SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-CV-414767
MOTION HEARD: August 24, 2012

RE:

David Phillips

v.

Ontario Racquet Club, Helmut Keil,
Jeff McCarrol, Sam Jonas and Aaron Cumberland

BEFORE: Master Thomas Hawkins

COUNSEL:
Rishi Bandhu for
moving defendants
Ontario Racquet Club, Helmut Keil,
and Jeff McCarrol

Fax No. 905-874-1384

Simon Heath for moving
defendants Sam Jonas and Aaron Cumberland

Fax No.: 905-276-2298

John J. Adair for responding plaintiff

Fax No.: 416-863-1241

REASONS FOR DECISION

[ 1 ] In this action for alleged wrongful dismissal, defamation and other civil wrongs, I have before me two parallel motions attacking the statement of claim. The defendants Ontario Racquet Club (“O.R.C.”), Helmut Keil and Jeff McCarrol (“McCarrol”) bring one such motion. The defendants Sam Jonas (“Jonas”) and Aaron Cumberland (“Cumberland”) bring the other motion.

[ 2 ] Parts of these motions have been resolved on the following basis. On consent, first the title of proceeding is amended by deleting the words “Helmut Keil”, and by deleting the word “Carrol” and substituting the word “McCarrol”. The defendants also asked that the word “Raquet” be deleted from the title of proceeding and that the word “Racquet” be substituted. However, in the title of proceeding in the statement of claim as issued, the word “Racquet” is spelled correctly. This amendment is not necessary. The word “Raquet” does appear in both defence motion records. That is simply an error.

[ 3 ] On consent, secondly, paragraphs 6, 61 and 62 of the statement of claim are struck out without leave to amend. Plaintiff’s counsel also agrees that

(a) in paragraph 48 of the statement of claim the second sentence and the word “further” in the third sentence may be struck out, and

(b) in paragraph 51(c) the word “McCarrol” may be struck out.

So ordered.

[ 4 ] This effectively means that, as a party, the defendant Helmut Keil is gone from this action.

[ 5 ] I will deal with both motions at the same time where both such motions attack the same allegations in the statement of claim, and separately where only one motion attacks a particular allegation. I will deal with the impugned allegations in the order in which they appear in the statement of claim.

[ 6 ] Counsel for O.R.C. and McCarrol submits that some of the impugned paragraphs in the statement of claim offend subrules 25.06(1), (8) and (9). These subrules provide as follows.

(1) Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

(8) Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

(9) Where a pleading contains a claim for relief, the nature of the relief claimed shall be specified and, where damages are claimed,

(a) the amount claimed for each claimant in respect of each claim shall be stated; and

(b) the amounts and particulars of special damages need only be pleaded to the extent that they are known at the date of the pleading, but notice of any further amounts and particulars shall be delivered forthwith after they become known and, in any event not less than ten days before trial.

[ 7 ] Counsel for O.R.C. and McCarrol submits that the statement of claim contains bald allegations lacking in material facts, improper allegations of similar fact evidence and allegations lacking necessary particulars.

[ 8 ] Counsel for O.R.C. and McCarrol also submits that contrary to subrule 25.06(9)(a), the claim for relief does not state the amount claimed for each claim.

[ 9 ] The claim for relief in the form of damages is found in clauses 1(a) (b) and (c) of the statement of claim. In those clauses the plaintiff claims the following.

1. The Plaintiff claims as against all of the Defendants:

(a) Damages in the sum of TWO MILLION DOLLARS ($2,000,000) for defamation, breach of contract, wrongful dismissal, inducing breach of contract, conspiracy and intentional infliction of mental distress;

(b) Aggravated damages in the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000);

(c) Punitive damages in the sum of TWO HUNDRED THOUSAND DOLLARS ($200,000);….

[ 10 ] Clause 1(a) sets forth claims for six different civil wrongs and therefore six different claims. However the statement of claim does not set forth the amount of damages claimed for each such claim. Clause 1(a) of the statement of claim therefore offends subrule 25.06 (9)(a).

