Oz Merchandising Inc. v. Eastern Ontario District Soccer Association, et al.

(Ontario) (Civil) (By Leave)


Torts - Negligence, Duty of care, Courts, Costs - Torts — Negligence — Duty of care — Proximity — Courts — Costs — Non-party costs — How organizational structures of sport in Canada are relevant to figuring out torts proximity between governing bodies and legal entities not directly subject to their authority — In the absence of vicarious liability claims, to what extent courts can consider the cumulative effect of actions of defendants for the purpose of a negligence analysis — Whether expert evidence is necessary for courts to interpret and apply international governing bodies’ rules applicable both to the parties and to the legal dispute — Whether the lower courts applied the correct test for awarding costs personally against a non party — If the measure is abuse of process, whether the non-party’s conduct falls within its scope.


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The Ottawa Wizards were members of the Canadian Professional Soccer League from 2001 until 2003. In 2004, OZ Merchandising issued claims against the CSA, the OSA, the EODSA, and others, alleging negligence and various forms of unlawful conduct relating to three events. First, in the fall of 2003, the Wizards applied to the Ontario Soccer Association (“OSA”) to host the invitational tournament. That application was not approved, and the tournament was not held. Second, around the same time, the respondent Canadian Soccer Association (“CSA”) issued International Transfer Certificates for two Wizards players. They chose to return to Malawi. Third, in response to the OZ Dome Indoor Soccer League, the respondent Eastern Ontario District Soccer Association (“EODSA”) publicized the fact that OZ Dome Sports Club, where the Wizards played, had not applied to operate an indoor league during the 2003 2004 season and described the potential consequences of participating. In 2019, the trial proceeded before a jury for about seven weeks. After all of the evidence was in, the defendants moved, variously, for non-suits and a determination of whether, at law, EODSA, OSA or CSA owed a duty of care to OZ. Following OZ’s closing address, EODSA, OSA and CSA moved to strike the jury.

In a decision that resolved only the claims as against the CSA, the OSA and the EODSA, Ryan Bell J. granted the motion to strike the jury, dismissed OZ’s claim against the EODSA, the OSA and the CSA. She awarded specified costs to the EODSA and the OSA, and specified costs to the CSA, and made Mr. Sezerman jointly and severably liable for a portion of those costs. The Court of Appeal dismissed OZ’s appeal.