The Score Television Network Ltd. v. Winner International Inc., 2007 ONCA 424

Date: 2007-06-08

Docket: C44226

Court of Appeal for Ontario

Before: Sharpe, Juriansz JJ.A. and Chapnik J. (Ad hoc)

Between:

The Score Television Network Ltd. Plaintiff/Appellant

and

Winner International Inc. and Winner Advertising and Grant Brothers Sales Limited and Laurence Drew and Zellers Inc. Defendants/Respondent

Counsel: A.B. Schwisberg for the appellant Eric Golden for the respondents

Heard and endorsed: June 5, 2007

On appeal from the decision of Justice H. Siegel of the Superior Court of Justice dated August 30, 2005.

Endorsement

[1] We see no error on the part of Siegel J. in striking out the allegations in the statement of claim regarding the tort of intimidation as disclosing no reasonable cause of action pursuant to s. 21. The elements of that tort, in our view, are properly identified as including not only 1) a threat and 2) intent to injure but also, 3) some act taken or forgone as a result of the threat and 4) as a result of which the plaintiff suffered damages: See Roehl v. Houlahan (1990), 75 O.R. (2d) 482 (C.A.); Canada Potash Co. Ltd. v. Government of Saskatchewan, [1979] 1 S.C.R. 42.

[2] The plaintiff pleaded neither the third nor the fourth elements, but pleaded only that there was the threat and an intent to injure. The tort is that of intimidation, not threatening. In our view, it is plain and obvious that a threat in the air which has no effect and did not cause damage is not actionable.

[3] In the circumstances, we see no error on the part of the motion judge in not giving leave to amend.

[4] According, the appeal is dismissed. Costs to the respondent fixed at $3,817.82 inclusive of disbursement and GST.

"Robert J. Sharpe J.A."

"R. Juriansz J.A."

"Sandra Chapnik J. (ad hoc)"