[ 11 ] Clause 1(a) of the statement of claim is struck out with leave to amend so as to comply with subrule 25.06 (9)(a).

[ 12 ] Clauses 1(b) and (c) of the statement of claim comply with subrule 25.06 (9)(a). Those clauses are not struck out.

[ 13 ] Paragraph 3 of the statement of claim is the next paragraph attacked. There the plaintiff alleges the following.

Phillips grew up in Jamaica and then south Florida where he played competitive junior tennis. After completing high school in Dade County, Florida, Phillips turned down numerous scholarship offers to play tennis at American universities. He chose instead to attend the University of Toronto. Phillips began teaching tennis in Ontario while studying at U of T. He continued for several years to be involved in teaching tennis, and later became the Vice-President of Player Development with the Ontario Tennis Association (the “OTA”). In or about 2005, he began working with Tennis Canada and the OTA to deliver certification programs for other tennis professionals. He became the OTA’s Head Course Facilitator (an appointment made by Tennis Canada to the provincial association) in or about 2007. He was recognized by Tennis Canada as its Course Facilitator of the Year for 2005. In 2007, Phillips won a Coaching Association of Ontario award for Coaching Excellence in the area of High Performance Coaching. Phillips is in the process of completing a doctoral degree in higher education through the University of Toronto. He is presently on a leave of absence from this program.

[ 14 ] Defence counsel submit that paragraph 3 is not relevant and contains allegations that are improper because they have been inserted solely for “colour”.

[ 15 ] In George v. Harris , [2000] O.J. No. 1762 Lang J. (as she then was) said (at paragraph 20)

… portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous.”

[ 16 ] Defence counsel also submit that paragraph 3 offends rule 25.11(a) and (b). These clauses of rule 25.11 provide as follows.

The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; …

[ 17 ] Paragraph 3 of the statement of claim is a proper pleading. It sets forth part of the plaintiff’s reputation and is therefore relevant to the claim for damages for defamation. Paragraph 3 of the statement of claim is not struck out.

[ 18 ] Paragraph 4 of the statement of claim is the next paragraph which the defendants attack. Paragraph 4 alleges the following.

Phillips is gay, and a visible minority.

[ 19 ] Defence counsel attack paragraph 4 on the same grounds as they attacked paragraph 3, namely that paragraph 4 is irrelevant and has been inserted for colour.

[ 20 ] Unlike paragraph 3, paragraph 4 is not relevant to the claim for defamation. In my view, the words “Phillips is gay” are marginally relevant to the allegations in paragraph 35 of the statement of claim that the plaintiff sexually harassed Jonas and the allegations in paragraph 40 of the statement of claim that the plaintiff sexually harassed Cumberland and committed certain improprieties.

[ 21 ] However, there is no allegation that any of the defendants committed any of the alleged civil wrongs because of the plaintiff’s race. The words “and a visible minority” are not otherwise relevant. Those words in paragraph 4 of the statement of claim are struck out without leave to amend.

[ 22 ] Paragraph 11 of the statement of claim is the next paragraph which the defendants attack. Once again, defence counsel submit that this paragraph is irrelevant and has been inserted for colour.

[ 23 ] In paragraph 11 of the statement of claim the plaintiff alleges the following.

Phillips was hired to replace the outgoing Tennis Director, a Mr. Larry Jurovich. Phillips was aware when accepting the position that ORC, because of McCarrol’s personality, management style and priorities, had experienced substantial turnover in the Tennis Director role in the preceding several years (approximately 6, including Jurovich, over a 13-year span).

[ 24 ] In my view, paragraph 11 is irrelevant. This action is about whether the plaintiff was wrongfully dismissed. This action is not about how the employment of prior tennis directors at O.R.C. ended. Paragraph 11 of the statement of claim is struck out without leave to amend.

