COURT FILE NO.: CV-18-76859
DATE: October 5, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gladys Milena Segura Mosquera
Plaintiff/Applicant
– and –
Rogers Communications Inc.
Defendant/Respondent
Self-represented plaintiff
Kyle Lambert and Marie-Eve Jean for defendant Rogers Communications Inc.
– and –
Canadian Radio-Television and Telecommunications Commission and Commission for Complaints for Telecom-Television Services
Proposed Defendants/Respondents
Samar Musallam for the Attorney-General of Canada, on behalf of the proposed defendant CRTC
Jaime Wilson for proposed defendant CCTS
HEARD: September 30, 2020
ENDORSEMENT ON APPLICATION TO TRANSFER AND ADD DEFENDANTS
Justice Sally Gomery:
[1] In January 2017, the plaintiff Gladys Milena Segura Mosquera (“Ms. Segura”) sued the defendant Rogers Communications Inc. (“Rogers”) in Small Claims Court file SC-17-143-801 (the “Small Claims action”). In the Small Claims action, Ms. Segura alleges that Rogers overcharged her for wireless services provided from 2013 to 2016, and that, after she disputed the charges, it terminated its services to her. She also alleges that, after she brought her cellphone in for repairs at a mall kiosk in 2013, the device returned to her was not her phone. In her statement of claim in the Small Claims action, Ms. Segura seeks damages of $1858.83.
[2] In the application now before me, Ms. Segura asks that her action be transferred to the Superior Court and that she be granted leave to add the Canadian Radio-Television and Telecommunications Commission (CRTC) and Commission for Complaints for Telecom-Television Services (CCTTS) as additional defendants.
[3] Segura says that she needs to continue this case in the Superior Court because she wants to claim equitable remedies and take advantage of pre-trial discovery rights unavailable to her in a Small Claims action. She contends, as well, that her claim raises issues of public importance, because many Canadians are disadvantaged by the current system in place for consumer complaints about the practices of wireless service providers.
[4] Rogers and the proposed defendants CRTC and CCTTS contend that Ms. Segura has not provided any good reason to transfer the case, and that her request is motivated by an improper purpose. CRTC and CCTTS further argue that she has no viable basis for a claim against them.
[5] For the reasons that follow, I am dismissing Ms. Segura’s application.
Issue 1: Should the action be transferred?
(a) The principles governing a transfer from Small Claims to Superior Court
[6] A Superior Court judge may order the transfer of a claim where a claim is not capable of being justly and fairly resolved using the procedures available in the Small Claims Court.[^1]
[7] A judge determining whether a case should be transferred must balance factors that argue for or against access to the procedures in the Superior Court. In the past, courts have identified such factors as the complexity of the litigation, the role and importance of pre-trial discovery and expert evidence, and whether the case raises issues of general importance.[^2] In my view, however, there is no set, universally applicable list of relevant factors. Each case must be considered on its own facts. The court must view the situation holistically and be guided by the overriding interests of justice to determine whether a fair and just resolution of the case compels its transfer to the Superior Court.
[8] The discretion to transfer should be exercised rarely.[^3] A transfer at the request of a defendant deprives the plaintiff of their choice of court. A transfer at the request of a plaintiff likewise has negative consequences. It exposes a defendant to much higher costs of pre-trial discovery and trial, both in terms of counsel fees and potential costs awards against them at various stages of the litigation. If an application is made just prior to trial, a transfer will result in the duplication of work.
[9] Beyond these practical implications, there are policy reasons for limiting the right of a plaintiff to transfer their case. In the absence of compelling reasons for a transfer, permitting it undermines the jurisdictional legitimacy of the Small Claims Court. It assumes that the procedures in that court are inadequate, when in fact they may be perfectly suitable for the resolution of a given dispute. This is a dangerous assumption in an era where access to justice is a significant problem.
