Court File and Parties

Court File No.: CV-21-00060359-0000
Date: 2025-03-10
Court: Superior Court of Justice - Ontario

Plaintiffs: West Niagara Baseball Association and John Jackson
Defendants: Al Dobbin and John DeCicco as representatives of Niagara District Baseball Association and Grimsby Amateur Ball Association Inc. and Ontario Baseball Association Inc.

Before: Robert B. Reid
Counsel:

• John Jackson for the Plaintiffs, self-represented
• J. Conway and K. Martini, counsel for the Defendants
  Heard: January 24, 2025

Introduction

[1] The parties are engaged in litigation in which the plaintiffs allege breach of contract, breach of fiduciary duty, breach of the duty of good faith, and civil conspiracy against the defendants.

[2] The plaintiffs, John Jackson and West Niagara Baseball Association (“Jackson” and “WNBA”), ran a youth baseball league in Grimsby, Ontario. The defendants Al Dobbin and John DeCicco are representatives respectively of Niagara District Baseball Association (“NDBA”) and Ontario Baseball Association Inc. (“OBA”), which are the parent associations that govern the WNBA. The defendant Grimsby Amateur Baseball Association Inc. (“GABA”) is another local baseball association that operates in the Grimsby area.

[3] The plaintiffs allege that the defendants unlawfully interfered with the plaintiffs’ exclusive jurisdiction to provide youth rep baseball in Grimsby.

[4] The claim was issued September 3, 2021. John DeCicco, on behalf of NDBA, was examined for discovery on May 16, 2023, at which time he gave undertakings. David Huctwith, on behalf of OBA, was examined for discovery on May 17, 2023, at which time he gave undertakings. Adam Young, on behalf of GABA, was examined for discovery on May 17, 2023, and he also gave undertakings.

[5] The defendants state that they have provided answers to the undertakings or made best efforts to provide answers over the time since the examinations for discovery occurred. The plaintiffs submit that the answers or best efforts have been insufficient and seek orders compelling the defendants to comply with the undertakings.

[6] Some of the undertakings related to the disclosure of complaints made by parents whose children played baseball in which improper conduct by the plaintiffs is alleged. Those complaints are said to have prompted the plaintiffs’ indefinite suspension from operating a baseball league in Grimsby by NDBA and OBA.

[7] In seeking the information necessary to answer the undertakings, the defendants learned that the parents involved in the complaints had concerns about the disclosure of their names and the names of their children. As a result, the answers to the undertakings provided by the defendants disclosed the substance of the complaints, but with redactions as to the identities of the complainants and the children involved. Affidavits were filed to justify the redactions. The affidavits contained similar redactions as to identity.

[8] The plaintiffs request the answers to the undertakings without redactions.

Issues on the Motion

[9] The two issues for decision on this motion are:

a. Should the defendants be required to provide further or better answers to undertakings given on discovery?
b. Should the defendants be compelled to provide unredacted answers to undertakings such that the identities of involved third parties are disclosed?

Are further or better undertakings required?

[10] Some undertakings were answered in late December 2023. They included the redacted emails which contained details of the complaints, but without disclosing the identities of the complainants.

[11] The motion requesting fulfillment of undertakings was filed March 14, 2024.

[12] The parties met on March 21 and April 3, 2024 in attempts to resolve the remaining issues about outstanding undertakings.

[13] Further documents were provided by the defendants on April 9 and May 22, 2024.

[14] Counsel for the plaintiffs filed a factum dated June 10, 2024 identifying the undertakings that the plaintiffs submitted were unanswered as of that date. Those items are listed in the undertakings charts provided in the supplementary motion record of the plaintiff dated April 16, 2024 at tab 1 (as to J. DeCicco), tab 2 (as to D. Huctwith), and tab 3 (as to A. Young).

[15] Three of the undertakings of J. DeCicco (numbered 10, 13, and 26) relate to documents already provided, but with redactions. The sufficiency of those answers will be dealt with below as regards the second issue on the motion.

[16] On December 30, 2024, the plaintiffs filed a notice to act in person, and oral submissions were made at the hearing of the motion on behalf of the plaintiffs by John Jackson.

[17] Mr. Jackson’s submissions were generally to the effect that the answers received were insufficient. He asserted that, logically, more documents or information should exist on the relevant undertakings than were produced and that the deponents should have made further inquiries of third parties to secure full answers.