[ 25 ] Next the defendants attack paragraphs 13 to 15 of the statement of claim. There the plaintiff alleges as follows.

13. The first year of Phillips’ employment with ORC was stressful for Phillips. When he arrived in or about May 2007, he found that there was a “locker room” mentality among the tennis pros on staff, a lack of organization and a general lack of standards and/or competence among the tennis professionals. One of the reasons that Phillips was hired by ORC was his ability to draft and more importantly, implement manuals and codes of conduct for staff.

14. Phillips worked exceptionally hard to improve conditions at ORC. He was, however, at all times aware that he had no job security as long as he was working for McCarrol and ORC.

15. Phillips made some measureable progress in improving the quality of the work being done by the tennis professionals. He drafted and implemented a Tennis Professionals’ Handbook. He began enforcing a dress code and other standards for the tennis professionals, and also instituted regular staff meetings.

[ 26 ] The defendants submit that these paragraphs are irrelevant, embarrassing and inserted for colour.

[ 27 ] I disagree. These paragraphs allege that the plaintiff did a good job at O.R.C. In an action for wrongful dismissal like the present action, it is relevant and quite proper for the plaintiff to allege that he or she performed well as an employee. I decline to strike out paragraphs 13 to 15 of the statement of claim.

[ 28 ] Next, the defendants Jonas and Cumberland attack paragraph 19 of the statement of claim, again on the basis that this paragraph is irrelevant, embarrassing and inserted for colour. In paragraph 19 the plaintiff alleges the following.

The defendants Jonas and Cumberland were, among others, part of the Reggie camp. They had not performed as expected, and regularly failed to act in a professional manner, e.g., by missing staff meetings, failing to attend at group lessons they were to teach, failing to maintain the tennis centre in an appropriate and professional way, etc. Phillips would, when necessary, point out any issues. When he did so, it was done in professional manner and with reference to the Tennis Professionals’ Handbook that Phillips had drafted and which was approved by McCarrol.

[ 29 ] In my view paragraph 19 is proper. In part it alleges that the plaintiff did a good job as an O.R.C. employee like the allegations in paragraphs 13 to 15 of the statement of claim. In part paragraph 19 of the statement of claim is relevant to other allegations in the statement of claim such as the allegations in paragraph 40 that Cumberland made a false complaint about the plaintiff, and the allegations in paragraph 43 that Jonas and Cumberland conspired to destroy the plaintiff’s reputation and career. In paragraph 19 the plaintiff alleges in essence that Jonas and Cumberland had a motive to harm the plaintiff. I decline to strike out paragraph 19.

[ 30 ] Next, the defendants attack the last four sentences of paragraph 21. In those sentences the plaintiff alleges as follows.

He was, like Phillips, gay. Cumberland also had a very difficult home life. He struggled with both his sexuality and an incredibly acrimonious divorce between his parents. Cumberland’s personal struggles were known to McCarrol and ORC.

[ 31 ] In my view, the last four sentences of paragraph 21 of the statement of claim are not relevant. Those sentences are struck out without leave to amend.

[ 32 ] Next, the defendants attack the second sentence in paragraph 25 of the statement of claim. There the plaintiff alleges as follows.

McCarrol may well have initiated the complaint by approaching Cumberland and encouraging it.

[ 33 ] I agree that this sentence is improper because it is a speculative allegation. An allegation that a defendant may have done something is irrelevant. The plaintiff should either allege that McCarrol did initiate the complaint in question or drop the allegation altogether. The second sentence of paragraph 25 of the statement of claim is struck out with leave to amend.

[ 34 ] Next the defendants attack the second sentence of paragraph 31 of the statement of claim. In that sentence the plaintiff alleges the following.

He had already been aware of McCarrol’s tendency to fire Tennis Directors (or force them to resign and move on).

