Court File and Parties
Court File No.: CV-22-00682170-00CP Date: 2023-07-17
SUPERIOR COURT OF JUSTICE - ONTARIO
Re: MAHJABIN, Plaintiff And: SINGH et al, Defendants
Before: Associate Justice R. Frank
Appearances: Mehroz Mahjabin, self-represented plaintiff Mac Allen for the defendant Roger Beit Miranda Spence for Meta Platforms, Inc. No one else appearing
Heard: July 14, 2023
Endorsement
[1] This is a motion by the plaintiff seeking an order: (a) for production from the non-party, Meta Platform Inc. (“Meta”) pursuant to Rule 30.10; (b) transferring this action to Ottawa; and (c) validating service of the statement of claim with respect to the defendants Roger Beit and Kris Singh.
Motion to compel production from a non-party
[2] The plaintiff submits that the production she seeks is relevant to her claim and is presumed to be available from Meta (at least until Meta demonstrates that it is no longer available from its servers). She also submits that the failure of the defendants to respond to the statement of claim or this motion demonstrates that the sought-after production is not available from them. She argues that, in the event that she pursues default proceedings, the production will not be available from any defaulting defendants, and she will require production from Meta in support of the (potential) default proceedings.
[3] Meta submits that the motion for non-party production should be dismissed for a number of reasons, including the following:
(a) The motion is premature. (b) The requested production would be in breach of U.S. law (namely, the U.S. Stored Communications Act (the “SCA”). [^1] Meta, a U.S. entity, is subject to the SCA, which prohibits electronic communications providers, like Meta, from divulging communications content to any party, subject to certain exceptions, which do not apply in the current circumstances. As a result, the order the plaintiff seeks on this motion would directly conflict with the SCA and expose Meta to liability in the U.S. and create a genuine conflict of laws. (c) The underlying action cannot succeed and cannot form the basis of a production order. (d) As currently drafted, the statement of claim makes no allegations against the defendants Beit or Germano that would make the requested production relating to their respective Instagram accounts relevant. (e) The sought-after production has been deleted and is no longer available on Meta’s servers, and there is no basis to order Meta to produce materials that no longer exist.
[4] With respect to prematurity, Meta submits that the pleadings in this action have not closed, defences have not been served, none of the defendants has been noted in default, and currently there is no motion for default judgment scheduled. In fact, the plaintiff advises today that she intends to amend the statement of claim.
[5] Rule 30.10 provides as follows:
30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,
(a) the document is relevant to a material issue in the action; and
(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.
[6] Although production pursuant to Rule 30.10 is not expressly confined to the discovery stage of a proceeding, production under this Rule is only made prior to discovery where such production is shown to be necessary for the moving party to plead its claim or there is some other reason that the moving party would be prejudiced if production were delayed until the production and discovery stage of the action. [^2]
[7] In the current circumstances, I find that it is entirely premature for the plaintiff to be seeking a Rule 30.10 production order. The pleadings have not closed, the documentation that falls within the proper scope of discovery is not yet known, and the action has not proceeded to discovery. The adequacy of the defendants’ production cannot be determined because no production has yet been made. It would be unfair to impose a production obligation on Meta, a non-party, before pleadings have closed and where it is unknown whether and to what extent any of the sought‑after production may be obtained from the defendants through the discovery process. Simply put, it is premature to determine the scope of relevance and whether the sought-after production can be obtained from the defendants, and there is no reason to conclude that the requested disclosure is necessary at this time in order to avoid unfairness to the plaintiff.
[8] In view of my finding that it is premature for the plaintiff to be seeking a Rule 30.10 production order, I need not determine whether there are additional reasons for denying the requested order for production from Meta, a non-party to this action.
Motion to transfer
[9] The transfer of an action to another county is governed by Rule 13.1.02. Further, Part I, Section I (c) of the Consolidated Civil Provincial Practice Direction provides as follows:
c. Motions to Transfer a Civil Proceeding under Rule 13.1.02 of the Rules of Civil Procedure
Paragraphs 48 to 51 of this Practice Direction govern all motions to transfer under rule 13.1.02.
A high volume of requests to transfer civil proceedings to another county, often in another Region, are being received. Counsel frequently seek to transfer a case, on consent. While the transfer may be appropriate in the circumstances of the case, the onus rests with the moving party to satisfy the court that a transfer is desirable in the interest of justice, having regard to the factors listed in rule 13.1.02(2)(b). It is not sufficient to bring a transfer motion orally, on consent, or to file a consent for an order to transfer a case to another county under rule 13.1.02.
