COURT FILE NO.: 06 - DV - 1210
DATE: 2006/11/28
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Lorraine Paquin v. Ottawa Carleton District School Board et al
BEFORE: Mr. Justice Rutherford
COUNSEL: Appellant in Person
John E. Summers, for the Respondents on appeal.
E N D O R S E M E N T
[1] This is an appeal from a final decision of the Master granting summary judgment dismissing the appellant Ms Paquin’s Counterclaim. Ms Paquin is one of three defendants in an action brought by the School Board and two of its employees under the Libel and Slander Act. The background to the action is a dispute between the School Board and Ms Paquin over the educational supports and services for Ms Paquin’s daughter, a special needs student. The other two defendants are described in the Statement of Claim as “self-described advocates” assisting Ms Paquin in her dealings with the School Board.
[2] The three defendants filed a common Statement of Defence in the action and Ms Paquin included a Counterclaim in which she sought an order that the School Board provide specified supports and services or, alternatively, that she be awarded damages in order to pay for similar supports and services elsewhere which she would then arrange. The Counterclaim pleading in this regard is found in paragraphs 45 and 46 which plead as follows,
The defendant Paquin, plaintiff by counterclaim seeks an order requiring the OCDSB to provide French Immersion education and the supports and services necessary to allow Nicole Paquin to attend at school in accordance with the supports and services which were provided in accordance with the settlement and subsequently removed by the defendant OCDSB.
Alternatively, if the OCDSB cannot be bound to provide the services to which it contracted, the defendant Paquin, plaintiff by counterclaim seeks damages from me OCDSB in an amount equivalent and necessary to fund a private education for Nicole Paquin in an educational facility that is equipped and accredited to provide such an education. Particulars of the funds required to provide such an education will be provided at or prior to the trial of this action.
[3] After a mediated resolution by which the Board agreed to provide supports and services satisfactory to Ms Paquin, the School Board moved for summary dismissal of the counterclaim. Before Master Beaudoin, Ms Paquin conceded that she no longer sought the order for supports and services against the School Board. Her affidavit filed on the summary judgment motion stated at paragraph [27],
- On October 3, 2005, the Board reinstated supports and services for Nicole, including an IEP, educational assistant and speech therapy. At this time, Nicole was placed at Rideau Valley Middle School where she is currently enrolled. I am wholly satisfied with this current placement.
[4] Ms Paquin maintained, however that she still wished to pursue a claim for damages. In her affidavit at paragraph [28] she outlined the basis for pursuing the damage claim in her Counterclaim as follows,
- To date, I have not been compensated for the loss of Nicole’s education funding, inconvenience, loss of potential earning or pain and suffering resulting from the Board’s unilateral withdrawal of supports and service from Nicole between September 1, 2003 and October 3, 2005.
[5] In granting summary judgment dismissing the Counterclaim, Master Beaudoin said in his endorsement,
In her counterclaim at paragraph 46, she sought damages only in the alternative. The OCDSB is now providing the services and her claim for damages is now moot. In paragraph 28 of her affidavit she now seeks damages on the basis of a completely separate set of facts that are not pleaded. The claim for damages in that paragraph is nowhere to be found in her counterclaim even if the court were to give it the most generous reading. There was no cross-motion to amend even though the Defendant was served with this motion on February 7, 2006. The Plaintiffs seek their costs in the amount of $2,268.40. Given that the Defendant’s own costs outline reveals a claim for costs in excess of the amount; the reasonableness of the costs cannot be disputed. These costs are payable forthwith.
[6] Before me, Ms Paquin made it clear in her written material and in her oral submissions that the damages she wishes to pursue are, as the Master noted, other than would have been required to fund an alternative program to the one the School Board has been providing. There is no suggestion that such alternative program was ever undertaken nor ere expenditures for it ever incurred. Ms Paquin does not seem to appreciate the role of pleadings in civil litigation. She also asked me to grant her leave to amend her Counterclaim, stating that the Master was wrong in refusing her that leave. I note, of course, that the Master observed that she had no cross-motion for that relief when he heard the summary judgment motion of the plaintiffs, so he could hardly be faulted, let alone found to be “clearly wrong” for not granting such leave.
[7] I should note that on the appeal this morning, Ms Paquin was accompanied by Ms Scharf, her co-defendant in the libel and slander action. Ms Scharf initially took the position that she was an appellant as well. When I drew to her attention that the Notice of Appeal was filed only by Ms Paquin, she said something about her responsibility for the appeal and sought to conduct it on Ms Paquin’s behalf. I allowed her to sit with Ms Paquin at the counsel table until her interruptions and conversations with Ms Paquin made the proceedings unmanageable, at which point I asked her to take a seat in the body of the court. I then outlined my view of the legal issue and the persuasive burden faced by Ms Paquin and then offered her a brief adjournment to consult with Ms Scharf before she made her submissions. Ms Paquin opted to do so. Upon resuming, I heard Ms Paquin’s submissions but Ms Scharf continued to attempt to direct and manage Ms Paquin’s submissions with Ms Paquin spending far more time turning towards and listening to Ms Scharf than making submissions, let alone responding to questions I posed in an attempt to focus the argument. After further cautioning Ms Scharf against interrupting the proceedings, I finally asked her to leave the courtroom, which she did.
[8] I mention all this somewhat gratuitously, because it seems to me that perhaps Ms Paquin is being guided by her co-defendants into positions and proceedings that do not advance her best interests or those of her daughter. Certainly to read the pleadings in the libel and slander action is to lend credence to that possibility.
[9] In any event, Ms Paquin has not persuaded me that the decision of the Master was “clearly wrong.” Indeed, I think it was “clearly right” in the circumstances as disclosed before him. The claim for damages as pleaded by her in her Counterclaim had become moot as a result of the settled arrangement between her and the School Board. If what she really wanted was to claim damages other than what might have been required had it become necessary to substitute some other supports and services for those of the School Board, she should have pleaded the underlying facts and made that claim. If she wanted to amend her pleading to include some new basis for damages, she should have at least put the plaintiffs on notice by way of motion to that effect.
[10] Ms Paquin’s appeal cannot succeed and must be dismissed. The Plaintiffs are entitled to some costs award for having to respond to this unsuccessful appeal and I assess them on a partial indemnity basis at $1500 inclusive of GST. They will be payable forthwith. Had I a clearer understanding of the degree of responsibility for the filing and pursuing of this appeal that Ms Scharf bears, I would certainly have given her the opportunity of persuading me not to make her responsible for the costs or a portion of them. At the trial of the libel and slander action scheduled to begin next week, the role of that co-defendant in the dispute between Ms Paquin and the School Board may become clearer.
[11] The appeal is dismissed with costs as aforesaid.
Order accordingly.
Rutherford J.
DATE: November 28, 2006
COURT FILE NO.: 06 - DV - 1210
DATE: 2006/11/28
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Lorraine Paquin v. Ottawa Carleton District School Board et al
BEFORE: Mr. Justice Rutherford
COUNSEL: Appellant in Person
John E. Summers, for the Respondents
ENDORSEMENT
DATE: November 28, 2006