CITATION: Foschia v. Conseil des Écoles Catholique de Langue Française du Centre-Est, 2009 ONCA 499
DATE: 20090619
DOCKET: C49715
COURT OF APPEAL FOR ONTARIO
Weiler and Sharpe JJ.A. and Thorburn J. (ad hoc)
BETWEEN
Marc Foschia
Plaintiff (Appellant)
and
Conseil des Écoles Catholique de Langue Française du Centre-Est, Monique Ménard Saint-Martin, Lise Bourgeois, Sylvie Tremblay, Pierre Boutin, Marcel Papineau, Ginette Huard-Watt, André Ouellette, Brigitte Pilon, Norma Valiquette, Marie Biron, Andrée Newell, Diane Doré, Dan Boudria, Madeleine Chevalier, Robert Tremblay, Denis Poirier, Brian Beauchamp, Lise Cloutier, Phillippe Maurice
Defendants (Respondents)
Marc Foschia, acting in person
André Claude and Anne Sheppard, for the respondents
Heard: May 19, 2009
On appeal from the order of Justice Monique Métivier of the Superior Court of Justice, dated October 23, 2008.
Weiler J.A. and Thorburn J. (ad hoc):
[1] Mr. Foschia’s statement of claim against the Conseil Des Ecoles Catholiques de Langue Francaise (the “School Board”), was struck out as disclosing no reasonable cause of action following a motion brought by the School Board pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure. He appeals from this decision.[^1]
[2] The test on a rule 21.01(1)(b) motion has been defined in various ways but, in essence, it is that the action is “certain to fail”: Hunt v. Carey, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 980 (“Hunt”). The following torts are alleged in the statement of claim: negligence, intentional infliction of mental suffering and misfeasance in public office. At this early stage of the proceeding, the torts alleged have, of course, not been proven. Indeed we do not even have the respondents’ statement of defence. However, in assessing whether an action is certain to fail, all the allegations contained in the plaintiff’s statement of claim are taken as proven: Hunt at p. 979.
The facts alleged in the amended statement of claim[^2]
[3] Mr. Foschia, a single father, was a volunteer and lunch time monitor at the school his children attended. In April 2005, parents of two students complained about Mr. Foschia’s behaviour in relation to their daughters. The principal at that time, Ms. Saint-Martin, suspended Mr. Foschia from volunteering and restricted his access to school property to the threshold of the Principal’s office when waiting for or dropping off his children. Mr. Foschia pleads that:
• Following an investigation, Ms. Saint-Martin maintained the restrictions on Mr. Foschia, “despite the Children’s Aid Society and police findings that there was no wrongdoing” (para. 24).
• Mr. Foschia met with both Mr. Papineau, the superintendent of the School Board until October 2005, and Ms. Tremblay, the superintendent from October 2005 until April 2006, to resolve the matter. However, his meetings with them were unsuccessful (paras. 51, 52 and 58).
• Mr. Foschia told Ms. Saint-Martin that her actions had had serious consequences for his emotional well-being, and caused him emotional and mental distress (para 36).
• Ms. Saint-Martin constantly changed and increased the restrictions on Mr. Foschia. She created inconsistent rules respecting whether he was allowed to attend field trips and school activities (para. 29). In October 2005, Ms. Saint-Martin told Mr. Foschia he was not allowed to communicate with any school personnel unless she was present (para. 26). In February, 2006, she told him that he was not permitted to have access to the mailboxes to receive Parent Committee mail (para. 30). Shortly after, Mr. Foschia sent Ms. Saint-Martin a letter asking her to justify her latest restrictions (para. 30).
• On February 24, 2006, Ms. Tremblay banned Mr. Foschia from the school property altogether until March 31, 2006 (para 60).
• On March 7, 2006, Ms. Tremblay threatened to extend the ban against Mr. Foschia attending at the school if he continued to speak publicly about the issue of his treatment by the School Board (para. 61). The ban was then continued to June 2006 (para. 34).
