COURT OF APPEAL FOR ONTARIO

CITATION: McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830

DATE: 20151202

DOCKET: C59704

Weiler, van Rensburg and Roberts JJ.A.

BETWEEN

Ryan McIlvenna, Stacey Holmes

Plaintiffs

(Appellants)

and

1887401 Ontario Ltd.,

Maher Khalil, Daniel Joseph-Paul Abdel-Nour, Eric Ashley D’Amour

Defendants

(Respondents)

Ryan McIlvenna and Stacey Holmes, in person

Spencer Ball, for the respondents

Heard: September 10, 2015

On appeal from the order of Justice R. Dan Cornell of the Superior Court of Justice, dated November 3, 2014, with reasons reported at 2014 ONSC 6043.

van Rensburg J.A.:

A. Overview

[1] The appellants commenced an action seeking damages for their treatment by the respondents during the evening of July 26, 2014 into the early morning hours of July 27, 2014, when they were ejected from a bar in Sudbury because they smelled of marijuana. According to their claim, the appellants are authorized users of medical marijuana.

[2] The respondents brought a motion under rule 21 of the Rules of Civil Procedure to dismiss the action for failure to disclose any reasonable cause of action and on the basis that the claim is frivolous, vexatious or otherwise an abuse of the process of the court. In the alternative, the respondents asked that certain paragraphs of the statement of claim be struck under rule 25.

[3] Before the motion was heard, the plaintiffs delivered an amended statement of claim. At the hearing of the motion, Stacey Holmes was not present in court. Ryan McIlvenna asked for permission to speak on her behalf and stated: “if it’s deemed and determined that I can’t [represent her interests in this matter] she will discontinue her portion of the claim.” The motion judge did not permit Mr. McIlvenna to argue on Ms. Holmes’ behalf, and dismissed her claim.

[4] The motion judge considered the amended statement of claim. He dismissed the action for failure to disclose a cause of action, without leave to amend. He also observed that the action was an abuse of process and frivolous. He awarded costs against Mr. McIlvenna on a substantial indemnity basis in the sum of $5,905.90.

B. Analysis

[5] The appellants advance five arguments on appeal. First, they contend that the motion judge ought to have permitted Mr. McIlvenna to speak on Ms. Holmes’ behalf when no objection was taken by the respondents, and that her claims should be allowed to proceed. Second, they say that the order dismissing the action should be set aside because the motion judge demonstrated bias in certain comments he made in the course of the hearing. Third, they argue that the motion judge did not accept the allegations in their pleading as true, and erred in striking the claim on the basis that it disclosed no reasonable cause of action. Fourth, if the claim was deficient, the motion judge erred in refusing leave to amend. Finally, the appellants assert that the motion judge erred in concluding that the claim was an abuse of process and frivolous.

(1) Did the motion judge err in not permitting Mr. McIlvenna to speak on Ms. Holmes’ behalf?

[6] With respect to the first ground of appeal, in the particular circumstances that were before the motion judge, I would not interfere with the motion judge’s decision refusing Mr. McIlvenna permission to speak on Ms. Holmes’ behalf.

[7] I disagree with the motion judge’s view that he had no discretion to permit Mr. McIlvenna to speak on Ms. Holmes’ behalf, where Mr. McIlvenna was a party to the proceedings, the interests of both plaintiffs were substantially identical, and the moving parties (the respondents here) did not object. That said, Mr. McIlvenna offered the court a choice – if he was not permitted by the judge to speak for Ms. Holmes, she wanted to discontinue her claim. In the course of argument he agreed that the claim could be dismissed if he were not permitted to speak for her. The motion judge followed the alternate course of conduct proposed by Mr. McIlvenna. In the circumstances, it is not open to the parties to appeal the dismissal of Ms. Holmes’ claim.

(2) Was the motion judge biased?

[8] I also would not give effect to the second ground of appeal, asserting bias on the part of the motion judge.

[9] The appellants have not met the high threshold to establish bias, which requires that “an informed person viewing the matter realistically and practically – and having thought the matter through – [would] conclude… that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly”: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at pp. 394-95; see also R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 31.

