Deluca v Bucciarelli, 2021 ONSC 7094

COURT FILE NO.: 68128/19

DATE: 2021-11-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FABIA DELUCA

Plaintiff

– and –

ROBERTO BUCCIARELLI and JOHN DOE ACCOMPLICE

Defendants

Jordan B. R. Palmer, for the Plaintiff

David Thompson and Jennifer Vrancic, for the Defendants

HEARD: September 14, 2021

REASONS FOR DECISION

THE HONOURABLE JUSTICE L. E. STANDRYK

Introduction – Nature of the Motion

1This is a motion for summary judgment brought by the defendant, Roberto Bucciarelli (the “defendant”). The defendant requests an order dismissing the plaintiff’s action on the basis that the relief and/or remedies claimed by Fabia Deluca (the “plaintiff”) are statute barred pursuant to the Limitations Act, S.O. 2002, c.24 Schedule B, as amended (the “Limitations Act”).

2The plaintiff submits that part, if not all, of her claim is saved from limitation by subsection 16(h.2.)(i) of the Limitations Act.

Factual Background

3The plaintiff and the defendant were engaged in a romantic relationship from 2003 until November 6 or 7, 2010.

4On January 22, 2019 the plaintiff issued a Statement of Claim against the defendant. The plaintiff seeks damages in the total sum of $1.4 million based on an alleged campaign of harassment, against her, by the defendant.

5The plaintiff’s claim may be summarized as follows:

a. Defamation and Slander, and/or Defamation per se and Slander per se, in the amount of $500,000.00;

b. Malicious Prosecution in the amount of $150,000.00;

c. Assault and/or Battery in the amount of $150,000.00;

d. Harassment in the amount of $150,000.00;

e. Intrusion Upon Seclusion and/or Public Disclosure of Private Facts in the amount of $100,000.00;

f. Aggravated damages in the amount of $200,000.00;

g. Punitive, Exemplary, Moral and/or Vindicatory damages in the amount of $100,000.00;

h. Pre- and Post judgment interests, costs and disbursements; and

i. Such further and other Order as this Court may allow.

6The plaintiff alleges that following her decision to end her relationship with the defendant and beginning in December 2010, the defendant commenced a campaign of harassment against her which consisted of:

a. Falsely reporting to the Workplace Safety and Insurance Board (“WSIB”) that she was fraudulently claiming benefits;

b. Falsely reporting that she was harassing the defendant at his workplace which led to the termination of his employment;

c. Convincing the plaintiff’s friends and associates to provide exaggerated or false testimony to the WSIB investigator;

d. Contacting the plaintiff’s television cable provider to falsely report that the plaintiff was stealing cable access;

e. Falsely reporting the plaintiff to the Hamilton Police Service (“HPS”) alleging that the plaintiff was harassing the defendant, having the plaintiff investigated by a private investigation firm;

f. Making disparaging remarks publicly and by private message;

g. Sending the plaintiff threatening/harassing/annoying text messages; and

h. Sending the defendant emails that were from the plaintiff.

7The defendant’s conduct is alleged to have taken place between December 2010 and 2012.

8The plaintiff commenced her action approximately seven years following the last “alleged” incident by the defendant against her. The plaintiff acknowledges that her Statement of Claim pleads causes of action that arose and were factually known to her more than two years before issuing the Statement of Claim. She pleads that she did not commence an action earlier because she feared for her personal safety and the safety of her family.

9It is acknowledged by the plaintiff that no physical assault was committed by the defendant. She argues that her claim is based on the tort of assault and/or battery and her reasonably formed fear for personal safety is sufficient to fall within the ambit of section 16(1)(h.2)(i) of the Limitations Act.

Issue

10Is the defendant entitled to summary judgment on the basis that the plaintiff’s claim is statute barred?

Summary Judgment

11Rule 20.01(3) of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”) provides that a defendant may move for summary judgment after delivering a statement of defence.

12Rule 20.04(2)(a) of the Rules provides:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;

13Rule 20.04(2.1) of the Rules sets out the powers of the court on a motion for summary judgment:

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

14Rule 20.04(4) of the Rules states that where the court is satisfied that the only genuine issue is a question of law, a judge may determine the question and grant judgment accordingly.

15A statement of claim fails to disclose a reasonable cause of action if it is barred by a limitation period (Coulson v. Citigroup Global Markets Canada Inc., 2010 ONSC 1596 at para. 129).

16The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, guides the court on a summary judgment motion. The governing principles can be found at paragraphs 49 and 50:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

These principles are interconnected, and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

17The onus is on the defendant to establish that there is no genuine issue requiring a trial. The plaintiff must either refute or counter the defendant’s evidence or risk summary judgment.

