Court File and Parties

COURT FILE NO.: CV-22-676041

DATE: 20220519

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Oslyn Lewis

AND:

Gabriel Chartrand, John Doe Boss Man, Northwest Protection Services Ltd., Informa Canada and Informa PLC

BEFORE: W.D. Black J.

COUNSEL: Oslyn Lewis, Representing himself

David Constant and Nathan Serratore, for the Defendants Gabriel Chartrand and John Doe Boss Man

Amanda McBride and Daniel Michaud-Shields, for the Defendant Northwest Protection Services Ltd.

Jay Skukowski, for the Defendants Informa Canada and Informa PLC

HEARD: May 9, 2022

Endorsement

Overview

[1] These are motions brought by each of the three defendants (or sets of defendants) pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to strike out the statement of claim on the basis that it discloses no reasonable cause of action relative to each defendant.

[2] Each defendant also cites Rule 25 in their motion record. Gabriel Chartrand, the defendant referred to in the statement of claim as “John Doe Boss Man” (the correct name of which is Boss Man Limited, hereinafter “Boss Man”), and Northwest Protection Services (“Northwest”) simply refer to Rule 25.06, which outlines the rules applicable to all pleadings. Informa Canada and Informa PLC (“Informa”) seek alternative relief under Rule 25.11(b) and (c) to strike out or expunge the plaintiff’s statement of claim, with or without leave to amend, on the basis that it is frivolous, vexatious, and/or an abuse of the process of the Court.

[3] The defendants agree that the following principles apply on a Rule 21.01(1)(b) motion:

• the judge is to assume that all of the facts pleaded in the statement of claim are true;
• the judge must read the statement of claim “generously”; and
• such a motion can succeed in only the clearest of cases — only where it is plain and obvious that no reasonable cause of action is disclosed or, in other words, where the claim has no reasonable prospect of success.

The Claim

[4] A plain reading of the statement of claim in issue discloses the following narrative.

(a) The Setting

[5] The claim relates to events at a Building and Construction trade show (the “Show”) at the Metro Toronto Convention Centre on December 3, 2021.

[6] The plaintiff, Mr. Lewis, attended the Show on that day, as he had done many times in past years. Mr. Lewis is a real estate developer. On this occasion, he attended the Show together with a business partner/client, searching for suppliers for a real estate project scheduled to proceed to construction in 2022.

(b) The Accusation

[7] While Mr. Lewis and his partner/client were speaking with a supplier, they were approached by an employee of Northwest, the company providing security services to the Show. That employee, later identified as Joey Fera, told Mr. Lewis that an exhibitor had claimed that Mr. Lewis had stolen merchandise from his booth. Mr. Lewis pleads that Mr. Fera “informally detained” him. Mr. Lewis’s partner/client and others in the vicinity also heard Mr. Fera articulate the allegation about Mr. Lewis being accused of theft.

[8] Mr. Lewis asked Mr. Fera to identify the person who had made this accusation and Mr. Fera led Mr. Lewis and his partner/client to Booth 521, where the Boss Man exhibition was located. The booth was occupied by Mr. Chartrand, the exhibitor who Mr. Fera claimed had accused Mr. Lewis of stealing from his booth.

(c) The Denial

[9] When Mr. Chartrand was asked about the accusation in the presence of Mr. Lewis and Mr. Fera, he flatly denied that he had made any such accusation.

[10] Having been falsely accused of theft in a public setting and in the presence of his partner/client and others, Mr. Lewis was understandably upset. After the Show, he followed up with Northwest and Informa seeking further information and a copy of any incident report in relation to the events. Mr. Lewis repeats his request for an incident report in his statement of claim, as he has yet to receive one despite having asked for it a number of times.

(d) The Alleged Motivation

[11] Mr. Lewis, who is Black, asserts in the statement of claim that one or more of the defendants racially profiled him and that the false accusation against him was racially motivated.