[10] A request for transfer may also be rooted in an improper collateral purpose. For example, a plaintiff could test the waters in Small Claims Court through an exchange of pleadings and pre-trial settlement process, with little exposure to costs, then seek to transfer the action to Superior Court and increase their damages claim significantly. A plaintiff might also seek to exploit the pre-trial discovery rights available to parties in the Superior Court in order to gain evidence for other purposes. The discretion to transfer an action to Superior Court should not be exercised solely to permit one party to obtain a strategic advantage.[^4]
[11] As a result of practical and policy concerns, the onus on a party seeking a transfer is relatively high. The applicant must submit evidence that the filing in Small Claims Court was either a mistake, or that a just and fair adjudication of the case cannot be made unless a transfer is ordered.[^5]
(b) The history of Ms. Segura’s claim
[12] Ms. Segura purchased a cell phone in November 2012 and entered into a contract for pre-paid wireless services with Rogers. In early 2013, she noticed some charges and billing practices that were, in her view, unfair. She complained to Rogers but was unsatisfied by their response. In 2014, she filed a complaint with the CCTTS, a body created by the CRTC to resolve consumer complaints about telecom services.[^6] This led to a refund of some money to Ms. Segura but did not satisfy all of her concerns. She filed three further complaints over the next two years but the CCTTS’ responses did not, in her opinion, address the issues that she raised.
[13] On July 2, 2016, Rogers advised Ms. Segura that it was terminating her account on 60 days’ notice, on the basis that it was apparently unable to provide her with satisfactory services. Her wireless account with Rogers was deactivated as of September 11, 2016.
[14] Another issue emerged at this point. In August 2013, Ms. Segura had brought her cellphone in for repairs to a FIDO kiosk in a local shopping mall.[^7] The phone was returned to her a few weeks later. The termination letter from Rogers in July 2016 identified Ms. Segura’s cellphone as a different model than the one she had purchased in 2012. This led her to believe that the phone returned to her after repairs in September 2013 was not her cellphone.
[15] Ms. Segura filed a fifth complaint with the CCTTS with respect to the termination of her wireless contract and Rogers’ alleged failure to return her own cellphone to her in September 2013. She also sought, unsuccessfully, to lay criminal charges of theft against the employee at the FIDO kiosk to whom she had delivered the phone for repairs.
[16] In November 2016, the CCTTS closed Ms. Segura’s last complaint.
[17] On January 13, 2017, Ms. Segura began the Small Claims action. In the claim, she seeks $1858.83 in damages, the amount she says she was overcharged by Rogers between 2013 and 2016. I will return below to the question of what, if anything, more she is seeking in the action in relation to the disconnection of her account.
[18] Around the same time that she began the Small Claims action, Ms. Segura learned that the cellphone number associated with her Rogers account had been transferred to another subscriber. She alleges that, as a result of this transfer, the new user was able to open the front door of her apartment building. This prompted her to ask her landlord to disconnect her buzzer. She says that, as a result, she has been unable to open the front door remotely since early 2017.
[19] Rogers filed a defence to the Small Claims action in February 2017. It takes the position that Ms. Segura was accurately charged for wireless services based on the applicable terms of service, and that claims for overcharges prior to January 13, 2015 were in any event time-barred. Rogers states that it was entitled to terminate its services on 60 days’ notice. Finally, it points out that Ms. Segura was given two opportunities to transfer her cellphone number for her use in a contract with another wireless provider but declined to do so prior to cancellation and again in November 2016.
[20] The parties attended three settlement conferences before Small Claims Court judges in 2017 and early 2018. Since the parties were unable to resolve their dispute, the case was listed for trial in May 2018. The trial date was subsequently postponed to June 2018. A month before the case was set to be heard, Rogers filed a motion to dismiss, on the grounds that Ms. Segura had failed to produce any evidence in support of her claims and that the action was frivolous and vexatious.
[21] In response to Rogers’ motion, Ms. Segura advised that she was no longer satisfied with the relief she had requested in the Small Claims action and would be seeking a transfer of the case to the Superior Court as well as the addition of the CCTTS as a defendant. As a result, on May 18, 2018, a motion judge adjourned the trial pending this court’s determination of Ms. Segura’s application for transfer, which she filed a month later. In the application she sought to have both the CCTTS and the CRTC added as defendants. Her notice of application refers to “the decisions, inaction and eventual negligence of both bodies, without detailing any particulars.