[10] The transcript of the hearing discloses that the motion judge took an active role in exploring Mr. McIlvenna’s arguments. References to his own allergy to smoke and to the odour of marijuana which he described as “noxious” do not mean that he prejudged the question of whether the amended statement of claim disclosed a reasonable cause of action. By making these references, the motion judge was pointing out that in their place of business the respondents would have to be concerned with balancing Mr. McIlvenna’s rights with the rights of other persons such as himself. The motion judge recognized that the issue was not to determine the outer limits of the appellants’ claim to be able to smoke marijuana “anywhere and at any time” (a position that Mr. McIlvenna at times advanced in argument), but whether the allegations in the amended statement of claim respecting the appellants’ treatment, on the evening in question, disclosed a cause of action in law.

[11] The motion judge’s frequent interruptions of Mr. McIlvenna’s argument reflected his attempts to exercise control over the court proceedings, including trying to keep the arguments focused and on point. While several such interruptions may well have been unnecessary, Mr. McIlvenna had the opportunity to advance his arguments and to respond to the various concerns expressed by the motion judge. Contrary to the appellants’ assertion, the motion judge’s conduct, in all the circumstances, did not demonstrate bias.

(3) Did the motion judge err in striking out the entirety of the appellants’ claim?

[12] The events giving rise to the claim are pleaded as follows in the amended statement of claim.

[13] The appellants are authorized users of medical marijuana as treatment for their medical conditions (paras. 4, 7 and 8). Mr. McIlvenna uses medical marijuana pursuant to a federal exemption “that allows him to use cannabis for medical purposes anywhere at any time” (para. 5). The appellants frequented two bars located next door to one another that were owned and operated by the respondent 1887401 Ontario Ltd., whose principals are the individual respondents (paras. 9 and 25). They had previously been permitted to smoke their marijuana in the smoking area in an alleyway between the bars, after showing their medical exemptions.

[14] On the night in question, the appellants were not permitted to smoke in the alleyway (para. 17). They were told to smoke outside on the sidewalk, and they began to do so. The doorman of the second bar told the appellants to move across the street because of the smell of the marijuana (para. 20). They refused to do so (para. 24). When they entered the second bar, Mr. McIlvenna was tapped on the shoulder by the respondent Khalil and confronted by all three owners of the bar (para. 25). Mr. Khalil was acting in a furious and out of control manner, took up a fighting stance, and told Mr. McIlvenna they had stunk up his whole bar with the smell of marijuana (para. 27). After Mr. McIlvenna tried to explain their rights, Mr. Khalil pointed at the door and yelled at them to leave (para. 34). The appellants left the premises (para. 38).

[15] The appellants identify three principal causes of action in the amended statement of claim. First, they claim discrimination on the basis of disability constituting a breach of the Ontario Human Rights Code, R.S.O. 1990, c. H.19(the “OHRC”).

[16] Before the motion judge, the claim based on breach of the OHRC was abandoned, as the appellants had decided to pursue this complaint in human rights proceedings. The references to discrimination and the claim for damages for discrimination in the amended statement of claim are therefore properly struck for the purpose of this action. These are contained in paragraphs 10, 12, 19 and 37, which I would strike in their entirety, and in paragraphs 9 and 11, which I would strike with leave to amend to plead these paragraphs with the references to discrimination removed.

[17] The appellants assert that the amended statement of claim also pleads the torts of intimidation and intentional infliction of mental suffering. The relevant key paragraphs to support these pleadings are as follows. The appellants were asked to go to the opposing sidewalk to smoke their medical marijuana, which was a deliberate attack against their worth and dignity (para. 22). When the appellants returned inside the bar, Mr. Khalil was acting furious and took up a fighting stance (para. 27). Mr. Khalil yelled at the appellants to leave and pointed at the door (para. 34). Further, when Mr. Khalil demanded that the appellants leave the nightclub due to the smell of their medicine, he intended to inflict mental pain and suffering on them (para. 13). After this altercation, the appellants left without being physically removed (para. 38).

(a) Did the motion judge accept the allegations in the statement of claim as true?

