



COURT OF APPEAL FOR ONTARIO

CITATION: Segura Mosquera v. Rogers
    Communications Inc., 2021 ONCA 876

DATE: 20211210

DOCKET: C69049

Lauwers, Paciocco and Thorburn
    JJ.A.

BETWEEN

Gladys Milena Segura Mosquera

Plaintiff/Applicant (Appellant)

and

Rogers Communications Inc.

Defendant/Respondent (Respondent)

and

Canadian Radio-Television and
    Telecommunications Commission and Commission for Complaints for
    Telecom-Television Services

Proposed Defendants/Respondents (Respondents)

Gladys Milena Segura Mosquera, acting
    in person

Marie-Eve
    Jean and Kyle Lambert, for the respondent Rogers Communication Inc.

Samar
    Musallam, for the Attorney General of Canada representing the respondent the
    Canadian Radio-Television and Telecommunications Commission

Jaime Wilson,
    for the respondent Commission for Complaints for Telecom-Television Services

Heard: December 6, 2021 by
    video conference

On appeal from the order of Justice
    Sally A. Gomery of the Superior Court of Justice, dated October 5, 2020.

REASONS FOR DECISION

[1]

Gladys Segura (Ms. Segura) appeals the
    dismissal of her application to transfer her Small Claims Court action to the Superior
    Court of Justice and to add the Canadian Radio-Television and
    Telecommunications Commission (CRTC) and Commission for Complaints for
    Telecom-Television Services (CCTTS) as defendants.

The Small
    Claims Court Action

[2]

In January 2017, Ms. Segura commenced a Small
    Claims Court action against Rogers Communications Inc. (Rogers), as operator
    of Fido Solutions Inc. Ms. Segura claimed that (i) she was overcharged for
    wireless services between 2013 and 2016, (ii) her wireless services were
    improperly terminated, and (iii) after she brought her phone to a mall kiosk
    for repairs in 2013 she got a different phone back. She sought damages in the
    amount of $1,858.83 (the amount she says she was overcharged by Rogers between
    2013 and 2016) and the restoration of services to her phone.

[3]

Rogers filed a defence to the Small Claims
    action in February 2017. It took the position that Ms. Segura was accurately
    charged for wireless services and that any claims for overcharges prior to
    January 13, 2015 were in any event time‑barred. Rogers said it was
    entitled to terminate its services on 30 days notice and that Ms. Segura was
    given two opportunities to transfer her cellphone number for her use in a
    contract with another wireless provider but declined to do so.

[4]

On May 10, 2018, a month before the trial was
    scheduled to begin, Rogers filed a motion to strike and dismiss the claim on
    the grounds that Ms. Segura had failed to produce any evidence in support of
    her claims and that the action was frivolous and vexatious.

[5]

Subsequently, Ms. Segura advised that she was no
    longer satisfied with the relief she had requested in the Small Claims action
    and would be seeking a transfer of the case to the Superior Court. The Small
    Claims Court judge therefore adjourned the trial pending the Superior Courts
    determination of Ms. Seguras application for transfer. Ms. Segura filed her
    notice of application on June 16, 2018, seeking a transfer of the case to the
    Superior Court and the addition of the CCTTS and the CRTC as defendants.

Other Complaints
    Raised by Ms. Segura

[6]

Around the same time that she began her Small
    Claims Court action, Ms. Segura says she learned that the cellphone number
    associated with her Rogers account had been transferred to another subscriber.
    She alleges that, as a result of this transfer, the new user was able to open
    the front door of her apartment building. She asked her landlord to disconnect
    her buzzer and says she has been unable to open the front door remotely since
    then.

[7]

Ms. Segura filed several complaints with the
    CCTTS concerning her disputes between herself and Fido.

[8]

She also attempted to lay criminal charges
    against Fido and one of its employees on the basis that when brought in for
    repair, her phone was allegedly taken and exchanged for another but no criminal
    charges were laid for taking the phone.

