COURT FILE NO.: CV-22-88982 DATE: 2023/05/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DR. FRANK FOWLIE and 63215941 CANADA LTD, Plaintiffs AND: WRESTLING CANADA LUTTE and TAMARA MEDWIDSKY and LEE MACKAY, Defendants

BEFORE: Justice Karen A. Jensen

COUNSEL: André Marin and Mark Bourrie Counsel, for the Plaintiffs Jordan Goldblatt and Logan St. John-Smith Counsel, for the Defendants

HEARD: February 28, 2023

ENDORSEMENT

Introduction

[1] This is a decision on a motion for summary judgment in an action involving the termination of a contract with the Plaintiff corporation, 63215941 Canada Ltd ("FowlieCo"). In September 2021, the Defendant Wrestling Canada Lutte ("WCL") terminated its contract ("the Contract") with 63215941. The principal of 63215941 is the other Plaintiff, Frank Fowlie ("Dr. Fowlie").

[2] The Plaintiffs allege that WCL breached the Contract by terminating Dr. Fowlie's employment as Complaints and Appeals Officer one year into a three-year contract and failing to engage in dispute resolution with Dr. Fowlie pursuant to the dispute resolution provision in the Contract prior to termination.

[3] The Defendants characterize the breach of contract as simply failing to offer a "without prejudice" meeting (referred to by the Plaintiffs as dispute resolution) in advance of terminating the contract. They state that the sole issue in this claim is whether WCL breached the contract by failing to engage in "without prejudice" discussions before terminating the contract.

[4] The Defendants brought a motion under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, arguing that the claim cannot succeed because WCL complied with the notice provision for termination of the Contract, and it was not obliged to offer a without prejudice meeting before terminating the contract. The Defendants further argue that even if Dr. Fowlie should have been offered dispute resolution before the contract was terminated, it is plain and obvious that there are no compensable damages to be awarded. Finally, the Defendants argue, in the alternative, that if the entirety of the claim is not to be struck, then portions of it must be, including the actions against the individual Defendants.

[5] The Plaintiffs argue that a trial is required to determine whether the parties intended the dispute resolution provisions of the Contract to be engaged before termination. They also argue that the case involves high-handed and egregious conduct by the Defendants, which will most certainly give rise to an award of punitive damages.

[6] For the reasons that follow I find that it is plain and obvious that the claim for termination of contract cannot succeed and therefore, must be struck. I also find that the action against the individual Defendants has no chance of success and therefore, must also be struck. However, the action for breach of contract with respect to the dispute resolution clause may proceed, with substantial modifications to the Statement of Claim. Notably, the Plaintiffs must remove all references to the alleged defamation, to confidential information obtained in the course of Dr. Fowlie's duties, to the state of WCL prior to Dr. Fowlie's contract and to the complaint to the Ministry of Labour. The Plaintiffs must also amend the Statement of Claim to plead only the alleged breach of contract based on the dispute resolution provision of the Contract and to properly plead the demand for aggravated and punitive damages.

Factual Background

[7] The Defendant WCL is the national governing body for Olympic Style Wrestling in Canada. The Defendant Tamara Medwidsky ("Medwidsky") is WCL's Executive Director. The Defendant Lee Mackay ("Mackay") is the Chair of WCL's Board of Governors.

[8] The Plaintiff, Dr. Frank Fowlie, is a dispute resolution practitioner.

[9] On September 30, 2020, WCL entered into an independent contractor services agreement ("the Contract") with FowlieCo. Under the Contract, FowlieCo was to act as WCL's Complaints and Appeals Officer. It is undisputed that Dr. Fowlie was the principal of FowlieCo and was to carry out the work required by FowlieCo.

[10] When WCL announced the appointment of Dr. Fowlie as its new Complaints and Appeal Officer effective October 1, 2020, it described him to the public as follows: "Dr. Fowlie is an accomplished mediator with expertise in conflict resolution. He was previously on the mediation roster with the Court of Arbitration for Sport, as well as Director with the Sport Dispute Resolution Centre of Canada. He is bilingual and serves as Commissioner with Athletics Canada."

