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By: Rob Harris

An interesting golf case is heading to the Supreme Court of Canada.

Vancouver’s Shaughnessy Golf and Country Club is situated on land owned by the Musqueam Indian Band. The club occupies the land under a 75 year lease negotiated by the Department of Indian Affairs on behalf of the Musqueams.

The ownership rights entitle the Musqueams to collect property tax from the club. The club routinely has paid the tax based upon an assessment that values the land as a golf course. The Musqueams, however, contend the property value–and thus the taxes–should be calculated based on a property valuation that considers the “highest and best use of the land,” which would be a residential land development.

Under such an assessment, the valuation and resulting taxes to the Musqueams would increase substantially.

By: Rob Harris

Former PGA Tour player Richard Zokol was a designer of Sagebrush, a minimalist course recognized as Canada’s best new course of 2009.

The accolades received by the golf course were lost amidst the legal claims between Zokol and the course owner, likely brought front and center by the economic problems of the times which led to the club’s closing.

Zokol sued for unpaid fees totaling $200,000. The club responded with a $42,000,000 counterclaim alleging mismanagement.

After two years of litigation, the dispute has been settled, as disclosed by this otherwise unenlightening press release:

“The Notice of Civil Claim and Counterclaim, file No.#51775 in the Vernon Registry in the Supreme Court of British Columbia between Richard Zokol Enterprises Ltd and Richard Zokol (the Plaintiffs) and Sagebrush Golf and Sporting Club Ltd, aka Sagebrush Holdings Ltd., Calvin J. Payne, Bee Fore Holdings Ltd., Four For Fore Investments Ltd., and Baramundi Investments Ltd., (the Defendants) have been discontinued. Both parties agreed that the claim and counterclaim be dismissed without any costs to any party as stated in the Court Order filed in the Vernon Registry on September 24, 2015.”

Separately sharing his views about the litigation process, Zokol commented in an email:

“Lawsuits are not a fun process at all. They are extremely costly and I am not meaning financial costs. There is such a deep-rooted ugliness about them that limits your ability to move forward. When they are over and when you get to put it behind you it brings great relief.”

Well stated, Mr. Zokol. Congratulations on the settlement, whatever its terms.

By: Rob Harris

Canadian golfer Moe Norman, who died a few years ago, was sufficiently renowned as a ball striker that Tiger Woods once said that only two golfers–Norman and Ben Hogan–”owned” their golf swings, something that Tiger claimed he aspired to do. The Norman swing, deemed “unconventional”, has been described thusly: “rigid arms extended far from his body, a very wide stance with minimal knee bend, shorter-than-usual backswing and extended follow-through with minimal hand action, which produced amazingly accurate ball placement.”

As recently noted by a federal court, Norman was sufficiently entrepreneurial that, at the time of his death, his will passed to his estate ”the title and interest in and to Moe Norman’s name and right of publicity. The Estate of Moe Norman also owns the trademark rights to the MOE NORMAN® mark for uses in connection with golf instructions, DVDs, and other golf related goods/services.”

Norman’s estate, in turn, licensed the rights to a former student, Todd Graves, to be used in Graves’ golf school.

Having secured these rights to use the Moe Norman name and accoutrements, Graves was upset to learn that another purported Moe Norman disciple–Greg Lavern–was invoking his relationship with Norman in peddling golf related goods and services, and had gone so far as to publish a book entitled “FINISH TO THE SKY THE GOLF SWING MOE NORMAN TAUGHT ME: GOLF KNOWLEDGE WAS HIS GIFT TO ME.”

Mr. Graves accordingly filed suit, claiming that Mr. Lavern’s promotion of the relationship and secrets of the Moe Norman swing constituted an unlawful appropriation of the intellectual property rights that that Graves had acquired from the Norman estate.

The Court characterized Mr. Graves’ allegations as follows:

“Plaintiffs assert that defendant is engaged in conduct intended, or at least has the inevitable effect, of creating a likelihood of confusion as to affiliation between defendant and the Moe Norman mark. Specifically, plaintiffs cite defendant’s prominent and serial invocation of the ‘Moe Norman’ name and his likeness as the key feature of all his promotional activities as evidence. Plaintiffs also contend that defendant’s express claims that he is the ‘exclusive’ keeper of Moe Norman’s secrets, is Moe Norman’s sole protégé, and is an heir to Moe Norman’s golf knowledge are evidence of his intentions to create a likelihood of confusion that he is affiliated with plaintiffs who have the legal right to the Moe Norman trademark and his publicity rights.”

