COURT FILE NUM.: CV-21-673285

DATE: 2023/02/01

SUPERIOR COURT OF - ONTARIO

RE: Azmat Ramal-Shah, Plaintiff

AND

Kirsten Jones, Colleen Jones and Michael Jones, Defendants

BEFORE: Justice R. Smith

COUNSEL: Self-represented for the Plaintiff

Charles Baker for the Defendants

HEARD: January 24, 2023, in Toronto, via zoom

REASONS FOR DECISIONS

R. SMITH J.

[1] The Defendants have brought a motion for summary judgment seeking the following orders:

(a) dismissing the claim on the grounds that it is statute barred under the Limitations Act, 2002, S. O. 2002 (“Limitation Act”), c. 24, Sched. B; and

(b) striking the statement of claim on the grounds that it is frivolous, vexatious, or otherwise an abuse of process under rule 21.03(d) and 25.11 of the Rules of Civil Procedure, R. R. O. 1990, Reg. 194 (“the Rules”).

[2] The defendant, Kirsten Jones (“Kirsten”), was 18 years of age when she met the plaintiff, Azmat Ramal-Shah (“Azmat”), who was about 30 years of age, on a dating website called “Seeking Arrangement”. The website is described online as a premier dating website for sugar babies and sugar daddies. Sugar dating is also called sugaring, which is a transactional dating practice typically involving an elder wealthier person and a younger person who needs financial assistance.

Background

[3] Azmat has sued Kirsten and her parents, Colleen, and Michael Jones – together referred as the Jones’ family, for $226 million. He primarily alleges fraud, defamation, interference with his economic interests, intentional infliction of emotional distress and conspiracy by the Jones’ family to commit the above intentional torts.

[4] Kirsten was born on December 27, 1996, and she is now 25 years of age. She left home to attend university at age 17. She graduated from the University of Ottawa in 2019 with a B.A. in economics and a B.Sc. in statistics.

[5] Azmat is currently working at an investment bank in Toronto. He obtained a law degree from the University of Western Ontario and an MBA from the IVEY Business School in 2009. He also obtained a Masters of Laws from Duke University between 2016 and 2017.

[6] Kirsten described her understanding of their relationship was that she would keep Azmat company, “virtually”, listen to the stresses of his schooling and job and provide friendship via phone, email, and text. The relationship started in May 2016. Kirsten asked Azmat from money to assist her with various expenses, including rent, using his Uber Eats and Uber accounts on a regular basis.

[7] Azmat understood that Kirsten was his girlfriend and stated that he was in love with her. He claims that he transferred approximately $20,000 to Kirsten from May 2016 while they were in this relationship until it ended.

[8] In August 2016, Azmat and Kirsten met in person on only one occasion for dinner in Ottawa. Kirsten was unable to set boundaries at the dinner and they did not meet again in person. They agreed that they could continue their virtual friendship as it was before their dinner together.

[9] At the beginning of 2017, Azmat became possessive and would interrogate her about who she was spending time with. Kirsten became very anxious. He threatened to ruin her reputation and would call her harsh names such as “whore”.

[10] Kirsten tried to avoid contact with Azmat and lied to him stating that she couldn’t meet with him on two occasions – first one, because she had broken her leg, and on another one she had been diagnosed and was being treated for cancer, both of which were not true.

[11] In the summer of 2017, Kirsten told Azmat that she did not want to talk to him anymore. He would apologize and then, called her names like “whore” and threatened to ruin her reputation by contacting her friends and contacts.

[12] In March 2018, Kirsten told Azmat that she was done communicating with him and no longer wanted to have any contact with him and she blocked him from all of her social media accounts. Azmat continued to attempt to contact her by using fake social media accounts.

[13] Azmat did not accept Kirsten’s termination of their relationship. He continued to send her more money, which she refused. He became obsessed and very angry with Kirsten and started contacting her family, friends, and professional contacts. He also followed her social media account and contacted her new boyfriend. Azmat also wrote emails to Colleen’s (Kirsten’s mother) business contacts complaining about Kirsten’s disgusting behaviour of fraudulently scamming him.

