radina Mustafa Ali Abdrabo; Naim Akbari; Terry Ball; Indra Bushin; Margaret Chiodo; Marcello DeGregorio; Hasan Fahmi; Mohammad Yasir Fahmi; Rabiya Fahmi; Sairi Fahmi; Siddqa Sameen Fahmi; Agartha C. Manu; Michelle Melissa Medeiros; Catarina Panarese; Amritpal Pandher; Christine Preston; Gopalanathan Sathasivam; Daphne Shand; Steven Tony Sousa; and John Vlajkovic settled their respective cases but that they respectively did not repay their litigation loans.
[12] On May 30, 2019, Omega commenced this action and filed its Statement of Claim claiming repayment. Omega also sued Mr. Grillone and his law firm for repayment.
[13] Omega did not know the addresses of the litigation loan borrowers. It retained a skip tracer to serve the Defendants and Omega made its own inquiries to ascertain the addresses of the Defendants. It conducted Google searches, Canada 411searches and Public View Terminal searches at the courthouses located at Brampton, Barrie, Hamilton, Newmarket, Oshawa, and Toronto without success apart from Marcello DeGregorio, who was located and successfully served.
[14] On July 22, 2019, Emilio Bisceglia, Omega’s lawyer of record, wrote to Jillian Van Allen of Beard Winter LLP, the lawyer of record for the Grillone Defendants, to request addresses for his clients, the co-Defendants. This request was refused.
[15] On August 20, 2019, the Statement of Claim was amended.
[16] On August 23, 2019, there was an attendance at Civil Practice Court. Justice Dow scheduled the motion now before the court for December 11, 2019. Justice Dow extended the time for service of the Statement of Claim to May 30, 2020.
[17] On August 29, 2019, Omega served its Motion Record. Its motion for substitutional service or for alternative relief was supported by the affidavit of Luisa Colangelo, a legal assistant for Omega’s lawyer of record. She deposed that Omega had made Google searches to attempt to locate the Defendants who had not been served.
[18] On September 12, 2019 the Grillone Defendants served a Statement of Defence.
[19] On October 17, 2019, Omega and the Grillone Defendants attended a Chambers Appointment before Justice Nakatsuru.
[20] At the Chambers Appointment, Omega sought a Direction and Order that Mr. Grillone advise and/or give a copy of the motion to be heard December 11, 2019 and/or the Statement of Claim to the Unserved Defendants. The Grillone Defendants resisted the request on the basis that whether the unserved Defendants’ addresses are privileged and whether Mr. Grillone should be required to disclose those addresses were central issues on the pending motion and it would be preemptive to make any Order. In these circumstances, Justice Nakatsuru refused Omega’s request.
[21] On October 21, 2019, Omega’s counsel wrote to the Law Society of Ontario to, among other things, ask that the Law Society consider providing notice of this action to the unserved Defendants. Mr. Grillone’s law practice was being closed, and the Law Society was monitoring the closure but was not acting as a trustee for the practice.
[22] Also, on October 21, 2019, the Grillone Defendants’ counsel wrote to the Law Society and took the position that the addresses of the unserved Defendants were subject to lawyer-client privilege and unless and until a Court orders otherwise, the addressed could not be disclosed to Omega. The Law Society took no action to assist Omega.
[23] On October 22, 2019, Omega - for the first time - searched the Superior Court’s Toronto and Brampton Public View Terminals for information regarding the unserved Defendants’ and requisitioned the Court files to determine whether any information could be obtained from the court files. The court files were in storage and not immediately available. The Unserved Defendants Toronto Court files were not requested by Omega until on or about October 24, 2019; The Request forms for Brampton Court files show that Omega did not order the Brampton Court files from storage until October 30, 2019.
[24] Based on a review of the Court Files, Omega was able to obtain some information including vehicle plate numbers and/or police reports. It then conducted searches through the Ministry of Transportation. Between November 1, 2019 and November 23, 2019, Omega has served 11 Defendants; namely: Margaret Chiodo; Marcello DeGregorio; Hasan Fahmi; Mohammad Yasir Fahmi; Rabiya Fahmi; Sairi Fahmi; Siddiqa Sameen Fahmi; Michelle Melissa Medeiros; Gopalanathan Sathasivam; Daphne Shand, and Steven Tony Sousa.
