2019 ONSC 3882
COURT FILE NO.: 04-CV-026293
DATE: 2019/06/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
OZ Merchandising Inc.
Plaintiff
– and –
Canadian Professional Soccer League Inc., Eastern Ontario District Soccer Association, The Ontario Soccer Association, Canadian Soccer Association, Canadian Soccer League Inc., CSL Association Inc., Ira Greenspoon, Vincent Ursini, Cary Kaplan, and Stan Adamson
Defendants
Nicholas Karnis, for the Plaintiff
Jordan Goldblatt, for the Defendants Eastern Ontario District Soccer Association and The Ontario Soccer Association
Andrew K. Lee, for the Defendant Canadian Soccer Association
HEARD: June 10, 2019
REASONS FOR decision – motions to strike the jury
RYAN BELL j.
Overview
[1] OZ Merchandising’s claims against Eastern Ontario District Soccer Association (“EODSA”), The Ontario Soccer Association (“OSA”), and Canadian Soccer Association (“CSA”) proceeded to trial before a jury. After approximately seven weeks of evidence, and at the conclusion of the plaintiff’s closing address, EODSA, OSA, and CSA moved to strike the jury. EODSA, OSA, and CSA submitted that because of the cumulative effect of 69 “areas of concern” in the plaintiff’s closing address, justice to the parties and the fairness of the trial process required that the matter be removed from the jury. In the alternative, these defendants sought “significant” correcting instructions in respect of the identified areas of concern.
[2] EODSA, OSA, and CSA submitted that the statements of concern:
(i) suggested new legal claims;
(ii) invited the jury to consider the consequences of its verdict;
(iii) misstated the jury’s role;
(iv) attempted to adduce evidence in the course of the closing address;
(v) misstated the legal issues;
(vi) misstated the evidence;
(vii) misstated the defendants’ positions; and
(viii) invited the jury to consider irrelevant matters.
[3] OZ Merchandising submitted that the “motion is unfair” in light of the jury having heard seven weeks of evidence, and that any mistakes in its closing could be remedied by corrective instructions.
[4] It is the right and duty of trial counsel to advance the client’s cause fearlessly and with vigour. Trial counsel must be given considerable latitude in doing so. That said, a closing address to the jury is not without limits. In this case, the line was crossed repeatedly.
[5] On June 11, 2019, I ordered that the jury be discharged and gave oral reasons, with more comprehensive written reasons to follow. In summary, I found that the cumulative effect of all the misstatements in the plaintiff’s closing rendered correction by an appropriate charge impossible. I concluded that, given the serious nature and extent of the transgressions, the fairness of the trial process and justice to the parties required that the matter not be left in the hands of the jury.
[6] My reasons for striking the jury after the plaintiff’s closing address follow.
Factual Context
[7] The defendants’ motions were the direct result of the plaintiff’s closing address. However, in order to place the offending statements in context and to determine the appropriate remedy, it is necessary to consider the manner in which OZ Merchandising has conducted this trial.
[8] OZ Merchandising commenced its claim in early 2004. OZ Merchandising served the jury notice.
[9] The plaintiff’s claims against these defendants are in negligence and for intentional interference with its economic interests, also referred to as the “unlawful means” tort (see A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177, at para. 2). Both claims are made in relation to each of the following:
(i) the issuance of International Transfer Certificates (“ITCs”) for two Ottawa Wizards’ players, Peter Mponda and Macdonald Yobe, in November 2003 (these claims are against CSA and OSA only);
(ii) an invitational soccer tournament that was submitted for approval to OSA in September 2003;
(iii) OZ Merchandising’s operation of indoor soccer leagues as a result of certain EODSA publications in December 2003; and
(iv) OZ Merchandising’s rentals to soccer organizations and the public, summer camps, skill camps and other soccer-related activities at the OZ Dome facilities, as a result of the same EODSA publications.
[10] The jury was selected on April 15, 2019. Following the selection of the jury, I heard a number of preliminary motions. Two of the preliminary motions related to certain evidentiary issues and the scope of the trial. In my April 16, 2019 endorsement on these motions, I ruled that the claims against the remaining defendants (noted on the trial record as having been “noted in default”) would not be determined by the jury and that no evidence would be permitted to be led at trial with respect to such claims.
[11] In its draft jury questions, OZ Merchandising included the question “Are the defendants CSA and OSA liable for the damages sustained by the Plaintiff as a result of the actions of the CPSL/CSL/CSLA?” On the scope of the trial motion, counsel for OZ Merchandising confirmed that its theory of liability was not based on vicarious liability, and that there was no pleading of agency. In the same April 16, 2019 endorsement, I concluded that the plaintiff’s claim based on the group enterprise theory of liability was not tenable in law (having been emphatically rejected by the Court of Appeal in Yaiguaje v. Chevron Corporation, 2018 ONCA 472, 141 O.R. (3d) 1, leave to appeal to the S.C.C. refused, 2019 CarswellOnt 5162, at paras. 75-76). I ruled that the claim based on the group enterprise theory of liability was not to go before the jury and that no evidence would be permitted to be led at trial with respect to any such claim.
[12] Rather than correct the plaintiff’s proposed opening statement, the plaintiff elected not to open to the jury. The defendants then sought leave to open. Leave was granted.
[13] Throughout the trial, the plaintiff persisted in attempting to elicit evidence that was irrelevant and contrary to my previous evidentiary rulings, for example, matters leading up to the 2001 consent order of Rutherford J. and what I describe as the “1998 Turkish player issue.” I ruled, repeatedly, that these matters were irrelevant to the questions the jury would have to determine in relation to the claims against these defendants. The frequency with which I was compelled to rule on the same issues compels only one conclusion: my rulings were deliberately ignored by the plaintiff.