[11] Section 8.3 of the Contract permitted a "without cause" termination by either party on the giving of 30 days' notice (the "Termination Clause"):

8.3. If WCL or the Contractor needs to terminate the Agreement for any other reason, either Party may do so by giving at least 30 days' written notice of termination to the other Party.

[12] The Contract also contained a dispute resolution clause that stated:

9.8. DISPUTE RESOLUTION: If a dispute arises, WCL and Contractor shall meet on a without prejudice basis (as quickly as reasonably practical having regard to the nature, complexity and impact of the dispute) to attempt to resolve the dispute or to negotiate for an adjustment to any provision of this agreement. Each party acknowledges that it is in its interest to have all matters resolved by mutual agreement and each agrees to expeditiously, reasonably, and not in bad faith, to resolve such dispute. If WCL and the Contractor are not able to resolve any dispute referred to them within five (5) business days after the dispute was referred to them, then the dispute may be resolved under the Arbitration Act.

[13] On September 16, 2021, WCL gave 30 days’ notice and terminated the Contract.

[14] On April 8, 2022, FowlieCo and Dr. Fowlie issued a Statement of Claim against WCL, Medwidsky and Mackay. The claim was amended to correct minor typographical errors in September 2022, on consent. The Amended Claim pleads a single cause of action: breach of contract. The Amended Claim pleads claims on behalf of both FowlieCo and Dr. Fowlie.

[15] The Plaintiffs allege that WCL failed to engage in dispute resolution under the Dispute Resolution Clause, and that this gives rise to both damages for breach of contract and punitive damages. The Plaintiffs also allege that the Defendants wrongfully terminated the Contract without engaging in the dispute resolution process as they were required to do under s. 9.8 of the Contract.

[16] The Amended Claim also details other allegations. These include:

(a) Paragraphs 10-11, 31-61, 73 comprise allegations against David Spinney ("Spinney"), a varsity wrestling coach at Western University, Ahmed Shayima ("Shayima"), a varsity wrestling coach at McMaster University, and Mara Schiavulli ("Schiavulli"), the mother of an athlete (together "Spinney et al."). These individuals are alleged to have acted together to defame Dr. Fowlie and destroy his career in response to a complaint that was brought against Spinney through WCL's confidential dispute resolution process. The Plaintiffs speculate that the Contract was terminated by WCL because of what they describe as a "campaign of hatred and harassment" initiated by Spinney et al.

(b) Paragraphs 13-23 concern WCL's culture before the Contract was executed and allege that WCL was a broken and troubled organization.

(c) Paragraphs 67-72 relate to allegations concerning a Ministry of Labour investigation initiated by the Plaintiffs under s. 32.07 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, in September 2021. The investigation also concerned the allegedly defamatory conduct of Spinney et al.

[17] Dr. Fowlie has brought a separate defamation claim against Spinney, Shayima and Schiavulli in CV-22-88853.

The Law

[18] Under Rule 21.01(1)(a) of the Rules of Civil Procedure, a party can ask the court to determine a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action.

[19] Under Rule 21.01(1)(b), a claim may be struck on the basis that it discloses no reasonable cause of action.

[20] The legal test under both subrules 21.01(1)(a) and (b) is the same: MacDonald v. Ontario Hydro (1994), 19 O.R. (3d) 529 (Gen. Div.). (See also Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, 154 O.R. (3d) 587, at para. 14.) The test is whether it is "plain and obvious", assuming the facts pleaded to be true, that the claim has no reasonable prospect of success: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17.

