



COURT OF APPEAL FOR ONTARIO

CITATION: McIlvenna v. 1887401 Ontario Ltd., 2015 ONCA 830

DATE: 20151202

DOCKET: C59704

Weiler, van Rensburg and Roberts JJ.A.

BETWEEN

Ryan McIlvenna, Stacey Holmes

Plaintiffs

(Appellants)

and

1887401
    Ontario Ltd.,

Maher Khalil, Daniel
    Joseph-Paul Abdel-Nour, Eric Ashley DAmour

Defendants

(Respondents)

Ryan McIlvenna and Stacey Holmes, in person

Spencer Ball, for the respondents

Heard: September 10, 2015

On appeal from the order of Justice R. Dan Cornell of the
    Superior Court of Justice, dated November 3, 2014, with reasons reported at
    2014 ONSC 6043.

van Rensburg J.A.:

A.

Overview

[1]

The appellants commenced an action seeking damages for their treatment
    by the respondents during the evening of July 26, 2014 into the early morning hours
    of July 27, 2014, when they were ejected from a bar in Sudbury because they
    smelled of marijuana. According to their claim, the appellants are authorized
    users of medical marijuana.

[2]

The respondents brought a motion under rule 21 of the
Rules of Civil
    Procedure
to dismiss the action for failure to disclose any reasonable
    cause of action and on the basis that the claim is frivolous, vexatious or
    otherwise an abuse of the process of the court. In the alternative, the
    respondents asked that certain paragraphs of the statement of claim be struck
    under rule 25.

[3]

Before the motion was heard, the plaintiffs delivered an amended
    statement of claim. At the hearing of the motion, Stacey Holmes was not present
    in court. Ryan McIlvenna asked for permission to speak on her behalf and
    stated: if its deemed and determined that I cant [represent her interests in
    this matter] she will discontinue her portion of the claim. The motion judge
    did not permit Mr. McIlvenna to argue on Ms. Holmes behalf, and dismissed
    her claim.

[4]

The motion judge considered the amended statement of claim. He 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 Mr. McIlvenna on a substantial indemnity basis in the sum
    of $5,905.90.

B.

Analysis

[5]

The appellants advance five arguments on appeal. First, they contend
    that the motion judge ought to have permitted Mr. McIlvenna to speak on Ms.
    Holmes behalf when no objection was taken by the respondents, and that her
    claims should be allowed to proceed. Second, they say that the order dismissing
    the action should be set aside because the motion judge demonstrated bias in
    certain comments he made in the course of the hearing. Third, they argue that
    the motion judge did not accept the allegations in their pleading as true, and erred
    in striking the claim on the basis that it disclosed no reasonable cause of
    action. Fourth, if the claim was deficient, the motion judge erred in refusing
    leave to amend. Finally, the appellants assert that the motion judge erred in concluding
    that the claim was an abuse of process and frivolous.

(1)

Did the motion judge err in not permitting Mr. McIlvenna to speak on
    Ms. Holmes behalf?

[6]

With respect to the first ground of appeal, in the particular
    circumstances that were before the motion judge, I would not interfere with the
    motion judges decision refusing Mr. McIlvenna permission to speak on Ms.
    Holmes behalf.

[7]

I disagree with the motion judges view that he had no discretion to
    permit Mr. McIlvenna to speak on Ms. Holmes behalf, where Mr. McIlvenna was a
    party to the proceedings, the interests of both plaintiffs were substantially
    identical, and the moving parties (the respondents here) did not object. That
    said, Mr. McIlvenna offered the court a choice  if he was not permitted
    by the judge to speak for Ms. Holmes, she wanted to discontinue her claim. In
    the course of argument he agreed that the claim could be dismissed if he were
    not permitted to speak for her. The motion judge followed the alternate course
    of conduct proposed by Mr. McIlvenna. In the circumstances, it is not open to
    the parties to appeal the dismissal of Ms. Holmes claim.

(2)

Was the motion judge biased?

[8]

I also would not give effect to the second ground of appeal, asserting
    bias on the part of the motion judge.

[9]

The appellants have not met the high threshold to establish bias, which
    requires that an informed person viewing the matter realistically and
    practically  and having thought the matter through  [would] conclude that it
    is more likely than not that [the decision-maker], whether consciously or
    unconsciously, would not decide fairly:
Committee for Justice and Liberty

v.

National Energy Board
, [1978] 1 S.C.R. 369, at pp. 394-95;
    see also
R. v. S.(R.D.)
, [1997] 3 S.C.R. 484, at para. 31.

