Superior Court of Justice - Ontario
Court File No.: CV-18-43 Date: 20220901
Re: Greg Rickwood and Jennifer Rickwood, Plaintiffs And: Brantford Girls Hockey Association Inc. and Ontario Womens Hockey Association, Defendants
Before: Justice D.A. Broad Counsel: Gerry Smits, for the Plaintiffs Oliver Hutchison, for the Defendants Heard: July 14, 2022-
Endorsement
Background
1The plaintiffs Greg Rickwood (“G.R.) and Jennifer Rickwood (“J.R.”) are spouses. They have two daughters who played hockey within the Brantford Girls Hockey Association (“BGHA”) during the years 2014 through 2017.
2In their Statement of Claim issued February 23 2018 the plaintiffs alleged, inter alia, as follows against the defendants BGHA and Ontario Womens Hockey Association (“OWHA”):
a) G.R. has coached hockey teams at various levels since 1991, including teams within the BGHA. He also worked as an on-ice development co-ordinator for the BGHA until March 2017;
b) J.R. has acted as a trainer/manager/dressing room mother for many years, including for teams coached by G.R.;
c) BGHA is the governing body for girls playing hockey within the City of Brantford and is a not-for-profit corporate entity;
d) OWHA is the governing body for girls and women playing hockey within the Province of Ontario and is a not-for-profit corporate entity;
e) On September 22, 2017 G.R. was coaching a hockey team involved in a game in Oshawa, Ontario. Following an interaction with a game official G.R. was removed from the game;
f) On October 1, 2017 G.R. was notified by the OWHA that he was indefinitely suspended from the OWHA, with the suspension to be reviewed at the end of the 2017-2018 season;
g) On October 3, 2017 G.R. was notified by the BGHA that he was suspended from all BGHA activities;
h) On October 30, 2017 G.R. was notified by the Board of Directors of the BGHA that he was no longer a member in good standing of the BGHA; and
i) J.R. was suspended indefinitely by the BGHA from her position as a manager/trainer.
3In the Statement of Claim G.R. claimed damages in the amount of $250,000 for defamation, special damages in an amount to be determined and an interim and final order that the suspension and expulsion imposed by both defendants be rescinded forthwith.
4J.R. claimed damages at large in the amount of $100,000, special damages in an amount to be determined, a final and temporary order that the suspensions imposed by both defendants be rescinded forthwith, and a final and temporary order requiring that the current discipline committees within both defendants be disbanded forthwith.
5The plaintiffs set the action down for trial on June 10, 2019.
Nature of the Motion
6On November 21, 2021 the plaintiff brought a motion for leave to amend the Statement of Claim to add the following claims and allegations:
(a) By G.R.:
(i) Claims for breach of natural justice, breach of contract, denial of procedural fairness and infliction of mental distress;
(ii) G.R. states that, as a result of the inappropriate actions of the defendants, he been unable to pursue his life-long vocation of minor-league coaching and training young hockey players and has sustained significant psychological discomfort and stress as a result;
(iii) The BGHA Board cancelled the second year of G.R.’s two-year development contract at the end of the first year without rationale, thus breaching his contract with the BGHA;
(iv) The OWHA advised G.R. that he was indefinitely suspended from Hockey Canada as a result of his indefinite suspension with the OWHA in 2017. OWHA does not have the authority to suspend members outside the authority of the OWHA. G.R. has never received confirmation from Hockey Canada that confirmed his suspension, however, the action taken by the OWHA has prevented him from being a coaching staff member on any team under Hockey Canada’s umbrella since 2017; and
(v) Bill Williamson, the OWHA Discipline Chairperson has stated that he [that is G.R.] is the most penalized coach in the history of the OWHA. Bill Williamson, in his capacity as Discipline Chair, has made the statement on a number of occasions on dates unknown to G.R. and places unknown to him. G.R. states that the statement is untrue and is defamatory
(b) By J.R.:
(i) Increasing the claim for damages to $250,000 and specifying that this amount is claimed for defamation, breach of natural justice, denial of procedural fairness and infliction of mental distress;
(ii) J.R. sustained significant stress and psychological discomfort and distress;
(iii) J.R. was not included in the resolution [presumably a reference to a resolution passed by the BGHA at a special emergency meeting on October 24, 2017 referred to below], but remains under suspension by the OWHA and has had no opportunity to make submissions and protest her ongoing suspension
(c) By G.R. and J.R.:
(i) a special emergency meeting was called by the BGHA on October 24, 2017. G.R. and J.R. were not invited to the meeting nor were they allowed an opportunity to make written submissions. G.R. was expelled from the BGHA during the meeting, with no opportunity to be reinstated.