• On June 21, 2006, interim superintendent Mr. Boutin, who replaced Ms. Tremblay while she was on leave, extended the ban on Mr. Foschia to January 31, 2007. He said Mr. Foschia’s behaviour was strange and that he was found hanging around the school (para. 65).
• During the summer of 2006, Ms. Huard-Watt replaced Ms. Saint-Martin as principal of the school. She maintained the ban on Mr. Foschia despite the fact that there was no evidence of wrongdoing on his part (para. 42). Mr. Foschia communicated his concerns regarding the ongoing ban to Ms. Huard-Watt. She confirmed the ban and continues to maintain it to the present (para 48).
• Since June 21, 2005, Mr. Foschia has sent his correspondence to Ms. Bourgeois, the Director of Education, and Ms. Biron, the President of the School Board. He has been either ignored or referred to either the Board’s lawyer or Ms. Tremblay (paras 68-69).
• The ban on Mr. Foschia continues to the present day (para. 48).
Allegations of negligence
[4] Mr. Foschia alleges that both Ms. Bourgeois and the Board of Trustees were negligent when they refused to look into Mr. Foschia’s allegations against Ms. Bourgeois and her subordinates (paras. 4(b), 71). He further alleges that their refusal to consider any viable redress or constructive alternative to the restrictions placed on him was a violation of duty to him (para 75). He seeks a declaratory remedy that the conduct of the Board of Trustees has been negligent (para. 77).
[5] As against Mr. Papineau, Mr. Foschia seeks a declaration that “the failure of Papineau to advocate in any way on his behalf was negligent” (para 57).
Allegations of intentional infliction of mental suffering
[6] In para. 39 of the claim, Mr. Foschia alleges that Ms. Saint-Martin’s conduct amounts to the tort of intentional infliction of mental suffering because she had no justifiable reason to limit his access to school premises; that he told her that her actions were having deleterious effects on him; and that despite this knowledge she increased the ban. Mr. Foschia makes the same allegations against Ms. Huard-Watt (para. 50), Ms. Tremblay (para. 64) and Mr. Boutin (para. 67). Mr. Foscia also brings this claim against the School Board, on the basis that it is liable through the actions of its agents (para. 79).
[7] Prior to the rule 21 motion being heard, Mr. Foschia apparently submitted a draft amended pleading wherein he purported to withdraw his claims of intentional infliction of mental suffering. As a result, the motion judge did not address this tort in her reasons. Accordingly, paras. 1(b), 2(b), 3(a), the first part of paragraph 39 as well as its subparagraphs 39(a) and 39(b), all of which allege the tort of intentional infliction of mental suffering, are struck. However, as subparagraphs 39(c) & 39(d) allege facts relevant to the tort of misfeasance in public office, they may be maintained as part of para. 38.
Allegations of misfeasance in public office
[8] Mr. Foschia alleges that Ms. Saint-Martin, Ms. Huard-Watt, Supt. Tremblay and Supt. Boutin are each liable for misfeasance in public office. Mr. Foschia alleges that the defendants’ conduct in imposing the restrictions on Mr. Foschia was unlawful, and amounts to misfeasance. Although the defendants have the authority to maintain the safety and security of the school environment pursuant to the Education Act, R.S.O 1990, c. E.2 (the “Education Act”) and its accompanying regulation, Access to School Premises, O. Reg. 474/00, they have exceeded that authority, as the restrictions imposed on Mr. Foschia were imposed arbitrarily and were deliberately designed to punish him (paras. 14, 15 38).
[9] Mr. Foschia states that the Defendant Ms. Saint-Martin based her decision to restrict Mr. Foschia’s access to the school on irrelevant factors, including her personal animosity to the plaintiff (para. 38(d)), rather than for reasons related to the security or proper functioning of the school (para. 41(b)).
Damages claimed
[10] Mr. Foschia alleges that his reputation has been injured by the comments of the defendants and the fact that [because of the defendant's actions] many members of the community believe that the ban against him is founded on his alleged inappropriate conduct (paras. 16, 81-82).
