Lysko v. Braley et al., (2006) 212 O.A.C. 159 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Laskin, Rosenberg and LaForme, JJ.A.
• Citation: (2006), 212 O.A.C. 159 (CA),2006 CanLII 11846 (NS CA),2006 CanLII 11846 (ON CA),79 OR (3d) 721,[2006] OJ No 1137 (QL),146 ACWS (3d) 925,212 OAC 159
• Date: 27 March 2006

Lysko v. Braley (2006), 212 O.A.C. 159 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. AP.084

Michael Lysko (plaintiff/appellant) v. David Braley, David Asper, Sherwood Schwarz, Lyle Bauer, John Tory, Jeffrey Giles, David MacDonald, George Grant, Hugh Campbell, Robert Ellard, Robert Wetenhall, Sig Gutsche, B.C. Lions Football Club Inc., Vancouver Football Operations Ltd., 431966 B.C. Ltd., Calgary Stampeder Football Club Ltd., Edmonton Eskimo Football Club, Montreal Alouettes (1997) Limited Partnership, 9032-9756 Quebec Inc., 1493044 Ontario Limited, carrying on business as The Ottawa Renegades, Saskatchewan Roughriders Football Club, Argos N.S. Corporation, Toronto Argonauts Holding Inc. and Winnipeg Blue Bombers Football Club (defendants/respondents)

(C42807)

Indexed As: Lysko v. Braley et al.

Ontario Court of Appeal

Laskin, Rosenberg and LaForme, JJ.A.

March 27, 2006 and April 13, 2006.

Summary:

In October 2000, the Canadian Football League (CFL), an unincorporated association made up of incorporated football clubs, hired Lysko to be its commissioner for three years. In March 2002, the CFL dismissed Lysko. While Lysko continued to receive his salary, car allowance and medical benefits for the balance of the three-year term, he was dissatisfied with the manner in which his employment was terminated and the statements allegedly made by persons associated with the CFL about his management of the League. Lysko sued the incorporated football clubs and some individuals associated with the CFL and the member football clubs. The "long and unwieldy" statement of claim included claims for breach of confidence, negligent misrepresentation, breach of contract, defamation, injurious falsehood and interference with contractual relations. The various corporate and individual defendants brought motions to either strike out the entire claim or at least some of the causes of action.

The Ontario Superior Court, in a decision reported [2004] O.T.C. Uned. 998, struck some of the causes of action for failure to disclose a cause of action. As for the rest, the court struck the statement of claim but granted leave to Lysko to file a new one. Lysko appealed.

The Ontario Court of Appeal allowed the appeal in part.

Equity - Topic 3904

Fiduciary or confidential relationships - Breach of confidence - Elements of action for - Lysko left GEM to become Canadian Football League (CFL) commissioner for a three-year term - The CFL dismissed Lysko after one and one half years - Lysko sued - He alleged that the confidentiality of the negotiations leading to his hiring was breached when someone from the CFL talked to one of Lysko's superiors at GEM - This allegedly caused Lysko "considerable personal anguish, humiliation and embarrassment" because his relationship with GEM's CEO collapsed - However, Lysko did not allege compensable detriment nor emotional or psychological distress - A motions judge struck the breach of confidence claim for failure to disclose a cause of action - The Ontario Court of Appeal agreed - See paragraphs 13 to 20.

Fraud and Misrepresentation - Topic 2533

Misrepresentation - Elements - Special relationships - The Ontario Court of Appeal held that in cases of alleged pre-employment negligent misrepresentations, a special relationship existed between the prospective employer through its representatives and the proposed employee so as to give rise to a duty of care - See paragraphs 36 to 38.

Fraud and Misrepresentation - Topic 4084

Practice - Pleadings - What must be pleaded - Unhappy with his dismissal as Canadian Football League (CFL) commissioner, Lysko sued for damages for negligent misrepresentations allegedly made during pre-hiring negotiations - Lysko named as defendants the CFL Search Committee members which "included" four specifically named people he met during the negotiations - A motions judge struck as insufficient the statement of claim as against the four named individuals because it did not specify who made the representations and it was possible, given the way the statement of claim read, that the Search Committee included other individuals - The Ontario Court of Appeal quashed the decision - The four people actually sued for negligent misrepresentation were named and it was possible that Lysko was referring to the entire membership of the Search Committee - If there was a deficiency, the proper remedy was to require an amendment or particulars - See paragraphs 32 to 35.

Libel and Slander - Topic 67

General - Persons liable - Corporations - The Ontario Court of Appeal affirmed a motions judge's decision striking out a paragraph alleging defamation against corporations where the paragraph did not set the bases for liability which were: (1) a principal could be liable for defamatory comments by its agent if the agent was acting within the scope of his agency; (2) an employer could be vicariously liable for the defamatory expression of an employee acting within the scope of his employment; and (3) a corporation could be liable for publication by its operating mind - See paragraphs 122 to 126.