7No request was made by the plaintiffs pursuant to rule 48.04(1) of the Rules of Civil Procedure (the “Rules”) for leave to bring the motion to amend their Statement of Claim after setting the action down for trial.
8The defendants take no position on whether leave pursuant to rule 48.04(1) should be granted.
Guiding principles respecting the granting of leave to amend a statement of claim
9Amendments to pleadings are governed by rule 26.01 which provides as follows:
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
10The guiding principles respecting motions to amend pursuant to rule 26.01 were summarized by the Court of Appeal in the case of Klassen v Beausoleil, 2019 ONCA 407 at paras. [25-33] as follows (citations omitted):
The rule is framed in mandatory terms: the court must allow the amendment, unless the responding party would suffer non-compensable prejudice, the proposed pleading is scandalous, frivolous or vexatious, or the proposed pleading fails to disclose a reasonable cause of action.
The expiry of a limitation period is one form of non-compensable prejudice. A party cannot circumvent the operation of a limitation period by amending their pleadings to add additional claims after the expiry of the relevant limitation period. In this regard, the addition of new statute-barred claims by way of an amendment is conceptually no different than issuing a new and separate Statement of Claim that advances a statute-barred claim.
An amendment will be statute-barred if it seeks to assert a new cause of action after the expiry of the applicable limitation period. In this regard, the case law discloses a factually oriented approach to the concept of a cause of action — namely, a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.
An amendment does not assert a new cause of action — and therefore is not impermissibly statute-barred — if the original pleading contains all the facts necessary to support the amendments such that the amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts as originally pleaded. Put somewhat differently, an amendment will be refused when it seeks to advance, after the expiry of a limitation period, a fundamentally different claim based on facts not originally pleaded.
The relevant principle is summarized in Paul M. Perell & John W. Morden, The Law of Civil Procedure in Ontario, 3rd ed. (Toronto: LexisNexis, 2017), at p. 186:
A new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded and no new facts are relied upon, or amount simply to different legal conclusions drawn from the same set of facts, or simply provide particulars of an allegation already pled or additional facts upon [which] the original right of action is based.
In the course of this exercise, it is important to bear in mind the general principle that, on this type of pleadings motion, it is necessary to read the original Statement of Claim generously and with some allowance for drafting deficiencies.
Finally, the court may refuse an amendment where it would cause non-compensable prejudice. The prejudice must flow from the amendment and not some other source. At some point the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party is presumed. In this event, the onus to rebut the presumed prejudice lies with the moving party.
Alternatively, the responding party may resist the amendment by proving actual prejudice — i.e. by leading evidence that the responding party has lost an opportunity in the litigation that cannot be compensated by an adjournment or an award of costs as a consequence of the amendment. It is incumbent on the responding party to provide specific details of the alleged prejudice.
Irrespective of the form of prejudice alleged, there must be a causal connection between the non-compensable prejudice and the amendment. The prejudice must flow from the amendment and not from some other source.