[21] The legal principles applicable to motions under Rule 21.01(1) are well established:

(a) No evidence is admissible on the motion and claimants must plead all facts on which they intend to rely;

(b) The court must take the facts pleaded in the statement of claim as true, unless they are patently ridiculous or manifestly incapable of being proven;

(c) The claim should be read as generously as possible to accommodate any drafting deficiencies. If the claim has some chance of success, it should be allowed to proceed. (The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, 150 O.R. (3d) 449, at paras. 45-47.)

Application of the Law to the Present Case

The Termination of Dr. Fowlie's Contract

[22] In the Amended Statement of Claim, at paragraphs 48 and 49, the Plaintiffs admit that WCL gave Dr. Fowlie 30 days’ notice when it terminated his contract. Thirty days’ notice was the requirement under the contract. Therefore, I find that there is no cause of action for breach of contract for termination of the Contract.

Failure to Engage in Dispute Resolution

[23] The Plaintiffs claim that the Defendants breached the contract by failing to engage in dispute resolution under s. 9.8 of the Contract before terminating Dr. Fowlie's employment.

[24] The Defendants state that the Dispute Resolution Clause is not part of the termination section of the Contract and therefore, is not required before termination occurs.

[25] The Defendants argue that the Dispute Resolution Clause clearly concerns itself with the process the parties are to follow in advance of commencing litigation where "a dispute arises". They state that a "dispute" is a precondition to "dispute resolution". Citing Black's Law Dictionary, 9th ed. (St. Paul, MN: Thomson West, 2009), the Defendants state that a "dispute" is a conflict or one that has given rise to a particular lawsuit. They state that there was no dispute in this case and therefore, the Defendants were not required to engage in dispute resolution with the Plaintiffs.

[26] I do not think it is appropriate to interpret the term "dispute" in such a limited manner in the context of a Rule 21 motion. The Plaintiffs may be able to establish that the term "dispute" as it is employed in the Contract, is broad and general enough to encompass a complaint or a grievance. As such, the Claim should not be dismissed on the basis of the definition of "dispute".

[27] The Plaintiffs indicate at paragraphs 59 to 61 of the Statement of Claim that Dr. Fowlie made several complaints in writing to WLC, including at least eight to the Defendant Medwidsky and one to the organization's legal counsel, in which Dr. Fowlie complained that WCL and its counsel were "making the situation worse by sending Mr. Spinney and his supporters material that emboldened them to continue their campaign of hatred and harassment".

[28] At paragraph 63, the Plaintiffs allege that WCL and Medwidsky refused to engage with Dr. Fowlie under s. 9.8 of the Contract. At paragraph 77, the Plaintiffs allege that:

The Defendants willingly breached the employment contract and refused to avail themselves of a dispute resolution system of their own device. Therefore, the Plaintiff lost the opportunity to try to clear his name in the small, tightly knit community in which he hoped to continue working.

[29] I find that the Plaintiffs have alleged sufficient facts to make out a claim of breach of contract for failure to engage in dispute resolution. The Contract does not stipulate that the dispute resolution process must be conducted before termination. However, that is not fatal to the claim, in my view. The Plaintiffs have alleged that the Defendants' failure to deal with Dr. Fowlie's complaints resulted in the loss of the opportunity to clear his name. Thus, the Plaintiffs' claim for the breach of section 9.8 of the Contract is capable of standing on its own, without the termination claim.

[30] I am cognizant of the argument that Dr. Fowlie's claim may be dependent upon being able to establish that the dispute resolution process could have produced a positive result in terms of his employment or his reputation in the community. However, any consideration of whether Dr. Fowlie would have been successful in the dispute resolution process may not only be speculative, but it may also encroach on the other claim for defamation that Dr. Fowlie has brought, thus raising the risk of conflicting decisions. As discussed in greater detail below, the allegations of defamatory conduct by the third parties should be struck from the Amended Claim. Running concurrent proceedings on this issue is an abuse of process: see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 51.