Libel and Slander - Topic 642

The statement - What constitutes defamatory statements - General principles - Examples of defamatory words - Unhappy with his dismissal as Canadian Football League commissioner, Lysko sued one Bauer for defamation - Lysko alleged that Bauer had compared him to Lord Voldemort, the villain from the "immensely popular" Harry Potter stories - The motions judge struck the allegation, holding that it was not a tort to make comparisons - The Ontario Court of Appeal quashed the decision - Comparing Lysko to a notoriously evil, albeit fictional, figure would tend to expose him to contempt or ridicule - Lord Voldemort was sufficiently known in the community that ordinary persons without special knowledge would take a defamatory meaning from the comparison - See paragraphs 106 to 109.

Libel and Slander - Topic 6126

Practice - Pleadings - Statement of claim - Setting out slanderous words - The motions judge struck several paragraphs of the plaintiff's defamation claim because he did not set out the exact defamatory words uttered - The Ontario Court of Appeal quashed this decision - The words in the above-mentioned paragraphs were pleaded with sufficient particularity to enable the defendants to understand whether the words alleged were defamatory and to enter any defences - The strict rules requiring that the exact words be pleaded no longer represented the law in Ontario - See paragraphs 99 to 103.

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - Unhappy with his dismissal as commissioner of the Canadian Football League, Lysko sued numerous defendants in defamation - Several paragraphs of the statement of claim were devoted to a group of four persons he called the Unidentified Source - Lysko did not plead which of the members of the Unidentified Source published the defamatory words - Nor did he plead that the four were acting in concert, only that they shared the common goal of removing him as commissioner - A motions judge struck those paragraphs - The Ontario Court of Appeal upheld the decision - Lysko did not plead facts upon which to base a prima facie case nor a coherent body of fact showing a defamatory utterance emanating from the defendants - The cases that considered the matter appeared to uniformly require the plaintiff to identify the defendant alleged to have published the defamatory comments - See paragraphs 87 to 98.

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - The Ontario Court of Appeal granted the plaintiff leave to amend his statement of claim to allege the names of the person or persons to whom allegedly defamatory words were uttered - See paragraphs 112 to 114.

Practice - Topic 1307

Pleadings - General principles - Alternative or inconsistent pleadings - Unhappy with his dismissal, Lysko sued for damages for pre-employment negligent misrepresentations and breach of contract - Lysko alleged that had he known the truth he would either not have entered into the employment contract or sought different terms - A motions judge ruled that Lysko pleaded inconsistent causes of action, contrary to rule 25.06(4) of the Rules of Civil Procedure - The Ontario Court of Appeal held that the inconsistency applied only to the extent that Lysko alleged that he would have not taken the job - The appropriate remedy was to permit Lysko to amend the statement of claim in order to remedy that defect and bring the claim into line with rule 25.06(4) - See paragraphs 46 and 47.

Practice - Topic 2103

Pleadings - Amendment of pleadings - To remedy deficiency - [See Fraud and Misrepresentation - Topic 4084 ].

Practice - Topic 2103

Pleadings - Amendment of pleadings - To remedy deficiency - In his statement of claim, the plaintiff alleged that an unincorporated association was liable for negligent misrepresentation but failed to name the corporate entities that made up the association - Elsewhere in the statement of claim, the plaintiff made it clear that he was holding the corporate entities, which he named, liable for negligent misrepresentation - The Ontario Court of Appeal allowed the plaintiff to amend his statement of claim to name the omitted corporate entities - See paragraphs 48 to 52.

Practice - Topic 2103

Pleadings - Amendment of pleadings - To remedy deficiency - The statement of claim was "long and unwieldy" - It was difficult to understand the nature of the plaintiff's claim for breach of contract of employment, which individual, company or association he claimed against and what his real complaint was on an appeal against an order that struck the statement of claim but granted the plaintiff leave to file a new one - The Ontario Court of Appeal granted the plaintiff leave to amend to concisely plead against the corporate defendants only, the claim for breach of contract including failure to pay the signing bonus - See paragraphs 56 to 63.

Practice - Topic 2230.3

Pleadings - Striking out pleadings - Grounds - Failure to plead material facts - A "long and unwieldy" statement of claim against numerous defendants included claims for breach of confidence, negligent misrepresentation, breach of contract, defamation, injurious falsehood and interference with contractual relations - It also included a "plethora both of evidence and of irrelevant material" and failed to be concise to the point that the defendants were hindered in developing a responsive pleading, contrary to rule 25.06 of the Rules of Civil Procedure - A motions judge struck some of the claims for failure to disclose a cause of action - As for the claims left standing, the motions judge struck the statement of claim in its entirety but granted the plaintiff leave to file a new one - The Ontario Court of Appeal agreed with the remedy for the claims left standing - See paragraphs 8 to 12.

Torts - Topic 5118

Interference with economic relations - Injurious falsehood - Pleading - The Ontario Court of Appeal affirmed the striking out of an injurious falsehood claim where the plaintiff had not alleged that the comments were intended and likely to produce a general loss of business or employer interest and had not identified the defendant(s) who had made the comments - See paragraphs 133 to 137.