[10]

The
    transcript of the hearing discloses that the motion judge took an active role
    in exploring Mr. McIlvennas arguments. References to his own allergy to smoke
    and to the odour of marijuana which he described as noxious do not mean that
    he prejudged the question of whether the amended statement of claim disclosed a
    reasonable cause of action. By making these references, the motion judge was
    pointing out that in their place of business the respondents would have to be
    concerned with balancing Mr. McIlvennas rights with the rights of other
    persons such as himself. The motion judge recognized that the issue was not to
    determine the outer limits of the appellants claim to be able to smoke marijuana
    anywhere and at any time (a position that Mr. McIlvenna at times advanced in
    argument), but whether the allegations in the amended statement of claim
    respecting the appellants treatment, on the evening in question, disclosed a
    cause of action in law.

[11]

The
    motion judges frequent interruptions of Mr. McIlvennas argument reflected his
    attempts to exercise control over the court proceedings, including trying to
    keep the arguments focused and on point. While several such interruptions may
    well have been unnecessary, Mr. McIlvenna had the opportunity to advance his
    arguments and to respond to the various concerns expressed by the motion judge.
    Contrary to the appellants assertion, the motion judges conduct, in all the
    circumstances, did not demonstrate bias.

(3)

Did the motion judge err in striking out the entirety of the appellants
    claim?

[12]

The
    events giving rise to the claim are pleaded as follows in the amended statement
    of claim.

[13]

The
    appellants are authorized users of medical marijuana as treatment for their
    medical conditions (paras. 4, 7 and 8). Mr. McIlvenna uses medical marijuana
    pursuant to a federal exemption that allows him to use cannabis for medical
    purposes anywhere at any time (para. 5). The appellants frequented two bars
    located next door to one another that were owned and operated by the respondent
    1887401 Ontario Ltd., whose principals are the individual respondents (paras. 9
    and 25). They had previously been permitted to smoke their marijuana in the
    smoking area in an alleyway between the bars, after showing their medical
    exemptions.

[14]

On
    the night in question, the appellants were not permitted to smoke in the
    alleyway (para. 17). They were told to smoke outside on the sidewalk, and they
    began to do so. The doorman of the second bar told the appellants to move
    across the street because of the smell of the marijuana (para. 20). They
    refused to do so (para. 24). When they entered the second bar, Mr. McIlvenna was
    tapped on the shoulder by the respondent Khalil and confronted by all three
    owners of the bar (para. 25). Mr. Khalil was acting in a furious and out
    of control manner, took up a fighting stance, and told Mr. McIlvenna they
    had stunk up his whole bar with the smell of marijuana (para. 27). After Mr.
    McIlvenna tried to explain their rights, Mr. Khalil pointed at the door and
    yelled at them to leave (para. 34). The appellants left the premises (para.
    38).

[15]

The
    appellants identify three principal causes of action in the amended statement
    of claim. First, they claim discrimination on the basis of disability
    constituting a breach of the
Ontario Human Rights Code
, R.S.O. 1990,
    c. H.19

(the 
OHRC
).

[16]

Before
    the motion judge, the claim based on breach of the
OHRC
was abandoned,
    as the appellants had decided to pursue this complaint in human rights proceedings.
    The references to discrimination and the claim for damages for discrimination
    in the amended statement of claim are therefore properly struck for the purpose
    of this action. These are contained in paragraphs 10, 12, 19 and 37, which I
    would strike in their entirety, and in paragraphs 9 and 11, which I would
    strike with leave to amend to plead these paragraphs with the references to
    discrimination removed.

[17]

The
    appellants assert that the amended statement of claim also pleads the torts of intimidation
    and intentional infliction of mental suffering. The relevant key paragraphs to
    support these pleadings are as follows. The appellants were asked to go to the
    opposing sidewalk to smoke their medical marijuana, which was a deliberate attack
    against their worth and dignity (para. 22). When the appellants returned inside
    the bar, Mr. Khalil was acting furious and took up a fighting stance (para.
    27). Mr. Khalil yelled at the appellants to leave and pointed at the door (para.
    34). Further, when Mr. Khalil demanded that the appellants leave the nightclub
    due to the smell of their medicine, he intended to inflict mental pain and
    suffering on them (para. 13). After this altercation, the appellants left
    without being physically removed (para. 38).

(a)

Did the motion judge accept the allegations in the statement of claim as
    true?