[31] Nevertheless, the Plaintiffs may be able to establish that there was a benefit to engaging in dispute resolution regardless of the outcome, and the deprivation of that benefit gives rise to damages. For that reason, I am not prepared to dismiss the claim for breach of contract on this motion, but I am requiring the Plaintiffs to remove all allegations of defamation and breach of contract based on the termination of the Contract. The Plaintiffs must also amend their claim to plead the relevant facts to support the claim for breach of contract solely on the basis of the dispute resolution provisions.

[32] I understand that Dr. Fowlie believes that the termination of his contract added insult to injury by giving the impression that WCL agreed with the allegations against him. Although I have found that the alleged wrongful termination of Dr. Fowlie's contract must be struck because it discloses no cause of action, the timing of the termination may be relevant and therefore, may still be pleaded. However, the issue of whether the termination constituted a breach of contract may not be pleaded.

The Question of Damages

[33] The Defendants argue that even if one could find that the failure to offer dispute resolution was somehow actionable, no damages would result. They state that at its highest, the Plaintiffs' claim could entitle them to nominal damages, which in and of itself is a discretionary remedy.

[34] I disagree. The Plaintiffs claim aggravated and punitive damages. While punitive damages are rarely awarded for breach of contract, the courts will do so in the appropriate circumstances. In Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, the Supreme Court of Canada provided the test for punitive damages, at para. 36:

Punitive damages are awarded against a Defendant in exceptional cases for “malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency”: Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 196. The test thus limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour. I find that the Plaintiffs have pleaded sufficient material facts, which if proven, could lead to an award of punitive damages. [Emphasis added.]

[35] I agree with the Defendants that at present, the Amended Claim does not contain allegations that would support a claim for punitive damages. However, the Plaintiffs' response to the motion does. In their response, the Plaintiffs allege:

The Defendants failed to protect their Complaints and Appeal Officer (the Plaintiff) from a vile, cruel, and very public campaign of defamation against him by members of their organization who were subject to their discipline process and their governance. The Defendant organization, its Board of Directors and its Executive Director said and did nothing during this campaign for almost a year. The Defendant organization simply looked the other way while the Plaintiff was being savaged by the defamers.

[36] Whether the Plaintiffs will be able to prove the above-noted allegations (with the exception of defamation, which, as discussed below, must be removed from the Amended Claim) and if so, whether they meet the very high threshold to establish a claim for punitive damages are not questions to be addressed in the context of a motion to strike. The question is simply whether material facts can be pleaded that would satisfy the necessary elements of the claim. I find that the Plaintiffs could plead sufficient material facts, which if proven, may lead to an award of punitive damages. Therefore, it is appropriate to provide the Plaintiffs with leave to amend the Amended Claim to properly plead the claim for punitive damages.

[37] As stated by the Court of Appeal in Miguna v. Ontario (Attorney General) (2005), 205 O.A.C. 257 (C.A.), at para. 22, "It is only where it is clear that the Plaintiff cannot allege further material facts that he knows to be true to support the allegations that leave to amend will be refused." Leave to amend should only be denied in the clearest of cases: Tran v. University of Western Ontario, 2015 ONCA 295, at paras. 25-27; South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6.

[38] The Plaintiffs also claim aggravated damages. In Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3, the Supreme Court of Canada provided the test for aggravated damages, at para. 47:

The court must be satisfied: (1) that an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and (2) that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation. These questions require sensitivity to the particular facts of each case.

[39] Once again, the claim for aggravated damages is not supported by factual allegations in the Amended Claim. However, the Plaintiffs’ response to the motion provides the basis for an amendment to the claim that will permit them to move forward with the claim for aggravated damages.

[40] In their response to the motion, the Plaintiffs state at paragraph 33 that the Dispute Resolution Clause pledges good faith dealings by the parties. It is thus arguable that the object of the clause was to secure the psychological benefit of resolving conflicts or complaints at an early stage. The Plaintiffs then state the following at paragraph 35 of the response to the motion:

The actions of WCL, its Board and management can reasonably be assumed to have destroyed Dr. Fowlie's career in a field he truly loved. He spent many years and a great deal of money to earn the qualifications to be a Complaints and Appeal Officer.