Torts - Topic 5218

Interference with economic relations - Contracts - Pleading - The plaintiff sued his corporate co-contractants and a group of persons for interference with contractual relations - The plaintiff did not specify which member(s) of the group committed the allegedly unlawful acts complained of - The Ontario Court of Appeal affirmed the striking of the claim where the plaintiff failed to identify the defendant and where the corporate co-contractants, while they could breach the contracts, could not be said to have interfered with it - See paragraphs 138 to 147.

Cases Noticed:

Nash v. Ontario (1995), 27 O.R.(3d) 1 (C.A.), consd. [para. 3].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, consd. [para. 8].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201, consd. [para. 9].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, consd. [para. 17].

Cadbury Schweppes Inc. et al. v. FBI Foods Ltd. et al., [1999] 1 S.C.R. 142; 235 N.R. 30; 117 B.C.A.C. 161; 191 W.A.C. 161, consd. [para. 17].

Ontex Resources Ltd. v. Metalore Resources Ltd. et al. (1993), 63 O.A.C. 258; 13 O.R.(3d) 229 (C.A.), consd. [para. 17].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, consd. [para. 29].

Lana International Ltd. et al. v. Menasco Aerospace Ltd. et al. (1996), 1 O.T.C. 298; 28 O.R.(3d) 343 (Gen. Div.), consd. [para. 30].

Rahn v. McNeill (1987), 19 B.C.L.R.(2d) 384 (S.C.), refd to. [para. 30].

Foodcor Services Corp. v. Seven-Up Canada Inc., [1998] O.J. No. 2576 (Gen. Div.), dist. [para. 46].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, consd. [para. 47].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 61].

Botiuk v. Bardyn et al., [1995] 3 S.C.R. 3; 186 N.R. 1; 85 O.A.C. 81, refd to. [para. 90].

Paquette v. Cruji (1979), 26 O.R.(2d) 294 (H.C.), consd. [para. 93].

Magnotta Winery Ltd. v. Ziraldo (1995), 25 O.R.(3d) 575 (Gen. Div.), consd. [para. 95].

Cassagnol v. Pickering Automobiles Inc. et al., [2001] O.T.C. Uned. B02 (Sup. Ct.), refd to. [para. 96].

Craig v. Langley Citizen's Coalition et al., [2003] B.C.T.C. Uned. 88 (S.C.), refd to. [para. 96].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, consd. [para. 104].

Laufer v. Bucklaschuk (1999), 145 Man.R.(2d) 1; 218 W.A.C. 1; 181 D.L.R.(4th) 83 (C.A.), refd to. [para. 116].

Mantini v. Smith Lyons LLP et al. (2003), 171 O.A.C. 375; 64 O.R.(3d) 516 (C.A.), refd to. [para. 116].

Hodgson v. Canadian Newspapers Co. et al. (1998), 68 O.T.C. 81; 39 O.R.(3d) 235 (Gen. Div.), consd. [para. 116].

Jordon v. Talbot, [1988] O.J. No. 1876 (Gen. Div.), refd to. [para. 129].

Haines v. Australian Broadcasting Corp. (1995), 43 N.S.W.L.R. 404 (C.L. Div.), consd. [para. 135].

Carson v. Creighton (William W.) Centre (1990), 73 O.R.(2d) 755 (Dist. Ct.), refd to. [para. 141].

Unisys Canada Inc. v. York Three Associates Inc. et al. (2001), 150 O.A.C. 49 (C.A.), refd to. [para. 141].

Normart Management Ltd. v. West Hill Redevelopment Co. et al. (1998), 113 O.A.C. 375; 37 O.R.(3d) 97 (C.A.), consd. [para. 144].

ADGA Systems International Ltd. v. Valcom Ltd. et al. (1999), 117 O.A.C. 39; 43 O.R.(3d) 101 (C.A.), refd to. [para. 147].

Boucher et al. v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201; 71 O.R.(3d) 291 (C.A.), refd to. [para. 149].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed. 1994) (1999 Looseleaf Supp.), ྷྷ 19.3(2)(a)(i) [paras. 102, 111]; 28.1(1) [paras. 133, 134].

Bullen, E., Leake, S.M., and Jacob, Precedents of Pleadings (12th Ed. 1975), pp. 646, 647 [para. 144].

Gatley, Clement, Libel and Slander (10th Ed. 2003), p. 806 [para. 91].

Counsel:

J. Gardner Hodder and Marlo K. Shaw, for the appellant;

Geoffrey B. Shaw, for the respondents, David Braley and Hugh Campbell;

Mark J. Freiman, for the respondents, David Asper and Lyle Bauer;

P. Jock C. Climie, for the respondent, Robert Wetenhall;

John C. Field and Jason Green, for the corporation respondents and other individual respondents.

This appeal was heard on November 1 and 2, 2005, by Laskin, Rosenberg and LaForme, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was delivered by Rosenberg, J.A. Reasons were released on March 27, 2006, with amended reasons released on April 13, 2006.