[14] Numerous mid-trial instructions to the jury were required. They included:
• an instruction to disregard statements made by the plaintiff’s principal witness, Omur Sezerman, regarding the relationship between EODSA, OSA, and CSA;
• an instruction to disregard statements made by Mr. Sezerman about a “cover-up”; Mr. Sezerman was directed to refrain from making such comments;
• an instruction to disregard Mr. Sezerman’s comments about what is “legally right or wrong” or “morally right or wrong” and to disregard his statements about a monopoly and things being a matter of “common sense”; Mr. Sezerman was directed to refrain from making such statements;
• an instruction to disregard Mr. Sezerman’s statement that the Canadian Professional Football League “lost the trial”;
• an instruction to disregard the statement by plaintiff’s counsel that “this goes to the plaintiff’s claim against the other defendants”;
• an instruction that there was no claim by the plaintiff against EODSA, OSA, or CSA for the revocation of the Ottawa Wizards’ franchise;
• an instruction to disregard a question asked of Mr. Ursini about him being a defendant in these proceedings; and
• an instruction that the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, apply to civil proceedings before the Court of Appeal and in the Ontario Superior Court of Justice, and not to administrative processes.
[15] In my April 26, 2019 ruling that certain documents would not be permitted to go in evidence, I observed that there is no claim asserted against these defendants for breach of the duty of good faith, and that the claims against these defendants are not about any fines that were levied against the plaintiff.
[16] On May 6, 2019, the plaintiff moved for a mistrial. The basis for the plaintiff’s motion was “the number and nature of the errors in these rulings [in reference to the preliminary motions] cannot but help but lead the Plaintiff to believe that it has no chance of a fair trial if the trial continues” and “[t]he trial judge’s conduct during the trial.” As I noted in my May 7, 2019 endorsement dismissing the motion for a mistrial, plaintiff’s counsel was attempting to re-litigate matters addressed in my previous rulings.
[17] On May 7, 2019, the plaintiff moved for reconsideration of a number of rulings, including my ruling that the claim based on the group enterprise theory of liability was not one that would go before the jury because it was not tenable at law. The plaintiff also moved for leave to amend the statement of claim. The proposed amendments included a plea of agency, a plea that the EODSA, OSA, and CSA are vicariously liable to the plaintiff, and in breach of contractual obligations and “duty of care, good faith and fair dealing” to the plaintiff. It is of note that the proposed amendments were substantially the same as those that were considered and refused by Hackland J. in December 2018 (OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2018 ONSC 7468). I concluded that the plaintiff’s repeated attempts to re-litigate issues already determined were abusive of the process of the court and dismissed the motion.
[18] Outside the presence of the jury, Mr. Sezerman repeatedly spoke over counsel for the defendants during their submissions. At least twice, he referenced his intention to appeal.
[19] EODSA and OSA submitted that the plaintiff’s conduct throughout the trial was consistent with an effort on the plaintiff’s part to provoke a mistrial. CSA described the plaintiff’s conduct throughout as a strategy to ensure that the case would never get to the jury. Given the factual context, it is difficult to avoid this conclusion. Within the framework of my prior rulings on motions, the evidentiary rulings throughout the trial, and the mid-trial instructions to the jury, it is impossible to see the vast majority of the misstatements in the plaintiff’s closing address as anything other than blatant transgressions.
The Applicable Law
[20] The purpose of the jury address is “to present the party’s case clearly and in a way that is of help to the court in the performance of its duty” (R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 104). Considerable latitude is afforded counsel to enable her to advance the client’s cause fearlessly and with vigour (Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767 (C.A.), at paras. 76-77). There are, however, important limits on the bounds of a closing jury address to ensure that the jury is not distracted from its task of deciding the case on the evidence and to ensure that neither the appearance nor the reality of trial fairness is undermined (Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), at paras. 15-16).
[21] Objectionable comments in counsel’s closing address include (see Geoffrey D.E. Adair, On Trial: Advocacy Skills Law and Practice, 2nd ed. (Markham, LexisNexis Canada Inc., 2004):
• Misstatements on the evidence: “It is trite to say that such evidence as is referred to by counsel must be accurately stated to the jury” (at p. 466).
• Invitations to the jury to consider irrelevant matters: This is “a most serious transgression” as it tends to sway the jury from their proper task of deciding the case on the evidence (at p. 467).
• Comments that inform the jury of factual matters not in evidence: Any attempt by counsel to give evidence before the jury is, of course, highly inappropriate (at p. 470).
• Statements that call the attention of the jury to the consequences of their verdict: The consequences of a verdict are not properly within the scope of the jury’s concern (at p. 472).
• Unfair comment on the evidence: Counsel must refrain from comment upon the evidence that is unfair; it is the duty of the advocate not to take unfair advantage of the evidence (at p. 475).
[22] The right to trial by jury in a civil case is a substantive right and should not be interfered with without just cause or cogent reasons. A party moving to strike a jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence or in the conduct of the trial which merit the discharge of the jury. In the end, the court must decide whether the moving party has shown that justice to the parties will be better served by the discharge of the jury (Cowles v. Balac (2006), 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), leave to appeal to the S.C.C. refused, [2006] S.C.C.A. No. 496, at paras. 36-37).
[23] The object of a civil trial is to provide justice between the parties. The paramount objective of the civil justice system is to provide the means by which a dispute between the parties can be resolved in the most just manner possible. Neither party should have an unfettered right to determine the mode of trial. Instead, when a disagreement arises, the court should have the power to determine whether justice to the parties will be better served by trying a case with or without a jury. Considered in this context, the broad discretion conferred on a court confronted with a motion to strike a jury is a “sensible” one (Cowles, at paras. 38-39).
[24] In dealing with an improper address to the jury, the trial judge has three options (Adair, at p. 477-478):
She can immediately correct any misstatements of counsel during the address or after.
She can dismiss the jury and take the matter from the hands of the jury, provided that non-offending counsel are given the option as to whether or not they wish the matter to continue with a new jury.