11In the case of Marks v Ottawa (City), 2011 ONCA 248 LaForme, J.A., confirmed at para. 19 that an amendment to a statement of claim may be refused where the allegations would be struck if originally pleaded, writing as follows:
Although the general rule is that amendments are presumptively approved, there is no absolute right to amend pleadings. The court has a residual right to deny amendments where appropriate: Daniele v. Johnson (1999), 1999 19921 (ON SCDC), 45 O.R. (3d) 498 (Ont. Div. Ct.) at paras. [11 - 15].1 Further, I would agree that the proper factors to be considered are those first set out in Simrod v. Cooper, [1952] O.W.N. 720 (Ont. H.C.) at p. 721, aff'd at p. 723, and quoted with approval in Vaiman v. Yates (1987), 1987 4345 (ON SC), 60 O.R. (2d) 696 (Ont. H.C.) at p. 698, which can be summarized as follows:
An amendment should be allowed unless it would cause an injustice not compensable in costs.
The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious.
No amendment should be allowed which, if originally pleaded, would have been struck.
The proposed amendment must contain sufficient particulars.
12The defendants oppose the plaintiffs’ motion to amend. They take the position that the amendments sought by the plaintiffs in respect of allegations of breach of natural justice/denial of procedural fairness, defamation, intentional infliction of mental distress and breach of contract have not been properly pleaded, and if they had been originally pleaded, would have been struck as not disclosing reasonable causes of action. The proposed amendments in respect of the claim for defamation also lack sufficient particulars.
13The defendants submit, in the alternative, that the amendments relating to defamation, intentional infliction of mental distress, and breach of contract should not be allowed on the basis that they disclose new causes of action that are now statute barred by the Limitations Act, 2002, S.O. 2002, c. 24. Sched. B. (the “Act”).
Issue: Do the amendments respecting claims of breach of natural justice/denial of procedural fairness, defamation, intentional infliction of mental distress and breach of contract disclose reasonable causes of action?
(a) Amendment to claim breach of natural justice and denial of procedural fairness
14As indicated above, the plaintiffs seek amendments to the Statement of Claim to advance claims for damages for breach of natural justice and denial of procedural fairness. In submissions, Mr. Smits, for the plaintiffs, acknowledged that these two causes of action are equivalent and overlapping and are not distinct from one another.
15In the case of Deep v. Ontario, [2004] O.J. No. 2734 (S.C.J.) aff’d [2005] O.J. No. 1294 (C.A.) Spence, J. held at para. 50 that breach of natural justice is not a cause of action known in law and it is plain and obvious that a statement of claim which pleads it does not disclose a reasonable cause of action. In dismissing the appeal, the Court of Appeal stated succinctly at para. 6 “there is no cause of action in law pertaining to breach of natural justice.”
16In the recent case of Canada Ethiopian Orthodox Tewahedo Church of Canada St. Mary’s Cathedral v. Aga, 2021 SCC 22 stated at para. [27] that courts have jurisdiction to intervene in decisions of voluntary associations only where a legal right is affected. At para. 29 the Court observed that the legal rights which can ground jurisdiction include private rights such as rights in property, contract, tort, unjust enrichment or statutory causes of action. At para. 30 the court went on to state the following:
It follows that, as this Court held in [Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v. Wall, 2018 SCC 26] at para. 24, "there is no free-standing right to procedural fairness with respect to decisions taken by voluntary associations". In other words, natural justice is not a source of jurisdiction. Rather, where there is a legal right at issue, natural justice may be relevant to whether that legal right was violated.
17Neither plaintiff in the case at bar has pleaded that there are legal rights at issue such as rights in property, contract, tort, unjust enrichment or a statutory right in relation to their suspensions and subsequent expulsions, as a coach in the case of G.R. and as a manager/trainer in the case of J.R. Neither of them pleaded that they were members of either BGHA or OWHA or that their relationships with the organizations as a coach and manager/trainer respectively was contractual. Neither of them pleaded that their roles as coach or manager/trainer respectively within either BGHA or OWHA were anything other than as volunteers.
18On this basis, it is plain and obvious that the proposed amendment to the Statement of Claim to plead breach of natural justice and denial of procedural fairness does not disclose a reasonable cause of action and must be dismissed.
(b) Proposed amendments in relation to claims of defamation
19The original Statement of Claim advanced a claim for defamation by G.R. and stated at paragraph 39 that “the arbitrary actions of both defendants have damaged their reputation significantly and seek damages as compensation.”