[41] Although mental suffering is not specifically mentioned or pleaded anywhere, there would seem to be a basis for doing so in the paragraph above. Thus, I grant leave to the Plaintiffs to amend the Statement of Claim to plead the material facts related to aggravated damages.

Removal of the Individual Defendants

[42] The Defendants state that under the common law principle of privity of contract, the general rule is that no one but the parties to a contract can be bound by or entitled under it: Brown v. Belleville (City), 2013 ONCA 148, 114 O.R. (3d) 561, at para. 73.

[43] Privity of contract means that contracts should not give rights or obligations to entities other than the parties to the contract. The principle helps to protect people who are not parties to a contract from lawsuits arising from that contract. Exceptions to the principle of privity include contracts involving trusts or insurance companies, agent-principal contracts, and cases involving negligence: see Brown, at para. 80.

[44] In the present case, none of the exceptions to the doctrine of privity of contract are pleaded in the Statement of Claim. Therefore, the Defendants argue that Medwidsky, Mackay and Dr. Fowlie are not properly named as parties to this litigation.

[45] I agree with the Defendants that Medwidsky and Mackay are not parties to the Contract. The Plaintiffs have not provided any basis in their pleadings or elsewhere for any of the exceptions to the doctrine of privity of contract to apply to the individual Defendants. Therefore, there is no basis for holding these Defendants individually liable for the alleged breach of the Contract, and the claim against them is struck.

[46] However, I disagree that Dr. Fowlie should not be permitted to be a party to the Claim. As noted by Baltman J. in Frank Giannobile and Eurogroup Financial Services & Insurance Agency Ltd. v. Sun Life Financial and Sun Life Assurance Company of Canada, at para. 12, courts have used the concepts of agency and the principled exception to the privity rule to allow an agent or a third party who is not a party to the contract, but who is governed by it, to enforce the contract: see Ogoki Frontier Inc. v. All A.I.R. Ltd.; Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108. The principal agent exception might apply in the present case.

[47] I therefore grant leave to Dr. Fowlie to amend the Statement of Claim to plead material facts which could potentially bring him within one of the exceptions to privity of contract.

The Pleading of Improper Facts

[48] The Defendants state that the Amended Claim pleads facts that are scandalous, frivolous and an abuse of process. The Defendants further state that the Amended Claim pleads numerous facts that are entirely unrelated to the issue of breach of contract and which should be struck as scandalous and frivolous or as an abuse of process.

[49] Parts of a pleading that are irrelevant, argumentative, speculative, inserted merely for colour, or that constitute bare allegations or unfounded and inflammatory attacks on the integrity of a party are treated as scandalous and may be struck out under Rule 25.11(b): see Rare Charitable Research Reserve v. Chaplin, at para. 22. A pleading that is solely for the purpose of atmosphere or is designed only to cast the opposing party in a bad light should be struck. Similarly, pleadings of historical facts, whether those facts are true or not, that have no relevance to the proceeding are struck: see Canadian National Railway v. Brant (2009), 96 O.R. (3d) 734 (S.C.), at paras. 28-29.

[50] Under Rule 25.11, a court may strike out a pleading on the ground that the pleading "may prejudice or delay the fair trial of the action", is "scandalous, frivolous or vexatious", or is "an abuse of the process of the court".

The Alleged Campaign of Defamation

[51] The first set of facts the Defendants say should be struck are those that detail the dispute between Dr. Fowlie and Spinney, Shayima and Schiavulli. The Defendants state that the conduct of the latter three individuals is not in issue in this litigation.

[52] Paragraphs 10-11, 31-61 and 73 all relate to an alleged campaign of defamation orchestrated against the Plaintiffs by Spinney et al. There is separate litigation against Spinney et al. for defamation, which may result in conflicting findings of fact if the Court is required to rule on whether the statements, which are detailed in the Amended Claim, are defamatory.