[11] Mr. Foschia claims that his emotional well-being has suffered and that he has experienced a progressive deterioration in his relationship with his children (para 16). He alleges that the defendants’ imposition of sanctions has contributed to the aggravation of the emotional and psychological consequences upon him and caused him “tremendous pain and suffering” (paras 85 and 87).
[12] As against Ms. Saint Martin, Tremblay, Ms. Huard-Watt and Mr. Boutin, Mr. Foschia seeks damages for misfeasance in public office and intentional infliction of mental suffering, an award of punitive or exemplary damages, and special damages, the details of which are to be proved.
[13] As against the School Board, Mr. Foschia seeks damages for intentional infliction of mental suffering and an award of punitive or exemplary damages. He also seeks an order directing the Board to remove its ongoing ban.
[14] As against Mr. Papineau, Ms. Bourgeois, and the trustees of the Board (André Ouellette, Brigitte Pilon, Norma Valiquette, Marie Biron, Andrée Newell, Diane Doré, Dan Bourdria, Madelaine Chevalier, Robert Tremblay, Denis Poirier, Brian Beauchamp, Lise Cloutier and Phillippe Maurice), Mr. Foschia seeks a declaration of negligence for failing to assist him, failing to investigate the policy violations he alleged, and failing to rescind or recommend the rescission of the restrictions on his access to the school.
Analysis
[15] As noted at the outset, for a statement of claim to be struck on a rule 21.01(1)(b) motion, it must be plain and obvious that the action, as pleaded, cannot succeed: Hunt at p. 979. It will be plain and obvious that a claim cannot succeed where, for example, the claim fails to allege an element(s) that is essential to the legal action being taken.
[16] Mr. Foschia’s amended statement of claim suffers from many deficiencies. The claim is not “a concise statement of the material facts” as required by rule 25.06(1), but a pleading that often pleads irrelevant facts, repeats other facts and violates the rule against pleading evidence. That said, the claim must still be analyzed to see if discloses a cause of action.
Negligence
[17] Before the motion judge, the defendants submitted that the pleadings did not disclose a duty of care, which is necessary to ground a claim in negligence. In Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 (“Odhavji”), the Supreme Court held that a two stage test must be met in order for a duty of care to be established. In the first stage, it must be determined whether the relationship between the parties is sufficiently close to impose on the defendant a duty of care in regard to the plaintiff. Establishing that such a relationship exists requires proving that the injury was foreseeable and that the two parties stood in a relationship of proximity to one another. If this first stage is met, then a prima facie duty of care has been proven. In the second stage, the issue is whether this duty is negated by broader policy considerations, which are not necessarily related to the relationship between the specific parties: Odhavji, paras. 46-51.
[18] At the motion, counsel for the Board of Trustees submitted that the violations alleged by Mr. Foschia against Ms. Bourgeois and the individual school trustees had not been satisfactorily linked to the requirements for the tort of negligence. The motion judge apparently agreed and struck these allegations. We agree with her. In his statement of claim, Mr. Foschia acknowledged that his complaints may not have even been distributed to the individual school trustees. Even assuming that the foreseeability of the damages suffered by Mr. Foschia can be deduced from the conduct of the school principals, Mr. Foschia did not plead the facts giving rise to a prima facie duty of care towards him by Ms. Bourgeois and the individual trustees.
[19] While Mr. Foschia did allege that the Board of Trustees failed in its duty towards him, the basis of this alleged failure was that the Board of Trustees violated its own policies by refusing to investigate the allegations brought to it by Mr. Foschia. It is insufficient to merely allege that the Board of Trustees breached its policies. Mr. Foschia did not allege that Board of Trustee’s adoption of its policies gave rise to any positive duty on the part of the Board of Trustees towards him. As stated at para. 26 of Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, “even if foreseeability [of injury] were established, no duty would arise because the wrong alleged is a failure to act or nonfeasance in circumstances where there is no positive duty to act.” As stated by the motion judge at para. 29 of her reasons, nothing in law obliges a school principal to continue to accept the services of a volunteer.