Relevant Law

[12] The defendants accept the statement of the law relative to these motions set out in the factum of Northwest, citing the Court of Appeal for Ontario’s statement in Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (C.A.):

“On a motion to strike out a pleading, the court must accept the facts alleged in the statement of claim as proven unless they are patently ridiculous or incapable of proof, and must read the statement of claim generously with allowance for inadequacies due to drafting deficiencies.”

[13] The defendants also accept that normally the expectation is that a party will not file a statement of defence before bringing a motion to strike. This is presumably on the premise that if a claim is incomprehensible, it should not be possible for a defendant to plead to it. The defendants say, however, that they were concerned Mr. Lewis would note them in default if they did not deliver pleadings.

[14] While there is no evidence before me to establish as much, I accept for purposes of argument that the defendants reasonably found it necessary to deliver statements of defence. In any event, in Arsenijevich v. Ontario (Provincial Police) (2019 ONCA 150), the Court of Appeal considered that in some circumstances it may be acceptable to deliver a statement of defence prior to bringing a motion to strike:

“[W]here as in this case, the statement of claim is so facially deficient and largely incomprehensible, this step by the respondents is not fatal. In addition, it is evident from their pleading that the respondents took issue with the legal sufficiency of the appellant’s claim. Moreover, the motion judge’s determination was in keeping with the direction in r. 1.04 of the Rules of Civil Procedure that the rules ‘be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.’”

[15] In deciding these motions, I do not put much weight on the fact that the defendants each delivered statements of defence. As in Arsenijevich, the statements of defence take issue with the legal sufficiency of the statement of claim, maintaining that the claim neither asserts a valid cause of action nor adequately specifies the relief that Mr. Lewis seeks.

Analysis

[16] It is true that Mr. Lewis’ pleading reflects technical shortcomings and does not attach legal labels in terms of causes of action to the facts he asserts. Moreover, while Mr. Lewis asserts a general claim for damages, he does not specifically link the monetary relief he seeks to individual causes of action relative to each defendant.

[17] Such errors or omissions are understandable and may be expected when the pleadings are drafted by a lay person rather than by counsel.

[18] Nonetheless, with respect to Mr. Chartrand, Boss Man and Northwest, there is sufficient information in the statement of claim to allow it to survive these defendants’ motions.

(a) Claims Against Mr. Chartrand, Boss Man and Northwest

[19] Reading the claim generously, and making allowances for drafting deficiencies as Nash directs me to do, I cannot conclude that the facts alleged against these defendants are “patently ridiculous or incapable of proof”.

[20] Rather, the statement of claim discloses the serious and troubling allegations that Mr. Lewis was racially profiled and falsely accused of theft in the presence of other people, including his partner/client.

[21] It is not entirely clear based on the pleading and at this stage of the action whether Mr. Chartrand made the false allegation and then recanted it when confronted in the presence of Mr. Lewis, whether the allegation related to someone else and was not clearly communicated by Mr. Chartrand, or whether Mr. Fera misunderstood the allegation or the identity of its subject. This uncertainty is not the fault of Mr. Lewis, but rather a function of the way in which he was confronted with the false allegation.

[22] Whichever of these factors led to the false accusation, anyone could give rise to a finding of negligence, negligent misrepresentation, or even fraudulent misrepresentation on the part of Mr. Chartrand, Boss Man or Northwest.

[23] Moreover, the way in which the accusation was initially conveyed to Mr. Lewis in a public setting, and in the presence of his partner/client and other members of the public, could also give rise to a claim in defamation. Paragraph seven of the statement of claim, in particular, provides the basis for this potential claim.

[24] The role of Boss Man vis-à-vis Mr. Chartrand is not spelled out. It may be that Mr. Chartrand was acting outside the scope of his authority in making a false accusation, if that is what the evidence ultimately shows happened. At this early stage, however, and reading the claim generously, I am not prepared to rule out Boss Man’s potential vicarious liability for Mr. Chartrand’s actions.

