Court of Appeal for Ontario

Citation: Baker v. Bell Media Inc., 2015 ONCA 835

Date: 20151202

Docket: C60330

Simmons, van Rensburg and Hourigan JJ.A.

BETWEEN

Keith A. Baker and UC Live Inc.

Plaintiffs (Appellants)

and

Bell Media Inc. and David Corey

Defendants (Respondents)

Counsel: James Zibarras, for the appellants Andrea Laing and Peter H. Smiley, for the respondents

Heard and released orally: November 13, 2015

On appeal from the order of Justice James F. Diamond of the Superior Court of Justice, dated March 11, 2015.

ENDORSEMENT

[1] The appellants Keith Baker and his company, UC Live Inc., are concert promoters who advertised on radio stations owned by the respondent Bell Media Inc. It is alleged that, due to the outstanding litigation brought by the appellants against a Bell related company, Bell refused to sell them radio advertising for a concert they were promoting.

[2] The appellants eventually cancelled the concert due to low ticket sales. The appellants then brought an action against Bell for breach of contract, promissory estoppel and breach of fiduciary duty, seeking to recoup the losses from the cancelled concert.

[3] Bell brought a motion to strike the statement of claim and dismiss the action on the basis that the pleading failed to disclose a reasonable cause of action. The motion judge struck the claims for breach of contract and promissory estoppel, with leave to amend. This appeal relates only to the motion judge’s decision to strike the claim for breach of fiduciary duty without leave to amend.

[4] The motion judge found, that accepting the contents of the statement of claim as true, it is arguable that Bell had the scope for the exercise of discretion or power over the appellants and that the power could have been unilaterally exercised. He also found that it was possible that the necessary element of vulnerability was present. However the motion judge declined to find a new category of fiduciary relationship in these circumstances. The appellants raised a number of issues in their factum. In oral argument however, the appellants ultimately confined their submissions to a request that they be granted leave to amend. The proposed amended claim, which was not provided in a written form to the court, had at its essence a breach of fiduciary duty claim based on a failure to contract. A failure to contract in these circumstances does not qualify as a breach of fiduciary duty. Therefore, the proposed amended statement of claim would not cure the defect and the motion judge did not err in refusing leave to amend.

[5] The appeal is dismissed.

[6] Costs of the appeal are to the respondent on a partial indemnity scale, fixed in the amount of $10,000, inclusive of all fees, disbursements and applicable taxes.

"Janet Simmons J.A."

"K. van Rensburg J.A."

"C. W. Hourigan J.A."