CITATION: Schaer v. Barrie Yacht Club, 2007 ONCA 88

DATE: 20070212

DOCKET: C45989

COURT OF APPEAL FOR ONTARIO

RE:

ANDREW P. SCHAER (Plaintiff/Respondent/Appellant) – and – THE BARRIE YACHT CLUB and ANDREW J. HAUGHTON – and – THE BARRIE YACHT CLUB (Defendants/Applicant/Respondents)

BEFORE:

LASKIN, JURIANSZ JJ.A. and CUNNINGHAM A.C.J. (Ad Hoc)

COUNSEL:

Andrew P. Schaer

in person

Michael Burgar

for the respondents

HEARD & RELEASED ORALLY:

February 5, 2007

On appeal from the order of Justice Thomas M. Wood of the Superior Court of Justice dated August 28, 2006.

E N D O R S E M E N T

[1] Mr. Schaer’s principal contention is that the motion judge erred in holding that he had proper notice of the board meeting that led to his expulsion. We disagree.

[2] The motion judge found that the registered letter was sent in accordance with section 2.11.1 of the club’s by-law no. 1. The record supports the motion judge’s finding. Moreover, the letter expressly set out the possible consequences of the board’s deliberations: forfeiture of membership and expulsion.

[3] Mr. Schaer also contends that the motion judge erred in failing to find that the board was biased against him. Again, we disagree.

[4] The motion judge recognized that the board had been the object of Mr. Schaer’s antagonism but found no disqualifying bias. We are not persuaded that we have any basis to interfere with this finding.

[5] For these brief reasons, we find no reviewable error in the motion judge’s disposition of the expulsion proceedings.

[6] Mr. Schaer also submits that the motion judge erred in striking his statement of claim in its entirety. We think that the motion judge was correct to strike the claim with the exception of the allegation in paragraph 19. In that paragraph, Mr. Schaer pleads a statement that is capable of being defamatory. He also pleads discoverability. Thus, in our view, the motion judge erred in striking out this paragraph. We therefore, permit Mr. Schaer to file an amended statement of claim that refers to the allegation now in paragraph 19 and whatever consequences flow from it. Mr. Shaer shall have 30 days from today’s date to file an amended claim.

[7] Apart from this relief, Mr. Schaer’s appeal is dismissed, with costs fixed at $2,500, inclusive of disbursements and G.S.T..

“John Laskin J.A.”

“R. Juriansz J.A.”

“Cunningham A.C.J. (Ad hoc)”