[22] The hearing on the merits of Ms. Segura’s application for transfer was delayed because she failed to attend court on time on the date originally set for hearing, and she had to move to have its dismissal set aside.[^8]
[23] In March 9, 2020, the parties attended a case conference to reschedule the hearing of Ms. Segura’s application. In his endorsement, Master Kaufman ordered Ms. Segura to serve a copy of the statement of claim she proposes to file in the Superior Court by June 5, 2020. She did not comply with this order. She told me, during the hearing of her application, that she did not understand that this order was more than a suggestion, and that she thought it was unnecessary since she set out her proposed claims in her notice of application and affidavit. This is implausible given the plain language of the endorsement and Ms. Segura’s experience as a litigant in other proceedings. As noted in Rogers’ factum, Ms. Segura has initiated a myriad of legal proceedings in the last few years and is identified as a party in at least fourteen published decisions of Ontario and Quebec courts and tribunals since 2014. This is also not the first time she has ignored an unambiguous court order.[^9]
(c) Has Ms. Segura established that a transfer is necessary for a just and fair resolution of her claim?
[24] In my view, the following factors must be balanced in considering Ms. Segura’s application:
(i) The availability of the relief sought by Ms. Segura;
(ii) whether further pre-trial discovery is needed for a fair and just determination of the claim;
(iii) whether the case involves issues of general importance; and
(iv) the respondents’ allegation that the request for transfer is motivated by an improper collateral purpose.
(i) The availability of the relief sought by Ms. Segura
[25] The Ontario Small Claims Court’s jurisdiction is limited to claims for money or personal property in a maximum amount of $35,000. Unlike the Superior Court, it has no power to issue declaratory relief or an injunction.
[26] In her Small Claims action, Ms. Segura claims less than $2000 in damages. In her factum on this application, Ms. Segura states that she intends to seek additional damages for malice and intentional infliction of emotional distress as a result of Rogers’ assignment of her cellphone number to other users. She also mentions potential violations of her constitutional and privacy rights, which could theoretically ground a claim for further damages.
[27] Ms. Segura’s failure to file a proposed statement of claim, despite Master Kaufman’s order that she do so, makes it very difficult for her to argue that she has claims exceeding the Small Claims Court monetary cap. Ms. Segura has not alleged material facts in her statement of claim that could ground awards for damages for any intentional tort or for violations of her constitutional or privacy rights. She is instead asking the court to speculate about what she could claim, based on her notice of application, supporting affidavit and factum.
[28] It is not up to the judge hearing Ms. Segura’s application to try to quantify her damages based on causes of actions and remedies that she might conceivably assert. The onus is on her to show why she cannot obtain a just and fair adjudication of her claims in the Small Claims action.
[29] I accordingly conclude that Ms. Segura’s claims do not exceed the monetary jurisdiction of the Small Claims Court.
[30] I turn now to the potential equitable claims. If Ms. Segura were claiming equitable relief that could only be obtained in Superior Court, this would weigh heavily in the determination of this application. To date, however, Ms. Segura has not sought any order that the Small Claims Court could not make, nor has she explained what orders she might seek if her case were transferred, except for one order that is now moot.
[31] In her statement of claim in the Small Claims action, Ms. Segura declares that “FIDO disconnected my wireless service and I want it back!”.[^10] In para. 44 of her factum, however, she acknowledges that when she filed her claim, “she was only seeking monetary relief”. In the statement of claim, she alleges that the discontinuation of services was unjustified and caused her inconvenience. She does not however say that she has been unable to obtain wireless services from another provider, or that there is anything unique about the wireless services she received from Rogers, or any other circumstances that might justify a mandatory order that Rogers restore her account as opposed to damages for breach of contract.
[32] As a result, even if the statement of claim is read generously (and in a way that contradicts Ms. Segura’s own characterization of the relief sought), she has not pleaded material facts that could give rise to a claim for an injunction or any other equitable relief against Rogers.
[33] With respect to potential additional claims, Ms. Segura states in her factum that she now wants to obtain injunctions and specific performance under s. 96(1) of the Courts of Justice Act. She has not, however, explained in any of her materials what specific orders she would seek, if her case were transferred to this Court, with one exception.
