2024 ONSC 6414

COURT FILE NO.: CV-24-00712152-0000 DATE: 20241120

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

UNITED JEWISH APPEAL OF GREATER TORONTO Plaintiff – and – 100181947 ONTARIO INC. o/a TLC WORLDWIDE INC., RYAN SINGH, DALJIT SOHAL, MOHAMMED ASHFAQ, and PRESTIGE WORLDWIDE TRANSPORTATION NETWORK LLC Defendants

Counsel: Eli Mogil, Noam Uri, Sadie-Rae Werner, for the Plaintiff No one appearing, for the Defendants

HEARD: November 18, 2024

REASONS FOR JUDGEMENT

Merritt j.

OVERVIEW

1United Jewish Appeal of Greater Toronto (“UJA”) claims damages for breach of contract.

2The defendants 100181947 Ontario Inc. o/a TLC Worldwide Inc. (“TLC”), and Daljit Sohal (“Sohal”) failed to defend the proceeding and were noted in default.

3UJA brings a motion for default judgment against TLC and Sohal.

4UJA brings a motion to enforce a settlement against Ryan Singh (“Singh”).

5UJA also seeks orders validating service of the Statement of Claim on Singh, for substituted service or dispensing with service of the Statement of Claim on Prestige Worldwide Transportation Network LLC (“Prestige”) and Mohammed Ashfaq (“Ashfaq”).

DECISION

6For the reasons that follow I am, granting the orders sought with respect to service of the claim and granting the judgment against TCL and Singh as sought in the amount of $68,260.00 plus prejudgment interest. I decline to grant judgment against Sohal because the claim for unjust enrichment has not been made out.

BACKGROUND

7On January 2, 2024, UJA commenced this action against Singh, Sohal, TLC, Ashfaq, and Prestige.

8On January 2, 2024, UJA served the Statement of Claim on Singh, Sohal and TLC over email. On that same day, Singh expressly accepted service by email on behalf of himself, Sohal and TLC. Sohal and TLC were personally served on September 23, 2024.

9None of the Defendants have served or filed Statements of Defence.

10TLC and Sohal were noted in default on October 15, 2024.

11Although TLC and Sohal were not entitled to notice of this motion since they were noted in default, UJA nevertheless served its Motion Record seeking default judgment on TLC and Sohal in accordance with the court’s direction in Elekta Ltd v Rodkin 2012 ONSC 2062 at para 10 that regardless of entitlement, it is the better practice to serve the default judgment motion materials on the defendant.

12On March 1, 2024 UJA and Singh entered into Minutes of Settlement.

THE ISSUES

13The main issues are:

Issue 1: Should the requested orders regarding service on Singh, Prestige and Ashfaq be granted?

Issue 2: Do the materials provide a basis for a default judgment against TLC and Sohal?

Issue 3: Is the UJA entitled to a judgment enforcing the minutes of settlement with Singh?

ANALYSIS

Issue 1: Should the requested orders regarding service on Singh, Prestige and Ashfaq be granted?

Singh

14Rule 16.08 of the Rules of Civil Procedure RRO 1990, Reg 194 provides that the court may validate service where: “(a) the document came to the notice of the person served; or (b) the document 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.”

15Courts may dispense with service where there is actual notice: Oesterlund v Pursglove, 2015 ONSC 5967 at para. 10.

16Courts may validate service over email where the defendant agrees to accept service in this manner and participates in the litigation: Lake v. Toronto District School Board 2023 ONSC 1807 at paras. 3 and 11.

17In this case, Singh accepted service by email on January 2, 2024 and subsequently participated in the litigation by communicating with UJA, signing the Minutes of Settlement and participating in scheduling a case conference. He repeatedly expressed his desire to resolve the litigation and compensate UJA for the damage they suffered as a result of the breach of the Contract.

18There is no doubt that the Statement of Claim came to Singh’s attention. Service of the Statement of Claim on Singh by email on January 2, 2024 is validated.