[18] The defendants submitted that all undertakings have been answered, or that best efforts to secure answers have been made.

[19] I have reviewed all the undertakings alleged to be outstanding. Except for the redacted answers and as to undertaking #6 given by A. Young, for the following reasons, I conclude that they have all been answered.

[20] Rule 31.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), states as follows:

Failure to Answer Questions

31.07 (1) A party, or a person examined for discovery on behalf of or in place of a party, fails to answer a question if,

(a) the party or other person refuses to answer the question, whether on the grounds of privilege or otherwise;

(b) the party or other person indicates that the question will be considered or taken under advisement, but no answer is provided within 60 days after the response; or

(c) the party or other person undertakes to answer the question, but no answer is provided within 60 days after the response. O. Reg. 260/05, s. 7.

Effect of Failure to Answer

(2) If a party, or a person examined for discovery on behalf of or in place of a party, fails to answer a question as described in subrule (1), the party may not introduce at the trial the information that was not provided, except with leave of the trial judge. O. Reg. 260/05, s. 7.

Additional Sanction

(3) The sanction provided by subrule (2) is in addition to the sanctions provided by rule 34.15 (sanctions for default in examination). O. Reg. 260/05, s. 7.

Obligatory Status of Undertakings

(4) For greater certainty, nothing in these rules relieves a party or other person who undertakes to answer a question from the obligation to honour the undertaking. O. Reg. 260/05, s. 7.

[21] In Stephens v. Creative Mechanical et. al, 2022 ONSC 955, paras. 18-19, this court summarized the obligations of parties under the Rules to make best efforts to satisfy undertakings:

[18] In Linamar Transportation Ltd. v. Johnson, [2014] O.J. No. 3483 (Div. Ct.), the Divisional Court considered an application for leave to appeal based on the failure to undertake “best efforts”. The court cited Gheslaghi v. Kassis, para. 7 and held that “[i]f a party and/or counsel is/are not able to discover the subject of the undertaking, he/she/it must be able to satisfy a court that a real and substantial effort has been made to seek out what is being requested by the other party.”

[19] At para. 15 of Linamar Transportation, the court stated Black's Law Dictionary (9th ed. 2004) defines best efforts as "...Diligent attempts to carry out an obligation...Best efforts are measured by the measures that a reasonable person in the same circumstances and of the same nature as the acting party would take."

[22] In this case, the deponents made efforts to satisfy their undertakings. They reviewed their own and their associations’ records. They made further inquiries of other current or former members who might be expected to have relevant documents or information and provided the results of those inquiries.

[23] Despite the answers received, the plaintiffs submit that there must be additional information available through third parties, and that “best efforts” should have been made to contact those third parties and secure that information. Mr. Jackson may be correct that others have some of the information he seeks that is relevant to the plaintiffs’ claim. However, that does not mean that the defendants have failed in their obligation to make reasonable efforts to secure that information. I note that the sports organizations represented by the defendants appear to be of a non-profit nature, where accurate recording and detailed record-keeping may not have been a high priority.

[24] The Rules include provisions to seek discovery of third parties. If the information requested is sufficiently important and if a court is convinced that the other requirements of r. 31.10(2) are met, it could grant leave for such examination if the plaintiffs choose to bring such a motion.

[25] I have a different view of undertaking #6 given on the discovery of Adam Young.

[26] Question 63 of the discovery was as follows:

I am seeking information from GABA as to why they were denied entry into the Niagara Interlock. If the person that has been presented can’t answer that, they can make inquiries … the organization can make inquiries into that information, and whether it is held by anyone who they can contact.

[27] The response was:

Okay. So, I don’t see any problem with that. So, we can contact John Bailey to see if he knows the answer.

[28] There was an undertaking to contact Mr. Bailey but there is no evidence about the efforts made to contact him.

[29] A summary of the answer to undertaking #6 provided by the defendants is that Adam Young did not have a current phone number for John Bailey and could not contact him. Further efforts to make contact were contemplated, and the defendants speculated that a contact number for Mr. Bailey might be found in another answer to undertakings given by the OBA. Ultimately, counsel responded that the request for inquiries to be made to outside third parties with Interlock was outside the scope of the undertaking. That amounts to what I consider to be a minimal rather than a diligent effort to contact Mr. Bailey as the undertaking required.

