Veenhof v. Cineplex Odeon, 2016 ONSC 7929

CITATION: Veenhof v. Cineplex Odeon, 2016 ONSC 7929

COURT FILE NO.: C-184-15

DATE: 2016-12-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Chadrick John Veenof, Plaintiff

AND:

Cineplex Odeon Corporation and Jane Doe, Defendants

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: Sudevi Mukherjee-Gothi, Counsel for the Defendant/Moving Party

Richard Campbell, Counsel for the Plaintiff/Responding Party

HEARD: December 15, 2016

ENDORSEMENT

[1] In its notice of motion, dated December 12, 2016, the defendant seeks an injunctive order as follows:

(a) Prohibiting the plaintiff, his friends, family members and any other individuals associated therewith, including Mr. Rick Veenhof, the plaintiff’s litigation guardian, from engaging in picketing and/or protesting activities at any Cineplex Entertainment LP movie theatre located in Ontario; and

(b) Prohibiting the plaintiff, his friends, family members and any other individuals associated therewith, including Mr. Rick Veenhof, from publishing statements which defame Cineplex, including but not limited to defamatory statements posted on social medial networks, and defamatory statements distributed via printed literature or common consumer products.

[2] The motion was opposed by the plaintiff and, in particular, Frederick John Veenhof, his litigation guarding in this proceeding.

[3] The motion was heard yesterday. Given the urgency, brief reasons are provided. The motion is dismissed.

LITIGATION BACKGROUND

[4] The litigation history of this matter is as follows:

(i) An incident occurred at the Cineplex Fairway Kitchener Theatre on June 22, 2009 involving Chadrick John Veenhof. It is alleged he sustained catastrophic injuries after choking on popcorn;

(ii) A statement of claim was issued on May 30, 2011;

(iii) The defendant served a notice of intent to defend and jury notice on August 5, 2011 and a statement of defence on June 15, 2012. The defendant alleges, inter alia, that the plaintiff’s injuries were as a result of the use of illegal substances at the time of the incident;

(iv) Pursuant to Rule 7.02, on April 2, 2014, Frederick John Veenhof served an affidavit consenting to act as the litigation guardian for the plaintiff. He is the father of Chadrick John Veenhof;

(v) Examinations for Discovery took place on April 8, 2014;

(vi) A pre-trial conference on the issue of liability occurred on January 18, 2016;

(vii) On April 14, 2016, former counsel for the plaintiff was granted an order removing him as lawyer of record;

(viii) Subsequently, the plaintiff retained Mr. Campbell as counsel on his behalf; and

(ix) The trial in this matter is scheduled for the long trial sittings commencing March 20, 2017.

EVENTS PERTAINING TO MOTION

[5] The events pertaining to this motion are either not in dispute or not denied and may be summarized in the following manner:

(i) On November 8, 2016, Frederick John Veenhof advised the manager of the Kitchener Cineplex Theatre of his intention to picket and distribute pamphlets to Cineplex customers, that he was seeking rehabilitation costs for his son and, if Cineplex did not respond within 5-7 days, 40-80 friends would start picketing;

(ii) The pamphlet stated the following:

Why you are not safe in Cineplex Theater

A few years ago my son Chad was watching the first hangover movie. He had purchased popcorn and a drink. Very early into the movie he choked on the popcorn.

We still don’t know why the theater acted (or did not act) the way they did but it puts all theater patrons at risk. Here is why

1. They did not turn on the lights

2. they did not stop the movie

3. they did not call 911

4. They did not ask if there was anyone in the theater that could help.

5. They did not follow the instructions from 911 after a patron called.

(Lay him on his side and clear Chad’s mouth)

6. They refused to allow a trained lifeguard to assist.

The theater has never helped with any rehab costs or even checked on

Chad to see how he was doing. Chad could benefit greatly from rehab (for

his balance) and eye surgery.

I ask you all to spread the word about this travesty and be aware you may

not be safe in any Cineplex theater.