She can declare a mistrial if she is of the opinion that the offending remarks are likely to make it difficult if not impossible for the jury to properly discharge their function.
[25] These defendants did not seek a mistrial; they did not wish the matter to continue with a new jury. They emphasized that the claim against them has been outstanding for 15 years, all of the evidence is in, and they would suffer prejudice not compensable by an award of costs if they had to go through another trial.
[26] As the Court of Appeal observed in Groen v. Harris, 2010 ONCA 621, at para. 8, focusing on each offending comment one by one “masks the reality that, as is often the case, it [is] the cumulative effect of the comments that caused the trial judge the greatest concern.” In Groen, the Court of Appeal held there was no basis to interfere with the trial judge’s assessment that a number of the statements in counsel’s closing address crossed the line and, taken together, carried an impact that she could not correct.
Analysis of the 69 Statements
[27] The complete list of the statements of concern as identified by EODSA, OSA, and CSA is attached as an appendix to these reasons, together with the position on each taken by these defendants, the plaintiff’s position, and my assessment. Below, I have highlighted some of the statements from each of the identified categories of objectionable comments.
(i) Statements suggesting a new claim
[28] On several occasions, plaintiff’s counsel made statements to the jury that suggested a new claim against OSA and CSA based on vicarious liability for the conduct of the CPSL. Counsel’s statement that “the OSA and the CSA failed to investigate the [CPSL’s] wrongdoings and in doing so they became responsible for the CPSL’s actions and the loss of revenue to the Ottawa Wizards” is one such example. The statement that “the OSA and the CSA were silent to the Wizards complaints [about the CPSL] and I would suggest that that makes them responsible for the CPSL’s actions” is another. The statement that “by applying double standard, the OSA and the EODSA became responsible for the loss of revenue resulting from the cancellation of the OZ Optics invitational tournament” suggested a vicarious claim for the conduct of another of these defendants. Not only is there is no claim based on vicarious liability – and plaintiff’s counsel acknowledged there was no vicarious liability claim in the course of the scope of trial motion and then subsequently sought an amendment to the pleading to include such a claim – the statements by counsel were made in blatant disregard of my ruling that the group enterprise theory of liability is not one that is tenable in law and not one that would go before the jury. Such statements were highly inappropriate.
[29] Repeatedly throughout the plaintiff’s closing address, counsel made reference to Mr. Sezerman having acted in good faith and these defendants having acted in bad faith. For example, counsel told the jury: “I would suggest to you that the plaintiff acted in good faith throughout and that the EODSA, OSA and CSA acted in bad faith.” As I stated in my April 26, 2019 ruling on the admissibility of certain documents, there is no claim asserted against these defendants for breach of the duty of good faith. Notwithstanding Hackland J.’s December 2018 decision, the plaintiff moved before me to amend its claim to include a reference to the “duty of care, good faith and fair dealing to the Plaintiff.” I dismissed the plaintiff’s motion. Again, plaintiff’s counsel misstated the nature of the claims against these defendants, in blatant disregard of previous court rulings.
[30] Plaintiff’s counsel also stated to the jury that “the EODSA, the OSA and the CSA took freedom of choice and freedom to make a living from soccer by posting warnings, mass emails and suspending referees.” There were other references to the violation of freedom of choice and freedom of association.
[31] Suggestions of new legal claims in the closing address would be highly inappropriate in any circumstance. In this case, the suggestions were all the more improper given the claims based on intentional interference with the plaintiff’s economic interests – the unlawful means tort. The unlawful means tort has two elements: (i) an unlawful act by the defendant against a third party; and (ii) the defendant must have intended that its conduct toward the third party would result in economic harm to the plaintiff. Conduct is considered unlawful for the purpose of this tort if it would give rise to a civil claim by the third party, or would give rise to a civil claim by the third party had the third party suffered loss as a result of the conduct (A.I. Enterprises Ltd., at para. 76). Given the nature of the existing claims, counsel’s suggestions of new claims were highly improper and prejudicial to the fairness of the trial process.
(ii) Statements that invited the jury to consider the consequences of its verdict
[32] In the course of his closing address, plaintiff’s counsel invited the jury to consider the consequences of its verdict. Two examples will suffice: “Your decision in this case might change the way that soccer is governed” and “Mr. Sezerman has already stated that if OZ wins the trial, he will go back to the associations and start over with the dream he had 15 years ago. He will use the money to re-invest and grow soccer. Winning this lawsuit … soccer association[s] will change the way soccer is run in Canada.”
[33] The consequences of a verdict are not properly within the scope of the jury’s concern. Such statements were highly inappropriate.
(iii) Misstatements as to the role of the jury
[34] In his closing address, plaintiff’s counsel stated that “the soccer community wanted to teach Mr. Sezerman a lesson. This is why we are here today in front of you. It is up to you to decide whether what the soccer associations did was right or wrong.” Counsel also remarked: “He [Mr. Sezerman] tried to change the situation. While trying to do so he arguably made some enemies who wanted to teach him a lesson. That’s why we’re here today.” Another example is: “The reason we are here is because these organizations allowed these players to go free” [in relation to the ITC claims].
[35] The role of the jury is to decide the facts and to render a verdict. These statements in the plaintiff’s closing address misstated the jury’s role.
(iv) Attempts to adduce evidence in closing argument not adduced at trial
[36] Several times in his closing address, plaintiff’s counsel informed the jury of factual matters not in evidence. For example, plaintiff’s counsel stated that “Mr. Sezerman feels he is fighting for all the teams that have been treated in the same way he was, but don’t have the resources or the will to stand up and fight against the unfair way that these organizations sometimes run soccer.”