Presitge and Ashfaq

19Rule 16.04 provides that the court may make an order for substituted service where it “appears to the court that it is impractical for any reason to effect prompt service”. “Impractical” means more than “inconvenient”; it means unable to serve: Laframboise v Woodward at para. 7.

20Courts may make an order for substituted service where (a) the proposed method of service will have “some likelihood” or a “reasonable possibility” of bringing the document to the attention of the person to be served, and (b) the party serving the document has taken all reasonable steps to locate the party and to personally serve them: De Giudice v. Thompson, 2021 ONSC 903 at para. 12.

21On December 4, 2023 UJA obtained an email address for Ashfaq and Prestige from Singh.

22UJA subsequently hired a private investigator to locate them. Despite making reasonable searches the private investigator has not been able to locate Ashfaq or Prestige other than the email address provided by Singh.

23On January 12, 2024 UJA served the Statement of Claim on Ashfaq and Prestige at the email address provided by Singh.

24Given that Ashfaq/Prestige was TLC’s subcontractor and it is likely that Singh had their correct email address, there is a reasonable possibility, or at least some likelihood that service by email will have brought the Statement of Claim to their attention.

25I find that UJA and its private investigator took all reasonable steps to locate Ashfaq and Prestige including numerous searches on various databases, including but not limited to, corporate data sources; registries of company or trade name; searches with various spellings of Ashfaq’s name as a registered agent/officer/director; open-source internet searches; media archive searches; the US Department of Transportation’s public database; and reverse searches with the email address and phone number: Brisette v City-Wide Taxi Limited, [1952] OWN 501 at 502, Ramnarine v Marino, 2021 ONSC 5935 at para 3.

26I find that UJA has been unable to serve Ashfaq and Prestige by any means other than by email to the email address provided by Singh.

27Order to go for substitutional service on Ashfaq and Prestige by email effective as of January 12, 2024: r. 16.04(2).

Issue 2: Do the materials provide a basis for a judgment against TLC and Sohal?

Consequences of noting in default

28Pursuant to r. 19.02, having not defended the proceeding, a defendant is deemed to admit the truth of all allegations of fact made in the Statement of Claim.

29However, pursuant to r. 19.06 a plaintiff is not entitled to judgment on a motion for judgment or at a trial merely because the facts alleged in the Statement of Claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.

30In particular, r. 19.05 provides that a motion for judgment which involves unliquidated damages shall be supported by evidence given by affidavit.

The test on a motion for default judgment

31The test on a motion for default judgement was set out in Elekta at para 14, as follows: A. What deemed admissions of fact flow from the facts pleaded in the Statement of Claim? B. Do those deemed admissions of fact entitle the plaintiff, as a matter of law, to judgement on the claim? C. If they do not, has the plaintiff adduced admissible evidence which, when combined with the deemed admissions, entitle it to judgement on the pleaded claim?

12I am satisfied that the plaintiff has established liability based upon the following deemed admissions from the Statement of Claim, together with the evidence from the affidavits of Jesse Gold dated October 1, 2024, Eric Miller dated October 2, 2024 and Virginia Fletcher dated October 4, 2024 and October 18, 2024 and exhibits thereto.

32UJA is a registered charity.

33The defendant, TLC is an Ontario numbered corporation that operates in the brokering of transportation services.

34The defendant, Sohal is the sole Director of TLC.

35The defendant, Singh holds himself out as the principal and operating mind of TLC.

36The defendant, Prestige appears to be a limited liability corporation of unknown jurisdiction. Prestige was a subcontractor of TLC for the purpose of providing transportation services at issue in this matter and operates in Ontario.

37The defendant, Ashfaq is the principle and operating mind of Prestige. Ashfaq’s whereabouts are unknown.

38After the October 7, 2023 terror attack in Israel, to support the Jewish community and its allies UJA organized a rally in Ottawa on December 4, 2023 (the “Rally”).

39On November 23, 2023 UJA contracted with the TLC to provide 27 buses and drivers to transport a thousand people from Toronto to the rally in Ottawa for $140,000 plus GST totaling $158,200.00 (the “Contract”).