Analysis of the
    Application Judges Reasons and Conclusion

[9]

In her notice of application, Ms. Segura sought
    the transferal of her application to the Superior Court, the addition of the
    CCTTS and CRTC as defendants, orders for disclosure of information from the respondent
    Rogers and her landlord, a waiver of the fees for the audio digital records in
    relation to hearings, an order that the Ministry of the Attorney General
    disclose the legislation supporting a denial of a fee waiver, and an order that
    Rogers not reassign her phone number to other subscribers until the matter was
    dealt with.

[10]

In her request to transfer, Ms. Segura submitted
    that she intended to seek:

a)

additional damages for malice and intentional infliction
    of emotional distress as a result of Rogers assignment of her cellphone number
    to other users and possible violations of her constitutional and privacy
    rights;

b)

equitable remedies and to take advantage of
    pre-trial discovery rights unavailable to her in a Small Claims action; and

c)

the addition of the CCTTS and the CRTC as
    defendants for [t]he decisions, inaction and eventual negligence of both
    bodies, without providing particulars.

[11]

She also argued that her claim raises issues of
    public importance, because many Canadians are disadvantaged by the current
    system in place for consumer complaints about the practices of wireless service
    providers.

[12]

The application judge carefully outlined the
    principles governing the transfer of cases from the Small Claims Court to the
    Superior Court. She noted that transfers are permitted only where a claim is
    not capable of being justly and fairly resolved using the procedures available
    in the Small Claims Court:
Autometric Autobody Inc. v. High Performance
    Coatings Inc.
, 2014 ONSC 6073 (Div. Ct.), 328 O.A.C. 197, at paras. 9-10.
    She noted that the discretion to transfer should be exercised rarely:
Crane
    Canada Co. v. Montis Sorgic Associates Inc.,
[2006] O.J. No. 1999 (Ont.
    C.A.), at para. 2.

She noted that the onus is on the party seeking a
    transfer. Considerations in such cases include:

a)

the complexity of the litigation,

b)

the role and importance of pre-trial discovery
    and expert evidence,

c)

whether the case raises issues of general
    importance, and

d)

the desire for a just and fair determination.

Farlow v. Hospital for Sick
    Children
, 100 O.R. (3d) 213 (S.C.), at para. 20,
    citing
Crane
, at para. 8,
Vigna v. Toronto Stock Exchange
(1998)
,
115 O.A.C. 393 (C.J.), and
Livingston v. Ould
, 2 C.P.C. 41 (Ont.
    S.C.).

[13]

The application judge explained that the courts
    discretion to transfer should be exercised sparingly because Superior Court
    actions expose the parties to higher costs of pre-trial discovery and trial.
    Further, if the application is made just before trial, it may result in
    duplication of work. Absent compelling reasons for a transfer, permitting a
    transfer may undermine the jurisdictional legitimacy of the Small Claims Court.

[14]

After reviewing the evidence before her and
    noting that no statement of claim had been provided by Ms. Segura, despite
    Master Kaufmans order of March 9, 2020 requiring her to do so, the
    application judge concluded that Ms. Segura had not demonstrated that her
    claim could not be justly and fairly resolved by the Small Claims Court and
    declined to order the transfer.

[15]

There were ample grounds to support this
    conclusion.

[16]

First, she noted that Ms. Seguras failure to
    file a proposed statement of claim with the application to transfer made it
    difficult for her to argue that her claim exceeded the Small Claims Court
    monetary cap. In the Small Claims Court application, Ms. Segura claimed less
    than $2,000 in damages, below the Small Claims Court monetary cap. There were
    no material facts that could ground awards for damages for any intentional tort
    or for violations of her constitutional or privacy rights. The application
    judge correctly held that, She is asking the court to speculate about what
    she could claim, based on her notice of application, supporting affidavit and
    factum.