[18]

In
    a motion under rule 21, the court must accept that the allegations in the
    statement of claim are true, unless patently ridiculous or incapable of proof.
    The statement of claim must be read generously, allowing for inadequacies due
    to drafting deficiencies:
Hunt v. Carey Canada Inc.
, [1990] 2 S.C.R.
    959, at p. 280; see also
Falloncrest Financial Corp. v. Ontario
(1995)
,
27 O.R. (3d) 1 (C.A.)
,
at p. 7. The motion judge in this
    case correctly identified the test; however, he made certain errors in its
    application.

[19]

The
    appellants contend that the motion judge erred in not accepting the facts
    pleaded in the amended statement of claim as true. In this regard, I observe
    that at times in his decision, the motion judge appears to have approached the
    motion as a motion for summary judgment, and not as a rule 21 motion. This
    occurred in para. 7 of his reasons, when he said that although not put into
    evidence before [him], he accepted that the appellant had a license to possess
    and use marijuana. It also occurred in his recitation of the facts not in
    dispute commencing at para. 13, and at para. 26, where he indicated that there
    was no evidence of a visible and provable injury.

[20]

As
    this court has noted, it is essential to keep separate the function of the
    court in a rule 21 motion (where what is pleaded in a claim is assumed to be true
    and capable of proof), and a summary judgment motion or trial, where evidence
    is weighed and considered. The test on a rule 21 motion is whether it is plain
    and obvious that the claim cannot succeed, not whether it is likely or unlikely,
    on the evidence that may be led, that the claim will succeed:
Miguna v.
    Ontario (Attorney General)
, 2008 ONCA 799, 301 D.L.R. (4th) 540, at para.
    34.

[21]

While
    the motion judge made the comments I have referred to, which might suggest that
    he considered evidence and failed to assume the pleadings to be true, on the
    whole of his reasons, it appears that he accepted the appellants pleading as
    true. Although he greeted the claim with some scepticism, he approached his
    task as determining whether, assuming the facts were as pleaded, the amended
    statement of claim disclosed a cause of action.

[22]

I
    turn then to consider whether the motion judge erred in his assessment of the
    pleading, and whether it disclosed a cause of action in intimidation and
    intentional infliction of mental suffering.

(b)

The tort of intimidation

[23]

The
    tort of intimidation consists 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:
Score
    Television Network Ltd. v. Winner International Inc.,
2007 ONCA 424, [2007] O.J. No. 2246, at para. 1;
    see also
Central Canada Potash Co. v. Saskatchewan
, [1979] 1 S.C.R. 42.
    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.

[24]

The
    motion judge concluded that none of the requirements for the tort of
    intimidation were present, and that it was plain and obvious that this claim
    could not succeed.

[25]

I
    disagree. Contrary to the motion judges conclusion, all elements of the tort of
    intimidation are pleaded in the amended statement of claim. The claim is that
    the appellants were prevented from doing something they claim they had a legal
    right to do  to remain in a bar, although they smelled of marijuana after smoking
    marijuana as a medication, in accordance with a license that permitted them to
    do so. The appellants claim that the respondents were wrong to tell them to
    leave because they had refused to smoke on the other side of the street, and
    further that they were threatened with violence. They plead that the conduct of
    the respondents was a deliberate attack against [their] worth and dignity. As
    a result of the conduct of the respondents, they left the bar.

[26]

The
    question is not whether the allegations, if true, would give rise to
    substantial damages, or whether the respondents would have a defence to the
    claim. In
Hunt,
at p. 975, the Supreme Court referred with approval to
    an English decision,
Drummond-Jackson v. British Medical Association
,
    [1970] 1 All E.R. 1094 (C.A.), which stated that it is not permissible to anticipate the defence or defences -- possibly
    some very strong ones -- which the defendants may plead and be able to prove at
    the trial, nor anything which the plaintiff may plead in reply and seek to rely
    on at the trial.
[27]

The
    function of the court in a pleadings motion is to determine whether the test in
    rule 21 has been met, and not to determine whether all of what has been pleaded
    in the action can be proven, whether the action will succeed, or for that
    matter, if successful, whether the plaintiff will recover damages for the
    alleged wrong. To the extent that the motion judge appears to have concluded
    that the harm to the appellants was
de minimis
, this conclusion was
    premature and ought not to have informed his rule 21 determination.
[28]

For
    these reasons, I would not strike the action, which discloses a cause of action
    in intimidation.
(c)