[20] The motion judge also commented that the declaratory relief requested by Mr. Foschia and his claim for an order of mandamus, that the Board of Trustees be ordered to lift the ban on his access to school property, were more appropriately the subject of judicial review of the Board of Trustee’s decisions pursuant to s. 7 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. We agree with this comment.
[21] The paragraphs alleging negligence and those paragraphs that would give rise to a request for declaratory relief available by way of judicial review in the Divisional Court are therefore struck as against all defendants.
Misfeasance in public office
[22] The elements of the tort of misfeasance in public office are found in Odhavji, at para. 32. There are three elements unique to this tort which must be demonstrated by a successful plaintiff, and two further elements which are common to torts generally. First, the defendant must be a public official who was exercising public functions. Second, the public officer must act unlawfully. The unlawful act can be a breach of relevant statutory provisions, acting in excess of the powers granted to the public official, omitting to act in circumstances in which the public officer is under a legal duty to act, or acting for an improper purpose. Third, the public official must be aware that his or her conduct is unlawful and that it is likely to injure the plaintiff. Fourth, the plaintiff must prove that the public official’s tortious conduct was the legal cause of his or her injuries. Fifth, the injuries suffered must be compensable in tort law.
[23] At paras 22-23 of Odhavji, Iacobucci J. discussed two ways in which the tort can arise. He stated:
Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff….
….What distinguishes one form of misfeasance in public office from the other is the manner in which the plaintiff proves each ingredient of the tort. In Category B, the plaintiff must prove the two ingredients independently of one another. In Category A, the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public. In each instance, the tort involves deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff.
[24] Thus, while the constituent elements of the tort do not change depending on the Category of misfeasance alleged, the way those elements are proven does. If the plaintiff proves that the public official was acting for the improper purpose of deliberately causing harm to the plaintiff, this will be sufficient to prove both the second and third elements of the tort. If, on the other hand, the plaintiff is alleging misfeasance in the form of Category B, then it is necessary to individually prove both the second and third elements. In proving the third element, it is sufficient for the plaintiff to show that the public official acted with reckless indifference to both the unlawfulness of his or her act and the likelihood that it would injure the plaintiff: Odhavji at para. 25, citing Powder Mountain Resorts Ltd. v. British Columbia (2001), 2001 BCCA 619, 94 B.C.L.R. (3d) 14 (C.A.), at para. 7.
[25] The motion judge held that, in essence, Mr. Foschia was seeking to pursue his activities as a volunteer without restriction. She concluded that nothing in law obliged the principal of a school to accept all the offers of a volunteer or to continue to accept them if accepted initially, and so she dismissed his claim, finding that the defendants had not acted unlawfully. We would agree with this aspect of her reasons.
[26] However, Mr. Foschia also pleads that the imposition of a complete ban preventing him from accessing school property (i.e., to pick up his children, meet with his children’s teachers, and attend other activities to which parents are invited) and the continuation of it for years amounts to misfeasance in public office.
[27] The motion judge’s reasons only appear to address the initial restrictions placed on Mr. Foschia. She held that there was no legal basis for Mr. Foschia’s claim given the statutory framework set out in the Education Act and its accompanying regulations. Principals have the power to exclude any person from a school’s premises if the principal judges that that person’s presence is a detriment to the security or well-being of other persons in the school. The motion judge erred in failing to consider the principal’s continuation of the ban on Mr. Foshcia, by failing to specifically consider the allegation that the extension of the ban to prohibit Mr. Foschia from having any access to the school was made for the improper purpose of deliberately harming Mr. Foschia.
[28] The analysis of Mr. Foschia’s claim requires us to consider the five elements required for the tort in relation to Mr. Foschia’s claim that the continuing ban on him from accessing school property amounts to misfeasance in public office.
[29] Neither the various individual defendants nor the School Board took issue with the allegation that they were public officials who were exercising public functions when deciding to ban Mr. Foschia from the school premises.