[30] There will therefore be an order that diligent efforts be made to contact Mr. John Bailey within 60 days of hereof with any information then to be provided to the plaintiff. If Mr. Bailey cannot be contacted, details of diligent efforts made to contact him are to be provided to the plaintiffs by the defendants within the same period.

Are unredacted answers to undertakings required?

[31] Undertakings #10, 13 and 26 given by Mr. DeCicco required the production of all communications as to complaints received about the plaintiffs. Answers were given but with redactions of the identities of the complainants and the children involved.

[32] The parties agreed to argue this motion based on the redacted answers, and on the content of similarly redacted affidavits filed by non-parties, which was permitted by the endorsement of Donohue J. dated May 23, 2024.

[33] The defendants acknowledged that the information contained in the answers was relevant and non-privileged and therefore prima facie admissible. However, counsel submitted that, in the circumstances, the court should exercise its discretion to mitigate the risk of abuse of its’ process by permitting the redactions. Counsel conceded that at some point prior to trial, perhaps 30 days in advance of the trial sittings, the unredacted material could be provided to permit proper trial preparation by the plaintiffs. Currently, there is no anticipated trial date.

[34] The plaintiffs deny any risk of abuse of the information and request an order that unredacted answers to the undertakings be provided.

[35] By way of review, the subject of the lawsuit arises from two main allegations: that OBA and NDBA improperly approved GABA to operate within WNBA territory and that NDBA improperly suspended Mr. Jackson and WNBA in November 2019, indefinitely preventing the plaintiffs from running their baseball league. NDBA has justified its suspensions based on alleged “unethical actions” by Mr. Jackson and based on WNBA’s alleged failure to follow NDBA’s administrative requirements.

[36] The details of the alleged unethical actions were disclosed, at least in part, in the complaints received by the defendants.

[37] I agree that the identity of the complainants and the details of their complaints (including the identities of the children involved) is relevant to the litigation. As submitted by the plaintiffs, the identity of the complainants is relevant to their case since the individuals may be potential witnesses who have knowledge of the alleged concerns that led to the plaintiffs’ suspension.

[38] No limitation on the answers to the undertakings as to identity was imposed when the undertakings were given. The defendants’ position that they did not undertake to produce the identities of the complainants is not supportable. What they undertook to do was provide “all communications from any third party with respect to complaints…” and “all documents in relation to complaints received…”.

[39] According to this court in Jones v. I.F. Propco, 2018 ONSC 23, para. 52: “[P]ermissible redaction requires two elements: the information that is sought to be redacted must be irrelevant and there must be a good reason for its redaction.” By that test, no redaction is appropriate in this case because, as indicated, the information is clearly relevant.

[40] Possible harm caused by disclosing the redacted information can be mitigated by the deemed undertaking rule, r. 30.1.01(3). That rule deems that all parties and their lawyers undertake not to use any evidence or information for any purposes other than those for the proceeding in which the evidence was obtained. That rule is no less applicable to the plaintiffs as self-represented litigants as would be the case if counsel continued to represent them.

[41] The defendants submit that the court has the duty and responsibility to control its own process to ensure that the truth-finding function of the court is not perverted for ulterior motives, such as the harassment and intimidation of non-party witnesses. However, the identities of the complainants directly relate to the complaints which in turn were the apparent basis for Mr. Jackson’s suspension. It is important information to which the plaintiff should be entitled.

[42] I accept that at common law the court has an inherent jurisdiction to prevent abuse of process. Counsel for the defendants analogize to a case from the English Court of Appeal, Church of Scientology of California v. Department of Health and Social Security (D.H.S.S.), [1979] 3 All. E.R. 97, para. 113 (Eng. C.A.), which dealt with inspection of documents. In that case, the court held that although a party is entitled to a right of unrestricted inspection of documents, the party is not entitled to use that right for any collateral purpose and if it is shown that there is a real risk of doing so, the court has power to impose restrictions to mitigate that risk. This court was not referred to any Canadian cases where the production of otherwise relevant information was permitted to be redacted.

[43] In any event, it is appropriate to review the factual basis for the redaction request which is identified in the affidavits of parents numbered one through seven and the affidavits of Adam Young and John DeCicco contained in the defendants’ responding motion record dated May 31, 2024.

[44] I have reviewed the redacted affidavits filed by the parents. I acknowledge and respect their collective wish not to have their identities and the identities of their children disclosed at this time, even though they realize that the information will of necessity be provided at some point prior to trial.