Find out more here

https://www.facebook.com/notsafeatCineplexodeon

https://www.facebook.com/groups/107440848048

(iii) On December 6, 2016, Frederick John Veenhof picketed outside of the Kitchener Cineplex Theatre, holding a sign displaying the phrase “YOU ARE NOT SAFE IN THIS THEATRE TONIGHT”;

(iv) Police officers attended but no action was taken by them;

(v) Theatre staff received telephone calls from passersby inquiring as to the safety of the theatre;

(vi) Frederick John Veenhof has established a social media presence in Facebook pages entitled “Love and Strength for Chad Veenhof” and “You are not SAFE in a Cineplex Odeon Theatre”;

(vii) On December 6, 2016, Frederick John Veenhof published the following Facebook message:

December 6 at 8:45pm Kitchener

We have started a campaign to warn others of the danger of attending a movie at a Cineplex Odeon theater. We believe the public needs to be warned of this dangerous situation. Cineplex just does not care about your health and welfare.

We have started picketing and will progress to a full blown social media campaign as well as traditional brick and mortar protests.

I will make another post with all the details of moving forward with the social media advertising (facebook and google ads) sharing the story of your lack of safety while attending a movie at Cineplex Odeon.

Available next week will be “You are not safe at a Cineplex Odeon Theater” ice scarpers and bumper stickers. Please message me. They are FREE!

COMMUNICATIONS BETWEEN COUNSEL

[6] There was some communication between counsel, by correspondence and telephone messages, following the event on November 8, 2016. Such were incomplete given their availability, particularly as Mr. Campbell was attending on a trial in Kitchener on another case.

[7] In any event, a case conference was arranged with Regional Senior Justice Arrell, presumably as this action was not on the long trial list, who directed this motion be heard at the regular motions list on December 15, 2016.

STATED INTENTION FOR PICKETING AND SOCIAL MEDIA

[8] The activities of Frederick John Veenhof, and others, are said to be for the following purposes:

(a) to raise awareness as to what had happened to Chadrick John Veenhof on June 22, 2009;

(b) to locate people who were in the theatre on that evening, presumably witnesses; and

(c) to raise funds for rehabilitation expenses of Chadrick John Veenhof.

RESPONSES TO SOCIAL MEDIA

[9] While there is some dispute as to admissibility of evidence on this point, both parties report there has been responding activity on social media. Such is described as supportive of the plaintiff’s plight or raising concerns for safety at the Kitchener Cineplex Theatre.

ISSUES ON MOTION

[10] The issues on this motion, as in any injunction request, are complex.

[11] I pause at this point to express my appreciation to both counsel. Their material, prepared on short notice, was most helpful and their oral submissions were concise. In fairness to the litigants, counsel and the court, matters of this importance should always be scheduled as a full day long motion, not added to an already lengthy regular motions list. This motion was not reached until 4:15 p.m.

[12] The issues herein are of the following nature:

(a) procedural – entitlement to interlocutory relief; and

(b) merits – substantive requirements for interlocutory relief.

[13] Regrettably, this injunction motion fails on the first issue. I say that as the impugned conduct, despite an evidentiary shortfall, is of concern when the underlying action is on a trial list and about to be tried at the next sittings.

ANALYSIS

(i) Entitlement to Interlocutory Relief

[14] Section 101, Courts of Justice Act, provides:

(1) In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or a receiver and manager may be appointed by an interlocutory order, where is appears to a judge to be just or convenient to do so.

(2) An order under subsection (1) may include such terms as are considered just.

[15] Rule 40.01, Rules of Civil Procedure, adds:

An interlocutory injunction or mandatory order under section 101 or 102 of the Court of Justice Act may be obtained on motion to a judge by a party to a pending or intended proceeding.

[16] This motion is presented in the action between the parties as previously described. The statement of defence does not include a counterclaim for an interlocutory and permanent injunction. There is no indication by the defendant as to another pending or intended action seeking such relief. In my view, these deficiencies are fatal to the within motion.