[ 35 ] The fact that McCarrol may have dismissed other tennis directors at O.R.C. is irrelevant. The issue in this action (amongst other issues) is whether McCarrol (and thus O.R.C.) wrongfully dismissed the plaintiff. The second sentence of paragraph 31 of the statement of claim is struck out without leave to amend.

[ 36 ] The defendants also attack the first sentence of paragraph 37. In that sentence the plaintiff alleges as follows.

McCarrol used Jonas’ complaint, which McCarrol himself had incited, and Cumberland’s First Complaint, as an opportunity to terminate Phillip’s employment for cause.

[ 37 ] In my view, this sentence is relevant to the allegations that the plaintiff was wrongfully dismissed. This sentence does not lack any material fact. Incitement is a fact in itself. The plaintiff need not allege in the statement of claim the evidence by which he intends to prove that McCarrol incited Jonas’ complaint. Subrule 25.06(1) directs those drafting a pleading to allege facts, not evidence. I decline to strike this sentence out.

[ 38 ] Next the defendants attack paragraphs 43 and 44 of the statement of claim. In those paragraphs the plaintiff alleges the following.

43. Phillips’ employment was terminated by ORC in or about July 2009. Thereafter, the Defendants McCarrol, Jonas and Cumberland conspired together to engage in a protracted, multi-faceted campaign to destroy Phillips’ reputation and career in the tennis industry.

44. McCarrol, in furtherance of this campaign, made defamatory remarks about Phillips to influential members of the tennis community and to influential ORC members. McCarrol in these statements compared Phillips to known sex offenders, including telling Zoe Horning (an ORC member) that Phillips had committed sexual improprieties and would “never work in the industry again” or words to that effect. McCarrol also told Susanna Sekeley (also an ORC member) that Phillips was “worse than Dani Nazarani” (a known sex offender in the tennis industry). McCarrol further advised ORC and anyone who would listen that Phillips ought not to be allowed to work with children and/or in the tennis industry because of his sexual improprieties. The Defendant Cumberland also participated in the campaign to compare Phillips to sex offenders, making similar statements to those made by McCarrol.

[ 39 ] The defendants submit that these paragraphs are speculative and lacking in material facts. Before bringing their motion attacking the statement of claim, O.R.C. and McCarrol served a demand for particulars on the plaintiff’s lawyers. They demanded the following particulars of paragraph 43 of the statement of claim.

8. Provide full particulars and material facts with respect to the allegation at paragraph 43 of the Statement of Claim that the Defendants “conspired together to engage in a protracted, multi-faceted campaign to destroy Phillips’ reputation and career in the tennis industry. Specifically:

a. Identify whether or not the plaintiff is pleading a conspiracy to injure or a conspiracy to commit an unlawful act with respect to the various defendants. If the Plaintiff is alleging the latter, clearly specify the unlawful act that the defendants conspired to perform;

b. Provide full particulars of the nature of the defendants’ agreement to conspire, including details with respect to the nature of their agreement and the dates, times and places of the defendants meetings to discuss their alleged agreement to conspire;

[ 40 ] In response, the plaintiff provided the following particulars.

8. With respect to the pleading of conspiracy:

(a) Mr. Phillips pleads that the defendants conspired to injure his economic interests and conspired to defame him;

(b) Mr. Phillips does not have particulars of the dates on which the defendants met and agreed upon the particulars of the conspiracy. However, the meetings almost certainly took place at ORC. The meetings roughly coincided with the happening of certain key events in the pursuit of the conspiracy, including:

(i) the Jonas complaint of June 3, 2009;

(ii) the Second Cumberland complaint made shortly thereafter;

(iii) the sending of the Defamatory Email, on or about July 10, 2009; and,

(iv) the complaints by Jonas and Cumberland to Tennis Canada.