A motion to transfer a proceeding should be brought at the court location to which the moving party seeks to have the proceeding transferred. The moving party must file a Notice of Motion with a supporting affidavit, as required under rule 13.1.02(2). The moving party’s affidavit must address the factors listed in rule 13.1.02(2)(b) and, as part of the relevant matters, must identify the current stage of the proceeding (i.e., whether further motions are anticipated in the proceeding, whether a pre-trial has occurred or is scheduled, and whether mediation has been held) and why the proceeding was originally commenced in the originating county. The affidavit should also address the estimated length of trial, whether it is a jury trial, and the number of parties and counsel.
Counsel are not required to provide affidavit evidence about the availability of judges and court facilities in the other county to satisfy factor (viii) under rule 13.1.02(2). This factor shall be addressed by the Regional Senior Judge in the Region where the motion is brought, after consulting with the local administrative judge or Regional Senior Judge for the other county.
The Regional Senior Judge, or his or her designate, will hear all motions to transfer. To allow the Regional Senior Judge to promptly determine all such motions, they shall be brought in writing. Responding parties are strongly encouraged to file and rely exclusively on written submissions to allow the motion to be heard and fully determined in writing. If an oral hearing becomes necessary, the motion shall be heard by teleconference arranged through the Office of the Regional Senior Judge in the Region where the motion is brought. [^3]
[10] Given that the plaintiff is seeking to have this action transferred to Ottawa, she must bring the motion in Ottawa and not in Toronto.
Motion to validate service of the statement of claim
[11] The plaintiff seeks an order validating service of the statement of claim on the defendant Roger Beit as of February 1, 2023. Mr. Allen appears on a limited retainer on behalf of Mr. Beit. Mr. Allen advises that Mr. Beit’s position is that he does not oppose the motion, provided that it is noted that Mr. Beit’s unopposed position on today’s motion is not an implicit approval or acceptance that the manner in which the statement of claim was served is appropriate. Further, given Mr. Allen’s limited retainer at this time, Mr. Beit’s position is that service of any further documents or materials must be affected on him (rather than Mr. Allen) unless and until Mr. Allen confirms that he has instructions to accept service on behalf of Mr. Beit, or the Rules of Civil Procedure provide otherwise. This includes service of the plaintiff’s anticipated amended statement of claim.
[12] With respect to service of the statement of claim on the defendant Singh, service appears to have been affected on Mr. Singh on March 23, 2023 by ABC Legal Services as agent for Central Authority for the United States of America under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters. [^4] However, I am not prepared to validate service of the statement of claim on Mr. Singh effective as of that date.
[13] Rule 17.04(1) provides as follows:
17.04 (1) An originating process served outside Ontario without leave shall disclose the facts and specifically refer to the provision of rule 17.02 relied on in support of such service.
[14] In my view, it would be inappropriate to validate service of a statement of claim that fails to plead the facts and specifically refer to the provision(s) of rule 17.02 relied on in support of service outside of Ontario without leave, as required by Rule 17.04(1).
[15] As noted, the plaintiff is in the process of preparing an amended statement of claim, and she indicated at the hearing of this motion that she will include amendments to comply with Rule 17.04(1).
Disposition and Costs
[16] For the reasons outlined above, I order as follows:
(1) The motion for production of documents from the non-party Meta is dismissed without prejudice to the plaintiff bringing a further motion following the close of pleadings in the action and in conjunction with the production and discovery stage of the action. (2) The motion to transfer the action to Ottawa is dismissed without prejudice to the plaintiff bringing a further motion in Ottawa, i.e. at the court location to which the plaintiff seeks to have the proceeding transferred. (3) The motion to validate service of the statement of claim on the defendant Roger Beit effective February 1, 2023 is granted. (4) The motion to validate service of the statement of claim on the defendant Kris Singh effective March 23, 2023 is dismissed.
[17] Neither the plaintiff nor Mr. Beit sought any costs of this motion. Given that the plaintiff is self-represented, Meta only seeks nominal costs from the plaintiff in the amount of $500, although its actual costs on a partial indemnity basis are much more significant. Meta submits that a nominal costs award in its favour is appropriate given its efforts to avoid the motion which, Meta submits, ought not to have been brought by the plaintiff.
[18] As Meta was successful in opposing the motion, I order the plaintiff to pay Meta costs in the amount of $500, inclusive of disbursements and taxes, within 30 days.
R. Frank Associate J Date: July 17, 2023
[^1]: 18 U.S.C. §§ 2701-2711 [^2]: See Hedley v. Air Canada, 1994 CarswellOnt 491 at paras 50-56; Raponi v. Doe, 2010 ONSC 3632, at para 15; and Durling v. Sunrise Propane Energy Group Inc., [2008] O.J. No. 5031 (S.C.J. – Master) at para 24. [^3]: Consolidated Civil Provincial Practice Direction, Effective June 15, 2023 (emphasis added); https://www.ontariocourts.ca/scj/practice/consolidated-civil-pd/#_Toc136336820 [^4]: Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters signed at The Hague on November 15, 1965