[18] In a motion under rule 21, the court must accept that the allegations in the statement of claim are true, unless patently ridiculous or incapable of proof. The statement of claim must be read generously, allowing for inadequacies due to drafting deficiencies: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 280; see also Falloncrest Financial Corp. v. Ontario (1995), 1995 CanLII 2934 (ON CA), 27 O.R. (3d) 1 (C.A.), at p. 7. The motion judge in this case correctly identified the test; however, he made certain errors in its application.

[19] The appellants contend that the motion judge erred in not accepting the facts pleaded in the amended statement of claim as true. In this regard, I observe that at times in his decision, the motion judge appears to have approached the motion as a motion for summary judgment, and not as a rule 21 motion. This occurred in para. 7 of his reasons, when he said that “although not put into evidence before [him]”, he accepted that the appellant had a license to possess and use marijuana. It also occurred in his recitation of the facts “not in dispute” commencing at para. 13, and at para. 26, where he indicated that there was “no evidence of a visible and provable injury”.

[20] As this court has noted, it is essential to keep separate the function of the court in a rule 21 motion (where what is pleaded in a claim is assumed to be true and capable of proof), and a summary judgment motion or trial, where evidence is weighed and considered. The test on a rule 21 motion is whether it is plain and obvious that the claim cannot succeed, not whether it is likely or unlikely, on the evidence that may be led, that the claim will succeed: Miguna v. Ontario (Attorney General), 2008 ONCA 799, 301 D.L.R. (4th) 540, at para. 34.

[21] While the motion judge made the comments I have referred to, which might suggest that he considered evidence and failed to assume the pleadings to be true, on the whole of his reasons, it appears that he accepted the appellants’ pleading as true. Although he greeted the claim with some scepticism, he approached his task as determining whether, assuming the facts were as pleaded, the amended statement of claim disclosed a cause of action.

[22] I turn then to consider whether the motion judge erred in his assessment of the pleading, and whether it disclosed a cause of action in intimidation and intentional infliction of mental suffering.

(b) The tort of intimidation

[23] The tort of intimidation consists of the following elements: (a) a threat; (b) an intent to injure; (c) some act taken or forgone by the plaintiff as a result of the threat; (d) as a result of which the plaintiff suffered damages: Score Television Network Ltd. v. Winner International Inc., 2007 ONCA 424, [2007] O.J. No. 2246, at para. 1; see also Central Canada Potash Co. v. Saskatchewan, 1978 CanLII 21 (SCC), [1979] 1 S.C.R. 42. Although the pleading of intimidation is most frequently seen in the context of economic torts, the business context is not an essential element of the tort.

[24] The motion judge concluded that none of the requirements for the tort of intimidation were present, and that it was plain and obvious that this claim could not succeed.

[25] I disagree. Contrary to the motion judge’s conclusion, all elements of the tort of intimidation are pleaded in the amended statement of claim. The claim is that the appellants were prevented from doing something they claim they had a legal right to do – to remain in a bar, although they smelled of marijuana after smoking marijuana as a medication, in accordance with a license that permitted them to do so. The appellants claim that the respondents were wrong to tell them to leave because they had refused to smoke on the other side of the street, and further that they were threatened with violence. They plead that the conduct of the respondents “was a deliberate attack against [their] worth and dignity”. As a result of the conduct of the respondents, they left the bar.

[26] The question is not whether the allegations, if true, would give rise to substantial damages, or whether the respondents would have a defence to the claim. In Hunt, at p. 975, the Supreme Court referred with approval to an English decision, Drummond-Jackson v. British Medical Association, [1970] 1 All E.R. 1094 (C.A.), which stated that “it is not permissible to anticipate the defence or defences -- possibly some very strong ones -- which the defendants may plead and be able to prove at the trial, nor anything which the plaintiff may plead in reply and seek to rely on at the trial.”

[27] The function of the court in a pleadings motion is to determine whether the test in rule 21 has been met, and not to determine whether all of what has been pleaded in the action can be proven, whether the action will succeed, or for that matter, if successful, whether the plaintiff will recover damages for the alleged wrong. To the extent that the motion judge appears to have concluded that the harm to the appellants was de minimis, this conclusion was premature and ought not to have informed his rule 21 determination.

[28] For these reasons, I would not strike the action, which discloses a cause of action in intimidation.