[14] Kirsten’s parents were not aware that she was involved with a dating site until late April, early May 2018. Azmat began sending them emails and messages by Facebook in May of 2018. Kirsten’s parents have never initiated contact or responded to any of his communications, have never met him, have never contacted his place of work, friends, family, or the Law Society of Ontario. Azmat has not presented any evidence to support his bald allegations that Kirsten’s parents were involved in any conspiracy, fraud, extortion, interference with economic interests, defamation or in inflicting emotional distress on him.

[15] Colleen spoke to Azmat once on December 12, 2018. He called back later and her husband, Michael, spoke with him. Other than that, they have had not had any contact with him.

[16] Azmat commenced contacting Colleen’s friends and family and professional colleagues starting in August 2018. He used different accounts to hide his identity. On June 8, 2018, the Jones family contacted the York police, but they were unable to get any assistance from them. Colleen contacted the Ottawa police on September 5, 2018, seeking assistance.

[17] Between September 2018 and January 2019, Colleen retained legal counsel who sent seven letters to Azmat asking him to cease-and-desist communications with the Jones’ family. Azmat did not comply with these requests and mocked their counsel referring to him as a “shopping mall lawyer”.

Analysis

Issue one: Should the Limitation Issue be decided on a Summary Judgment?

[18] The test for deciding an issue on a summary judgment was set out in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. (S.C.C.). At paragraph 5 of Hyrniak the Supreme Court stated that the rule for summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

[19] At Para 49 of Hyrniak, the Supreme Court further stated that 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.

[20] The responding party must set out coherent evidence of specific facts showing that there is a genuine issue requiring a trial. The respondent must “lead trump or risk losing”.

[21] Rule 20.04(2.1) of the Rules, states that when determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and may exercise any of the following powers for the purpose:

(a) weighing the evidence

(b) evaluating the credibility of the deponent, and

(c) drawing any reasonable inference from the evidence.

[22] Azmat doesn’t argue that a trial is required to determine the limitation issue. Rather, he argues that the Kirsten’s motion for summary judgment should be dismissed because he submits that he didn’t discover the material facts to support his claim until 2021. He argues that prior to December 6, 2019, he only had mere suspicions that Kirsten had made fraudulent misrepresentations to him. As such, he submits that his claim should not be dismissed based on an expired limitation period.

[23] The parties have put a comprehensive record before me which is sufficient to decide the limitation issue as was the case in Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, at paras. 50-52. The Jones’ family relies on the evidence of many of the Azmat’s own emails, which they submit demonstrate that he had discovered, or ought to have discovered, the material facts under lying his claim. As such, I am satisfied that the limitation issue may be decided on a summary judgment motion and that Azmat has not raised a genuine issue requiring a trial.

Issue two: Did the Limitation Period Expire before the action was commenced?

[24] Sections 4. and 5.(1) (a) and (b) of the Limitations Act, state as follows:

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.

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[25] At paragraphs 79 and 82 of Derenzis v. Johnson, 2021 ONSC 5136, Perell J. held that pursuant to section 5.(1)(a)(iv) and (b) of the Limitations Act, a limitation period commences at its earliest when the plaintiff discovers the underlying material facts or alternatively when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence. For the limitation period to begin to run, it is not necessary that the plaintiff know the full extent or quantification of his or her damages; rather, the period begins to run with the plaintiff’s subjective or objective appreciation of being damaged, i.e., of being worse off than before the defendant’s conduct.

[26] Section 5(1)(a)(iv) of The Limitations Act can have the effect of delaying the commencement of the running of the limitation period until a person knows that he or she has suffered harm and knows the elements of s. 5(1)(a) (i), (ii), and (iii), the delay lasts until the day when a proceeding would be an “appropriate” means to remedy the harm.

[27] In Markel Insurance Co. of Canada, the Court of Appeal held that for s. 5(1)(a)(iv) to have a delaying effect, there must be a juridical reason for the person to wait; i.e., there must be an explanation rooted in law as to why commencing a proceeding was not yet appropriate. The appropriateness of commencing a proceeding must be assessed on the facts of each particular case, including taking into account the particular interests and circumstances of the plaintiff.