[34] In Part IV of her factum entitled “Order sought”, Ms. Segura refers to disclosure orders, a waiver of fees for audio digital recordings, an order permitting her to produce documents in digital format only, the addition of the proposed defendants and costs. All of these are orders that the Small Claims Court could make. She mentions only one order that would exceed its jurisdiction: an order requiring Rogers not to further reassign her cellphone number to another subscriber “until this matter gets dealt with in its entirety”. Based on Rogers’ uncontested evidence, however, this is no longer an issue. Rogers has held this number in reserve after Ms. Segura repeatedly called the customer to whom it had been assigned, alleging that the number belonged to her.[^11]
[35] In her oral submissions, Ms. Segura advised that she would like to seek a declaratory order that the proposed defendant CCTTS is not independently constituted, because members of the public are not adequately represented. She would also like to challenge its procedural code, which in her view insulates its processes from judicial review. She did not explain what order she would seek against the CRTC.
[36] I cannot assess whether Ms. Segura’s complaints give rise to any reasonable cause of action or even a justiciable issue, because I do not know what material facts or law she would allege or assert in support of her proposed action before the Superior Court, or what particular relief she wants.
[37] I conclude that this factor does not weigh in favour of granting the transfer application.
(ii) Is further pre-trial discovery needed for a fair and just determination of the claim?
[38] Ms. Segura contends that she requires pre-trial discovery from Rogers that she cannot obtain in the context of the Small Claims action, and that this requires a transfer to this Court. She says, for example, that there must be records of how FIDO dealt with her complaint about getting the wrong cellphone back, despite Rogers’ representations at settlement conferences that no such records exist. She also seeks disclosure from third parties, such as her landlord.
[39] It is not clear what discovery Ms. Segura could obtain in the context of a Superior Court action that she could not obtain in her Small Claims action. Based on the materials filed, she has not sought a production order at any of the three settlement conferences she attended in that action, as she could under r. 13.05(2) of the Rules of the Small Claims Court, O Reg 258/98. There is no evidence that Rogers has withheld or failed to disclose relevant evidence. I accept the affidavit evidence by its representative that it has complied with all orders.
[40] This factor does not support the transfer application.
(iii) Does the case involve issues of general importance?
[41] Ms. Segura’s Small Claims action involves a dispute between two private parties over a modest amount of money. Her claim does not raise any issues of general importance.
[42] In her oral argument, Ms. Segura stated that her experience with Rogers’ billing practices and with the complaints process at the CCTTS has led her to believe that there are serious, fundamental shortcomings with the way the telecom industry is regulated and with the systems in place for consumers to challenge unfair billing practices. She said that she wants to enlarge the scope of her case to shed light on these issues and to seek orders that would remedy the problems she has identified.
[43] Ms. Segura’s failure to file a proposed statement of claim once again significantly undermines her argument. I can well believe that there are other Canadian wireless subscribers who share her frustrations with billing practices and the perceived or real power imbalance between consumers and the telecom industry in this country. I cannot, however, gauge whether Ms. Segura’s grievances amount to a viable claim that would engage broader public interests, in the absence of a draft statement of claim that would set out exactly what she is complaining about and what remedies she is seeking.
[44] This factor does not argue for a transfer.
(iv) Is the request for transfer motivated by an improper purpose?
[45] The respondents argue that Ms. Segura’s application to transfer, announced in response to Rogers’ motion to dismiss, was a strategic manoeuvre to forestall the dismissal of her claim. Furthermore, if the transfer is allowed, she will use the Superior Court’s processes for improper purposes. Ms. Segura has announced that she intends to use pre-trial discovery to obtain information to advance a criminal complaint against a Rogers employee for theft of the cellphone she brought in for repair in 2013, and possibly to take action against her landlord in connection with the front door buzzer issue.
[46] I agree that it would be improper to transfer Ms. Segura’s claim for the sole purpose of allowing her to obtain evidence for use in other legal proceedings. I also agree that her failure to produce a draft statement of claim in the proposed proceeding in this Court suggests that she does not have a basis for further relief against Rogers or a claim against the CRTC and CCTTS, and that she hopes to obtain information through the discovery process in Superior Court. This is also improper.
[47] This factor argues strongly against a transfer of the claim.
