COURT FILE NO.: 495/01
DATE: 20030307
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
sutherland, archie campbell and matlow jj.
B E T W E E N:
EDWARD GIANFRANCESCO and JESSICA GIANFRANCESCO (by her litigation guardian, Edward Gianfrancesco)
Respondents/Plaintiffs
- and -
THE JUNIOR ACADEMY INC.
Appellant/Defendant
Eric W. Wolfman, for the Respondents/ Plaintiffs
Micheal Simaan, for the Appellant/ Defendant
HEARD: March 7, 2003
ARCHIE CAMPBELL J.: (Orally)
[1] This case invokes Professor Maitland's observation almost a century ago that we have buried the forms of action but they still rule us from their graves.[^1]
[2] The plaintiffs at trial recovered damages of $8,800.00, equivalent to roughly one year's tuition from the defendant, a private special needs school. The school without notice or hearing expelled the plaintiff's eight year old daughter for threatening to stab a classmate, contrary to the school's zero tolerance policy.
[3] The trial Judge, E. MacDonald J., gave judgment in this simplified rules case on the basis of "a breach of the contract of instruction". She characterized the claim as follows:
"Here, the claim is that the Junior Academy breached an implied term of procedural fairness in its oral contract with Jessica's parents to provide instruction for the entire 1999/2000 school year."
[4] The school appeals on the grounds that judgment was based on a cause of action not pleaded in the amended statement of claim, and that there had been no allegation of "breach of an implied contractual term of natural justice".
[5] The forms of action, although not dead, must be interpreted with a measure of common sense. This is particularly so in a simplified rules case. "Breach of an implied contractual term of natural justice" is close enough to "breach of contract" and "breach of fiduciary duty" in the context of the specific allegations in the amended statement of claim that the school breached its duty by failing to provide notice or a hearing:
"…the School has breached the contract that it entered into with the plaintiff to provide a learning environment that meets Jessica's special needs for the entire 1999/2000 school year.
…the plaintiffs claim that by not giving Jessica's parents sufficient detailed notice of the grounds proposed for her expulsion and not giving Jessica's parents an opportunity to be heard on the merits of the expulsion, that the defendant breached a fiduciary duty owed to the plaintiffs with respect to the manner in which the expulsion of Jessica was carried out."
[6] The allegations of procedural unfairness by the school were at the heart of the dispute from the very beginning.
[7] The original letter to the school from the parents' lawyer, a few days after the expulsion, said:
"… permanent suspension of an 8 year old…without a hearing and only weeks before the end of the term is a penalty which is clearly disproportionate to the offence…as alleged. For these reasons, it is our opinion that the school is in fundamental breach of its agreement with Jessica and her parents."
[8] The learned trial Judge characterized the basis on which the plaintiffs put their case:
"The letter from Mr. Kerr mirrors the claims that are set forth in the amended statement of claim. The theme of the letter is the absence of due process in the decision to expel Jessica. Although not expressed as such, the lack of due process was seen as a fundamental breach of the contract of instruction. When giving evidence, Mr. Gianfrancesco emphasized that he felt that, as one of Jessica's parents, he had a right to be heard….
Mr. Gianfrancesco repeated in his evidence that he saw the cause of action as being one which is for damages for the failure to exercise due process. He stated that the Junior Academy had breached its contract with Jessica's parents for a full year of education."
[9] The defendants and their counsel knew that the plaintiff from the beginning complained of a denial of natural justice through failure of notice or hearing. It was, in the context of a breach of fiduciary duty, expressly pleaded. The defendants knew they had to meet that allegation.
[10] This is not a case like Kilkinis[^2] where the trial Judge found liability on a basis that was not pleaded. The defendant here was not "deprived of the opportunity to address that issue in the evidence presented at trial".
[11] Despite Mr. Simaan's able argument the appeal is dismissed. The cross-appeal, which was contingent on the success of the appeal, is also dismissed.
[12] Costs to the respondent fixed in the amount of $5,000, all inclusive.
Date of Reasons for Judgment: March 7, 2003
Date of Release: March 12, 2003
COURT FILE NO.: 495/01
DATE: 20030307
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
sutherland, archie campbell and matlow jj.
B E T W E E N:
EDWARD GIANFRANCESCO and JESSICA GIANFRANCESCO (by her litigation guardian, Edward Gianfrancesco)
Respondents/Plaintiffs
- and -
THE JUNIOR ACADEMY INC.
Appellant/Defendant
ORAL REASONS FOR JUDGMENT
ARCHIE CAMPBELL J.
Date of Reasons for Judgment: March 7, 2003
Date of Release: March 12, 2003
[^1]: F.W. Maitland, The Forms of Action at Common Law, 1909 Lecture 1 What was a form of action? Already owing to modern reforms it is impossible to assume that every law student must have heard or read or discovered for himself an answer to that question, but it is still one which must be answered if he is to have more than a very superficial knowledge of our law as it stands even at the present day. The forms of action we have buried, but they still rule us from their graves.
[^2]: Kalkinis v. Allstate (1998), 1998 6879 (ON CA), 41 O.R. (3d) 528 per Finlayson J.A.