Court File and Parties

COURT FILE NO.: CV-16-1503 DATE: 20170713 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: KEVIN J. JOHNSTON, Plaintiff -and- ONTARIO LACROSSE ASSOCIATION, JOHN DOHERTY, CHUCK MILLER, GEORGE MACDONALD, JIM BOMHOF, MARION LADOUCEUR, JOE HILTZ, LYNN ORTH, MIKE VARANESI, RICK PHILLIPS, FRANK LAWRENCE, STAN COCKERTON, RON MACSPADYEN, JERAMIE BAILEY, FIONA CLEVELY, PETER FLOOR, WENDY BENNETT-COSTANTE, HEATHER MCCANNA, LORI SHEWCHUK, LAURIE HANSEN, PETER DEBRONE, BRUCE CODD and FIONA CLEVELY, Defendants

BEFORE: Ricchetti, J.

COUNSEL: Mr. Johnston, self-represented K. Kwinter, for the Defendants

HEARD: July 12, 2017

Endorsement

[1] At the conclusion of submissions, this court granted the motion with reasons to follow. These are those reasons.

The Motion

[2] This is a motion brought by the Defendants for an order striking out the Statement of Claim entirely for failing to disclose a reasonable cause of action (R. 21.01(1)(b) or dismissing the claim because the Statement of Claim is frivolous and vexatious (R. 21.01(3)(d).

[3] The Defendants seek an order that leave not be granted to amend the Statement of Claim.

[4] Mr. Johnston did not file any responding affidavit materials.

[5] I find that it is plain and obvious that the Statement of Claim does NOT disclose a reasonable cause of action. Leave is NOT granted to amend the Statement of Claim.

The Allegations in the Statement of Claim

[6] The Ontario Lacrosse Association (OLA) is a Defendant. Then there are numerous personal Defendants who are members of the Board of Directors and Board of Governors of the OLA.

[7] The Statement of Claim pleads that:

“Ontario Lacrosse Association has acted in a discriminatory, slanderously, libelously and with malice in the following way”.

[8] The balance of the Statement of Claim does not make any specific claims against or factual allegations against the individual Defendants. Except for Mr. Cockerton, the personal Defendants are not named in the balance of the Statement of Claim. The Statement of Claim states that Mr. Cockerton dealt with Mr. Johnston on arranging the disciplinary hearing described below.

[9] The material facts set out in the Statement of Claim can be summarized as follows:

[10] Mr. Johnston states that the OLA lied about its authority over lacrosse house league. Mr. Johnston states that the OLA lied about its insurance arrangements and (although not clearly set out) proceeds to charge OLA “associations” a fee for insurance for travelling teams. Mr. Johnston states that the OLA has refused to produce their 2014 and 2015 financial statements to him. Mr. Johnston states that the OLA has been “selling bonds to minor lacrosse associations under duress” to permit registration of the association with the OLA. As a result of the revocation of Mr. Johnston’s membership, Mississauga Tomahawks, his prior minor lacrosse association cannot retain him for web services.

[11] Mr. Johnston states that the OLA falsely disciplined him and removed him as a member of the OLA. Mr. Johnston states that the process was unfair and disregarded his rights. As a result of the discipline, Mr. Johnston has been subjected to libellous and slanderous statements by other non-named members of the OLA.

[12] Mr. Johnston states that he owned the domain name used by the Mississauga Tomahawks. He states that the Mississauga Tomahawks, at the behest of the OLA, improperly took his website causing him to lose all the work he had put into the website.

[13] Mr. Johnston states that the OLA discriminated against him.

The Law

[14] Rule 21.01(1)(b) provides that the court may strike out a pleading that discloses no reasonable cause of action. The Defendants must show that it is "plain and obvious" the claim cannot succeed. The test is met where:

(1) a plaintiff pleads allegations that do not give rise to a cause of action;

(2) a plaintiff fails to plead a necessary element of a cause of action;

(3) the allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts, or where, in other instances, mere conclusions of law are asserted.

