Clark v. Sports Cafe Champions a.k.a. 1682211 Ontario Inc., 2016 ONSC 8046
CITATION: Clark v. Sports Cafe Champions a.k.a. 1682211 Ontario Inc., 2016 ONSC 8046 COURT FILE NO.: CV-16-554449 DATE: 20161221
SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
DAVID CLARK
Plaintiff
-AND-
SPORTS CAFE CHAMPIONS A.K.A. 1682211 ONTARIO INC.
Defendant
BEFORE: F.L. Myers J.
READ: December 21, 2016
endorsement
[1] The registrar delivered to the plaintiff a notice in Form 2.1A as directed by the court in an endorsement dated November 23, 2016 that is reported at 2016 ONSC 7303. The plaintiff has delivered written submissions explaining his view of why the action is not frivolous or vexatious.
[2] In the prior endorsement, the action is described as follows:
The plaintiff sues the defendant seeking a public apology, an investigation of defective or unsafe construction, and $140,000 in damages plus costs.
The plaintiff’s complaint arises from alleged mistreatment by the cafe of a disabled patron whom the plaintiff had befriended. The plaintiff says that he bought his friend a vodka cooler and the cafe refused his request to provide his friend with a glass with ice. The plaintiff says that the waitress loudly and insultingly refused to serve his friend although his friend was hearing disabled and could not hear the insults. As a result, the plaintiff pleads that the defendant violated his right to equal service under the Human Rights Code, R.S.O. 1990, c H.19. The plaintiff pleads that he suffered anxiety for his friend and for all patrons who use the defendant’s establishment.
The plaintiff also claims that the defendant does not provide wheelchair access to its premises; its patio is unsafe in winter; it is a fire hazard; and it has failed to post “no smoking” notices as required under the Toronto Municipal Code, Chapter 709.
[3] In his submissions, the plaintiff advises that he will amend his statement of claim to remove the references to the Human Rights Code and the references to municipal building standards. The nub of the plaintiff’s complaint is that he was barred from attending the defendant’s premises and thereby lost friends and felt humiliated. This was not pleaded in the statement of claim. The plaintiff focuses on his complaints concerning the poor treatment of his friend and the poor physical state of the premises to try to find a cause of action to get him into court. The plaintiff relies on the Supreme Court of Canada’s decision in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co., 1995 146 (SCC), [1995] 1 S.C.R. 85. In that case, the Supreme Court recognized that a duty of care may be owed by a builder to the subsequent owner of a condominium to avoid construction defects that might later result in damage to persons or property. However, recognizing a duty of care owed by builders to the people who later own the property built does not provide a basis for a member of the public to sue a business for the facilities problems listed in para. 4 of my prior endorsement as set out above. Moreover, although a building owner may sue a builder for the cost to repair construction defects before they have manifested in actual damage to a third party, a user of premises who has not suffered any injury from alleged defects would have no similar right even if a duty of care existed. The plaintiff cannot repair the defendant’s premises and cannot sue the cost of repair. He has no loss therefore upon which to sue.
[4] Of greatest significance however, is that the plaintiff essentially concedes that what he is very upset about is not the physical state of the defendant’s premises, but the defendant’s failure to explain adequately to him the basis for his “banishment” and the consequent loss of his social connections. These have been very impactful on him. At para. 23 of his submissions, the plaintiff eloquently explains:
The intent and reality of the Plaintiff’s claim was never to appeal to the Human Rights Code for redress but only to the Ontario Superior Court of Justice for redress toward the Plaintiff for the damage that the Defendant thrust upon him including, but not limited to, his loss of lifestyle and community of friends he had developed a closeness with over the years – those who frequented Sports Café which the Defendant’s [sic] operates…and for the Defendant to compensate for the complete damage that the Defendant caused to the Plaintiff. The harm the Defendant caused the [Plaintiff] can never be recovered. The Plaintiff is eighty years of age. The damage he is enduring and the damage to his lifestyle can never be reversed.
[5] Whether the defendant has a right to exclude the plaintiff from attending its premises under the Trespass to Property Act, RSO 1990, c T.21 or otherwise, the defendant may not understand the degree of impact its decision has had on the plaintiff. Moreover, the plaintiff may not have understood the degree of impact that his behaviour appears to have had on the defendant’s employees and business. It strikes me that such is the stuff of a facilitated discussion and possible resolution for the future. I invite the defendant’s counsel to consider whether useful discussions with plaintiff may be possible. Be that as it may however, it is perfectly clear that nothing on the face of the statement of claim states a claim that could possibly succeed in court. The law offers no way to satisfy the plaintiff’s complaint about the loss of the social life that he wished to pursue at the defendant’s premises. A lawsuit with no reasonable chance of success is properly recognized as frivolous. Currie v. Halton Regional Police Services Board, 2003 7815 (ON CA). Moreover, I am satisfied from the content of the statement of claim and the plaintiff’s written submissions that this is a proper case for resort to Rule 2.1.
[6] The plaintiff’s action is dismissed without costs.
________________________________ F.L. Myers J.
Date: December 21, 2016