[45] Based on the information contained in the redacted affidavits, the concerns include a history of disrespectful conduct by Mr. Jackson towards minors, women, young girls, members of the disabled community, parents, and coaches. Mr. Jackson is alleged to have a vengeful personality and some of the deponents have expressed fear for their or their family’s safety. He apparently has a criminal record for theft. There is a history of Mr. Jackson being abusive to players he coached and a failure to discipline a coach for using inappropriate sexual language towards children. He has apparently confronted people involved in the baseball community in public settings on occasions where there is a dispute. One of the parents predicted a high risk that Mr. Jackson will harass the parent and his family at work or in the community. Others refer generally to “inappropriate behaviour” by Mr. Jackson.

[46] Adam Young deposed in his affidavit of May 30, 2024 that at an Interlock meeting on February 23, 2019, Mr. Jackson approached him in the hallway, “got up in my face”, and began to threaten him and his job. The comments were of a “libelous” nature. A report was made to the police, but there was no follow-up. Apparently, the dispute was about Mr. Young, as a realtor, emailing members of WNBA. On two other occasions, when Mr. Young was at the baseball diamond near Mr. Jackson’s home, Mr. Jackson drove by and screamed obscenities at him.

[47] John DeCicco deposed in his affidavit of May 30, 2024 that a common thread in complaints made against Mr. Jackson is that he is vengeful, threatening, and obsessive. He lacks self-awareness and impulse control and harasses those he perceives as enemies.

[48] It goes without saying that the allegations contained in the affidavits that I have summarized have not been proven in court. However, for the purpose of my consideration of this motion, I take the concerns raised by the parents to be made in good faith. In a small community like Grimsby, it may well not be comfortable for the families involved to be in conflict with Mr. Jackson. I cannot say whether the fear of abusive conduct by Mr. Jackson is justified, but I acknowledge that the potential for that conflict may be very distressing.

[49] As I have indicated, it is extremely rare for a court to prevent the disclosure of relevant information during litigation. Those individuals who made complaints are potential witnesses. It is not unusual for witnesses to prefer that they were not involved but that is not something over which they have control.

[50] In this case, it would be highly inappropriate for Mr. Jackson to take any action, directly or indirectly, against any of the complainants or their families. That sort of conduct could have a serious negative effect on his court case. In addition, as I have noted, he is legally obligated not to use the disclosed information for any purposes other than those in direct relation to his claim in court.

[51] In the circumstances, I conclude that it is necessary for the progress of the case and the proper administration of justice that the undertakings be answered without redaction. There will be an order to that effect. There is of course no requirement, nor is it appropriate, that the unredacted affidavits filed in support of this motion be disclosed. They will remain sealed.

Conclusion

[52] For the foregoing reasons:

a. The defendants are to provide to the plaintiffs unredacted copies of the answers to undertakings #10, 13 and 26 from the examination for discovery of John DeCicco within 30 days.

b. The defendants are to provide to the plaintiffs an answer to undertaking #6 from the examination for discovery of Adam Young as to information received from John Bailey, or in the event Mr. Bailey cannot be contacted, to provide details of the diligent efforts made to contact him, in either case within 60 days hereof.

c. The balance of the motion filed March 14, 2024 is dismissed.

[53] At the conclusion of the motion, counsel requested an order that the matter be referred for case management. That request may be made by application to the office of the Regional Senior Justice pursuant to r. 77.05 or r. 77.06. As well, the parties may seek a case conference under r. 50.13 by request through the usual channels.

Costs

[54] The parties are encouraged to resolve the issue of costs of the motion between themselves. If they are unable to do so, they may submit their bills of costs and make written submissions, consisting of not more than three pages in length, according to the following timetable:

• The defendants are to serve their bills of costs and submissions by March 21, 2025.
• The plaintiffs are to serve their bills of costs and submissions by April 4, 2025.
• The defendants are to serve their reply submissions, if any, by April 11, 2025.
• All submissions are to be filed with the court, with a copy also emailed to St.Catharines.SCJJA@ontario.ca, and uploaded to Case Center by April 17, 2025.

[55] If no submissions are received by the court by April 17, 2025, or any agreed extension, the matter of costs will be deemed to have been settled.

Robert B. Reid

Date Released: March 10, 2025