[53] Significantly, the Court is not asked in the present litigation, nor should it be asked, to determine whether the statements were defamatory. Rather, the claim is that WCL breached the Contract by failing to respond to Dr. Fowlie's complaints about the statements. The truth of the statements made by Spinney et al. is not to be determined in the present action, nor is the defamatory or otherwise illegal character of the statements to be determined.

[54] However, some of the statements made by Spinney et al. are relevant to the question of whether the Defendant WCL breached the contract by failing to engage in dispute resolution and if so, what the damages might be. Therefore, I accept that the Plaintiffs need to plead some details about the nature of the "dispute" to establish the basis for the claim to punitive and aggravated damages.

[55] The Plaintiffs may not, however, refer to the emails and communications as being "defamatory". That issue is to be determined in another proceeding and the use of the term in the present proceeding is merely inflammatory and designed to provide colour to the pleadings. Reference to defamation or defamatory comments must be removed from the Amended Statement of Claim.

Confidential Information

[56] Furthermore, the Plaintiffs have gone too far in pleading confidential details about complaints that were filed with WCL in which Dr. Fowlie was involved. For example, paragraph 37 and 38 of the Amended Claim are unnecessary and inappropriate because they contain confidential information that was obtained by Dr. Fowlie through WCL's confidential dispute resolution process. Dr. Fowlie was required to keep this information confidential under the Contract with WCL.

[57] I note that in a decision dated October 28, 2022, David Kellerman dismissed a complaint against Dr. Fowlie for breaching the confidentiality obligations in the Contract. However, Mr. Kellerman did find that the information Dr. Fowlie disclosed in the context of the defamation action was deemed confidential under s. 48 of WCL's Discipline and Complaints Policy. Dr. Fowlie was not found to have breached the Policy because by the time the complaint was brought against him, he was no longer a participant under the terms of the Policy.

[58] Mr. Kellerman's finding is relevant to the present litigation because it appears that the same confidential information that was disclosed in the defamation lawsuit is disclosed in the present litigation. The confidential information is not necessary to establish the elements of the claim for breach of contract and/or damages, and it is prejudicial to third parties who are not involved in the present litigation. Therefore, I direct the Plaintiffs to remove the confidential information from the Statement of Claim, with the caveat that allegations such as the ones set out in paragraph 39 that relate to the dispute may remain (with the removal of the term "defamatory").

[59] In addition, an order banning publication of the name or identity of those individuals involved in the discipline and complaints process who are named in the Amended Claim may be appropriate. Further measures may be needed to protect the privacy of those involved. If that is the case, I would ask that counsel first attempt to resolve this themselves, failing which they may appear before me to speak to this issue.

[60] Therefore, I am providing leave to amend paragraphs 10-11, 31-61 and 73 of the Amended Claim in accordance with the directions I have provided in these Reasons.

The Historical Background of WCL

[61] The second set of factual allegations to which the Defendants object is found at paragraphs 13-23 of the Amended Statement of Claim. These allegations relate to the state of WCL before the Contract was executed in Fall 2020. The Defendants state that these paragraphs are improper because they plead historical facts in an attempt to portray WCL in a negative light. In addition, they are irrelevant because they cannot assist the Court in determining whether there was a breach of contract.

[62] The Plaintiffs counter that the paragraphs in the Amended Claim that describe the situation at WCL before the creation of the Complaints and Appeal Officer position are important to the Claim. They provide much needed context to the Court, helping it understand that, like many other amateur sports organizations, WCL had serious issues. The Plaintiffs allege that the impugned paragraphs are important to understanding the context of the termination of the Contract, as well as WCL's bad faith dealings with Dr. Fowlie.

[63] I disagree with the Plaintiffs and find that paragraphs 13-23 are not relevant to the claim of breach of contract and are scandalous, as that term is defined in Chaplin, at para. 22. Therefore, I order them to be struck from the Amended Claim.