[25] As of November 27, 2019, Omega’s searches and inquiries were ongoing, and Omega is awaiting: the results of Invictus Investigations attempts to locate John Vlajkovic; (b) the delivery of Court files from Cooksville with respect to Naim Akbari, Indra Bushin, and Amritpal Pandher.
[26] Meanwhile Omega rejected the Grillone Defendants’ proposal that this motion be adjourned until its searches and inquires with respect to Naim Akbari, Indra Bushin, Amritpal Pandher, and John Vlajkovic have been completed.
[27] Omega states that it has not been able to locate addresses for service with respect to seven Defendants that it wishes to serve; namely: Radina Mustafa Ali Abdrabo; Naim Akbari; Terry Ball; Indra Bushin; Agartha C. Manu; Catarina Panarese; and Amritpal Pandher. However, it is known that Agartha C. Manu is now represented by Daniel Durzo, barrister and solicitor.
[28] Omega has been unsuccessful in its attempts to serve Christine Preston and John Vlajkovic despite attempting service at two addresses for both individuals.
C. Discussion and Analysis
[29] Omega’s primary request began as a request for orders for substitutional service on twenty Defendants by serving Beard Winter LLP, Mr. Grillone’s lawyer of record. Omega now seeks orders for substitutional service on eight Defendants. An order for substitutional service, however, is not appropriate in the immediate case.
[30] Where it appears to the court that it is impractical for any reason to effect prompt personal service of an originating process, the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service.[^1] Service is impractical when it is unable to be carried out or done, which is shown by showing that all reasonable steps have been taken to locate the party and personally serve him or her.[^2]
[31] Substituted service is not intended to spare a party the inconvenience or expense of personal service and mere difficulty in serving a party personally is not enough. For an order for substituted service, the party must show that he or she is unable to carry out prompt personal service.[^3] Substituted service may be ordered when there is evidence that the party to be served is intentionally evading being served. The inability to serve a party personally is proved by showing that all reasonable steps have been taken without success to locate the party and to personally serve him or her. What is reasonable will depend on the nature of the case, the relief claimed, the amount involved and all of the surrounding circumstances.[^4]
[32] In Chambers v. Muslim, Master Dash summarized the test for substituted service as follows:
What is the test for substituted service under rule 16.04? The plaintiff must satisfy the court, on proper evidence, that the proposed method of substituted service will have “some likelihood” or a “reasonable possibility” of bringing the action to the attention of the defendant, otherwise “the exercise of obtaining an order for substituted service is a charade.” One must select the mode of service “that is most likely to bring the document in question to the attention of the defendant”. This could include publication in a newspaper in the defendant’s locality. However, “substituted service is not available if the whereabouts of the defendant are unknown”. If “the defendant will not learn of the action through substituted service” it may be “more appropriate to ask for an order dispensing with service altogether”. Furthermore, before substituted service is ordered the plaintiff must show that “all reasonable steps have been taken to locate the party and to personally serve him or her. What is reasonable will depend on the nature of the case, the relief claimed, the amount involved and all of the surrounding circumstances.” Substituted service is not intended to spare the inconvenience or expense or difficulty of personal service if personal service can be effected.[^5]
[33] In the immediate case, it is not known or shown that the Defendants are evading service, and as noted by Master Dash, substituted service is not available if the whereabouts of the defendant are not known.[^6] In the immediate case, information is still being gathered about the location of the Defendants. In the immediate case, when the addresses of the Defendants became known, Omega was able to effect personal service. On the facts of the immediate case, it is premature to seek an order for substitutional service.
[34] Omega’s alternative request for relief is that the Court Order Beard Winter LLP to serve the Statement of Claim upon the Unserved Defendants and to provide proof of service, redacted if necessary, to counsel for Omega within 15 days of the date of the Order. Apart from the illogic of ordering a redacted affidavit of service, whatever that might mean or entail, I shall not make such an Order. I am not aware of any jurisdiction to make such an unprecedented Order, and I would not exercise the court’s inherent jurisdiction to make such an order against the lawyer of record of an opposing party.
