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Credit Reporting - Tort. Xia v. His Majesty the King in right of Ontario
In Xia v. His Majesty the King in right of Ontario (Div Court, 2024) the Divisional Court dismissed an appeal from the Small Claims Court, here which struck the appellant's negligent claim against the Family Responsibility Office (FRO) on the ground that no duty of care was owed:[8] In 2021, the appellant brought a negligence claim in the Small Claims Court alleging financial, mental and personal credit damage caused by the “mishandling” of his child support payment case and a “groundless wrongful negative credit score”.
[9] The respondent brought a motion to dismiss the claim under r. 12.02 of the Small Claims Court Rules. That rule asks whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be inflammatory, a waste of time or a nuisance: Van de Vrande v. Butkowsky, 2010 ONCA 230, at para. 19. Affidavit evidence is permitted: Van de Vrande, at para. 17. The respondent put forward an affidavit. Although the appellant did not do so, the Deputy Judge acknowledged his submissions.
[10] The motion was granted. The Deputy Judge found that there was no duty of care, and also agreed with the respondent’s alternative submission that even if there was, the standard of care had been satisfied.
[11] The appellant raises essentially the same arguments on this appeal that he raised before the Deputy Judge. The appellant submits that the issue is the service he did not receive from FRO because FRO did not reply to his communications in May 2019 and following. He submits that he should have had what he calls a normal level of service, analogizing that level of service to the relationship between a realtor and their client.
[12] Using the legal terminology that applies to a negligence claim, the appellant submits that FRO owed him a duty to reply to his correspondence, and failed to do so repeatedly, causing him damage.
[13] The issues are therefore whether FRO owed the appellant a duty and, if so, whether the standard of care was breached. The appellate standard of review applies to this appeal, specifically correctness for errors of law or extricable errors of principle, and palpable and overriding error for findings of fact or findings of mixed fact and law.
[14] The appellant has not shown that the Deputy Judge erred in granting the motion to dismiss. I understand that the appellant is drawing his analogy from his own experience with real estate transactions, but the duties of FRO are not comparable.
[15] The Deputy Judge correctly applied the legal principles regarding a r. 12.02 motion, properly assumed that the facts alleged in the claim were true and read the claim generously. The
Deputy Judge also accepted the respondent’s affidavit evidence, as she was entitled to do.
[16] The Deputy Judge then applied the test to establish a duty of care as set out by the Supreme Court of Canada in Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79. She considered the relevant provisions of the Act and the specific interactions between the parties, in keeping with the principles in Am-Stat Corporation v. Ontario, 2018 ONCA 877, at para. 6. The Deputy Judge concluded that the appellant had not established a duty of care and made no error in doing so. The Decision is also consistent with other cases that were put forward by the respondent at the hearing (although not expressly referred to in the reasons for decision), in which FRO was found not to owe a duty of care.
[17] Since there was no duty of care owed to the appellant, there is no need to address the standard of care.
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