(c) The tort of intentional infliction of mental suffering

[29] As for the tort of intentional infliction of mental suffering, this cause of action is comprised of the following elements: (a) flagrant and outrageous conduct; (b) calculated to produce harm; (c) which results in visible and provable injury: Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A), at para. 43.

[30] The tort of intentional infliction of mental suffering is not actionable without proof of actual harm. This is because the basis of liability for this tort is not rooted in the trespass action, but is a descendant of the action on the case. A plaintiff must prove that he or she has suffered a recognized psychiatric illness to establish a cause of action: see A. Linden and B. Feldthusen, Canadian Tort Law, 9th ed. (Markham: LexisNexis, 2011), at p. 55. See also Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99 at para. 46, referring to the need to establish “recognizable physical or psychopathological harm.”

[31] There is no pleading here that the conduct of the respondents was flagrant and outrageous. Although the motion judge referred to there being no evidence of a visible and provable injury, I note that no such injury is pleaded. There is no suggestion in the lengthy and detailed facts pleaded by the appellants that the respondents’ conduct caused any mental suffering, in the sense of a psychiatric illness or injury. Rather, the alleged harm is to the appellants’ dignity and sense of self-worth.

[32] In my view, the amended statement of claim does not disclose a cause of action for intentional infliction of mental suffering, and accordingly para. 13 must be struck. I see no benefit in granting leave to amend the pleading of this tort, as there is no indication that mental suffering occurred, or that there was any harm other than to the appellants’ dignity and sense of self-worth.

(4) Did the motion judge err in concluding the action was an abuse of process and frivolous?

[33] The motion judge concluded that the action was an abuse of the justice system and frivolous. He observed that the action was a second battle in the appellant’s crusade to assert the rights of those who have the right to use medical marijuana. He referred to another action commenced by Mr. McIlvenna: McIlvenna v. The City of Greater Sudbury, 2014 ONSC 2716, [2014] O.J. No. 2578. That action involved a claim for damages following Mr. McIlvenna’s alleged threat of arrest for smoking marijuana on courthouse property. The defendants brought a motion to strike under rule 21, which was granted, but with leave to amend. The motion judge here stated that Mr. McIlvenna had failed to amend his claim and that the earlier proceeding was at an end. This was incorrect, and it appears that this error may well have informed the motion judge’s conclusion that the action before him was frivolous and an abuse of process of the court.

[34] In her decision in McIlvenna v. The City of Sudbury, Gauthier J. considered whether the action disclosed a cause of action. The moving parties specifically did not allege that the claim was frivolous or otherwise an abuse of process. Gauthier J. dismissed on their merits claims under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. However, the balance of the claim was dismissed with leave to amend. In particular, there were deficiencies in the pleadings of intimidation and intentional infliction of mental suffering. As appears from the face of the Amended, Amended Statement of Claim in that action, the pleading was amended in June 2014.

[35] It is not clear why the motion judge believed that Mr. McIlvenna had not amended the statement of claim in his earlier action. This does not appear from the transcript to have been argued, and is not disclosed in the record that was before him. Indeed, there was no evidence in the record before the motion judge that spoke to the alternative ground of abuse of process; the only affidavit filed in the motion was that of Mr. McIlvenna, explaining the basis for his claim.

[36] Accordingly, I would find that there was a palpable and overriding error of fact that informed the motion judge’s conclusion that the action was an abuse of process, and that there were no reasonable grounds before the court to dismiss the action as an abuse of process.

C. disposition

[37] For these reasons, I would allow the appeal as follows. I would set aside the order of the motion judge except with respect to the dismissal of claims by Ms. Holmes. I would strike paragraphs 10, 12, 13, 19 and 37 of the amended statement of claim, without leave to amend. I would strike paragraphs 9 and 11, with leave to amend these paragraphs only as necessary to remove the references to discrimination. I would set aside the costs order in the court below.

[38] I would grant Mr. McIlvenna his costs of the appeal in the sum of $700, representing his expenses of travel and accommodation to argue the appeal.

Released: (K.M.v.R.) December 2, 2015

“K. van Rensburg J.A.”

“I agree K.M. Weiler J.A.”

“I agree L.B. Roberts J.A.”