[28] The basis of Azmat’s claim against Kirsten is that she lied to him about not being able to meet with him on several occasions when she said her aunt had died, she said she had broken her leg, and finally that she had cancer for which she was receiving treatments. Kirsten acknowledges that she gave the above excuses to avoid meeting with Azmat and that they were not true. Azmat argues that these false representations caused him to continue to send money to her.

[29] In Hyrniak, at para 26, the Supreme Court set out that to assert a claim in civil fraud a plaintiff must prove the following on a balance of probabilities:

(a) a false representation by the defendant;

(b) some level of knowledge of the falsehood of the representation on the part of the defendant (whether knowledge or recklessness);

(c) the false representation caused the plaintiff to act; and

(d) the plaintiff’s actions resulted in a loss

[30] Kirsten made the false statements to Azmat to avoid meeting with him in the context of attempting to end their relationship, which had started on the dating site for sugar babies and sugar daddies “Seeking Arrangement” in 2016. Part of the reasonable expectations of both parties was that Azmat, as the “sugar daddy”, would provide some money, or gifts, to Kirsten as the “sugar baby”. That was part of their arrangement and mutual understanding.

[31] Azmat submits that he did not know that Kirsten’s statements that she was unable to meet with him because she had broken her leg, and when she had been diagnosed with cancer were not true, but he only had mere suspicions prior to December 6, 2019, that these statements were not true.

[32] Azmat issued his statement of claim seeking damages of $226 million against the Jones’ family on December 7, 2021. For his claim to be commenced within the two-year limitation period, Azmat must present evidence to show that he had not discovered the material facts to support his claim or that he did not know that a proceeding would be an appropriate remedy, before December 6, 2019.

[33] Azmat’s emails sent to Kirsten alleged that she had committed fraud and had scammed him several years before December 6, 2019. I’m satisfied that these emails prove on a balance of probability that Azmat had knowledge of the material facts to support his claim for damages for fraudulent misrepresentation or intentional torts to harm him or his economic interests before December 6, 2019. As such, the limitation period to commence the action had expired.

[34] The evidence is uncontested that Azmat is a sophisticated party in his early 30s, who holds a law degree, an MBA and a Master of Laws from Duke University. As early as August 10, 2018, Azmat stated in an email that Kirsten’s representations were false, and he alleged that he had been exploited for money. With this knowledge, he, as a lawyer, would have known that commencing a proceeding was an appropriate means to obtain a remedy.

[35] The following are a series of emails written by Azmat and a discussion about them that prove on a balance of probabilities that he was aware of the material facts to support his claim:

(a) On August 10, 2018, he wrote an email to Colleen stating … “I’ve tried reasoning with Kirsten but I don’t think she ever loved me, this is all been about exploiting me for money” … At this point I don’t believe there was a broken leg or surgeons or chemotherapy. I spent a lot of money trying to help Kirsten… “So offer me a settlement and we can keep this out of the courts. … I really thought Kirsten had cancer clearly I was mistaken and was a victim of fraud”;

(b) On August 19, 2018, he wrote “I don’t want to get back with her. Clearly she was scamming me from the beginning and dating Ben”;

(c) In an email dated August 21, 2018, he stated that he had given approximately $20,000 to Kirsten over the period that they carried on the relationship;

(d) At the time of the August 10, 2018 and August 19, 2018 emails to Kirsten’s mother, Azmat was aware that Kirsten’s statements to him that she had broken her leg and that she had cancer were false. He was also aware that he had paid approximately $20,000 to Kirsten. Azmat is a lawyer with a Master’s degree and he is a sophisticated party. In his August 19, 2018 email, he stated that he had been scammed. At this point in time, he knew the material facts to support his claim for fraudulent misrepresentation;

(e) At the hearing, Azmat submitted that he wrote the emails to Kirsten’s mother’s clients telling them that her daughter had been involved with a cancer fraud because he was trying to find out if she actually had cancer or not. His explanation for writing to Colleen’s clients, for example to Mr. Leduc in an email dated June 11, 2019, is completely unbelievable. The email is titled “Colleen Jones possible involvement in a cancer scam”. He states that in December 2018, Colleen broke down and admitted that the whole cancer story was a big fraud and he wanted her client to know how Colleen was behaving instead of giving him a fair settlement;