20The proposed amended Statement of Claim allege at para. 40 in relation to G.R. that Bill Williamson, the OWHA Discipline Chairperson has stated that he [that is G.R.] “is the most penalized coach in the history of the OWHA.” The paragraph goes on to allege that Mr. Williamson made this statement “on a number of occasions on dates unknown to the plaintiff G.R. and places unknown to the plaintiff G.R.” and concludes that the statement is untrue and is defamatory.
21It is noteworthy that proposed pleading does not explicitly allege that Mr. Wilkinson made the alleged statement to any person other than G.R. nor does it identify any individual to whom the statement was made.
22In relation to J.R. the original Statement of Claim alleged at para. 20 that she was suspended indefinitely from her position as a manager/trainer apparently because she is married to G.R., that she is unaware of any specific allegations made against her, that the BGHA indicated in an email that a hearing would be scheduled, but such hearing was never scheduled and that the OWHA had taken over her suspension. The proposed amended Statement of Claim at para. 21 adds the statement that J.R. “therefore seeks damages for defamation.”
23J.R. does not allege in the pleading that anyone on behalf of either defendant made any statement about her which could be considered defamatory.
24In their Factum the plaintiffs took the positions that “their defamation exists because of their ongoing continuing suspensions from both defendant organizations” and that “their ongoing continuing suspension itself defames their reputation.”
25In the recent case of PMC York Properties Inc. v. Sludak, 2021 ONSC 1134 (Div. Ct.) the Divisional Court had occasion to comprehensively consider the “modern, relaxed approach” to pleadings in defamation actions. At paras. 5-7 Sachs, J., writing for the panel summarized the law as follows:
Courts have made it clear that, in order for a claimant to benefit from the modern, relaxed approach to pleadings in defamation actions, it is a pre-requisite that the claimant plead in full particularity against at least one defendant. To put it another way, it is only after a claimant in a defamation claim has pleaded facts that make out a prima facie case against at least one person that the Court can approach other claims of defamation using the modern, relaxed approach.
In order to make out a prima facie case against one person, the claimant must plead facts to support each of the elements of the tort of defamation: namely, that one person made a particular statement, to another identified person, at a certain time and in certain circumstances, about the claimant, and that the statement is capable of being defamatory.
It is an error to relax the pleading requirement for an alleged instance of defamation in the absence of a prima facie case with respect to another alleged instance.
26Following a comprehensive review of the jurisprudence, Sachs, J. concluded as follows at para. 73:
The modern, flexible approach, once it applies, allows for greater flexibility in pleading defamation actions by allowing claims in defamation to stand in circumstances where the plaintiff is unable to plead the full facts in support of each related instance of defamation. These circumstances include situations where the plaintiff has revealed all the relevant facts within its knowledge, where some facts are solely within the defendant's knowledge, or where the plaintiff has otherwise established a prima facie case of defamation (including publication) in the pleading. The modern, relaxed approach, once it applies, does not relieve the claimant from pleading facts in support of at least some of the elements of the tort. It does not allow the claimant to plead baldly, then embark on a fishing expedition.
27The proposed amended Statement of Claim does not meet the test for pleading defamation under the modern, flexible approach. It does not plead in respect of either plaintiff the communication of a defamatory statement to a specific person, the contents of that communication, or the time or circumstances of that communication. In the absence of this, the court is precluded from applying the modern, flexible approach to any other allegations of defamation.
28It is therefore plain and obvious that the proposed amendments to the Statement of Claim in relation to claims of defamation on behalf of G.R. and J.R. are not tenable and must be denied.
(c) Amendments to the Statement of Claim in relation to claims of infliction of mental distress
29As noted above, the proposed amended Statement of Claim alleges at para. 19 that G.R. has been unable to pursue his life-long vocation of minor-league coaching and training young hockey players due to the inappropriate actions of the defendants and states that he has “sustained significant psychological discomfort and distress as a result.”
30In relation to J.R., the proposed amended Statement of Claim simply alleges that para. 22 that she has sustained significant stress and psychological discomfort and distress. This follows upon the allegations originally planned at para. 20 and referred to at para. 22 above.