[30] In his claims against Ms. Saint-Martin and Ms. Tremblay, Mr. Foschia alleges misfeasance in public office in the form of the aforementioned Category A. Mr. Foschia alleges that Ms. Saint-Martin’s decision to continue his suspension “appears… to have been motivated out of malice” (para. 33) and that her conduct stemmed from her “personal animosity” towards Mr. Foschia (para. 38(d)). In the case of Ms. Tremblay, Mr. Foschia alleges that her motive in upholding the ban was to try and prevent Mr. Foschia from making legitimate complaints about his treatment by the School Board (paras. 61-62). As Mr. Foschia alleges that these two defendants acted with the intention of harming him, these allegations are sufficient, if proven, to satisfy both the second and third elements of the tort of misfeasance in public office.
[31] Mr. Foschia does not specifically make similar allegations against Ms. Huard-Watt or Mr. Boutin. The only allegations made by Mr. Foschia against Ms. Huard-Watt which deal with the ban is that he told her about the history of the ban, and that she confirmed the total ban imposed by Mr. Tremblay despite Mr. Foschia’s concerns (para. 48). As for Mr. Boutin, Mr. Foschia’s allegations are limited to his claim that Mr. Boutin extended the ban on the bases that he found Mr. Foschia’s behaviour to be strange and that Mr. Foschia was found hanging around the school (para. 65). Confined to these allegations, it is clear that Mr. Foschia’s claim does not properly allege the necessary elements to ground an action for misfeasance in public office, either through Category A or Category B.
[32] Reading the claim as a whole, however, Mr. Foschia’s allegations against Ms. Huard-Watt and Mr. Boutin are not limited to those noted above. In his claim, Mr. Foschia states that he “relies on the same facts” pled against Ms. Saint-Martin in support of his claims against Ms. Huard-Watt (para. 50) and Mr. Boutin (para. 67). In one respect, it is obvious that Mr. Foschia cannot rely on the same facts for each of these defendants. Many of the factual allegations made against Ms. Saint-Martin are very specific to her, and could not possibly be alleged against the other defendants. At the same time, some of the allegations, such as the claim that the decision to restrict Mr. Foschia’s access to the school was based on personal animosity, are sufficiently general that they could be applied to Ms. Huard-Watt and Mr. Boutin without any obvious difficulties.
[33] Additionally, in paras. 14-15, Mr. Foschia claims that the restrictions imposed by the defendants were designed to deliberately punish him for raising legitimate concerns, were unlawful and represent misfeasance in public office. In para. 78, Mr. Foschia pleads that, “The cumulative behaviour of the Defendants demonstrates a deliberate institutional response to silence, quell or coerce the Plaintiff into submission”. He continues in para. 79, “In all the circumstances, the facts disclose that the Defendant School Board intentionally, by the action of its agents, inflicted harm upon the Plaintiff by imposing and maintaining unnecessary restrictions, including an unnecessary ban against him”. These claims are directed towards all the defendants in the action and, in the cases of Ms. Huard-Watt and Mr. Boutin, link the specific allegations against Ms. Saint-Martin and Ms. Tremblay to Ms. Huard-Watt and Mr. Boutin so that they constitute one continuous course of action.
[34] On a Rule 21 motion, pleadings must be read generously in favour of the plaintiff, with allowances made for drafting deficiencies: Williams v. Ontario, 2009 ONCA 378 (C.A.), at para. 10. While we acknowledge the difficulties in the claims Mr. Foschia makes against Ms. Huard-Watt and Mr. Boutin, we believe that on a generous reading of the claim, Mr. Foschia does allege that the actions of Ms. Huard-Watt and Mr. Boutin were animated by personal animosity and an effort to punish Mr. Foschia. These allegations bring the claim within the Category A approach to proving misfeasance in public office. However, the lack of clarity within Mr. Foschia’s claim makes it necessary for Mr. Foschia to amend his pleadings.
[35] As noted above, at paras. 50, 64 and 67 of his claim, Mr. Foschia has attempted to rely on allegations made against Ms. Saint-Martin to ground his claims against Ms. Huard-Watt, Ms. Tremblay and Mr. Boutin, respectively. This is improper. Allegations specific to each defendant must be pleaded. Therefore we would strike these paragraphs. In the case of Mr. Tremblay, leave to amend is not necessary, as the elements of the tort have been pleaded in paras. 61-63. In the cases of Ms. Huard-Watt and Mr. Boutin, we would grant leave to amend the improper paragraphs so as to make the required pleadings against Ms. Huard-Watt and Mr. Boutin specifically.