[37] In his closing address, plaintiff’s counsel discussed the FIFA Rules and whether there was an option to return Mr. Mponda and Mr. Yobe after the ITCs had been issued or whether there was an opportunity to dispute the issuance of the ITCs under the FIFA Rules. Not only was there no evidence adduced in respect of the FIFA Rules at trial, this very fact – that no evidence had been adduced in respect of the Rules – was discussed during the pre-charge conference held the day before the closings commenced. Plaintiff’s counsel was under no misapprehension that he was not to raise this matter before the jury but, seemingly in defiance of the court, proceeded to do so. I agree with counsel for EODSA, OSA, and CSA that to suggest – as plaintiff’s counsel did – that the jury could or should, in the absence of any evidence, read the FIFA Rules and apply them to the facts, is inherently prejudicial.
[38] I provide one further example from this category. Counsel referred to the 1998 Turkish player issue and suggested that OSA and EODSA made a mistake regarding ITCs. I ruled repeatedly during the trial that these matters were irrelevant to the claims against these defendants. In flagrant disregard of my rulings, plaintiff’s counsel raised these matters before the jury.
[39] These were very serious transgressions by plaintiff’s counsel. The offending comments could only serve to distract the jury from its task of deciding the case on the evidence. The statements impinged on the fairness of the trial.
(v) Misstatements of the Law
[40] Several times in his closing address, plaintiff’s counsel misstated the legal issues. He incorrectly stated the law in respect of the standard of care by describing the reasonable person as one who was allegedly affected by the defendants’ conduct. For example, plaintiff’s counsel stated the following: “consider it from the point of view of club manager or administrator” and “we say the reasonable person is the recreational soccer player, most of who we suspect are not lawyers…” These statements are incorrect in law.
[41] It was also incorrect for plaintiff’s counsel to state that “the unlawful act is the issuance of the ITCs.” In the context of the unlawful means tort, the unlawful act must be an act done to the third party.
[42] One of the most perplexing statements by plaintiff’s counsel was his statement made in relation to alleged misleading statements: “you can’t do that even in commercial advertising.” An already complex case was made more confusing by counsel’s inappropriate and incorrect statements.
[43] Trial judges are presumed to know the law and to be able to explain it to a jury (Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 CanLII 45019 (ON CA), 60 O.R. (3d) 665 (C.A.)) Defendants’ counsel acknowledged that I could instruct the jury on the proper law and could correct the misstatements of law by plaintiff’s counsel. They submitted that the cumulative effect of these misstatements, together with all of the other transgressions, undermined the fairness of the trial to such a degree that justice required the matter be removed from the jury.
(vi) Misstatements of the Evidence
[44] I do not propose to review in detail the many misstatements of the evidence in the closing address of plaintiff’s counsel. The following are a few examples; the remainder are set out in the appendix to these reasons.
[45] Contrary to counsel’s statement, there was no evidence that “the CSA encouraged the EODSA and CPSL to change its attitude toward OZ.”
[46] There was no evidence that “the CPSL acted to prevent the Wizards from directly appealing to the OSA.”
[47] Plaintiff’s counsel stated that Mr. O’Leary, one of the experts at trial, “didn’t gather any information about the Ottawa Wizards.” During argument on the motions to strike the jury, plaintiff’s counsel conceded that Mr. O’Leary was aware of how well the team had performed. His comment that Mr. O’Leary did not gather “any information” was a misstatement of the evidence. Counsel must state the evidence accurately to the jury.
[48] Plaintiff’s counsel stated in his closing address that Mr. McKetsy “may have thought that the real owner of the players was the team in Malawi.” This proposition was never put to Mr. McKetsy.
[49] The comment that “[a]ll the [associations] united against OZ” is a misstatement of the evidence.
[50] Plaintiff’s counsel referred to Panet J.’s 2003 decision on a motion for interim injunctions[^1] and made argument before the jury in respect of what was before the court at that time and what ought to have been before the court. Counsel suggested that the OSA was not aware of the issues on the injunction proceedings. It was entirely inappropriate for plaintiff’s counsel to make these submissions and was, in any event, a misstatement of the evidence.
[51] Contrary to counsel’s statement, there was no evidence that “the defendant acted with substantial certainty that its conduct [in relation to the ITCs] would result in a breach.”
[52] There was no evidence to support counsel’s statement that “I suggest to you that more people would read an email than a web-page.”
(vii) Misstatements as to the Defendants’ Positions
[53] In his closing address, plaintiff’s counsel also misstated the defendants’ positions. I provide just one example here. Plaintiff’s counsel stated that “the defence argued yesterday there were no messages about players [not participating] at OZ dome.” Plaintiff’s counsel misstated the defence argument. The defence in its closing address stated that there was no direct evidence on this issue.
(viii) References to Evidence Ruled Irrelevant
[54] Finally, plaintiff’s counsel referred to evidence ruled irrelevant. In my view, the most serious examples of such improper statements – serious given the potential to confuse the jury and to distract it from its task – were counsel’s repeated statements as to what occurred with the CPSL. The potential for confusion was elevated because counsel prefaced these remarks with a statement that issues involving the CPSL were not part of what the jury had to decide.
The Appropriate Remedy
[55] There were numerous improprieties and statements made by plaintiff’s counsel in his closing address that were highly inappropriate. Taken in isolation, some of the improprieties, for example, some of the misstatements of the evidence and the misstatements of the defendants’ positions, could be cured by a series of correcting instructions.
[56] Of much greater concern, however, were the statements that suggested new legal claims, the statements that improperly invited the jury to consider the consequences of its verdict, the misstatements as to the jury’s role, the attempts to adduce evidence in the course of the closing, and the misstatements of the law. These statements were, in my view, highly prejudicial. The case was already complex because of the claims based on the tort of unlawful means. The serious nature and extent of the misstatements in the plaintiff’s closing, particularly those referring to new causes of action and evidence not before the court, coupled with the misstatements on the law, rendered an already complex case more challenging.