The tort of intentional infliction of mental suffering
[29]

As
    for the tort of intentional infliction of mental suffering, this cause of
    action is comprised of the following elements: (a) flagrant and outrageous
    conduct; (b) calculated to produce harm; (c) which results in visible and
    provable injury:
Prinzo v. Baycrest Centre for Geriatric Care
(2002),
    60 O.R. (3d) 474 (C.A), at para. 43.
[30]

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 A.
    Linden and B. Feldthusen,
Canadian Tort Law
, 9th ed. (Markham:
    LexisNexis, 2011), at p. 55. See also
Frame v. Smith
, [1987] 2 S.C.R. 99
    at para. 46, referring to the need to establish recognizable physical or
    psychopathological harm.
[31]

There
    is no pleading here that the conduct of the respondents was flagrant and
    outrageous. Although the motion judge referred to there being no
evidence
of a visible and provable injury, I note that no such injury is pleaded. There
    is no suggestion in the lengthy and detailed facts pleaded by the appellants
    that the respondents conduct caused any mental suffering, in the sense of a
    psychiatric illness or injury. Rather, the alleged harm is to the appellants
    dignity and sense of self-worth.
[32]

In
    my view, the amended statement of claim does not disclose a cause of action for
    intentional infliction of mental suffering, and accordingly para. 13 must be
    struck. I see no benefit in granting leave to amend the pleading of this tort, as
    there is no indication that mental suffering occurred, or that there was any
    harm other than to the appellants dignity and sense of self-worth.
(4)

Did the motion judge err in concluding the action was an abuse of
    process and frivolous?
[33]

The
    motion judge concluded that the action was an abuse of the justice system and
    frivolous. He observed that the action was a second battle in the appellants
    crusade to assert the rights of those who have the right to use medical
    marijuana. He referred to another action commenced by Mr. McIlvenna:
McIlvenna
    v. The City of Greater Sudbury,
2014 ONSC 2716, [2014] O.J. No. 2578. That
    action involved a claim for damages following Mr. McIlvennas alleged threat of
    arrest for smoking marijuana on courthouse property. The defendants brought a
    motion to strike under rule 21, which was granted, but with leave to amend. The
    motion judge here stated that Mr. McIlvenna had failed to amend his claim and
    that the earlier proceeding was at an end. This was incorrect, and it appears
    that this error may well have informed the motion judges conclusion that the
    action before him was frivolous and an abuse of process of the court.
[34]

In
    her decision in
McIlvenna v. The City of Sudbury
, Gauthier J.
    considered whether the action disclosed a cause of action. The moving parties
    specifically did not allege that the claim was frivolous or otherwise an abuse
    of process. Gauthier J. dismissed on their merits claims under sections 7 and 15
    of the
Canadian Charter of Rights and Freedoms
. However, the balance
    of the claim was dismissed with leave to amend. In particular, there were
    deficiencies in the pleadings of intimidation and intentional infliction of
    mental suffering. As appears from the face of the Amended, Amended Statement of
    Claim in that action, the pleading was amended in June 2014.
[35]

It
    is not clear why the motion judge believed that Mr. McIlvenna had not amended
    the statement of claim in his earlier action. This does not appear from the
    transcript to have been argued, and is not disclosed in the record that was before
    him. Indeed, there was no evidence in the record before the motion judge that
    spoke to the alternative ground of abuse of process; the only affidavit filed
    in the motion was that of Mr. McIlvenna, explaining the basis for his claim.
[36]

Accordingly, I would find that there was a palpable
    and overriding error of fact that informed the motion judges conclusion that
    the action was an abuse of process, and that there were no reasonable grounds
    before the court to dismiss the action as an abuse of process.
C.

disposition
[37]

For these reasons, I would
allow the appeal as
    follows. I would set aside the order of the motion judge except with respect to
    the dismissal of claims by Ms. Holmes. I would strike paragraphs 10, 12, 13, 19
    and 37 of the amended statement of claim, without leave to amend. I would
    strike paragraphs 9 and 11, with leave to amend these paragraphs only as
    necessary to remove the references to discrimination. I would set aside the
    costs order in the court below.
[38]

I
    would grant Mr. McIlvenna his costs of the appeal in the sum of $700,
    representing his expenses of travel and accommodation to argue the appeal.
Released: (K.M.v.R.) December 2, 2015
K. van Rensburg J.A.
I agree K.M. Weiler
    J.A.
I agree L.B. Roberts
    J.A.