31The tort of intentional infliction of mental distress has three elements:
(1) flagrant or outrageous conduct;
(2) that the conduct was calculated to produce harm; and
(3) that harm in the form of a visible or provable illness ensued.
[see Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (Ont. C.A.) at para. [41]].
32It is not enough to simply plead that the defendant's conduct was extreme, flagrant and outrageous. The plaintiff must actually plead conduct that is extreme, flagrant and outrageous (High Parklane Consulting Inc. v. Royal Group Technologies Limited, [2007] O.J. No. 107 (S.C.J.) at para. 41).
33Moreover, in order to meet the required threshold, the plaintiff must plead sufficiently specific allegations of an intent on the part of the defendant to cause specific harm, which then ensued (see Thelwell v. Elaschuk, 2020 ONSC 340 (S.C.J.) at paras. [70-72]).
34The Court of Appeal put it as follows in Boucher at para. [44]:
The plaintiff cannot establish intentional infliction of mental suffering by showing only that the defendant ought to have known that harm would occur. The defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur.
35The proposed amended Statement of Claim does not plead that the defendants engaged in conduct that is flagrant or outrageous, or that the defendants specifically intended the harm that the plaintiffs say ensued. It is thus plain and obvious that the claims for intentional infliction of mental distress disclose no reasonable cause of action in the amendments to plead this tort must be denied.
(d) Amendments to the Statement of Claim in relation to a claim by G.R. for breach of contract
36The proposed amended Statement of Claim adds a claim in the prayer for relief at para. 1(a) for breach of contract and at para. 28 inserted an allegation that the BGHA Board cancelled the second year of G.R.’s two-year development contract at the end of the first year without rationale “thus breaching his contract with the BGHA.”
37In the case of McCarthy Corp. PLC v. KPMG LLP, [2007] O.J. No. 32 Mesbur set out the requirements for pleading breach of contract at para. 26 as follows:
A claim for breach of contract must contain sufficient particulars to identify the nature of the contract, the parties to the contract and the facts supporting privity of contract between the plaintiff and defendant, the relevant terms of the contract, which term or terms was breached, and the damages that flow from that breach. It must also plead clearly who breached the term, and how it was breached.
38Although the amendment pleads the existence of a contract and that it was breached, the proposed amended Statement of Claim does not plead material facts respecting the relevant terms of the contract described as a “Development Contract,” the specific term or terms that were breached, nor the specific damages that flowed as a result.
39In the case of Turner v York University, 2010 ONSC 4388, Cullity, J. stated:
The plaintiff does not sufficiently plead a breach of contract by stating that certain actions in particular circumstances constituted a breach of an otherwise unspecified term that forbade them. A plea that the defendant's conduct was a breach of contract without specifying the term that was breached is nothing more than a bald assertion of liability that does not sufficiently indicate the case the defendant has to meet.
40The proposed amendments to the Statement of Claim in respect of an alleged breach of the Development Contract do not set out sufficient material facts to support a cause of action in breach of contract. The amendments respecting the claim for breach of contract are therefore untenable and must be denied.
41In light of the foregoing, it is not necessary to consider whether the amendments relating to defamation, intentional infliction of mental distress, and breach of contract disclose new causes of action that are now statute barred by the Act.
Disposition
42For the foregoing reasons the motion of the defendants for leave to amend the Statement of Claim is dismissed.
Costs
43The parties are strongly encouraged to agree on the costs of the motion.
44If the parties cannot agree on costs, the defendants may make written submissions as to costs within 21 days of the release of this Endorsement. The plaintiff has 14 days after receipt of the submissions of the defendants to respond. The written submissions are to be forwarded to me care of the Trial Coordinator at Brantford at the same email address used for the release of this Endorsement.
45The submissions of each side shall not exceed three (3) double-spaced pages, exclusive of Offers to Settle, Bills of Costs or Costs Outlines.
46If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
D.A. Broad, J.
Date: September 1, 2022