Messrs. Cumberland and Jonas also discussed and agreed together to make the Tennis Canada complaints. Mr. Phillips does not have particulars of the date on which such discussion took place, but it was an oral discussion that took place shortly before they made their Tennis Canada complaints (dated December 11, 2009). The decision to make the Tennis Canada complaints was taken with the knowledge and encouragement of Mr. McCarrol, which he gave in oral discussions with Cumberland and Jonas that also took place shortly before the complaints were made. Mr. McCarrol reviewed the written complaints that Cumberland and Jonas submitted to Tennis Canada. This review also took place in or about late-November/early-December 2009, shortly before the complaints were made.

[ 41 ] In Balanyk v. University of Toronto , 1999 14918 (ON SC) , [1999] O.J. No. 2162 Cameron J. said the following (at paragraph 71) about a proper pleading of conspiracy.

The statement of claim in an action for conspiracy should describe concisely the material facts respecting the following:

(a) the specific parties to the conspiracy and their relation to each other;

(b) the agreement between the defendant and one or more others;

(c) the precise purpose or objects of the conspiracy;

(d) the overt acts alleged to have been done in pursuance and furtherance of the conspiracy by each of the alleged conspirators;

(e) the injury and special damage occasioned to the plaintiff by reason of the conspiracy.

[ 42 ] The specific parties to the conspiracy are named in the second sentence of paragraph 43 of the statement of claim. Their relationship to each other is alleged in paragraphs 7 and 8 of the statement of claim. There the plaintiff alleges the following.

7. The Defendant Jeff McCarrol is the General Manager of the Defendant ORC. McCarrol has authority over all aspects of the ORC, which authority has been delegated by the ORC Board of Directors.

8. The Defendants Sam Jonas and Aaron Cumberland are and were at all material times tennis professionals employed by the Defendant ORC.

[ 43 ] The agreement between three of the four defendants is alleged in the second sentence of paragraph 43 of the statement of claim. In law a conspiracy is an agreement between two or more persons who confederate to do an unlawful act, or to use unlawful means to do a lawful act.

[ 44 ] The precise purpose or objects of the conspiracy are alleged in the second sentence of paragraph 43: to destroy the plaintiff’s reputation and career in the tennis industry. The purpose or objects of the conspiracy are also set out in paragraph 8(a) of the plaintiff’s response to the demand for particulars: to injure his economic interests and to defame him.

[ 45 ] The overt acts done in pursuance and furtherance of the conspiracy by each of the alleged conspirators are set out in paragraphs 44 to 48 of the statement of claim. These paragraphs also identify which of the three conspirators committed which overt act.

[ 46 ] Paragraph 44 is quoted after paragraph [38] above. Paragraphs 45 to 48 of the statement of claim allege the following.

45. Also in furtherance of this campaign, an “anonymous” email (the “Defamatory Email”) was sent on July 10, 2009 in which Phillips was accused of criminal sexual acts involving minors. The Defamatory Email stated:

It should be noted that Mr. David Phillips – Tennis Director of the Ontario Racket [sic] Club has been fired because of Sexual Harassment charges on males at the club in addition to other illegal actions.

We hope that Tennis Canada ends their current relation as Tennis Consultant in the coaching department and does not intend on allowing Mr. Phillips a future position with Tennis Canada. The recent sexual assault charges on Mr. John Turner also a former ORC Tennis Director is something we hope will not continue through Mr. Phillips unprofessional and illegal actions.

Concerned People

46. The Defamatory Email was sent to the head of every provincial tennis association in Canada, to tennis directors and club owners of the major Ontario tennis clubs and to two people at the British Lawn Tennis Association, including the former ORC Tennis Director who immediately preceded Phillips in that role. The statements in the Defamatory Email were false and malicious, and were intended to destroy Phillips’ reputation and put a permanent end to his ability to work in the tennis industry. There were also other emails sent with essentially the same content.

47. The Defamatory Email was not directly addressed to the Defendant McCarrol. However, the Defendant McCarrol obtained a copy and re-published the Defamatory Email to a variety of tennis professionals both within and outside of ORC. Although McCarrol purported in his response to denounce the Defamatory Email, he in fact re-published it for the purpose of spreading and compounding the defamatory effect. He sent the Defamatory Email to individuals not on the original list of recipients.