40On November 23, 2023 UJA paid the Defendants a deposit of $79,100.00, representing 50% of the total value of the Contract. UJA also granted TLC authority to place a hold on UJA’s corporate visa credit card for the balance of the Contract of $79,100.00.

41It was well publicized that bus drivers similarly contracted to provide transportation services to a rally in Washington accepted the contract, but subsequently refused to provide their contracted services on the day of the rally. Out of concern that a similar situation could arise around the Rally, UJA sent a letter to Singh and TLC setting out its concerns about possible disruptions to the busing arrangement.

42On November 29, 2023, Singh, on behalf of TLC, advised UJA that the letter had been communicated to TLC’s primary subcontractor, Ashfaq and Prestige, who had been subcontracted to provide 25 of the 27 buses.

43On December 3, 2023, the day before the Rally, Singh contacted UJA to advise that the Defendants would not be able to satisfy the terms of the Contract. Singh advised that Ashfaq and Prestige had broken contact with TLC, and he was concerned they would not provide their subcontracted number of buses.

44On December 4, 2023 the contracted number buses did not arrive as scheduled. Singh and TLC provided less than 10% of the seats for which they were contracted, using multiple types of vehicles.

45Singh and TLC referred UJA to another vendor who provided 10 buses. UJA paid the other vendor directly for those 10 buses.

46Singh promised a refund and advised that TLC has prepaid gratuities to its drivers. Therefore, UJA subtracted the value of the seats TLC provided ($9,040.00) and prepaid gratuities ($1,800.00) and demanded $68,260.00 for damages arising from the breach of contract.

47Despite repeated promises to pay, Singh and TLC have failed to issue the refund to UJA.

48On December 17, 2023, UJA discovered that between November 24, 2023, and December 17, 2023, TLC made 14 additional charges on UJA’s Corporate Visa card, totaling $95,969.60 (the “Additional Charges”). On December 19, 2023 Singh told UJA that the Additional Charges also be refunded.

49The Additional Charges were subsequently reversed or refunded.

50I find that the parties had a valid contract which TLC breached.

51UJA is entitled to default judgment against TLC.

Unjust enrichment against Sohal.

52In the Statement of Claim the UJA pleads that the Defendants, individually and collectively have been unjustly enriched by receiving payments they would not have received absent the wrongful conduct and that UJA suffered a corresponding deprivation. UJA pleads that there is no justification for the Defendants to retain the payments.

53A party alleging unjust enrichment must demonstrate enrichment of the defendant and a corresponding deprivation of the plaintiff and the absence of any juristic reason.: Moore v. Sweet, 2018 SCC 52 at para. 37.

54A claim for unjust enrichment can only succeed if the benefit received is “incontrovertible”, “demonstrable” or “unquestionable”: Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762 at p. 797.

55UJA asks me to infer that Sohal received the benefit of the downpayment because he engaged in discussions about signing the Minutes of Settlement personally, he agreed that the refund was “our obligation, and he is the only director of TLC. Aside from the issue of whether the settlement discussions are privileged, I find that the evidence falls short of establishing that Sohal received the funds.

56UJA does not plead any material facts to support the bald conclusion that they are entitled to a remedy for unjust enrichment. UJA does not plead or have any evidence to show that they paid the deposit money directly to Sohal. In fac the evidence demonstrates that the deposit was paid to TLC.

57If the deposit was paid to TLC and then paid to Sohal, Sohal’s receipt of the deposit was indirect, as opposed to direct and specific. Unjust enrichment does not extend to permit such a recovery: Chowdhury v. Exquisite Bay Development Inc., 2024 ONSC 41 at para 48.

58UJA is not entitled to default judgment against Sohal because it is not incontrovertible, demonstrable or unquestionable that Sohal received the deposit.

Issue 3: Is UJA entitled to a judgment enforcing the minutes of settlement with Singh?