See (Aristocrat Restaurants Ltd. v Ontario [2003] O.J. No 5331 (S.C.J.) para. 18; Hunter v Bravener et al [2003] O.J. No. 1613 (C.A.) paras. 3-5, application for leave to appeal dismissed [2003] S.C.C.A. No. 306)

[15] On a Rule 21 motion, the allegations as set out in the Statement of Claim, unless blatantly ridiculous or incapable of proof, must be taken as true. Vague allegations or allegations that are assumptions or speculation and which by their very nature incapable of proof by adducing evidence, are not to be taken as true. See Holland v Ontario [2000] O.J. No. 566 (S.C.J.); Nash v Ontario (1995), 27 O.R. (3d) 1 (C.A.); and A-G Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735).

[16] The focus on a motion to strike the pleadings is on the substantive legal adequacy of the claim. See Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.).

[17] The court's power to strike a claim is exercised only in the clearest cases. See Temelini v Ontario Provincial Police (Commissioner) (1990), 73 O.R. (2d) 664 (C.A.).

[18] Where the facts in a claim do not give rise to a cause of action, leave to amend should not be granted because the defect(s) in the claim cannot be cured by amendment. See Aristocrat Restaurants Ltd. v Ontario supra at para. 19.

The Analysis

[19] The Defendants submit that the Statement of Claim does not disclose a recognized or reasonable cause of action in tort or contract. I agree for the following reasons.

[20] The pleaded causes of action are discrimination and slander. Giving Mr. Johnston the most generous reading possible, there could also be a claim founded in fraud, improper discipline and conversion of his websites property.

The Personal Defendants

[21] As stated above, no claims are advanced against the personal Defendants and no material facts are pled which would raise a reasonable cause of action against the personal Defendants. There is no suggestion that Mr. Cockerton was not acting in his authority as Executive Director of the OLA.

[22] It is plain and obvious that the Statement of Claim cannot succeed against the personal Defendants.

[23] The Statement of Claim is struck as against the personal Defendants.

The Operation of the OLA

[24] The unspecified “lies” of the OLA about their authority and role in lacrosse house leagues does not give Mr. Johnston a reasonable cause of action by him. Mr. Johnston does not allege that the OLA breached their own by-laws or rules.

[25] At the heart of Mr. Johnston’s complaint is that he does not like the way the OLA operates. That is not a ground for a reasonable cause of action against OLA. Membership is voluntary and subject to the rules of the OLA.

[26] Turning to the discipline hearing, Mr. Johnston’s complaint is that he was disciplined unfairly due to the OLA’s motives. Yet, Mr. Johnston agreed that he had not taken the steps to appeal the OLA executive or the further appeal to the Canadian Lacrosse Association.

[27] I am not persuaded that the OLA, by enforcing their rules, even if Mr. Johnson felt were unfair or improper gives him a reasonable cause of action against the OLA.

Discrimination

[28] In order to found a cause of action against the OLA based on discrimination, the pleading must establish three elements: a distinction, a prohibited ground and creation of a disadvantage. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593.

[29] The Statement of Claim does not plead any facts in support of any of these elements. There is no legal basis that Mr. Johnston could even advance such a claim on the facts alleged.

[30] It is plain and obvious that there is no reasonable cause of action disclosed for discrimination against the Defendants and the action could not possibly succeed.

Defamation

[31] The tort of defamation requires the establishment of three elements: a defamatory statement which would tend to lower the Plaintiff’s reputation in the eyes of a reasonable person, words referring to the Plaintiff and communication of those words. See Grant v. Torstar Corp., [2009] 3 S.C.R. 640 at para 28.

[32] These elements must be specifically pleaded. Lysko v. Braley, [2006] O.J. No. 1137 at para 91.

[33] None of these elements are specifically pleaded. The words used and the specific person who used such words are nowhere to be found in the Statement of Claim.