[17] I agree with Mr. Campbell’s submission a request for a permanent injunction, either in the existing action or a pending or intended action, is a prerequisite to interlocutory relief. I also reject the submission of Ms. Mukherjee-Gothi to the contrary.

[18] In Kerr, Injunctions (6th ed. 1981), the following statement is made at p.1:

Injunctions are either interlocutory or perpetual. Interlocutory injunctions are such as to continue until the hearing of the cause upon the merits, or generally until further order. Perpetual injunctions are such as to form part of the decree made at the hearing upon the merits.

[19] This procedural issue was addressed by Borins J., as he then was, in Air Canada v. McDonnell Douglas Corp., [1993] O.J. No. 246 (Gen. Div.) and again in Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., 1995 10638 (ON SC), [1995] O.J. No. 1535, 23 O.R. (3d) 766 (Div. Ct.).

[20] In Air Canada, at paras. 16 and 17, he said:

16 Also, it would appear that Potts J. exceeded his jurisdiction in granting an interlocutory injunction in the absence of a claim by Air Canada in its statement of claim for a permanent injunction or a request on its part to amend its statement of claim to provide the necessary foundation for an interlocutory order. In this sense, the case is similar to Toms v. Agro, supra. In this regard I would rely on the following comments of Carthy J.A. in Ash v. Lloyd’s Corp, (1992) 1992 7659 (ON CA), 9 O.R. (3d) 755 (Ont. C.A.) at 760: “One cannot jump from his reasons to an assertion that an interlocutory injunction is available as a self-supporting cause of action. There must be a lis between the parties which is deserving of a trial before there can be anything that is interlocutory in the proceedings leading to trial.” In other words, as Air Canada has not requested a permanent injunction prohibiting Air Treads from proceeding under s. 17 this will not be an issue before the trial judge for determination. As well, it does not appear that Potts J. considered the tests which must be satisfied before the court may exercise its discretion to grant an interlocutory injunction as discussed in such cases as Yule Inc. v. Atlantic Pizza Delight Franchise, (1977) 1977 1198 (ON SC), 17 O.R. (2d) 505 (Div. Ct.).

17 Even in the absence of rule 40.011 I would have thought that it was fundamental that the remedy of an interlocutory injunction cannot be obtained in the absence of a pending or intended proceeding in which a permanent injunction is claimed. I would not have spent so much time on this issue were it not for the vehement position to the contrary taken by counsel for Air Canada in her submissions and reflected in paragraph 19 of her factum filed in support of the motion for the interlocutory injunction in which she conceded that “Air Canada does not seek a permanent injunction …”

[21] In Cellular Rental Systems, at para. 29, Borins J., made this clear statement:

... It is a fundamental principle that in the absence of a pending proceeding, or an intended proceeding, in which a permanent injunction is claimed, the court has no jurisdiction to grant an interlocutory injunction. This follows from s.101 of the Courts of Justice Act and rule 40.01 of the Rules of Civil Procedure.

[22] He went on to refer to his discussion in Air Canada, at para. 30 referring to:

… the significant number of motions brought in motions court in Toronto seeking an interlocutory injunction either in the absence of a pending, or intended proceeding, or in the absence of a claim for a permanent injunction in a pending proceeding.

[23] Lastly, at para. 32, Borins J. explained the purpose of interlocutory injunctions saying:

Interlocutory injunctions are granted with a view to preserving the status quo, to assuring that the subject-matter of the litigation is not destroyed or irreversibly altered before trial, and to protect the right of the plaintiff as set up in the action from being defeated by some act of the defendant before trial. For the moment I do not advert to the cases which say that an interlocutory injunction is an extraordinary remedy, especially upon disputed facts, and that it should be granted only in cases of the clearest necessity to prevent irreparable injury. For the moment I concede that for the purposes I have outlined within this framework a mandatory as well as a prohibitory injunction could be made, although the jurisdiction to make mandatory orders on interlocutory application has been very carefully circumscribed. In any event there can be no doubt that, whether in their nature they are prohibitory or mandatory, such interlocutory orders are made only with a view to assuring that the rights of the plaintiff asserted in the action may be effectually enforced by the Court in the event that the action ultimately succeeds.