18To refute or counter the defendant’s evidence, the plaintiff must successfully prove that her cause of action falls within the ambit of section 16(1)(h.2) of the Limitations Act. Should she fail to do so, the defendant will have met the onus for summary judgment.

19The plaintiff must lead trump or risk losing and cannot rely solely on allegations or denials in its pleadings (Nine-North Logistics Inc. v. Atkinson, 2014 ONSC 7243 paras. 24 – 25).

20Each party must put their best foot forward on a motion for summary judgment and lead all facts and evidence that show there is a real issue to be tried. The motion judge is entitled to assume that the motion record before the court contains all the evidence that the parties would otherwise present if there is a trial, and that the parties are not holding anything back on the evidence tendered (Nine-North Logistics, para. 41).

21The fundamental facts of this case are not in dispute. Therefore, I am satisfied that this matter can be resolved by way of summary judgment.

22I find that I am able to reach a fair and just determination on the question of whether the plaintiff’s case is statute barred on the evidentiary record. The process of summary judgment allows this court to make the necessary findings of fact and apply the law to those facts.

23The determination of the essential question by way of summary judgment will lead to a fair and just result. It will serve the goal of timeliness, affordability and proportionality in light of the litigation as a whole. Summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result.

24Before reviewing the evidence received on the motion, I provide a note of clarification. The defendant provided submissions on the issue of summary judgment by addressing the limitation period under both sections 16(1)(h.2) and section 7 of the Limitations Act. Section 7 of the Limitations Act establishes an exemption to the general limitation period contained in section 4 of the Limitations Act, where a party is incapable of commencing an action due to a physical, mental or psychological condition.

25The plaintiff advised the court that there is no issue of capacity under section 7 of the Limitations Act. The court’s analysis is therefore focused on section 16(1)(h.2) of the Limitations Act.

Evidence on the Motion

Campaign of Harassment and Resulting Fear

(a) Peace Bond

26The parties’ relationship ended on November 6 or 7, 2010. The defendant had difficulty accepting the end of the relationship.

27In December 2010, the plaintiff made two reports to the HPS alleging that the defendant was harassing her.

28The December 9, 2010 Occurrence Report states:

Since the relationship ended in November, Fabia has received text messages from Robert. Most of the messages were regarding Robert wanting to know the truth of the breakup. At times there is a conversation with body [both] parties involved. In some of the messages Fabia has told Robert to leave her alone, however on a later date it shows her texting him back again. None of these text[s] are threatening in nature or cause Fabia to fear for her safety, she just wants it to stop.

29On February 18, 2011 the plaintiff sought a peace bond against the defendant. Both the plaintiff and defendant were represented by counsel during the peace bond process.

30The plaintiff abandoned her application for a peace bond as confirmed by her lawyer, Dean Paquette in his reporting letter dated October 1, 2012.

(b) WSIB Investigation

31The plaintiff was injured in a workplace accident on January 2, 1998. The plaintiff applied for and received Workplace Safety and Insurance benefits in the total sum of $244,029.90.

32In December 2010, one month after the plaintiff ended her relationship with the defendant, the defendant informed the WSIB that the plaintiff was participating in a recreational soccer league and was fraudulently claiming benefits.

33Based on the defendant’s report, the WSIB commenced an investigation.

34Following the investigation, the WSIB charged the plaintiff with wilfully failing to inform the WSIB of a material change in circumstances in connection with her entitlement to benefits within 10 days after the changed occurred contrary to section 149(2) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A.

35The plaintiff was represented by legal counsel, Dean D. Paquette in defending the charge. The trial was set for September 28, 2012.

36On September 28, 2012 the plaintiff voluntarily pled guilty to one charge and received a $5,000 fine plus the victim fine surcharge.

37On September 5, 2012, the WSIB commenced a civil claim against the plaintiff claiming liquidated damages for a debt in the amount of $244,029.90.

38The plaintiff filed a statement of defence and counterclaim on March 18, 2013 and issued a further claim against the WSIB, its investigators and employees by way of Statement of Claim issued in 2013.

39The civil proceedings between the plaintiff and the WSIB continue to date.

Alleged Threats and Fear

40The plaintiff states that for the last 11 years she has lived in fear of the defendant.

41Periodically, the plaintiff emailed herself notes. Her email notes were similar to a journal where the plaintiff described her thoughts, feelings and fears. The emails include some of the following notations:

a. When I hear a knock across the hall or on tv, I think it is a knock for me…when the phone rings I think it’s going to be a threat;

b. He just wants to humiliate me and ruin my reputation;

c. Ex-boyfriend harassing trying to sabotage everything in my life….I feel like I am in prison.

d. I can’t fall asleep;

e. The threatening…I will no longer communicate via text, I better call & when I did he threatened me. He said he knew why I was calling (meaning I received the threatening email from the fake Julie Shaw- being investigated etc)…he said I better start looking for work.

f. He threatened me bc he wanted to control me with the fear of calling wsib and telling them who knows what?...

g. He is the type that will do anything to win…

h. He went to a hells angels party? Convention party at polonia club. He said the head guy and another guy were fighting over him to become part of the crew…I was disgusted and wanted him to have no part of it.

