McIlvenna et al. v. 1887401 Ontario Ltd. et al., 2015 ONCA 830

• Judge: Weiler, van Rensburg and Roberts, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 10, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 830;(2015), 344 O.A.C. 5 (CA)

McIlvenna v. 1887401 Ont. (2015), 344 O.A.C. 5 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.003

Ryan McIlvenna and Stacey Holmes (plaintiffs/appellants) v. 1887401 Ontario Ltd., Maher Khalil, Daniel Joseph-Paul Abdel-Nour and Eric Ashley D'Amour (defendants/respondents)

(C59704; 2015 ONCA 830)

Indexed As: McIlvenna et al. v. 1887401 Ontario Ltd. et al.

Ontario Court of Appeal

Weiler, van Rensburg and Roberts, JJ.A.

December 2, 2015.

Summary:

The plaintiffs (McIlvenna and Holmes), who were allegedly authorized users of medical marijuana, were ejected from a bar in Sudbury, Ontario, because they smelled of marijuana. The plaintiffs sued the nightclub and its owners (the defendants) for damages for their treatment that evening. The defendants moved to have the action dismissed for failure to disclose any reasonable cause of action and on the basis that the claim was frivolous, vexatious or otherwise an abuse of the process of the court. In the alternative, the defendants sought to strike certain paragraphs of the statement of claim. At the hearing of the motion, Holmes was not present in court. McIlvenna asked for permission to speak on her behalf and stated: "if it's deemed and determined that I can't [represent her interests in this matter] she will discontinue her portion of the claim." The motions judge did not permit McIlvenna to argue on Holmes' behalf, and dismissed her claim. After considering the statement of claim (as amended), the motions judge dismissed the action for failure to disclose a cause of action, without leave to amend. He also observed that the action was an abuse of process and frivolous. He awarded costs against McIlvenna on a substantial indemnity basis in the sum of $5,905.90. McIlvenna and Holmes appealed.

The Ontario Court of Appeal allowed the appeal and set aside the order of the motions judge except with respect to the dismissal of Holmes' claims. In the result, the court allowed McIlvenna's claim respecting the tort of intimidation to proceed. The court also set aside the costs order in the court below.

Courts - Topic 686

Judges - Disqualification - Bias - By trial or applications judge - The plaintiff, a medical marijuana user, sued a nightclub and its owners (the defendants) for damages, after being ejected from a bar because he smelled of marijuana - The defendants moved to have the action dismissed or, alternatively to have some of the claims struck - A motions judge dismissed the action for failure to disclose a cause of action - The plaintiff appealed, alleging bias - The Ontario Court of Appeal rejected this ground of appeal - The court noted that while the motions judge took an active role in exploring the plaintiff's arguments, his conduct did not demonstrate bias - See paragraphs 8 to 11.

Practice - Topic 35

Actions - Conduct of - General - Representation by non-lawyer - The plaintiffs, medical marijuana users (Holmes and McIllvenna), sued a nightclub and its owners (the defendants) for damages, after being ejected from a bar because they smelled of marijuana - The defendants moved to have the action dismissed or, alternatively to have some of the claims struck - At the hearing of the motion, Holmes was not present in court - McIlvenna (a non-lawyer) asked to be permitted to represent Holmes' interests, failing which she would discontinue her claim - The motions judge refused permission and dismissed Holmes' claim - The plaintiffs appealed - The Ontario Court of Appeal held that in these particular circumstances it would not interfere with the motions judge's decision - While the appeal court disagreed with the motions judge's view that he had no discretion to permit McIlvenna to speak on Holmes behalf, here, McIlvenna offered the court a choice (i.e., he agreed that the claim could be dismissed if he were not permitted to speak for Holmes) - See paragraphs 6 and 7.

Practice - Topic 1006

Parties - Parties unrepresented by counsel - Representation by nonlawyers - [See Practice - Topic 35 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - A motions judge dismissed the plaintiff's action for the tort of intimidation for failure to disclose a cause of action (Rules of Civil Procedure, rule 21) - The plaintiff appealed - The Ontario Court of Appeal held that contrary to the motions judge's findings, all the elements of the tort of intimidation were pleaded in the statement of claim - The function of the court in a pleadings motion was to determine whether the test in rule 21 had been met, and not to determine whether all of what had been pleaded in the action could be proven, whether the action would succeed, or for that matter, if successful, whether the plaintiff would recover damages for the alleged wrong - To the extent that the motion judge appeared to have concluded that the harm to the plaintiffs was de minimis, that conclusion was premature and ought not to have informed his rule 21 determination - Therefore the cause of action in intimidation should not be struck - See paragraphs 23 to 28.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - A motions judge dismissed the plaintiff's action for the tort of intentional infliction of mental suffering for failure to disclose a cause of action (Rules of Civil Procedure, rule 21) - The plaintiff appealed - The Ontario Court of Appeal rejected this ground of appeal - In particular, there was no pleading that the conduct of the defendant was flagrant and outrageous which was one of the requisite elements of the tort - Nor was there any suggestion that the defendants' conduct had caused the plaintiff mental suffering, in the sense of a psychiatric illness or injury - See paragraphs 29 to 32.

Torts - Topic 5282

Interference with economic relations - Intimidation and duress - Elements of - The Ontario Court of Appeal stated that the tort of intimidation consisted of the following elements: "(a) a threat; (b) an intent to injure; (c) some act taken or forgone by the plaintiff as a result of the threat; (d) as a result of which the plaintiff suffered damages ... Although the pleading of intimidation is most frequently seen in the context of economic torts, the business context is not an essential element of the tort" - See paragraph 23.

Torts - Topic 8710

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - Intentional infliction of - The Ontario Court of Appeal stated that the tort of intentional infliction of mental suffering was comprised of the following elements: "(a) flagrant and outrageous conduct; (b) calculated to produce harm; (c) which results in visible and provable injury ... The tort of intentional infliction of mental suffering is not actionable without proof of actual harm. This is because the basis of liability for this tort is not rooted in the trespass action, but is a descendant of the action on the case. A plaintiff must prove that he or she has suffered a recognized psychiatric illness to establish a cause of action ..." - See paragraphs 29 and 30.

Cases Noticed:

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 6].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 9].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 18].

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

Falloncrest Financial Corp. v. Ontario (1995), 27 O.R.(3d) 1 (C.A.), refd to. [para. 18].

Miguna v. Toronto Police Services Board et al. (2008), 243 O.A.C. 62; 2008 ONCA 799, refd to. [para. 20].

Score Television Network Ltd. v. Winner International Inc. et al., [2007] O.A.C. Uned. 231; 2007 ONCA 424, refd to. [para. 23].

Central Canada Potash Co. and Canada (Attorney General) v. Saskatchewan, [1979] 1 S.C.R. 42; 23 N.R. 481; 88 D.L.R.(3d) 609, refd to. [para. 23].

Drummond-Jackson v. British Medical Association, [1970] 1 All E.R. 1094 (C.A.), refd to. [para. 26].

Prinzo v. Baycrest Centre for Geriatric Care (2002), 161 O.A.C. 302; 60 O.R.(3d) 474 (C.A.), refd to. [para. 29].

McIlvenna v. Sudbury (City), 2014 ONSC 2716, refd to. [para. 33].

Counsel:

Ryan McIlvenna and Stacey Holmes, in person;

Spencer Ball, for the respondents.

This appeal was heard on September 10, 2015, before Weiler, van Rensburg and Roberts, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by van Rensburg, J.A., on December 2, 2015.