Court File and Parties
Court File No.: CV-22-688035-00CL Date: 2023-01-12 Superior Court of Justice – Ontario
Re: BELL CANADA, BELL EXPRESSVU LIMITED PARTNERSHIP, BELL MEDIA INC., ROGERS COMMUNICATIONS CANADA INC., and ROGERS MEDIA INC., Plaintiffs
And: TOMASZ KACZMAREK a.k.a. IPGUYS and DIGITAL CLINIC, JOHN DOE, JANE DOE, and other persons unknown who have conspired with the named Defendants, Defendants
Before: Peter J. Osborne J.
Counsel: Amrita Singh, for the Plaintiffs Danielle Ferron, Ad. E., Quebec Counsel for the Plaintiffs Unrepresented Defendants
Heard: January 12, 2023
Endorsement
Background
1The Plaintiffs seek an order validating service of the Statement of Claim on the Defendant, Tomasz Kaczmarek (“Kaczmarek”).
2The Claim was issued on September 30, 2022. The plaintiffs allege that the Defendant together with other unknown individuals own and/or operate and sell access to illegal pirated IPTV services known as “IPGuys”.
3The allegations are that the Defendants sell access codes, subscriptions, android TV boxes and/or preloaded set-top boxes intended and designed to enable customers to access IPTV servers used to stream pirated television programming including programming of the Plaintiffs in which they own copyright and other rights.
4The result is that the end users gain illegal access to programming of the Plaintiffs without authorization from or payment to the Plaintiffs and instead pay fees to the Defendants.
Attempts at Service
5The Plaintiffs have made numerous attempts to serve Kaczmarek personally with the Statement of Claim and covering letter. Their motion today is supported, and they rely upon, the affidavits of Messrs. Scott sworn November 23, 2022, Couvrette sworn December 7, 2022, Kerr sworn November 30, 2022, and Remillard sworn December 14, 2022, together with the respective exhibits thereto.
6Personal service was attempted at a residential address for Kaczmarek of 1473 Rosabella Avenue, Gloucester, ON, K1T 1E5, which address was associated with Kaczmarek by the investigator acting on behalf of the Plaintiff Bell from a review of Kaczmarek’s own Bell services account.
7Five attempts that service have been made. The first was an attempt at personal service on October 4, 2022. No one answered the door at the residence address referred to above. A second attempt was made on October 8, 2022 at which time the Statement of Claim was left in a sealed envelope at the front door.
8A third attempt was made on October 7, 2022 via delivery to the address noted above to the attention of Kaczmarek via registered mail. The mail was unclaimed. However, on October 21, 2022, the Plaintiffs received an electronic mail message from a lawyer, Mr. Gigi Constanzo, advising that Kaczmarek had received the statement of claim and covering letter left at the residence in the sealed envelope on October 8, 2022 and was in the process of retaining Mr. Constanzo’s firm.
9However, on October 28, 2022, one week later, counsel for the Plaintiffs was advised that Mr. Constanzo would not be acting for Kaczmarek. Mr. Constanzo advised that Kaczmarek had been out of the country although had now returned, with the result that a fourth attempt to effect service was made on October 30, 2022. The evidence of the process server is that he attended at the residence described above, where there were two cars situated, but again there was no answer at the door although it appeared to the process server that there was someone walking inside the home. A business card was left but there has been no response.
10Finally, a fifth attempt at service was made on November 9, 2022, via eight email addresses identified by the investigator of the Plaintiff Bell. Of those eight different email addresses identified as being associated with Kaczmarek, “undeliverable” responses were received for four, and “relayed” responses were received for the remaining four email addresses, indicating that the package, which contained the Statement of Claim and cover letter, were delivered.
11The Plaintiffs have discovered, and the evidence filed on this motion discloses, that on October 21, 2022 [the date on which the Plaintiffs first heard from the lawyer as described above], Kaczmarek transferred ownership of the residence at the above-noted address from his own name and into the name of Malgorzata Kaczmarek, who is believed to be his spouse or common-law partner.
12The Plaintiffs submit that Kaczmarek is in fact aware of the claim as evidenced by the above, and in particular the communications from a lawyer on his behalf although not ultimately retained, and is evading service as well as attempting to take steps to insulate his property from the reach of the Plaintiffs and whatever consequences may flow from this action.
Analysis
13Pursuant to Rule 16.08, where a document has been served in a manner other than one authorized by the Rules or an order, the court may make an order validating service if satisfied that the document came to the notice of the person to be served or that it was served in such a manner that it would have come to the notice of the person to be served, except for the person’s own attempts to evade service.
14In all the circumstances, I am satisfied that the Plaintiffs have made reasonable efforts to serve Kaczmarek with the Statement of Claim, that it has come to his notice and that it would have come to his notice except for his attempts to evade service. I am satisfied that Kaczmarek had knowledge of the claim in sufficient time to afford him an opportunity to obtain legal advice with respect to this proceeding if he so chose to do so. Accordingly, and considering the overarching factor of whether Kaczmarek has been, or will be prejudiced, I am satisfied that he has not been prejudiced and will not be prejudiced by the order sought today, save and except, perhaps, by any prejudice that is exclusively of his own doing. (See Oakville Mini Storage Inc. v. 1674861 Ontario Ltd., 2016 ONSC 2383 at para. 18; Transplatinum (cob Fleetone LCC) v. Ferguson, 2011 ONSC 2543 at para. 15; De Pasquale v. Rodrigo (1985), 53 O.R. (2d) 123; Re Consiglio, [1971] 3 O.R. 798).
15I am also satisfied that service by an alternative to personal service pursuant to Rule 16.03 would be justified on the basis of the facts summarized above.
Disposition
16For all of these reasons, I am satisfied that the order sought should be granted, declaring that service on Kaczmarek is effective and valid as of October 21, 2022, the date on which the Plaintiffs first heard from the lawyer as described above.
17I am also satisfied that service of the order granted today may be effected by way of hand delivery to the above-noted address together with delivery via email to the four email addresses set out in the order, being the four email addresses to which delivery was previously effected successfully.
18I also directed that the Plaintiffs are to serve a copy of this endorsement together with the order.
19The Plaintiffs may note Kaczmarek in default 30 days after service of the order if he has not served and filed a Statement of Defence.
Costs
20In the circumstances, and pursuant to section 131 of the Courts of Justice Act and considering the factors in Rule 57.01, costs are ordered payable in the cause by Kaczmarek to the Plaintiffs on a substantial indemnity basis.
21Order to go in the form signed by me today, which is effective immediately and without the necessity of issuing and entering.
Osborne J.
Date: January 12, 2023