[25] Northwest maintains that there is nothing in the pleading to “suggest that Northwest or its employees were acting outside the scope of their authority when interacting with the plaintiff”. It also fairly notes that, when I asked Mr. Lewis during argument about causes of action against Northwest, he focused exclusively on Northwest’s failure to furnish him with a copy of an incident report relative to the events at issue.

[26] Again, reading the statement of claim generously, I cannot conclude that there is no reasonable cause of action against Northwest.

[27] While Northwest may have been acting within the scope of its authority in dealing with the accusation against Mr. Lewis, it is also conceivable that Northwest did not make sufficient or proper inquiries about the allegation and, due to a lack of diligence, proceeded to “informally” apprehend and confront the wrong person.

[28] Moreover, Northwest’s argument that Mr. Lewis did not focus on this aspect in oral submissions does not obviate the specific description of the events in paragraph seven of the claim, which as stated above could give rise to a defamation claim. My duty in determining the motion specifically requires me to focus on the pleadings at issue.

[29] For these reasons, I am not prepared to strike the statement of claim as against Mr. Chartrand, Boss Man and Northwest. The result relative to these defendants is slightly complicated by the fact that none of them relied on Rule 25.11 in their motions. That rule would have given me specific authority to grant the plaintiff leave to amend his pleading, whereas Rule 21.01(b) (which the defendants did rely on) is more of an “all or nothing” proposition. Nonetheless, I encourage Mr. Lewis to seek legal counsel if he is able to and to clarify the causes of action arising from the facts he has pled (perhaps confirming the causes of action that I surmise, but perhaps identifying only some of those causes of action and/or adding others).

[30] It will in any event be necessary to amend the pleading to reflect that the statement of claim, even when read generously, discloses no discernable cause of action against Informa, as explained below.

(b) Claims Against Informa

[31] The statement of claim alleges that Northwest contacted Informa shortly after the accusation against Mr. Lewis was shown to be unfounded (given Mr. Chartrand’s denial that his accusation related to Mr. Lewis). Mr. Fera contacted Staphanie Haddon, a representative of Informa, who immediately attended on scene after the incident to discuss the matter with Mr. Fera and Mr. Lewis. Mr. Lewis pleads that he exchanged contact information with Ms. Haddon at that time.

[32] Mr. Lewis then met with Ms. Haddon the following day on December 4, 2021 and asked her for the contact information of Mr. Chartrand and Boss Man. Mr. Lewis pleads that Ms. Haddon refused to provide these details owing to privacy concerns. However, the pleading confirms that Ms. Haddon did provide Mr. Lewis with the contact information for Northwest, and advised Mr. Lewis to follow up directly with Northwest to obtain the additional information he sought.

[33] During argument, Mr. Lewis confirmed that this is the extent of his allegations against Informa and that in fact, Ms. Haddon and Informa were “very nice” to him in their efforts to assist him. He also appears to accept, as Informa maintains, that Informa does not have any incident report relative to the matters at issue and that Mr. Lewis should deal directly with Northwest in that regard.

[34] Even reading the pleading generously, I cannot find a proper legal basis for an ongoing claim against Informa, and I strike out the claim in this respect. Unlike its co-defendants, Informa did rely on Rule 25.11 in its motion, and so it is open to me to grant leave to Mr. Lewis to amend his claim against Informa. However, given the absence of any reasonable cause of action discernable against Informa, I decline to do so, and instead I order that the claim proceed only against the other defendants.

[35] More particularly, I order that Informa be struck from the title of proceedings and that paragraph 20(a) of the statement of claim be struck as well. The references to Informa as part of the narrative in the claim, in paragraphs 10-15, are merely part of the necessary background narrative and need not be removed.

[36] Mr. Lewis is to issue and serve a statement of claim removing Informa from the title of proceedings and also removing paragraph 20(a). I encourage him in addition to engage a lawyer if he is able to and to amend the claim to confirm his specific causes of action against the remaining defendants.

[37] I make no order as to costs.

W.D. Black J.

Date: May 19, 2022