[34] It is plain and obvious that no reasonable cause of action for defamation against the OLA is disclosed in the Statement of Claim.

Fraud

[35] Perhaps, Mr. Johnston sought to allege fraud against OLA.

[36] Fraud requires detailed and full particulars. In this case, not even the allegation of fraud is particularized let alone the elements which constitute fraud. The facts pleaded do not raise a spectre of fraud. Rather, Mr. Johnston seeks to challenge the business operations of the OLA which he considers are improper but such facts do not constitute a reasonable cause of action in fraud against the OLA.

[37] It is plain and obvious that no reasonable cause of action has been pleaded in fraud.

Improper Discipline

[38] During submissions, Mr. Johnston said that he did not attend the discipline hearing even though it is clear from the Statement of Claim that he received notice of the hearing. Mr. Johnston does not alleged that OLA did not follow their own rules or by-law.

[39] Mr. Johnston stated that he did not appeal his membership suspension in accordance with the by-laws of the OLA.

[40] I fail to see how the instigation and discipline hearing process establishes a reasonable cause of action against the OLA or Mr. Cockerton even though it resulted in the suspension of Mr. Johnston’s membership in the OLA.

[41] Whether there is some statutorily review available, is not clear – but that is not pleaded. Members have a right to choose not to be members if they do not approve of the operations or discipline process of the OLA.

[42] I find there is no reasonable cause of action relating to the discipline hearing or its result in the Statement of Claim.

Conversion

[43] The insurmountable difficulty with this possible cause of action is that the Statement of Claim states that it was the Mississauga Tomahawk’s Board of Directors which took Mr. Johnston’s websites. Mr. Johnston did not advance a claim against Mississauga Tomahawks or its members of the Board of Directors. If the Mississauga Tomahawks’ website belonged to Mr. Johnston, then it was the Mississauga Tomahawks or its directs which improperly converted this property.

[44] As pleaded, the Statement of Claim fails to disclose a reasonable cause of action in conversion against OLA.

Should Mr. Johnston require leave of the court for any amendment?

[45] The issue is whether the allegations in the Statement of Claim are capable of amendment so as to comply with pleading requirements in the Rules of Civil Procedure and Balanyk v. University of Toronto, [1999] O.J. No. 2162 (S.C.J.) at para 46.

[46] I am not persuaded that the facts set out in the Statement of Claim set out a reasonable cause of action or even a potential cause of action.

[47] I deny leave to amend the Statement of Claim. In these circumstances, it is not necessary for me to go on to consider whether the claims are frivolous and vexatious.

Conclusion

[48] The motion is granted. The Statement of Claim is struck in its entirety without leave to amend.

[49] The Plaintiff’s approval as to form and content of the Order is dispensed with.

Costs

[50] The Defendants shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to three pages, with attached Costs Outline and any authorities.

[51] Mr. Johnston shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to three pages with any authorities relied on attached.

[52] There shall be no reply submissions without leave.

Ricchetti, J. Date: July 13, 2017

COURT FILE NO.: CV-16-1503 DATE: 20170713 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KEVIN J. JOHNSTON (Plaintiff) -and- ONTARIO LACROSSE ASSOCIATION, JOHN DOHERTY, CHUCK MILLER, GEORGE MACDONALD, JIM BOMHOF, MARION LADOUCEUR, JOE HILTZ, LYNN ORTH, MIKE VARANESI, RICK PHILLIPS, FRANK LAWRENCE, STAN COCKERTON, RON MACSPADYEN, JERAMIE BAILEY, FIONA CLEVELY, PETER FLOOR, WENDY BENNETT-COSTANTE, HEATHER MCCANNA, LORI SHEWCHUK, LAURIE HANSEN, PETER DEBRONE, BRUCE CODD and FIONA CLEVELY (Defendants) ENDORSEMENT Ricchetti J. Released: July 13, 2017