[57] I recognize the considerable latitude extended to counsel in their closing address to enable counsel to fairly and fully advance their client’s cause. But there are limitations. In this case, plaintiff’s counsel crossed the line, not once, not twice, but many times. The cumulative effect of all the misstatements rendered correction by an appropriate charge impossible; any such charge would be both unwieldy and ineffective. The plaintiff’s closing address undermined the fairness of the trial process. Justice to the parties would be better served if this matter did not remain in the hands of the jury.
[58] For these reasons, and with considerable regret given the stage of the trial, I discharged the jury on June 11, 2019. I will determine the issues of liability and damages.
Madam Justice Robyn M. Ryan Bell
Released: June 21, 2019
APPENDIX A
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“This dream came to an end as a result of the defendants.”
Irrelevant.
Relevant.
Irrelevant and suggests involvement of CPSL.
“The soccer community wanted to teach Mr. Sezerman a lesson. This is why we are here today in front of you. It is up to you to decide whether what the soccer associations did was right or wrong.”
Misstates the role of the jury.
Not a misstatement; jury is deciding what is right or wrong.
Misstates the role of the jury – role of the jury is to decide the facts and to render a verdict.
“He [Omur Sezerman] tried to change the situation. While trying to do so he arguably made some enemies who wanted to teach him a lesson. That’s why we’re here today.”
Misstates the role of the jury.
Not a misstatement; jury is deciding what is right or wrong.
Misstates the role of the jury – role of the jury is to decide the facts and to render a verdict.
“You will decide if the actions of the defendants were right or wrong today.”
Misstates the role of the jury.
Not a misstatement; jury is deciding what is right or wrong.
Misstates the role of the jury – role of the jury is to decide the facts and to render a verdict.
“I would suggest to you that the plaintiff acted in good faith throughout and that the EODSA, OSA and CSA acted in bad faith.”
Suggests a new claim: breach of duty of good faith.
Can be clarified through a correcting instruction.
Suggests a new claim. No existing claim for breach of the duty of good faith – subject of prior ruling.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“Even though the OSA, CSA and EODSA had months of advance notice about the Oz Dome Soccer Club bringing in Turkish players from the team Fenirbace to play for Oz Dome Soccer Club in the
late 90s and they initially issued players cards for those four players. Later on the EODSA found out that Dan Pazuk of the CSA had made a mistake saying the Turkish players did not need player ITCs which allowed the EODSA to issue player cards. When the mistake was discovered by Bruce Henderson instead of reprimanding and disciplining Dan Pazuk, the EODSA, OSA, and CSA blamed the Oz Dome Soccer Club.”
Counsel attempting to adduce evidence in the course of closing – evidence ruled inadmissible at trial.
Counsel reviewing Mr. Sezerman’s evidence.
Counsel attempting to adduce evidence in the course of closing argument in respect of subject matter ruled inadmissible.
“The OSA sided with the CPSL against the Ottawa Wizards, and overturned the EODSA decision, but the CSA broke their own appeal rules.”
Argument in respect of evidence that was ruled inadmissible in trial.
Counsel’s submission was in respect of another rule not followed.
Counsel attempting to adduce evidence in the course of closing argument in respect of subject matter ruled inadmissible.
“The EODSA decided not to renew the Oz Dome Soccer Club application for 2004, claiming that the Soccer Club fell below the minimum four team clause.”
Misstates the evidence.
Not a misstatement.
Counsel misstated the evidence - Exhibit 1, Tab 208A.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“[Gillian Troy suggested a one year moratorium] Mr. Thibault overruled her and also stated that no board decision was necessary. See this at Tab 180B.”
Misstates the evidence.
Not a misstatement.
The decision was made by the board of directors. There was no “overruling” by Mr. Thibault. Misstatement of the evidence.
“After consulting with the OSA, the EODSA decided to add a sentence in the original posting.”
Misstates the evidence.
Concedes could be corrected.
Misstatement of the evidence.
“The OSA and the CSA failed to investigate the [CPSL’s] wrongdoings and in doing so they became responsible for the CPSL’s actions and the loss of revenue to the Ottawa Wizards.”
Suggests a new claim: vicarious liability for the CPSL’s revocation of the Ottawa Wizards franchise.
Plaintiff is only seeking to hold these defendants responsible for their own actions.
Suggests a new claim. Plaintiff’s counsel previously acknowledged no claim for vicarious liability. Group enterprise theory of liability previously ruled not tenable in law.
“The OSA and the CSA were silent to the Wizards complaints [about the CPSL] and I would suggest that that makes them responsible for the CPSL’s actions.”
Suggests a new claim: vicarious liability for CPSL’s revocation of the Ottawa Wizards franchise.
Plaintiff is only seeking to hold these defendants responsible for their own actions.
Suggests a new claim. Plaintiff’s counsel previously acknowledged no claim for vicarious liability. Group enterprise theory of liability previously ruled not tenable in law.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“First the OSA should have taken some action against the CPSL, and if they did not do so the CSA should have stepped in since they are the ultimate authority in Canada.”
Suggests a new claim: vicarious liability for CPSL’s revocation of the Ottawa Wizards franchise.
Plaintiff is only seeking to hold these defendants responsible for their own actions.
Suggests a new claim. Plaintiff’s counsel previously acknowledged no claim for vicarious liability. Group enterprise theory of liability previously ruled not tenable in law.
“The failure to recommend the OZ facilities was bad faith and a breach of the duty of care. CSA failed to list the OZ facilities on its website. CSA blacklisted the OZ facilities.”
Misstates the law.
Plaintiff maintains there is some evidence.
This statement is a misstatement of the law.
“When the CPSL revoked the Wizards franchise in December 2003 the OSA and the CSA assumed the Wizards players were free agents and could be transferred to other teams. By doing so, they became legally responsible for the dissolution of the Wizards.”