Etc…

42The emails were written between 2010 and 2011.

43One of the emails contained a note by the plaintiff that “I hate that miserable piece of shit who needs to suffer…What a nasty Human being. I dumped you, get over it u idiot”.

44Beyond the last alleged incident in 2011/2012, the plaintiff alleges that:

a. in 2019 while at a restaurant on Locke Street, she saw the defendant drive by three times. The defendant did not stop, did not approach her and nothing happened between the parties.

b. in December 2020 a person “pounded on her door” on a Sunday and she received a letter in the mail the following week. The letter was from Scarfone Hawkins LLP, the lawyers for the defendant enclosing a Notice of Intent to Defend. The plaintiff states that “Roberto knows I have a lawyer but still wanted to rattle me and harass me”.

c. the defendant would drive by her, follow her, park outside her home and/or drive by her sister’s residence.

45During her cross-examination, the plaintiff acknowledged that there was no evidence linking the pounding on the door to the defendant.

46The evidence also establishes that the letter from Scarfone Hawkins with the Notice of Intent to Defend was inadvertently served on the represented plaintiff, by mail. Counsel for the defendant confirmed responsibility for the oversight.

47The plaintiff provided an affidavit from her sister Lerida De Luca Drosi. Ms. De Luca Drosi recalls a story, as told by the defendant that he confronted a family member with a baseball bat. She heard the story at a birthday party approximately 11 years ago.

48On cross-examination, Ms. De Luca Drosi confirmed that, beyond her recollection of having heard the story, she had no other evidence to support that the alleged incident occurred.

49With respect to the plaintiff’s allegation that the defendant drives by her sister’s, Ms. De Luca Drosi’s home, Ms. De Luca Drosi confirmed on cross-examination that the defendant does not drive by her house. The defendant drives down a street that connects to the highway near her house.

50Ms. De Luca Drosi has not spoken to the defendant since 2010.

51The court also received affidavit evidence from Christina Morelli, friend to the plaintiff, sworn April 9, 2021.

52Christina Morelli recalls a conversation with the plaintiff in the spring of 2010. She states that the plaintiff was contemplating ending her relationship with the defendant but was worried about his reaction.

53Christina Morelli states that following the breakup, she received a call from the defendant who was distraught about the breakup. She discussed with him his feelings and that he would have to accept that the plaintiff was not open to reconciliation.

54Christina Morelli recalls the defendant stating, “I don’t think I can do that”. The defendant attempted to contact Christina Morelli on one further occasion without success.

55Christina Morelli states further that she noticed the defendant had a Facebook account and was identified through the Facebook algorithm as a “Suggested Friend”. She states that the defendant made efforts to contact the plaintiff’s friends and family via Facebook and otherwise. No further particulars of what the defendant said or did during these efforts was provided to the court.

56The court also received in evidence, an affidavit from the plaintiff’s mother Ms. Giulia De Luca. She states that she is afraid of the defendant and that she observed that the plaintiff fears the defendant.

57Ms. Giulia De Luca does not explain why or how she developed a fear of the defendant nor does she explain what she observed that caused her to conclude that the plaintiff feared the defendant.

Analysis

58Section 4 of the Limitations Act establishes a basic limitation period:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

59The defendant states that the plaintiff’s claim is statute barred by virtue of section 4 of the Limitations Act.

60The plaintiff argues that the defendant’s position fails to take into consideration the effect of section 16(1)(h.2) of the Limitations Act.

61The plaintiff submits that there is no limitation period in respect of a proceeding based on an assault, if at the time of the assault, the parties had an intimate relationship.

62Section 1 of the Limitations Act defines “assault” as including a battery.

63Justice Morgan in Barker v. Barker, 2020 ONSC 3746 held that since the Limitations Act, 2002 specifically defines assault as including a battery, s. 16(1)(h.2) applies to the tort of assault (Barker paras. 1294-1295).

64At paragraph 1194 Justice Morgan referencing the Tort of Assault stated:

[1194] Turning to the tort of assault, the courts across Canada have embraced a common definition, as expounded upon by the Saskatchewan Court of Appeal in McLean v McLean, 2019 SKCA 15, at paras 59-60:

Allen Linden and Bruce Feldthusen, in Canadian Tort Law, 10th ed (Toronto: LexisNexis, 2015) at 49, provide a definition of civil assault:

§2.42 Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishes protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs. [Emphasis added.]

