Superior Court of Justice - Ontario

COURT FILE NO.: CV-20-00642342

DATE: 2021-03-24

RE: Paul Radovanov

AND:

Beck Taxi Ltd. and John Doe

BEFORE: Vermette J.

COUNSEL: Chris T. Blom for the Defendant Beck Taxi Ltd.

No one appearing for the Plaintiff, Paul Radovanov

No one appearing for the Defendant John Doe

HEARD: March 23, 2021

ENDORSEMENT

[1] This is a motion for summary judgment brought by the Defendant Beck Taxi Ltd. (“Beck”) for the dismissal of the action as against it.

PROCEDURAL BACKGROUND

[2] This motion was first returnable on March 2, 2021. On that date, Justice Myers noted that the motion materials had been served on the Plaintiff at the address indicated on his Statement of Claim, but that the Plaintiff had put a different address on his Reply. Justice Myers asked counsel for Beck to mail his endorsement and Beck’s motion record, factum and other documents to the Plaintiff at the address indicated on the Reply. Justice Myers adjourned the motion to March 23, 2021. His endorsement included the internet link and the call-in details for the hearing on March 23, 2021, as well as the following language in bold font:

If Mr. Radovanov wants an opportunity to respond to this motion to keep his lawsuit from ending, he must participate in the hearing on March 23, 2021 by telephone or video conference to discuss with the judge the process for Mr. Radovanov to respond to the motion.

Mr. Radovanov should understand that if he does not participate in the hearing on March 23, 2021, his lawsuit may be dismissed.

[3] Counsel for Beck filed an affidavit of service confirming that he had mailed the relevant documents to the Plaintiff at the address indicated on the Reply on March 2, 2021. At the hearing, he advised the Court that he had received no response from the Plaintiff and had not heard anything from him. The Plaintiff did not participate in the hearing of the motion.

THE ACTION

[4] In his Statement of Claim issued on June 11, 2020, the Plaintiff alleges that on April 25, 2020, he ordered a taxicab through Beck’s dispatch service, and that a taxicab bearing # 487 picked him up near the intersection of College Street and Bathurst Street in Toronto. The Plaintiff alleges various improper conduct on the part of the driver, both in the taxi and outside of the taxi on arrival at the Plaintiff’s destination.

[5] The Plaintiff claims damages in the amount of $1.6 million for the torts of harassment, trespass to the person, assault and battery, intimidation, obstruction of justice and defamation. He alleges that Beck is the employer and/or principal of the driver of taxicab # 487 and is vicariously liable for the driver’s actions. In his Reply, the Plaintiff appears to allege direct negligence on the part of Beck, even though such a claim is not included in his Statement of Claim.

THE EVIDENCE ON THE MOTION

[6] Since the Plaintiff did not participate in the motion and did not file any materials, the only evidence before the Court on this motion is the evidence filed by Beck.

[7] Beck relies on the affidavit of Kristine Hubbard, Beck’s Operations Manager. Ms. Hubbard states in her affidavit that she undertook an investigation of Beck’s records to determine whether there was a record of a dispatch of taxicab # 487 to the area of College Street and Bathurst Street in Toronto on April 25, 2020. The history of dispatch calls made to taxicab # 487 that was retrieved by Ms. Hubbard and attached to her affidavit shows that dispatch calls were made to the operator of taxicab # 487 on April 24 and 27, 2020, but that no dispatch calls were made on April 25, 2020.

[8] Ms. Hubbard’s evidence is that Beck does not own taxicabs, does not hire persons to operate taxicabs and does not control the manner in which taxicab operators undertake their business. She states that Beck simply provides marketing and dispatch services for a fee, and she attaches to her affidavit the Marketing & Dispatch Services Contract entered into by Beck and the operator of taxicab # 487. Beck’s position is that taxicab operators are independent contractors and that it is not vicariously liable for their actions.

DISCUSSION

[9] A party moving for summary judgment has the evidentiary burden of showing that there is no genuine issue for trial. However, each party must put its best foot forward to establish whether or not there is an issue for trial. The Court is entitled to assume that the record contains all the evidence that the parties would present at trial: see Toronto-Dominion Bank v. Hylton, 2012 ONCA 614 at para. 5.

[10] Beck’s evidence that no dispatch calls were made by Beck to taxicab # 487 on April 25, 2020 is uncontradicted. In my opinion, this evidence is sufficient to meet Beck’s evidentiary burden of showing that there is no genuine issue for trial. In the absence of any evidence that taxicab # 487 picked up the Plaintiff on April 25, 2020, it is not necessary for me to deal with the issue of vicarious liability.

CONCLUSION

[11] Beck’s motion for summary judgment is granted. This action is hereby dismissed as against Beck.

[12] Beck asks for its costs of the motion and the action in the reasonable amount of $1,000.00. I fix the costs payable by the Plaintiff to Beck in the total amount of $1,000.00. Costs to be paid within 30 days.

Vermette J.

Date: March 24, 2021