(f) In the email exchanges between Azmat and Kirsten’s lawyer, Mr. Dicecco, starting on October 10, 2018, Azmat stated that Mr. Cicecco’s clients, Kirsten and Colleen, were being investigated by the police for fraud;

(g) Azmat threatened to proceed with a criminal prosecution unless the Jones’ family settled with him. In his email dated October 10, 2018, he stated: “I believe that she did not have cancer”. In this email, he also stated that: “Both Colleen and Kirsten have made threats against his family and himself”. He continued and stated that he would be pursuing this case “both criminally and civilly”;

(h) At this point, it is clear from the emails that Azmat had knowledge of the material facts on which to base a possible claim. He also knew at this time, that a proceeding before the court would be an appropriate means to seek a remedy, because he threatens to pursue the case civilly in his email. As of October 10, 2018, Azmat knew and was threatening to commence a civil action, as well as a criminal proceeding, against the Jones’ family unless they agreed to settle with him. This is over a year before the December 6, 2019 limitation deadline;

(i) Azmat also made many statements referring to court proceedings in his emails dated September 21, 2018, saying: “when I win in court and she ripped me”, on October 7, 2018: “she took advantage of me and I was a victim of fraud”. On November 2, 2018, he alleged cancer fraud, and on November 3, 2018 “alleges that her family want to destroy his career and going to court;

(j) On September 20, 2018, the lawyer for the Jones family sent a letter to Azmat asking him to cease-and-desist from his harassing, defamatory communications and conduct. Azmat refused to stop communicating and threatening Kirsten and her parents;

(k) The emails sent by Azmat to Kirsten and Colleen are uncontradicted evidence that he knew on August 10, 2018, that Kirsten’s statements to him that she was unable to meet with him because she had broken her leg and she had been diagnosed with cancer, were false and that commencing a legal proceeding was an appropriate means to seek a remedy by at least November 3, 2018. The two-year limitation period would have expired on November 2, 2020, and his action was only commenced on December 7, 2021. This is over a year beyond the expiry of the limitation period; and

(l) Azmat knew the names of the alleged wrongdoers that had allegedly caused him damages, that he had allegedly suffered damages as a result of being lied to by Kirsten, and he knew that a proceeding was an appropriate the means to obtain a remedy before November 3, 2018. Based on Azmat’s emails the limitation period had expired before he commenced his action.

Disposition of limitation issue

[36] Azmat’s claim is dismissed because it was commenced more than two years after he discovered the material facts to support his claim for damages and he was aware that commencing a legal proceeding was an appropriate means to obtain a remedy by November 3, 2018. The action was only commenced on December 7, 2021, which is outside the limitation period.

Costs

[37] The Jones’ family were completely successful on this motion and have filed a bill of costs claiming the amount $20,125.30 plus disbursements of $616 on a full indemnity scale. They also filed a bill of costs for $15,093.99 plus disbursements of $616, on a partial indemnity scale at 75% of their full indemnity amount.

[38] Azmat’s claims against Kirsten’s parents were completely without merit, as they only spoke to him on one occasion and no credible evidence was presented that they took any action that caused any harm whatsoever to him.

[39] Azmat started a relationship on a “sugar daddies and sugar babies” dating site and would have reasonably expected to make some payments to Kirsten. He was disappointed with the extent of their relationship and became obsessed with Kirsten when she ended their relationship.

[40] Azmat’s statement of claim contained approximately 340 paragraphs and claimed damages of $226 million have the hallmarks of a vexatious proceeding, which is an abuse of process.

[41] For the above reasons Azmat is ordered to pay costs to the Jones’ family in the amount of $15,000, plus $616 for disbursements inclusive of HST.

Date : February 1, 2023 ___________________________________

Justice R. Smith

COURT FILE NUM.: CV-21-673285

DATE: 2023/02/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Azmat Ramal-Shah

Plaintiff

– and –

Kirsten Jones, Colleen Jones, and Michael Jones

Defendants

reasons for decision

R. Smith J.

Date: February 1, 2023