As one might expect, defendant Lavern’s take on his credentials as a “Moe Norman whisperer” was somewhat different. As referenced by the court, Mr. Lavern contended that “he holds the true knowledge of Moe Norman’s original swing, which Moe Norman taught him for more than thirty years,” and that Mr. Graves “is teaching a much limited and different ‘single plane golf’ swing that is different from Moe Norman’s ‘original golf swing.’” Mr. Lavern also asserted that  ”Moe Norman, while he was alive, visited defendant and gave him the exclusive rights to teach, promote, and write a book on his golf swing and their relationship.”

Turning to the merits, the court found that Mr. Graves had preliminarily shown a substantial likelihood of succeeding:

“It is clear that the Moe Norman mark is a federally registered trademark and enjoys a presumption of protection. It is also clear that defendant used this mark in connection with his book “FINISH TO THE SKY THE GOLF SWING MOE NORMAN TAUGHT ME: GOLF KNOWLEDGE WAS HIS GIFT TO ME” and other golf related products or services through his postings online, particularly his postings on finishtothesky.com6, Facebook, LinkedIn, and his blog at It is also clear that this use is likely to create, and has already created, confusion in the market place. The Moe Norman mark being used by both parties is completely identical; defendant uses this mark to promote his current and/or future golf related services through this mark; both parties utilize mainly the world wide web to promote golf related goods or services primarily based on Moe Norman’s swing; these goods or services are provided to nonprofessional golfers interested in learning Moe Norman’s swing or, at the very least, to golfers who are looking to learn/improve their golf swing; and evidence presented by the parties to the Court through their briefs and at the evidentiary hearing show that there is actual confusion among the consumers on the nature and extent of the parties’ affiliation to Moe Norman and the authorization/authenticity/source of the services the parties provide.”

Recognizing, however, that the court was deciding at this juncture a preliminary injunction, which required Mr. Graves to meet a higher burden, the court refused to grant Graves all the relief he was seeking. While ordering Mr. Lavern to stand down “from using the Moe Norman® mark or speaking/implying any affiliation with the Moe Norman Estate, Todd Graves, or Todd Graves Golf Academy in association with any golf related goods or services,” the court refused, at least for the time being, to prohibit the ongoing sale of Mr. Lavern’s book.

So, for all those clamoring for a piece of the Moe Norman mystique, unless and until the court rules otherwise:

1. You will have to go to Mr. Graves for goods and services, i.e. instruction;

2. You may still order a copy of “FINISH TO THE SKY THE GOLF SWING MOE NORMAN TAUGHT ME: GOLF KNOWLEDGE WAS HIS GIFT TO ME,” available on Amazon at prices ranging from $116 to a cult-like $1222.

Hit ‘em straight.


By: Rob Harris

Montreal has opted to stand up to developers who desire to turn a golf course into a residential development. City officials have changed the zoning to keep the land green, notwithstanding litigation that developers already have filed against a neighboring municipality that took similar action.

Commenting on the city’s action, the city’s executive committee member responsible for urban planning stated. “The city is already the object of legal action from the developer and I cannot imagine that the owner of that land is necessarily enchanted with this decision. But it’s the right decision and it’s a courageous one.”

By: Rob Harris

Canada’s Deer Ridge Golf Club successfully defended a claim of discrimination brought against it by a club member who argued that he should not be required to pay for the cost of a golf cart.

The member, who for purposes of the case was deemed to be disabled by virtue of a broken ankle suffered in 2006, was an active golfer, playing 100 rounds between April and September, before heading off for more golf in Arizona during the winter. However, his injury precluded him from walking, and he asserted that, even though he was financially able to absorb the cart fees, the club was discriminating against him based on his disability by requiring that he pay for the cart. Instead, he argued, the cost of carts for him and others similarly situated should be borne by the entire club membership in the form of higher fees.

The claimant’s argument was rejected in a ruling issued by the Human Rights Tribunal of Ontario. According to the ruling:

“All players at the respondent club who use a power cart must pay to so; therefore, it is obvious that players, like the applicant, who always use a cart while golfing will incur higher expenses than those who do not, In my view, such higher expenses amount to a disadvantage. The applicant uses a power cart because his disability prevents him from walking; therefore, the disadvantage for the applicant is linked to a prohibited ground of discrimination. The jurisprudence is clear, however, that not all distinctions or disadvantages are discriminatory. In my view, the requirement for players at the respondent golf club to pay to use power carts does not amount to a substantive disadvantage for individuals, like the applicant, who must use carts because of a disability. There was no evidence that this requirement poses a barrier to players with disabilities. The only evidence before me was with respect to the applicant’s experience and he admitted that paying for power cart rentals did not prevent him from golfing, and indeed he plays quite regularly… The applicant agreed that he is fully able to enjoy golfing at the respondent club. Accordingly, the requirement to pay to use a power cart has not caused him to be excluded or restricted in playing golf. In these circumstances, I cannot find that the applicant has suffered a substantive disadvantage…”

By: Rob Harris

A lawsuit recently filed by Toronto’s York Downs Golf & Country Club against its former general manager should serve as a cautionary tale to the officers and directors of private clubs.