(d) Conclusions on the application to transfer
[48] Ms. Segura has not shown that a transfer to the Superior Court is required for the just and fair resolution of her claim. None of the relevant factors support a transfer. She decided to sue in Small Claims Court for strategic and practical reasons. Her monetary claim is well below the threshold in that Court. Rogers defended the action, participated in three settlement conferences and served and filed a motion to dismiss. The claim should have been resolved two years ago, either based on Rogers’ motion or a trial.
[49] The most benign explanation for Ms. Segura’s request for a transfer is that she has changed her mind about the type of relief she now seeks. She has not, however, explained exactly what she wants, or why a transfer is necessary for her purposes or in the broader interests of justice. There is no evidence that she cannot get a just and fair adjudication of her claim in the Small Claims Court.
[50] I conclude that Ms. Segura has not established that this is a case where I should exercise discretion to order the transfer of the action.
Issue 2: Should CRTC and CTTS be added as defendants?
[51] In light of my decision declining the transfer, I do not have the jurisdiction to make any decision about possible amendments to the pleadings, including the addition of any new defendants.
[52] I must however add this. Even if I had granted the transfer, I could not have concluded that Ms. Segura has viable causes of action against the CTTS and the CRTC. Although ordered to do so, Ms. Segura has not submitted a proposed statement of claim. She argues that the material facts and causes of action that she would rely on if these defendants were added should be clear from her motion record. They are not.
[53] The motion is accordingly dismissed. Regrettably, none of the parties at the hearing were prepared to make costs submissions, except for the CRTC, whose counsel advised that it would not seek costs.
[54] I accordingly order that, should the remaining parties be unable to agree on costs, each shall serve and file costs submissions by no later than October 19, 2020.
[55] Each party’s costs submissions shall not exceed three pages in length. Each party shall attach a draft bill of costs and a summary of time dockets or time and dates of work performed and claimed, as well as any other document directly relevant to their position on costs. The materials shall be prepared in searchable pdf format, and each document shall be electronically bookmarked and assembled in a document entitled “Costs submissions by [Party Name], to the attention Justice S. Gomery”. The submissions shall be filed in the Civil Submissions Online Portal. No reply costs submissions shall be filed.
Justice Sally Gomery
Released: October 5, 2020
COURT FILE NO.: CV-18-76859
DATE: October 5, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gladys Milena Segura Mosquera
Plaintiff/Applicant
– and –
Rogers Communications Inc.
Defendant/Respondent
– and –
Canadian Radio-Television and Telecommunications Commission and Commission for Complaints for Telecom-Television Services
Proposed Defendants/Respondents
ENDORSEMENT ON APPLICATION TO TRANSFER AND ADD DEFENDANTS
Justice Sally Gomery
Released: October 5, 2020
[^1]: Autometric Autobody Inc. v. High Performance Coatings Inc., 2014 ONSC 6073 (Div. Ct.) at paras. 9-10. [^2]: Farlow v. Hospital for Sick Children, 2009 CanLII 63602, 100 O.R. (3d) 213 (ONSC), citing Crane, at para. 8; and Vigna v. Toronto Stock Exchange; Livingston v. Ould, [1976] O.J. No. 953, 2 C.P.C. 41 (H.C.J.). [^3]: Crane Canada Co. v. Montis Sorgic Associates Inc., 2005 CarswellOnt 9989 (S.C.J.), aff’d at 2006 CarswellOnt 3051 (C.A.), at para. 2. [^4]: Andrews v. Ballantry Homes, 2014 ONSC 5238, at para. 73. [^5]: Alexandrov v. Csanyi, 2009 CarswellOnt 1325 (Div. Ct.) at para. 21. [^6]: Affidavit of Marco Lanoue sworn November 15, 2018 and produced as part of the CCTTS record, at para. 1. [^7]: FIDO is the brand name of the Rogers’ wireless services package that Ms. Segura subscribed to when she purchased the phone. [^8]: Segura Mosquera v. Rogers Communications Inc., 2019 ONSC 6187. [^9]: Segura Mosquera v. Rogers Communications Inc., 2020 ONSC 3397, at para. 8. [^10]: Interestingly, in the statement of claim as originally filed, this statement read: “FIDO disconnected my wireless service and I wanted it back!”. The “-ed” in wanted was crossed out at some point. It is not clear whether this change was the result of a formal amendment. [^11]: Affidavit of Jamal Webb, sworn February 20, 2019, at para. 3.