48. The Defamatory Email was sent by Cumberland, at McCarrol’s urging or with his encouragement. In the alternative, the Defamatory Email was sent by Jonas, with the support and/or encouragement of McCarrol and/or Cumberland, all in furtherance of their common design to destroy Phillips’ reputation.

[ 47 ] The injury and special damage occasioned to the plaintiff are set out in paragraph 55 of the statement of claim. (In the law of defamation special damage is different from special damages. In general, the term “special damages” refers to out of pocket expenses in specifically known amounts already incurred by a plaintiff. In the context of a claim for defamation the term “special damage” refers to the actual pecuniary loss which a plaintiff has suffered as a result of the defamation complained of, as opposed to compensation for injury to reputation and personal feelings. Some kinds of slander are not actionable unless the plaintiff has suffered special damage. The claims in clauses (c) and (d) in paragraph 55 of the statement of claim are claims for special damage.

[ 48 ] In paragraph 55 the plaintiff alleges the following.

55. Phillips has suffered substantial damages as a result of the defendants’ defaming him, including but not limited to:

(a) loss of his reputation both within and outside of Ontario;

(b) the inability, due to the damage to reputation, to find employment in his chosen field, both within and outside of Ontario;

(c) loss of income in the approximate amount of $100,000 per year as a result of having to take employment at a tennis club in Saskatoon that is much less prosperous and prestigious than is ORC;

(d) loss of income in the form of consulting, coaching, and other fees that Phillips regularly earned before the defamation and which have either been substantially reduced or ceased altogether as a result of the defamation; and,

(e) mental distress that is prolonged and serious and for which he has sought and continues to seek medical treatment.

[ 49 ] Paragraphs 66 to 68 of the statement of claim also deal with the plaintiff’s claim for compensatory damages. Those paragraphs provide as follows.

66. Phillips is entitled to special damages for his past income loss, the costs caused by having to move to Saskatoon and the cost of undergoing any counselling and undertaking any medical treatment. Phillips is also entitled to special damages for the value of the legal fees incurred in defending himself at the Tennis Canada disciplinary hearing, as well as such further and other special damages as may be proved at trial.

67. Phillips is entitled to general damages for loss of reputation and mental distress. He is also entitled to general damages for the cost of future medical care in the form of counselling or medication required to help him address the depression and other psychological effects of the defendants’ misconduct.

68. Phillips is entitled to general damages for future income loss. As a result of the defendants’ conduct, particularly the defamation, Phillips was not able to secure employment with any tennis club in Ontario despite substantial efforts to mitigate his damages. He therefore took up employment in Saskatoon at a greatly reduced income level.

[ 50 ] In my view the allegations in paragraphs 7, 8, 43 to 48, 55 and 66 to 68 of the statement of claim together with the parts of the plaintiff’s response to the demand for particulars I have quoted set forth a proper allegation of conspiracy and comply with the elements of such a claim as set out in Balanyk , supra . I decline to strike out those allegations on the ground that they do not amount to a proper allegation of conspiracy.

[ 51 ] The defendants also attack paragraph 48 of the statement of claim as speculative because it alleges that the defamatory email was sent by Cumberland or in the alternative by Jonas.

[ 52 ] Subrule 25.06(4) provides as follows.

A party may make inconsistent allegations in a pleading where the pleading makes it clear that they are being pleaded in the alternative.

[ 53 ] In my view, paragraph 48 complies with subrule 25.06(4) because it makes it clear that the two allegations about who sent the defamatory email are pleaded in the alternative. I decline to strike out paragraph 48 on the ground that it is speculative.

[ 54 ] The defendants attack paragraph 44 of the statement of claim (quoted above after paragraph [38] of these reasons) as lacking in material facts because in several places in this paragraph the plaintiff does not identify all the persons to whom the defamatory words allegedly were published and does not allege specifically what the defamatory words as published were, or when they were published.