[17]

Second, the materials provided by her did not
    support a claim for equitable relief:

a)

Ms. Segura sought an order requiring Rogers to
    restore her wireless service as the discontinuation of services was unjustified
    and caused her inconvenience. She did not say she had been unable to obtain
    wireless services from another provider, that there was anything unique about
    the wireless services she received from Rogers, or that there was any other
    justification to order Rogers to restore her account as opposed to ordering
    damages if there were a finding of breach of contract. As such, there was no
    factual basis upon which specific performance could be ordered; and

b)

The only other order for equitable relief sought
    by Ms. Segura is an order requiring Rogers not to further reassign her
    cellphone number to another subscriber until this matter gets dealt with in
    its entirety. This is an order sought in aid of specific performance, which,
    as indicated, is not a realistic remedy in the circumstances of this case and
    in any event, Rogers has agreed to hold the number in reserve pending the
    outcome of this litigation.

[18]

Third, although Ms. Segura advised that she
    sought a declaratory order that the CCTTS is not independently constituted
    because members of the public are not adequately represented, and she would
    like to challenge its procedural code, she did not explain what order she would
    seek. More importantly, she failed to provide material facts to support a
    proposed claim against either the CCTTS or the CRTC or what relief she would
    seek if such an order were granted.

[19]

Fourth, although Ms. Segura contends that she
    requires pre-trial discovery from Rogers to obtain, for example, records of how
    Fido dealt with her complaint about getting the wrong cellphone back (despite
    Rogers representations at settlement conferences that no such records exist)
    and disclosure from third parties such as her landlord, it is not clear what
    discovery Ms. Segura could obtain in a Superior Court action that she could not
    obtain in the Small Claims Court. Moreover, Ms. Segura failed to provide the
    application judge with any basis upon which any such orders could be made. (We
    note that it is not a proper exercise of the courts discretion to transfer a
    proceeding in order to obtain information to advance other legal proceedings such
    as the criminal complaint against a Rogers employee for theft of the cellphone
    or the possible claim against her landlord in connection with the front door
    buzzer issue.) In any event, Ms. Segura has not sought a production order at
    any of the three settlement conferences she attended in the Small Claims Court
    action, as she could pursuant to r. 13.05(2) of the
Rules of the Small
    Claims Court
, O. Reg 258/98, nor is there any evidence that Rogers has
    withheld or failed to disclose relevant evidence.

[20]

Fifth, the waiver of fees for audio digital
    recordings, the order permitting her to produce documents in digital format
    only, and the addition of proposed defendants and costs where warranted, can be
    addressed by the Small Claims Court.

[21]

Finally, although Ms. Segura claims her
    experience with Rogers billing practices and the CCTTS complaints process are
    issues common to many Canadians, the application judge correctly noted that, I
    cannot, however, gauge whether Ms. Seguras grievances amount to a viable claim
    that would engage broader public interests, in the absence of a draft statement
    of claim that would set out exactly what she is complaining about and what
    remedies she is seeking.

[22]

We therefore see no error in the application
    judges conclusion that Ms. Segura has not shown that a transfer to the
    Superior Court is required for the just and fair resolution of her claim. The
    application judge correctly declined to exercise her discretion to transfer the
    proceeding and correctly noted that in declining the transfer, she had no
    jurisdiction to address possible amendments to pleadings, including the
    addition of new parties to the proceeding.

[23]

The appellant submits that the application judge
    erred in law by denying to her the right to file reply costs submissions. However,
    the application judge noted that the appellant did not file any costs
    submissions. Therefore, we see no error with the application judges reasons.

[24]

The appeal is therefore dismissed.
The
    respondents are awarded their partial indemnity costs and disbursements in the
    nominal amounts they sought of $
3,000 to Rogers, and $1,500 to
    each of CRTC and CCTTS, all-inclusive.

P.
    Lauwers J.A.

David
    M. Paciocco J.A.

J.A.
    Thorburn J.A.