Suggests a new claim: vicarious liability for the CPSL’s revocation of the Ottawa Wizards franchise.
Plaintiff submits that it did not use the word “dissolution.”
Suggests a new claim. Plaintiff’s counsel previously acknowledged no claim for vicarious liability. Group enterprise theory of liability previously ruled not tenable at law.
“Employees of the OSA and the CSA seem to have a habit of making mistakes and blaming the teams, clubs and members for the mistakes.”
Misstates the evidence/no evidence.
Mr. Sezerman testified to this effect.
There is no evidence in support of this statement. Evidence surrounding the 1998 ITC Turkish player issue repeatedly ruled irrelevant.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“There is evidence that no employee of the OSA, CSA and EODSA was disciplined for making mistakes.”
Misstates the evidence.
Not a misstatement.
The evidence at trial was that no employee was disciplined for making “mistakes” with respect to the ITCs that are the subject matter of these claims. There is no evidence on the broader statement made by plaintiff’s counsel. This is a misstatement of the evidence.
“The EODSA the OSA and the CSA … took freedom of choice and freedom to make a living from soccer by posting warnings, mass emails and suspending referees.”
Suggests a new claim.
“Just a statement.”
Suggests a new claim.
“However, in July, 2003 after winning an injunction against the OSA, CSA and EODSA, the CPSL changed its attitude towards OZ.”
Misstates the evidence as the order was obtained on consent. Counsel acknowledges that the injunction proceedings were in July 2001.
The relationship “soured” after this point in time.
Misstatement of the evidence. The July 2001 order was obtained on consent.
“CSA is the ultimate soccer authority in Canada and encouraged the EODSA and CPSL to change its attitude towards OZ.”
No evidence in support of this statement.
There was evidence.
There was no evidence to support counsel’s statement.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“The CPSL acted to prevent the Wizards from directly appealing to the OSA.”
No evidence in support of this statement.
Mr. Kaplan’s email and Mr. Ursini’s testimony support the statement that a direct appeal to the OSA was prevented.
There is no evidence in support of this statement.
Repeated references to FIFA rules at Exhibit 1, Tab 206, “this is the clause that could have been applied in this situation” (re Art. 22).
Evidence not adduced at trial. Plaintiff’s counsel suggested that the jury should read the FIFA rules and apply them to the facts.
FIFA rules are in the joint book of documents.
Counsel attempting to adduce evidence in the course of closing argument. Previously ruled inappropriate for purposes of argument.
Repeated references to Ex. 21 (OSA Rules from 1996), and the suggestion of applicability to ITCs re Mr. Mponda and Mr. Yobe:
• “was possibility of dispute being submitted to FIFA about whether there was a valid contract”;
• “Neither CSA nor the OSA informed the plaintiff that there were dispute resolution mechanisms to reverse or otherwise deal with ITCs”;
• “Despite what Mr. Pipe said, there were options that could have been taken at that time”;
• “they exacerbated the mistake when they said nothing could be done”;
• “many things could have been done and CSA should be liable for failing to follow FIFA rules”; and
• “There was a mechanism to dispute issuance of ITCs.”
Evidence not adduced at trial; previously ruled inappropriate for purposes of argument.
This was the document in place for the time in question.
Counsel attempting to adduce evidence in the course of closing argument. Previously ruled inappropriate for purposes of argument.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“There is no evidence that these players could have been considered free agents.”
Misstates the evidence.
The plaintiff relies on the testimony of Mr. Henderson.
“No evidence” is a misstatement. There was evidence from Mr. Ursini about the “Protection list.”
“[Fran O’Leary] didn’t gather any information about the Ottawa Wizards.”
Misstates the evidence.
Plaintiff does not dispute that Mr. O’Leary was aware of how well the team performed.
To state that Mr. O’Leary did not gather “any information” is a misstatement of the evidence.
“According to transfermarkt [sic] website Peter Mponda was valued at $300,000.”
Misstates the evidence.
The figure of $300,000 is based on 200,000 euros.
This was put as a question to Mr. O’Leary. Mr. O’Leary did not agree with the statement of value. His answer, not the question, is the evidence. This is a misstatement of evidence.
“By applying double standard, the OSA and the EODSA became responsible for the loss of revenue resulting from the cancellation of the Oz Optics invitational tournament.”
Suggests a claim based on vicarious liability.
The jury is free to decide this issue.
Suggests a new claim. Plaintiff’s counsel previously acknowledged no claim for vicarious liability.
“CSA is the governing body. CSA has the power to discipline. CSA was listed on the tournament application. CSA could have approved the tournament without any input from the OSA and EODSA.”
Misstates the evidence.
CSA was listed on the tournament application form.
This is a misstatement of the evidence. There was no evidence that the CSA had any involvement with the invitational tournament.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“He [McKetsy] may have thought that the real owner of the players was the team in Malawi.”
Misstates the evidence.
Trying to be fair to Mr. McKetsy.
This proposition was never put to Mr. McKetsy. It is a misstatement of the evidence.
“Any evidence of benefits from soccer facilities flows to OZ Merchandising, as is evidenced on the financial statements.”
Misstates the evidence.
The financial statements are very clear in this regard; an examination of the financial statements will make this clear.
This is a misstatement of the evidence. There was no evidence that the financial statements would make it clear that the benefits from soccer facilities flows to OZ Merchandising.
“This document [Exhibit 1, Tab 55] was part of the injunction process that the OZ Wizards won.”
Misstates the evidence as the order was obtained on consent.
Concedes the order was obtained on consent.
This is a misstatement of the evidence. The order was obtained on consent.
“All expenses for OZ Dome Soccer Club and the Ottawa Wizards were paid for by OZ Merchandising, and all financial benefit of operating those teams went to OZ Merchandising.”
Misstates the evidence.
The financial statements are very clear in this regard; an examination of the financial statements will make this clear.