[35] Omega’s further alternative request for relief is for an Order compelling Beard Winter LLP, to provide the addresses of Radina Mustafa Ali Abdrabo; Naim Akbari; Terry Ball; Indra Bushin; Catarina Panarese; Amritpal Pandher; Christine Preston; and, John Vlajkovic.
[36] Although the request ought to have been made against Mr. Grillone and his law firm - and not against Beard Winter LLP - and although Omega did not put a name on its request for this injunctive relief, it is a request for a Norwich Order, which is based on the English case of Norwich Pharmacal & Others v. Customs and Excise Commissioners,[^7] and which has come to be recognized interlocutory injunctive Order in Ontario.[^8]
[37] The requirements for an Norwich Order are: (1) the plaintiff must have a bona fide claim or potential claim against a wrongdoer; (2) the defendant to the Norwich proceeding must have a connection to the wrong beyond being a witness to it; (3) the defendant to the Norwich proceeding must be the only practical source of the needed information; (4) the interests of the party seeking the disclosure must be balanced against the interests of the defendant to the proceeding, including his or her interest in privacy and confidentiality, and any public interest that would justify non-disclosure; and (5) the interests of justice must favour obtaining the information. The fundamental principle underlying the Norwich Order is that the party against whom the order is sought has an equitable duty to assist the applicant in pursuing its rights.[^9] A Norwich Order is an extraordinary discretionary order and is to be rarely granted.[^10] In addition to disputing whether the pre-conditions for a Norwich order have been satisfied, a party resisting the motion has the defence that the information sought is privileged.[^11]
[38] In the immediate case, I am satisfied that the pre-conditions for a Norwich Order are satisfied as against Mr. Grillone and his law firm – but not against Beard Winter LLP, which has no equitable duty to assist Omega in pursuing its rights.
[39] In my opinion, in the circumstances of the immediate case, the addresses of the Defendant borrowers, who were also Mr. Grillone’s clients, are not privileged information that cannot be disclosed to Omega, or if the information is privileged, the Defendant borrowers waived the privilege associated with their addresses for service.
[40] To qualify for solicitor-client privilege, a communication must be: (1) between a client and his or her lawyer who must be acting in a professional capacity as a lawyer; (2) given in the context of obtaining legal advice; and (3) intended to be confidential.[^12] The identity of a client is not necessarily the subject of a professional confidence or privilege although it may be.[^13] In the immediate case, the addresses of the borrowers would appear to be administrative information not intended to be confidential or privileged.
[41] Administrative information relating to the solicitor-client relationship is presumptively covered by solicitor and client privilege; however, the presumption may be rebutted by evidence showing: (a) that there is no reasonable possibility that disclosure of the requested information will lead, directly or indirectly, to the revelation of confidential solicitor-client communications; or (b) that the requested information is not linked to the merits of the case and its disclosure would not prejudice the client.
[42] In the immediate case, all that is being requested is the address of the borrowers which regardless of whether Mr. Grillone was acting only for the borrowers or acting for both the borrowers and also Omega ought to have been disclosed to Omega. The disclosure of the information does not prejudice the borrowers in their defence of the case brought by Omega nor would it prejudice the borrowers in the case that was being financed by the litigation loan where the borrowers would have identified themselves as represented by Mr. Grillone and his law firm. Mr. Grillone would not be disclosing any confidential solicitor-and-client communications in disclosing administrative information about his clients.
[43] For the above reasons, I, therefore, dismiss the request for substitutional service but grant the alternative relief of a Norwich Order with respect to the addresses of Radina Mustafa Ali Abdrabo; Naim Akbari; Terry Ball; Indra Bushin; Catarina Panarese; Amritpal Pandher; Christine Preston; and, John Vlajkovic.
D. Conclusion
[44] Order accordingly. This is not an appropriate case for costs.
Perell, J.
