Court File and Parties
COURT FILE NO.: CV-19-4217 DATE: 2021 03 01
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Blanka Novosel AND Visiting Angels Inc.
BEFORE: Mandhane J.
COUNSEL: Gordon Bobesich, for the Plaintiff Hansen Wong, for the Defendants
HEARD: February 26, 2021
Endorsement
1The Defendant, Visiting Angels Inc. brings a motion for summary judgment dismissing the Plaintiff’s claim against itself and/or all the defendants.
2In response, the Plaintiff asks that I dismiss the Defendant’s motion and transfer this matter to Small Claims Court.
Disposition
3For reasons that follow, I grant the Defendants motion for summary judgment and dismiss the action in its entirety.
Facts
4The Defendant provides in-home nursing and homecare services. It was hired by the Plaintiff’s previous counsel to clean her home in and around October 11, 2017.
5The Plaintiff says that various items were either stolen or damaged by the Defendant and/or its employees/agents during the cleaning. The Peel Police were contacted but did not lay charges.
6The Plaintiff brought this action on October 11, 2019. She alleges the torts of conversion and negligence, as well as vicarious liability and intentional infliction of emotional distress.
7Visiting Angels served its Statement of Defence and Demand for Particulars on January 27, 2020. It vigorously denies the allegations and says that the Plaintiff’s action is frivolous and vexatious. It says that Plaintiff’s house required extensive, industrial cleaning but that it honoured the Plaintiff’s request that it bag and leave the refuse on site.
8The Plaintiff's response to the Demand for Particulars listed 100+ items that were “missing” after the cleaning: everything from china and glassware, to children’s toys, to jewelry and watches, to electronics and office supplies, to clothing and luggage.
9The Plaintiff provided mostly generic descriptions of the alleged damage to various items of furniture and fixtures.
10At this motion, the Plaintiff relies solely on her two affidavits regarding ownership of the items at issue, their estimated value and their alleged conversation and negligent damage.
11At the hearing, the Plaintiff’s agent admitted that she had put her best case forward in response to this motion for summary judgment and that no other documentary or affidavit evidence was outstanding.
Analysis
12Rule 20.04(2) of the Rules of Civil Procedure requires the Court to grant summary judgment if there is no genuine issue for trial.
13In Herniak v. Maudlin, 2014 SCC 7, the Supreme Court of Canada noted that summary judgment motions afford an opportunity to create more timely, affordable and ‘proportional’ civil justice. The Court encouraged judges to rely on the summary judgment procedure where it would provide “fair and just adjudication” of the matter. Summary judgment will be appropriate where the court is able to make the necessary findings of fact and apply the law to those facts.
14The Plaintiff acknowledges that, on a motion for summary judgment, she must establish that there is a genuine issue for trial and that she is required to “put her best foot forward”: Pavlovic v Vankar, 2019 ONSC 61.
15In her Factum, the Plaintiff says that “there are multiple issues requiring a trial” but she does not specify what those issues are. At the hearing, her agent argued that the main issue for trial is credibility and that summary judgment is not appropriate because the Court has not had an opportunity to assess credibility after cross-examination of both parties.
16The Defendant disagrees with this characterization of the main issue between the parties. They say that summary judgment remains appropriate in this matter because, even if I accept the Plaintiff's evidence as credible, it is not sufficiently reliable to establish, on a balance of probabilities, that the Defendants committed the tort(s) in question. Moreover, he notes that Rule 20.04(2.1) of the Rules of Civil Procedure allows me to make credibility assessments on a motion for summary judgment.
17I agree that this matter is ripe for summary judgment: the damages sought are on the low-end, neither party has deep pockets to support protracted litigation, and the Plaintiff admitted at the hearing that she did not expect to adduce any further evidence. It is in the interests of justice for this matter to be resolved with finality and as early as possible.
18In relation to her claim of conversion, taking her evidence at its highest, the Plaintiff has not satisfied me that the dispute items ever existed, let alone that she had a possessory interest in them. She has also adduced no reliable evidence to support her bald assertion that the Defendants took any of the items at issue.
19Pursuant to Rule 20.02(2) of the Rules of Civil Procedure, I am entitled to draw an adverse inference where the Plaintiff fails to provide evidence from any person having personal knowledge of the contested facts. Here, the Plaintiff failed to produce any of the people she says witnessed the conversion and negligence (including her husband and son).
20In short, the Plaintiff asks the court to rely solely on her word, without a shred of documentary, photographic, eyewitness or other corroborating evidence, to find that she was robbed of tens of thousands of dollars from a reputable company. I refuse to do so.
21Regarding the claim of negligence, again, taking her evidence at its highest, the Plaintiff has not satisfied me that she owned the items at issue prior to the date of cleaning or that the items were damaged by the cleaners. The photos that she produced are grainy and post-date the alleged damage by approximately 3 years. There is no other reliable evidence and none appears to be forthcoming.
22Having found that the tort claims must fail, I need not consider the claims of vicarious liability and intentional infliction of emotional distress.
Disposition
23As there are no genuine issues for trial, the Defendants’ motion for summary judgement is granted.
24The Plaintiff’s action shall be dismissed in its entirety.
25Both parties provided their Bills of Costs and submissions. The Plaintiff shall pay the Defendant’s costs on this motion on a partial indemnity basis, in the amount of $4000.
Mandhane J.
DATE: February 26, 2021