[ 55 ] The defendants make the same or similar complaints about paragraph 49 of the statement of claim. There the plaintiff alleges the following.

McCarrol also encouraged and caused the Defendants Cumberland and Jonas to file complaints with Tennis Canada against Phillips (the “Tennis Canada Complaints”). McCarrol urged them to file complaints that were identical to the complaints made to ORC, and agreed with Jonas and Cumberland that he would act as a witness to support the allegations they made. The Defendants McCarrol, Jonas and Cumberland initiated such complaints without any proper purpose, or any belief in the truth of the allegations, and solely for the purpose of furthering their campaign to destroy Phillips’ reputation in the tennis industry.

[ 56 ] Some of the same complaints were made in the demands for particulars, and were dealt with to some degree in the plaintiff’s response to the demands for particulars. The plaintiff did not serve and file any affidavit in response to these motions. I am therefore unaware to what extent he does or does not have the particulars (beyond what is alleged in the statement of claim) of what specific words were published, when they were published and to whom they were published as alleged in paragraphs 44 and 49, of the statement of claim.

[ 57 ] I therefore direct the plaintiff within 20 days to provide the particulars of paragraphs 44 and 49 of the statement of claim I have listed in paragraph [56] to the fullest extent he can, and to state clearly that these are the best particulars which he can provide at this time.

[ 58 ] The defendants O.R.C. and McCarrol also attack the first sentence of paragraph 49 of the statement of claim as speculative and lacking in material facts. I disagree. There is nothing speculative about the allegation that McCarrol caused Cumberland and Jonas to file the complaints with Tennis Canada. This is a pleading of material fact. The plaintiff need not allege the evidence by which he hopes to prove this material fact. I decline to strike out the first sentence of paragraph 49 of the statement of claim.

[ 59 ] Next Jonas and Cumberland attack clause 51(c) of the statement of claim as speculative and lacking in material facts. There the plaintiff alleges the following.

One of Jonas or Cumberland sent the Defamatory Email.

[ 60 ] Again, I disagree. This is a proper pleading of a material fact clearly made in the alternative. It complies with subrule 25.06(4). The plaintiff need not allege the evidence by which he proposes to prove this material fact. I decline to strike out this clause.

[ 61 ] Finally, O.R.C. and McCarrol attack the first sentence of paragraph 63 of the statement of claim. This sentence should be read in the context of the whole of paragraph 63. There the plaintiff alleges as follows.

McCarrol also induced Tennis Canada to breach its contract with Phillips. He did so by sending or encouraging others to send the anonymous email, by direct contact with Tennis Canada undertaken to encourage a breach, and by encouraging the unwarranted and meritless complaints to Tennis Canada by Cumberland and Jonas. Phillips has suffered damages as a result of McCarrol’s wrongful inducement to Tennis Canada to breach its contract with Phillips.

[ 62 ] O.R.C. and McCarrol complain that the first sentence of paragraph 63 is speculative and lacking in material facts. I do not agree that this sentence is speculative. I do agree that it is lacking in material facts. I therefore direct the plaintiff to provide the following particulars of this sentence: the general nature of the contract, whether the contract was oral or written, the relevant terms of the contract, the terms of the contract which Tennis Canada breached and the general nature of the damages which the plaintiff suffered as a result of this alleged breach. The first sentence of paragraph 63 is struck out with leave to amend to provide the above particulars.

[ 63 ] Where I have struck out particular allegations in the statement of claim with leave to amend I direct the plaintiff to make such amendments within 20 days.

[ 64 ] At the conclusion of argument of this motion counsel filed costs outlines with me. They also asked for the right to exchange and file with me written costs submissions not exceeding 10 pages in length. I direct the parties to do so within 20 days of the release of these reasons for decision.

__ (original signed) ___

Master Thomas Hawkins

DATE: November _ 29 __, 2012