[36] Returning to the elements of the tort, the damages alleged by Mr. Foschia as a result of the continuing ban are injury to his reputation, deterioration in his relationship with his children, and pain and suffering. Thus, the ban is alleged to be the legal cause of his injuries.
[37] Finally, it is at least arguable that these damages are compensable at law. In Uni-Jet Industrial Pipe Ltd. v. Canada (Attorney General) (2001), 2001 MBCA 40, 198 D.L.R. (4th) 577, the Manitoba Court of Appeal held at, para. 66, that the general damages awarded for intentional torts resulting in injury to reputation and goodwill are damages “at large”. Unlike the damages caused by negligence, precise measurement should not be expected. The court also awarded punitive damages in that case. It is arguable that Mr. Foschia could receive them in this case.
[38] On a generous reading of the pleading, with allowance for inadequacies due to drafting deficiencies and assuming the facts as stated in the Statement of Claim can be proven, it is not obvious that the action for misfeasance in public office is certain to fail. As a result, we would hold that the motion judge erred in striking the claim for misfeasance in public office as against Ms. Saint-Martin, Ms. Tremblay, Ms. Huard-Watt and Mr. Boutin. While misfeasance in public office is not actually pleaded against the School Board, it is apparent from paras. 78, 79 and 80(c) of the claim that the elements of the tort are alleged against the School Board: i.e., it violated its statutory responsibilities and its intention in doing so was to harm the plaintiff. Consequently, we would grant leave to amend paras. 3 and 80 of the statement of claim to specifically plead misfeasance in public office against the School Board as well.
[39] As noted earlier, in addition to the paragraphs that have been struck, many of the paragraphs in the claim violate the rules of pleading in that they are repetitive, plead irrelevant facts or plead evidence. These paragraphs or portions thereof are too numerous to list. The claim also suffers from the deficiency in that the facts are not all organized chronologically. However, if the claim is struck in its entirety with leave to amend, we fear that the parties may go through yet another round of motions in relation to the pleading. It is preferable to strike those portions of the claim which are improper. See Schedule A, attached to this judgment, which indicates which paragraphs or portions of paragraphs have been struck, and the reason why in each case.
Conclusion
[40] We would allow the appeal in part by allowing the claim for misfeasance in public office to go forward as against Ms. Saint-Martin, Ms. Tremblay, Ms. Huard-Watt, Mr. Boutin and the School Board. In order to ensure that Mr. Foschia’s allegations respecting this claim are clear, we would grant leave for him to further amend his pleading at paras. 3, 38, 50, 64 and 67. In all other respects we would uphold the striking of the claim. The result of this is that Marcel Papineau, Lise Bourgeois and the members of the Board of Trustees are no longer defendants to this action.
Costs
[41] Although success has been divided, Mr. Foschia has achieved a significant success and is entitled to costs both here and at first instance. Accordingly, the costs award made against Mr. Foschia by the motion judge is set aside. Although Mr. Foschia argued this appeal himself, he was represented by counsel at the motion hearing, and also had the same counsel prepare the materials he filed for this appeal. He chose to argue the appeal without the assistance of counsel so as to avoid the cost of paying for his counsel to travel to Toronto from Ottawa, although he did bear the cost of transporting himself to Toronto. Bearing all of this in mind, we would fix the total amount of costs at $10,000, inclusive of costs and disbursements for both the motion and the appeal.
RELEASED: June 19, 2009 “Karen M. Weiler J.A.”
“KMW” “Thorburn J. (ad hoc)”
“I agree Robert J. Sharpe J.A.”
[^1]: All references are to the amended statement of claim at tab 7 of the Appeal Book and compendium [^2]: All paragraph references are to the amended statement of claim at tab 7 of the Appeal Book and Compendium