Here are the circumstances, as reported:

“York Downs’ is suing Leonardo De La Fuente, an employee for the past 11 years, seeking damages of $1 million, claiming he made false claims — assigning bills for work up to $200,000 on his own property and other items including riding lessons for his daughter and trips to West Palm Beach for his family — to the club.

“The statement of claim also suggests the Stouffville man used the company credit card for his own purposes, expensing food, vacations, clothing, club memberships, personal flights and accommodations.

“According to the documents, he was modifying and forging statements to remove his personal expenses, only to replace them with fictitious expenses attributed to the club.

He then provided these statements to the York Downs staff, all of whom worked for him…”.

Apparently, the defalcation was discovered by accident, when a staff member opened a piece of mail that had been returned to the wrong address, only to find that the envelope contained a check “signed by De La Fuente and the club controller to an electrical company.”

Message to country club boards: trust but verify. There need to be financial controls in place to assure ongoing review of the financial transactions undertaken by club employees and officials at all levels.

By: Rob Harris

Sagebrush Golf Club is a minimalist design golf course built on Nicola Lake in British Columbia by former PGA Tour player, Richard Zokol. Zokol’s inspiration reportedly was Ben Crenshaw, more specifically, Crenshaw’s Sand Hills course in Nebraska.

Timing proved to be unfortunate, with the course unveiling occurring in the midst of the economic recession and the accompanying decline in golf participation. Thus, the pricey memberships remained unclaimed and the contemplated accompanying residential development proved to be a non-starter.

Zokol severed his affiliation with the development in 2012. Recently, he filed suit, claiming the moneyed developers failed to pay a $200,000 design fee that he had temporarily deferred.

The developers have now fired back, asserting counterclaims against Zokol, claiming the he mismanaged the project, and that he filed his lawsuit knowing that the developers were close to a sale of the project, and that his complaint would scuttle the transaction. The developers claim $42,000,000 in damages.



By: Rob Harris

Years ago, I had occasion to represent two developers who had their eyes on waterfront property which they hoped to turn into a residential and boating community. Convinced they had been deprived of the property and opportunity by nefarious means, they brought suit against the perceived wrongdoer. Instead of bringing shovel to earth, they brought pencil to paper, arriving at a claim for lost profits that, even in 1990 dollars, was a substantial sum.

This week’s story about the would-be developers of Montreal’s Meadowbrook Golf Club therefore resonates. The developer, having purchased the property in 2006 for $3 million, aspires to turn it into residential housing. The city government, backed by citizens who seek to preserve the land as open space,  have thwarted the developer’s plans for a number of years.

The developer has now filed suit, claiming $44 million in damages for the project not built.

The suit has met with an icy reception from the public, being characterized as a “‘rapacious and arrogant’ last-ditch cash grab.”

Time, and the legal process, will tell whether the developer can turn handwritten calculations into spendable profits.


By: Rob Harris

The members have been slumming it for the past three weeks at Vancouver’s Marine Drive Golf Club.  Following a union’s refusal to accept the club’s contract offer, the club has locked out its servers, cooks, bartenders, locker-room attendants and janitors.

According to a news report, union members claim the club offered an average increase of seventeen cents an hour, when initiation fees for new members recently increased from $65,000 to $75,000.

The optics don’t appear too good for the club, and the members likely aren’t too happy with having to clean their own shoes.

By: Rob Harris

According to the Canadian equivalent of the GHIN handicap service, Ron Hannigan plays to a 19.6 handicap at his home course, Sparrow Lakes Country Club.

Mr. Hannigan has entered scores for ten rounds thus far in July, which is interesting because on July 10, according to news reports, the 76 year old Mr. Hannigan allegedly committed aggravated assault on his golf partner, also 76 years old. Apparently, during their golf game, the men got into a dispute, which became sufficiently physical that it left Mr. Hannigan’s golf partner with broken ribs, a collapsed lung and the need for “immediate and life-saving surgery.’”

Which brings me to this. If Mr. Hannigan has posted ten rounds in July, did he play (and post) 36 holes on any of the days before July 10? Has he played since the July 10 altercation (bail presumably not being an issue)? Or, most intriguing, did he complete his round following the fight on July 10, and then post his score (in which event, under the circumstances, 91 was not such a bad score)?

Presumably, trial will reveal the answer to these and other, more pertinent, questions. In the meantime, we wish the alleged victim a speedy recovery, and, hopefully, reconciliation, as good golf buddies are hard to come by.

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