Released: December 27, 2019
COURT FILE NO.: CV-19-620967
DATE: 2019/12/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
OMEGA PROCESS SERVERS INC and OMEGA PROCESS SERVERS INC cob OMEGA PROCESS SERVERS
Plaintiffs
- and -
SERGIO GRILLONE, GRILLONE LAW FIRM, CHRISTINE PRESTON, HASAN FAHMI, MOHAMMAD YASIR FAHMI, RABIYA FAHMI, SAIRI FAHMI, SIDDQA SAMEEN FAHMI, GOPALANATHAN SATHASIVAM, AMRITPAL PANDHER, CATARINA PANARESE, MARGARET CHIODO, JOHN VLAJKOVIC, INDRA BUSHIN, RADINA MUSTAFA ALI ABDRABO, STEVEN TONY SOUSA, DAPHNE SHAND, NAIM AKBARI, MARCELLO DEGREGORIO, TERRY BALL, AGARTHA C. MANU, and MICHELLE MELISSA MEDEIROS
Defendants
REASONS FOR DECISION
PERELL J.
Released: December 27, 2019
[^1]: Rule 16.04(1). [^2]: Laframboise v. Woodward (2002), 2002 CanLII 49471 (ON SC), 59 O.R. (3d) 338 (S.C.J.). [^3]: Laframboise v. Woodward (2002), 2002 CanLII 49471 (ON SC), 59 O.R. (3d) 338 (S.C.J.); Chambers v. Muslim (2007), 2007 CanLII 82791 (ON SC), 87 O.R. (3d) 784 (Master). [^4]: Laframboise v. Woodward (2002), 2002 CanLII 49471 (ON SC), 59 O.R. (3d) 338 (S.C.J.); Chambers v. Muslim (2007), 2007 CanLII 82791 (ON SC), 87 O.R. (3d) 784 (Master). [^5]: Chambers v. Muslim, 2007 CanLII 82791 (ON SC), [2007] O.J. No. 3855, 87 O.R. (3d) 784 at para. 13 (Ont. Master) (citations omitted). [^6]: Niemi v. Western Assurance Co., 2011 ONSC 958; Laframboise v. Woodward (2002) 2002 CanLII 49471 (ON SC), 59 O.R. (3d) 338 (S.C.J.). [^7]: [1974] A.C. 133 (H.L.) [^8]: 1654776 Ontario Ltd. v. Stewart, 2013 ONCA 184, leave to appeal refused [2013] S.C.C.A. No. 225; Tetefsky v. General Motors Corp., 2010 ONSC 1675 affd 2011 ONCA 246; GEA Group AG v. Ventra Group Co. (2009), 2009 ONCA 619, 96 O.R. (3d) 481 (C.A.); Isofoton S.A. v. Toronto Dominion Bank (2007), 2007 CanLII 14626 (ON SC), 85 O.R. (3d) 780 (S.C.J.); Meuwissen (Litigation Guardian of) v. Strathroy Middlesex General Hospital (2006), 40 C.P.C. (6th) 6 (Ont. C.A.); Straka v. Humber River Regional Hospital (2000), 2000 CanLII 16979 (ON CA), 51 O.R. (3d) 1 (C.A.). [^9]: Isofoton S.A. v. Toronto Dominion Bank (2007), 2007 CanLII 14626 (ON SC), 85 O.R. (3d) 780 (S.C.J.); Hudspeth v. Whatcott, 2017 ONSC 1708 at paras. 267-274. [^10]: Subway Franchise Systems of Canada, Inc. v. Trent University, 2017 ONSC 4562; GEA Group AG v. Ventra Group Co. (2009), 2009 ONCA 619, 96 O.R. (3d) 481 (C.A.). [^11]: Straka v. Humber River Regional Hospital (2000), 2000 CanLII 16979 (ON CA), 51 O.R. (3d) 1 (C.A.); 1654776 Ontario Ltd. v. Stewart, 2013 ONCA 184 (Ont. C.A.), leave to appeal refused [2013] S.C.C.A. No. 225. [^12]: Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] 1 S.C.R. 860 (S.C.C.); R. v. Campbell, 1999 CanLII 676 (SCC), [1999] 1 S.C.R. 565 (S.C.C.). [^13]: Taberner Investments Ltd. v. Price Waterhouse Ltd., [2000] O.J. No. 2596 (S.C.J.), Ontario (Securities Commission) v. Greymac Credit Corp., (1983), 1983 CanLII 1894 (ON SC), 41 O.R. (2d) 328 at p. 338 (Div. Ct.).