[1195] To establish a claim for assault, the evidence must demonstrate that a Plaintiff had reasonable grounds to believe that they were in danger of violence from the tortfeasor: Bruce v Dyer, 1966 CanLII 191 (ON SC), [1966] 2 OR 705, at paras 10-12 (SC), aff’d 1967 CanLII 653 (ON CA), [1970] 1 OR 482 (CA) As with battery, assault is a trespass to the person and is actionable without proof of quantifiable damages: see McLean, at para 63. In fact, even without a completed battery, if assault is established on the evidence it can potentially ground punitive damages as a means of signaling the need for public “condemnation and outrage”: Herman v Graves, 1998 ABQB 471, at para 52.

[1196] Plaintiffs’ counsel submits that while older decisions required an assault to be based on an imminent apprehension of harm, recent jurisprudence has determined that an actionable assault can be made out on the basis of fear of future harm. Thus, for example, in Warman v Grosvenor, [2008] OJ No 4462, at para 1 (SCJ), the Court concluded that a “two year ‘campaign of terror’ against” the plaintiff constituted an actionable assault.

65The plaintiff argues that the court in Barker accepts the proposition that assault, namely the creation of apprehension of imminent harmful or offensive contact, can also be created on the basis of fear of future harm.

66The burden is on the plaintiff to prove that her cause of action falls within the ambit of section 16(1)(h.2) of the Limitations Act.

67The plaintiff must prove on a balance of probabilities that she had reasonable grounds to believe they she was in danger of imminent harmful, offensive contact or violence from the defendant (Bruce v. Dyer).

68The plaintiff is required to specifically plead the material facts on which she relies. She is required on a motion for summary judgment to put her best foot forward.

69I am not satisfied on the evidence before me, that the plaintiff has proven on a balance of probabilities that her claim falls within the ambit of section 16(1)(h.2)(i) the Limitations Act.

70The plaintiff acknowledged that her Statement of Claim pleads causes of action that arose and were factually known to her more than two years before issuing the Statement of Claim.

71The plaintiff acknowledges that the defendant has never assaulted or physically harmed her.

72The plaintiff abandoned her application for a peace bond against the defendant. This is inconsistent with the plaintiff’s assertion that she feared for her safety.

73Since 2012, there has been no contact between the plaintiff and the defendant.

74In or about 2013 the plaintiff states that she saw the defendant at the Mapleview Mall, however he did not approach her and nothing happened between the parties.

75The plaintiff alleges that the defendant threatened to harm her. On cross-examination when asked to confirm evidence of threats, on the record, the plaintiff answered:

A. “I’m not sure we probably just forgot to put it in. There’s been so much over time. I did make notes and give a statement to somebody about that. I told my lawyers about it”.

76The only evidence of threat by the defendant against the plaintiff, is that contained in the plaintiff’s written email journal. The plaintiff recalls a conversation that she had with the defendant during which it is alleged that the defendant said, “You better start looking for work”.

77This conversation allegedly took place at the same time that the WSIB conducted its investigation. This statement is not a threat of imminent harm or offensive contact.

78Text messages between the parties and reviewed by the HPS in 2010 were not considered threatening in nature. The HPS occurrence reports makes findings that “none of these texts are threatening in nature or cause Fabia to fear for her safety”.

79The plaintiff must prove on a balance of probabilities that she had reasonable grounds to believe that she was in danger of violence from the defendant, that she feared imminent harmful or offensive contact.

80The affidavit evidence proffered in support of the plaintiff’s alleged fear for her personal safety and the safety of her family lack particulars and is not persuasive.

81The plaintiff specifically pled the tort of assault/battery. Simply pleading the tort of assault/battery without more, is not enough to bring her claim within the scope of section 16(1)(h.2)(i) of the Limitations Act.

82I find that the plaintiff’s claim is statute barred pursuant to section 4 of the Limitations Act. Accordingly, there is no genuine issue requiring a trial of this matter.

83The defendant’s motion for summary judgment dismissing the plaintiff’s claim is granted.

Costs

84The parties are encouraged to resolve the issue of costs of the motion between themselves. If they are unable to do so, they may submit a bill of costs and make written submissions consisting of not more than three pages in length according to the following timetable:

• The defendant is to serve his bill of costs and submissions by Friday, November 19, 2021.

• The plaintiff is to serve her bill of costs and submissions no later than Friday, November 26, 2021.

• The defendant is to serve his reply submissions, if any, no later than Thursday December 2, 2021.

• All submissions are to be filed with the court by Thursday December 2, 2021.

85If no submissions are received by the court by December 2, 2021, or any written agreed extension, the matter of costs will be deemed to have been settled.

L. E. Standryk J.