[24] When there is no claim for a permanent injunction, there is, as Borins J. said, an absence of a lis between the parties. In other words, granting an interlocutory injunction in these circumstances would affect litigants in a profound manner yet there would never be a trial on the merits of that claim. The interlocutory order, in essence, becomes a final order.

[25] Of some interest, the caselaw relied on by Ms. Mukherjee-Gothi on the merits of her client’s position appear to all involve actions where injunctive relief is claimed in the pleadings. In particular, Pilot Insurance Co. v. Jessome, [1993] O.J. No. 172 (Gen. Div.), a comparable case as here on the facts, clearly involved an action seeking damages and an injunction (para. 14).

[26] In result, I conclude there is no jurisdiction to entertain the request for an interlocutory injunction. The motion, therefore is dismissed.

(ii) Substantive Requirements for an Interlocutory Injunction

[27] In view of my ruling above, I will only briefly review the issue as it relates to the merits of the claim for an interlocutory injunction.

[28] The substantive requirements for injunctive relief of this nature were established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, as follows:

(a) a serious question to be tried;

(b) irreparable harm; and

(c) balance of convenience.

[29] In Canada, we have long recognized the importance of a multitude of rights, many now enshrined in the Charter of Rights and Freedoms. The right of free speech and to protest are considered fundamental to any democratic country. So too is the right to operate a legitimate business without improper interference. A discussion of injunctive remedies often engages a balancing of those rights. Granting such relief may well impose significant limits on what might otherwise be considered the individual’s rights. In result, the RJR test sets a high standard.

[30] By way of general comment, there may well be merit to the defendant’s request for interlocutory relief. The purpose of the picketing and use of social media was said to be:

(a) to raise awareness of the event;

(b) to locate people in the theatre during the event, presumably witnesses; and

(c) to raise funds for the plaintiff’s rehabilitation expenses.

[31] But, how does this conduct achieve those goals when the underlying action is on the trial list. Surely the plaintiff’s original counsel made inquiry in the usual manner to locate witnesses early in the case. If there is merit to the plaintiff’s claim, and if liability is established, a damages award would be granted.

[32] Rather, the impression is that the impugned conduct is for an improper purpose, perhaps defamatory, intended to cause financial injury to the defendant or to bring pressure on it to provide compensation to the plaintiff.

[33] Findings necessary to meet the RJR test cannot be made on this evidentiary record. The defendant relies on the affidavit of Michael Paris, sworn December 12, 2016. Mr. Paris is a lawyer and is employed by the defendant as its Director, Legal Counsel. His affidavit, in large measure, relies on information provided by others, many of who are not identified, contrary to Rule 39.01(4). Further, Mr. Paris relies on his belief in attempting to address the RJR test; however, such is merely a statement as to position, not evidence.

[34] While I appreciate that this motion was brought on quickly to address activity that was of concern to the defendant, decisions of the court are based on facts as found in the evidence and the application of legal principles to those facts. The affidavit of Mr. Paris falls well short in presenting the evidence required.

[35] In result, interlocutory injunctive relief would not be granted on the evidence as tendered on behalf of the defendant. It may be that better evidence could be presented but an adjournment for that purpose was not requested.

[36] It any event, having regard to the issue of entitlement to interlocutory injunctive relief, I must add that the failure to seek a permanent injunction prevents the court from addressing the first component of the RJR test. How can there be a serious question to be tried when there will be no trial as the relief has never been claimed.

RESULT

[37] For these reasons, the defendant’s motion for interlocutory injunctive relief is dismissed. If the parties are unable to resolve the issue of costs, counsel are directed to exchange brief written submissions and deliver same to my chambers in Kitchener within 30 days of the release of this decision.

[38] Again, I thank counsel for the manner in which this motion was addressed and the courtesy and respect shown for the court and each other.

D.J. Gordon J.

Date: December 16, 2016