This is a misstatement of the evidence. There was no evidence that the financial statements would make it clear that the benefits from soccer facilities flows to OZ Merchandising. There was no evidence that “all” the financial benefit of operating those teams went to OZ Merchandising.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“The defence claimed that the Ottawa Wizards were owned by OZ Optics not OZ Merchandising.”
Misstates defendants’ argument.
Not a misstatement.
The defendants’ position as stated to the jury was that when the Ottawa Wizards were accepted into the CPSL, they were owned by OZ Optics. This is a misstatement of the defendants’ position.
“Gillian Troy stated the EODSA acted as agent of the OSA.”
Misstates the evidence.
Not a misstatement.
Ms. Troy testified that the EODSA was responsible for registering players on behalf of the OSA. The statement that the EODSA acted as the OSA’s agent misstates the evidence.
“Melanie Ireton said that when a team is professional they would become a member of the CSA.”
Misstates the evidence.
Not a misstatement. This option was not offered to the Ottawa Wizards.
This is a misstatement of the evidence.
“We heard evidence that once a team is professional they become a member of the CSA. That did not happen in this situation. The Ottawa Wizards were a professional team and never given an opportunity to join CSA.”
Misstates the evidence.
Not a misstatement. This option was not offered to the Ottawa Wizards.
This is a misstatement of the evidence.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“And they had to pay the fines that, I would suggest, were issued unfairly arising from the four Turkish players… As you will recall, Mr. Sezerman sent emails months before the Turkish players came to Canada… the answer given by the EODSA was that… ITCs not necessary. The decision changed, and the OZ Dome Soccer Club was fined.”
Counsel attempting to adduce evidence in the course of closing – evidence ruled inadmissible at trial.
Counsel reviewing Mr. Sezerman’s evidence.
Counsel attempting to adduce evidence in the course in respect of subject matter ruled inadmissible.
“No other teams in Canada had a moratorium.”
Misstates the evidence.
Plaintiff agrees that this is a misstatement – the reference should have been to “no other association.”
This is a misstatement of the evidence. The testimony from various witnesses was that they had no knowledge.
“All the [associations] united against OZ.”
No evidence and suggests a vicarious liability claim.
This is the plaintiff’s position.
This is a misstatement of the evidence. The statement also misstates the nature of the claim against these defendants.
Confusion of evidence concerning the teams at the Oz Dome, and difference between house league teams and registered teams.
Misstates the evidence.
Not a misstatement.
Questions were put to Ms. Ireton and Mr. Thibault on this issue. Both testified that house league teams are those that are part of the Club. This is a misstatement of the evidence.
Violation of “freedom of choice and freedom of association.”
Suggests a new claim.
Does not suggest a new claim.
Suggests a new claim.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“The defence argued yesterday there were no messages about players [not participating at Oz Dome].”
Misstates the defendants’ argument.
Believes not a misstatement.
The defendants’ submission to the jury was that there is no direct evidence. This is a misstatement of the defendants’ position.
Reference to Exhibit 1, Tab 217- (print out of leagues from Oz Dome).
No evidence adduced at trial in respect of this document. Plaintiff’s counsel invited the jury to add up the number of teams.
Can be corrected and jury should be advised that the document “was available and came from the defendants.”
Counsel attempting to adduce evidence in the course of closing argument.
Extensive reference to CPSL issues, after acknowledgment not part of the four claims.
Irrelevant.
Background information.
Statements invite the jury to consider irrelevant matters.
“The reason we are here is because these organizations allowed these players to go free.”
Misstates the role of the jury.
The statement should have been “One of the reasons we are here…”
Misstates the role of the jury in relation to the specific claims as against these defendants.
Reference to decision of Panet J., and argument in respect of (i) what was before the Court; (ii) what ought to have been before the Court; and (iii) suggestion OSA not aware of issues on injunction.
Misstates the evidence.
Clarification to the jury could be given.
Inappropriate to invite the jury to reconsider what was before Panet J. The suggestion that OSA was not aware of the issues on the injunction is a misstatement (see para. 10 of Panet J.’s decision).
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
Statement of law in respect of standard care:
• “reasonable person would assume that if OSA had [player] contract it would be reviewed”
• “what would a reasonable person think in the circumstance”
• “Consider it from the point of view of club manager or administrator”
• “Intention doesn’t matter. It’s what a reasonable person could expect the effect to be [of negligent act]”
• “It’s about who is the reasonable person. We say the reasonable person is the recreational soccer player, most of whom we suspect are not lawyers, who first thought that this communication was about liability insurance and about threat of discipline”
• “Would a reasonable person be concerned? Would a reasonable person be concerned with playing at the OZ soccer facilities?”
Misstates the law.
If it is not clear that the duty of care is on the defendants, this can be clarified with the jury.
Misstatement of the law.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“Mr. O’ Leary suggested they [Mr. Mponda and Mr. Yobe] had no value in the international soccer market. What about in the Ottawa market?”
No evidence.
Plaintiff’s position/question posed.
There were no questions to Mr. O’Leary as to these players’ value in the Ottawa market. Invites the jury to consider a matter in respect of which there is no evidence.
“The unlawful act is the issuance of the ITCs.”
Misstates the law.
This is the plaintiff’s position.
This is a misstatement of the law in relation to the unlawful means tort which requires that the unlawful act must be an act done to a third party.
“The defendant acted with substantial certainty that its conduct [in relation to the player contracts with Mr. Mponda and Mr. Yobe] would result in a breach.”
No evidence that the defendant acted with “substantial certainty.”
The plaintiff relies on the evidence of Mr. Henderson.
There is no evidence that any of these defendants acted with “substantial certainty.”
“You can’t do that even in commercial advertising [re alleged misleading statements].”
Misstates the law.
Plaintiff acknowledges comment about commercial advertising was “extraneous.”