59A motion to enforce a settlement is treated like a motion for summary judgment under r. 20: Kearns v Canadian Tire Corporation, Limited, 2019 ONSC 4946 at para 22.

60Rule 20.04(2)(a) provides: “The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”.

61There is no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits of the motion. This will be the case where the process (1) allows the court to make necessary findings of fact, (2) allows the court to apply the law to the facts, and (3) is a proportionate, more expeditious, and less expensive means to achieve a just result: Hryniak, at para. 49; Moffitt v. TD Canada Trust, 2023 ONCA 349, 483 D.L.R. (4th) 432, at para. 39.

62Partial summary judgment should only be granted in the clearest of cases where there are issues that can be readily bifurcated, and which do not give rise to risks of delay, expense, inefficiency, and inconsistent findings: Truscott v. Co-Operators General Insurance Company, 2023 ONCA 267, 482 D.L.R. (4th) 113, at para. 54. and Malik v. Attia, 2020 ONCA 787 at para 62.

63In considering whether to grant partial summary judgment I must consider whether (i) there is a risk of duplicative or inconsistent findings at trial; and (ii) whether granting partial summary judgment is advisable in the context of the litigation as a whole: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 27-28.

64I am satisfied that I can, even without the powers under rr. 20.04(2.1) and (2.2), come to a fair and just result. This matter is appropriate for summary judgment.

65After the Statement of Claim was issued, Singh, Sohal and TLC engaged in settlement discussions with UJA. UJA sent Minutes of Settlement to Singh and Sohal for their consideration.

66On March 1, 2024 Singh and UJA signed Minutes of Settlement and agreed, among other things, that:

Singh would provide UJA, within seven days, copies of various disclosure, including disclosure on Ashfaq and Prestige.

Within thirty days of the receipt of the Disclosure, if requested by UJA, Singh would provide a signed witness statement outlining information concerning Ashfaq and the events relating to the Contract.

Upon receipt of disclosure, UJA will provide TLC, Singh, and Sohal with the necessary wire information to effect the following settlement payment.

Within seven business days of receiving the wire information, TLC, Singh, and Sohal will pay the total sum of CAD $149,229,60 to UJA.

Provided these terms are carried out, UJA will immediately discontinue the Action as against TLC, Singh, and Sohal.

67TCL and Sohal did not sign the Minutes of Settlement.

68At the time the Minutes of Settlement were signed, the Additional Charges had not been repaid. The Additional Charges were subsequently repaid.

69Despite repeated requests Singh has failed or refused to fulfil his obligations under the Minutes of Settlement.

70It is appropriate to grant partial summary judgment. The issues concerning the settlement can be readily bifurcated, and there is no risk of duplicative or inconsistent findings at trial. Granting partial summary judgment on the settlement is advisable in the context of the litigation as a whole because the other defendants have either been noted in default and are subject to default judgment as set out above or have not been located and may never be located.

71Summary judgment is appropriate to enforce the settlement here because there are no material issues of fact or credibility in dispute regarding whether the parties intended to make a legally binding contract or whether there was agreement on all the essential terms. The settlement is not unreasonable, its enforcement would not result in an injustice and there is no good reason not to enforce it.: Dick v Marek, [2009] OJ No 2241 at para. 65, Srebot v. Srebot Farms Ltd., 2013 ONCA 84 at para. 6, Stargrove Holdings Inc v Al Noubani, 2022 ONSC 6006 at para 6, Exponents Canada Inc. v Sharma, 2015 ONSC 2940 at para 9, Capital Gains Income Streams Corporation v Merrill Lynch Canada Inc. (2007), 87 OR (3d) 464, 230 OAC 5 at paras. 9-11.

72UJA is entitled to judgment against TLC and Singh for the damages it seeks for breach of contract in the amount of the deposit of $79,100 paid less the value of the seats TLC provided ($9,040.00) and less the prepaid gratuities which UJA agreed to pay ($1,800.00) for a total of $68,260.00 plus pre- and post-judgment interest.

COSTS

73The plaintiff is not seeking costs and no costs are ordered.

Merritt J.