D.K.A. v. T.H., 2011 YKCA 5

• Judge: Rowles, Frankel and Bennett, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: May 17, 2011
• Jurisdiction: Yukon
• Citations: 2011 YKCA 5;(2011), 309 B.C.A.C. 277 (YukCA)

D.K.A. v. T.H. (2011), 309 B.C.A.C. 277 (YukCA);

    523 W.A.C. 277

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. AU.037

D.K.A. (appellant/plaintiff) v. T.H. (respondent/defendant)

(YU0662; 2011 YKCA 5)

Indexed As: D.K.A. v. T.H.

Yukon Court of Appeal

Rowles, Frankel and Bennett, JJ.A.

August 30, 2011.

Summary:

The plaintiff's employer was under contract with the City of Whitehorse to clean the Canada Games Centre. The Acting Associate Manager of Indoor Facilities at the Games Centre (the defendant) received a complaint that the plaintiff had treated patrons of the Games Centre in a disrespectful and threatening fashion. As a result, the employer reassigned the plaintiff to another work location. The plaintiff sued the defendant, alleging various torts. The defendant applied to strike the claim on the basis that it disclosed no reasonable cause of action.

The Yukon Territory Supreme Court, in a decision reported at [2010] Yukon Cases Uned. (S.C.) 63, allowed the application and struck the claim. The plaintiff appealed.

The Yukon Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1108

Discrimination - Civil proceedings - Exclusions and prohibitions - The plaintiff's employer was under contract with the City of Whitehorse to clean the Canada Games Centre - The Acting Associate Manager of Indoor Facilities at the Games Centre (the defendant) received a complaint that the plaintiff had treated patrons of the Games Centre in a disrespectful and threatening fashion - As a result, the employer reassigned the plaintiff to another work location - The plaintiff sued the defendant, alleging, inter alia, discrimination based on race - The Yukon Court of Appeal affirmed the striking of the statement of claim - The plaintiff alleged that the defendant's actions in fabricating the incident and subsequently having him "banned" from the Games Centre were motivated by the fact that he is "'Physically Black' which means she hate [ sic ] all Africans" - Discrimination had no common law remedy and had to be pursued exclusively under applicable human rights legislation unless the claim was attached to an existing cause of action - As no other reasonable causes of action had been pleaded to which this claim could attach, this portion of the pleadings was properly struck - See paragraphs 31 and 32.

Libel and Slander - Topic 741

The statement - What constitutes defamatory statements - Slander - General - The plaintiff's employer was under contract with the City of Whitehorse to clean the Canada Games Centre - The Acting Associate Manager of Indoor Facilities at the Games Centre (the defendant) received a complaint that the plaintiff had treated patrons of the Games Centre in a disrespectful and threatening fashion - As a result, the employer reassigned the plaintiff to another work location - The plaintiff sued the defendant, alleging, inter alia, defamation - The Yukon Court of Appeal affirmed the striking of the statement of claim - From his pleadings it appeared that the only phrase the plaintiff took issue with was the defendant's alleged comment that he was "Physically Black" - He indicates that by saying this, the defendant actually meant she "hate [ sic ] all Africans" - Further, he asserted that the defendant claimed he was a threat to her staff because of his appearance - The plaintiff had not adequately described how the impugned phrase was used in a derogatory sense - He had not provided facts and matters on which he relied - Further, he had not indicated how those words, or any others for that matter, were published or communicated - Accordingly, his pleadings did not disclose a claim in defamation - See paragraphs 27 to 30.

Torts - Topic 275

Negligence - Breach of statute - General principles - The plaintiff's employer was under contract with the City of Whitehorse to clean the Canada Games Centre - The Acting Associate Manager of Indoor Facilities at the Games Centre (the defendant) received a complaint that the plaintiff had treated patrons of the Games Centre in a disrespectful and threatening fashion - As a result, the employer reassigned the plaintiff to another work location - The plaintiff sued the defendant, alleging, inter alia, wilful incitement of hatred - The Yukon Court of Appeal affirmed the striking of the statement of claim - The plaintiff explained that this claim related to a "canard and criminal negligence act" that was "not just a simple slander or libel" - In essence, he pled a violation of the Criminal Code - There was no tort of a breach of a statutory duty in Canada unless the elements of a recognized tort were also satisfied - Wilful incitement of hatred was not a recognized tort in Canada and, as such, the potential success of his action would need to fall under defamation - See paragraphs 22 and 23.

Torts - Topic 5026

Interference with economic relations - Elements of liability - Practice - The plaintiff's employer was under contract with the City of Whitehorse to clean the Canada Games Centre - The Acting Associate Manager of Indoor Facilities at the Games Centre (the defendant) received a complaint that the plaintiff had treated patrons of the Games Centre in a disrespectful and threatening fashion - As a result, the employer reassigned the plaintiff to another work location - The plaintiff sued the defendant, alleging, inter alia, intentional interference with economic interests - The Yukon Court of Appeal affirmed the striking of the statement of claim - In pleading "negative interference in livelihood" it appeared that the plaintiff sought to accuse the defendant of intentionally interfering with his economic interests - Although the application of this tort to the present circumstances was novel, a court should not strike out a statement of claim simply based on novelty alone - Despite the novelty of the claim, the plaintiff had not pleaded sufficient facts to support his allegation - In particular, there were no facts relating to economic harm suffered by the plaintiff - See paragraphs 20 and 21.

Torts - Topic 5702

Conspiracy - General - Pleadings - The plaintiff's employer was under contract with the City of Whitehorse to clean the Canada Games Centre - The Acting Associate Manager of Indoor Facilities at the Games Centre (the defendant) received a complaint that the plaintiff had treated patrons of the Games Centre in a disrespectful and threatening fashion - As a result, the employer reassigned the plaintiff to another work location - The plaintiff sued the defendant, alleging, inter alia, conspiracy - The Yukon Court of Appeal affirmed the striking of the statement of claim - The plaintiff failed to plead facts upon which a claim for civil conspiracy could be grounded - Most notably, he had not provided any indication of what kind of harm he suffered as a result of any conspiracy between the defendant and others, who were not named - It was, therefore, plain and obvious that the plaintiff's statement of claim failed to disclose a reasonable claim in conspiracy - See paragraphs 24 to 26.

Cases Noticed:

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011), 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 18].

Bow Valley Resource Services v. Kansa General Insurance Co. (1991), 56 B.C.L.R.(2d) 337 (C.A.), refd to. [para. 20].

Saskatchewan Wheat Pool v. Canada, [1983] 1 S.C.R. 205; 45 N.R. 425, refd to. [para. 23].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 23].

Can-Dive Services Ltd. et al. v. Pacific Coast Energy Corp. et al. (1993), 28 B.C.A.C. 157; 47 W.A.C. 157; 96 B.C.L.R.(2d) 156 (C.A.), refd to. [para. 25].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 27].

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 31].

Authors and Works Noticed:

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (9th Ed. 2011), pp. 65 [para. 31]; 770, 771 [para. 27].

Osborne, Philip H., The Law of Torts (3rd Ed. 2007), p. 319 [para. 20].

Counsel:

The appellant acted on his own behalf;

D.P. Hoffman, for the respondent.

This appeal was heard on May 17, 2011, at Whitehorse, Yukon Territory, by Rowles, Frankel and Bennett, JJ.A., of the Yukon Court of Appeal. The following judgment of the Court of Appeal was delivered by Frankel, J.A., at Vancouver, British Columbia, on August 30, 2011.