Allegations Regarding Ministry of Labour Investigation

[64] Finally, the Defendants argue that in paragraphs 67-72 the Plaintiffs detail a complaint made by Dr. Fowlie to the Ontario Ministry of Labour (MOL). The Plaintiffs allege that this complaint was improperly handled by WCL. The Defendants assert that the MOL complaint is entirely irrelevant to the Plaintiffs' claim for breach of contract and cannot be considered by the Court in this proceeding. Therefore, these paragraphs should also be struck from the Amended Claim.

[65] In response, the Plaintiffs assert that the MOL complaint is relevant to Medwidsky's liability in failing to take the complaints Dr. Fowlie was making about the emails that were being sent about him seriously. The Plaintiffs further justify the inclusion of these allegations by stating that they are relevant to the request for punitive damages.

[66] Given that Medwidsky is to be removed as a Defendant, the link to her conduct is no longer relevant. Furthermore, I do not see how WCL's post termination conduct is relevant to the alleged breach of contract and/or damages. The Plaintiffs would seem to be attempting to establish a pattern of conduct that they think will increase their chances of punitive damages. However, an inquiry into whether the MOL complaint was properly handled would lead the Court down a path of inquiry of very limited relevance, given that these events happened after the Contract had been terminated.

[67] As the Court stated in Chaplin, at para. 23, the whole point of rules like Rule 21 is to keep pleadings focused on the major purpose – to identify the key issues in dispute and the material facts relating to those issues. Paragraphs 67-72 of the Amended Statement of Claim take the focus away from the key issue in dispute, which is whether the failure to engage in dispute resolution constitutes a breach of the Contract. Therefore, paragraphs 67-72 are also struck.

Conclusion and Orders

[68] The Plaintiffs may proceed with their claim for punitive and aggravated damages for breach of contract based on the alleged failure to engage in dispute resolution under s. 9.8 of the Contract. However, the appropriate amendments to the Statement of Claim must be made.

[69] The orders are as follows:

(a) The claim for breach of contract based on the termination of the Contract is struck and all paragraphs relating to this allegation must be removed from the Statement of Claim;

(b) The Plaintiffs may proceed with the action for breach of contract, but must amend the Statement of Claim to plead the appropriate elements of the revised claim as well as the facts in support of punitive and aggravated damages;

(c) The claims against the Defendants Medwidsky and Mackay are struck and all paragraphs relating to those claims must be removed from the Amended Statement of Claim;

(d) Paragraphs 10-11, 31-61 and 73 must be amended to remove references to defamation and to remove references to confidential information that was obtained through the WCL complaints and discipline process. Allegations that relate to the substance of the dispute that the Plaintiffs allege should have been subject to the dispute resolution process under s. 9.9 of the Contract may remain, with necessary modifications;

(e) Paragraphs 13-23 of the Amended Statement of Claim are struck;

(f) Paragraphs 67-72 of the Amended Statement of Claim are struck.

[70] If issues arise with respect to the implementation of the above-noted orders, I may be spoken to.

Costs

[71] Success on this motion has been divided. However, the Defendants have largely prevailed. I encourage counsel to resolve the issue of costs on their own.

[72] If costs cannot be agreed upon between counsel, then an appointment should be scheduled with the trial coordinator within 30 days of the release of this decision to address the issue of costs. In such event, the parties will deliver concise briefs at least two days before their attendance. If no arrangements are made within 30 days for an appointment to speak to costs, no order for costs will be made in this motion.

Justice K.A. Jensen Date: May 2, 2023

COURT FILE NO.: CV-22-88982 DATE: 2023/05/02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: DR. FRANK FOWLIE and 63215941 CANADA LTD Plaintiffs - and - WRESTLING CANADA LUTTE and TAMARA MEDWIDSKY and LEE MACKAY Defendants

ENDORSEMENT Justice K. Jensen Released: May 2, 2023