No basis in the evidence for this statement. Not clear what tort is being relied upon as the “internal tort” if comment in relation to the unlawful means tort.
“That included the assertion that people playing at the Oz Dome might be subject to discipline.”
Misstates the evidence.
If a misstatement, can be addressed by a correcting instruction.
This is a misstatement of the evidence. The posting on the website used the word “registrants” not “people.”
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“The defendant says no losses were caused by [claims 3, 4].”
Misstates the defendants’ position.
The defendants’ expert opined that the losses were 0.
Misstates the defendants’ position. Their position is that there are no losses that have been proved.
“I suggest to you that more people would read an email than a web-page.”
No evidence.
This is a reasonable assumption.
No evidence was adduced at trial in support of this statement.
“Why is no one being disciplined the way OZ Dome Sports Club was disciplined. There are two possible explanations either EODSA made a mistake when it posted a warning and sent emails to members…. If so why not change policy? Or because of this lawsuit they stopped disciplining members for unsanctioned play and perhaps might go back after this lawsuit is over.”
Misstates the evidence. Also invites the jury to consider the consequences of its verdict.
Plaintiff is setting out two plausible explanations.
There is no evidence in support of this statement. Statement also improperly invites the jury to consider the consequences of its verdict.
“Your decision in this case might change the way that soccer is governed.”
Invites the jury to consider the consequences of its verdict.
This could be a result.
Statement invites the jury to consider the consequences of its verdict.
“These associations and CPSL chose to remove the Wizards and OZ Dome Sports Club from their respective bodies instead of changing the way they governed soccer.”
No evidence.
Plaintiff’s position.
No evidence in support of this statement.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
“Mr. Sezerman feels he is fighting for all the teams that have been treated in the same way as he was, but don’t have the resources or the will to stand up and fight against the unfair way that these organizations sometimes run soccer. By doing so, Mr. Sezerman… was expelled.”
No evidentiary basis for the statement.
Plaintiff’s position.
There is no evidentiary basis for this statement.
“Mr. Sezerman has already stated that if OZ wins the trial, he will go back to the associations and start over with the dream he had 15 years ago. He will use the money to re-invest and grow soccer. Winning this lawsuit… soccer association will change the way soccer is run in Canada.”
Invites jury to consider consequences of its verdict.
Plaintiff’s position. Mr Sezerman’s testimony.
Statement invites the jury to consider the consequences of its verdict.
Dan Pazuk made a mistake with respect to the issuance of the ITCs relating to the Turkish players.
No evidence.
Counsel reviewing Mr. Sezerman’s evidence.
No evidence. Subject matter ruled inadmissible.
CSA broke the rules on the appeal [2001] by not having a hearing.
Misstates the evidence.
Plaintiff’s position.
Misstatement of the evidence. “… [T]he Appeals Committee may at its sole discretion and without holding a hearing…” (Exhibit 1, Tab 45).
CSA/OSA should have done something in response to the complaints OZ made against the CPSL.
Suggests a claim based on vicarious liability.
Disagrees that this statement suggests a claim based on vicarious liability.
Statement suggests a new claim. Plaintiff’s counsel previously acknowledged no claim for vicarious liability.
Statement
Defendants’ Principal Concern
Plaintiff’s Position
Judicial Assessment
CSA/OSA are responsible for allowing the players to go free before the appeal.
Suggests a new claim: vicarious liability for the CPSL’s revocation of the Ottawa Wizards franchise.
Plaintiff’s position.
Suggests a new claim. Plaintiff’s counsel previously acknowledged no claim for vicarious liability. Group enterprise theory of liability previously ruled not tenable in law.
McKetsy may have thought the player contracts were expired based on the information in the CSA email. He was misled by the CSA.
No evidence.
Trying to be fair to Mr. McKetsy.
This proposition was never put to Mr. McKetsy.
CSA had the ultimate authority and their decision was final.
Misstates the evidence.
“This is what their own [the CSA’s] constitution says.”
The statement fails to take into account Mr. Pipe’s testimony.
CSA knew about issues involving the EODSA since 2001. There were injunction proceedings. OZ sent out news releases. CSA could have intervened and instructed the EODSA and OSA to fix the problems.
Misstates the evidence.
Plaintiff’s position.
The witnesses who were employed or associated with the CSA at the relevant time were not asked if they knew about the “issues.” This is a misstatement of the evidence and an unfair comment on the evidence.
The “defendants” were aware of the player contracts (in relation to the ITCs).
No evidence that the CSA was aware of the player contracts.
The CSA should have been aware according to the FIFA rules.
This is a misstatement of the evidence. There is no evidence that the CSA was aware of the player contracts.
OZ was a member of the EODSA and therefore a member of the OSA and CSA (in relation to the tournament application).
Misstates the evidence.
Based on argument.
This is a misstatement of the evidence.
Statement
Defendants’ Primary Concern
Plaintiff’s Position
Judicial Assessment
The “associations” discouraged teams from signing up for the tournament.
No evidence.
The delay in the approval of the tournament resulted in the loss of the teams that would have attended.
There is no evidence that the associations discouraged teams from signing up for the invitational tournament.
2019 ONSC 3882
COURT FILE NO.: 04-CV-026293
DATE: 2019/06/21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
OZ Merchandising Inc.
Plaintiff
– and –
Canadian Professional Soccer League Inc., Eastern Ontario District Soccer Association, The Ontario Soccer Association, Canadian Soccer Association, Canadian Soccer League Inc., CSL Association Inc., Ira Greenspoon, Vincent Ursini, Cary Kaplan, and Stan Adamson
Defendants
REASONS FOR DECISION – MOTIONS TO STRIKE THE JURY
Ryan Bell J.
Released: June 21, 2019
[^1]: Ottawa Wizards v. Canadian Professional Soccer League Inc., [2003] O.J. No. 3501 (S.C.J.)