CITATION: Swan v. The Toronto District School Board, 2017 ONSC 5212
DIVISIONAL COURT FILE NO.: 495/17 DATE: 20170901
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
BOOTSY SWAN, A MINOR, BROUGHT BY HER LITIGATION GUARDIAN, MICHAEL SWAN
Michael Swan, litigation guardian in person
Applicant
– and –
THE TORONTO DISTRICT SCHOOL BOARD (MS. PEGGY AITCHISON (PRINCIPAL FOR ETOBICOKE SCHOOL OF THE ARTS – “ESA”), MS. SUSAN HAYHURST (SCHOOL SUPERINTENDENT FOR ESA), MR. KEVIN JOHNSON – TEACHER, ESA)
Patrick Cotter, for the Toronto District School Board
Respondents
HEARD at Toronto: September 1, 2017
ORAL REASONS FOR JUDGMENT
NORDHEIMER J. (orally)
[1] Mr. Swan brings this application for judicial review as litigation guardian on behalf of his daughter and on an urgent basis. He contends that his daughter has been unfairly denied a place in the grade 10 film program at the Etobicoke School of Arts. The school year, of course, starts next week.
[2] There is a preliminary issue that must be addressed and which, unfortunately for Mr. Swan, determines this application.
[3] A minor is a person under a disability pursuant to r. 1.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. A person under a disability must be represented by a litigation guardian under r. 7.01. A litigation guardian must be represented by a lawyer under r. 7.05(3). This requirement is repeated in r. 15.01(1). Unlike the situation with a corporation, where r. 15.01(2) allows the court to grant leave for a corporation not to be represented by a lawyer, there is no exception in the Rules that would permit the court to relieve against the requirement that a litigation guardian must be represented by a lawyer.
[4] As it happens, Mr. Swan is a lawyer. That fact does not solve the problem in this case, however, for two reasons. One is that Mr. Swan cannot be both litigation guardian and the lawyer for the litigation guardian. In other words, there cannot be a combining or melding of the two roles. The other is that Mr. Swan is currently under an administrative suspension by the Law Society and consequently cannot currently practice law.
[5] There are very good reasons for the requirement in the Rules that a minor must be represented by a litigation guardian and that the litigation guardian, in turn, must be represented by a lawyer. As Bryant J. noted in Weidenfeld (Re), [2007] O.J. No. 4485 (S.C.J.), at para. 20:
Rule 7.05(3) protects persons under a disability from unscrupulous representatives, as well as from friends and family members who mistakenly believe they are acting in the best interests of a minor.
[6] As I have said, the court does not have any authority to relieve from the strict requirement in the Rules that a litigation guardian must be represented by a lawyer. Rule 1.04, to which Mr. Swan refers, does not authorize this court departing from the plain wording of the Rules nor the express requirements contained therein. This application is therefore not properly constituted. In fairness, I should note that Mr. Swan was warned about this problem, from the outset, by counsel for the TDSB.
[7] The application is dismissed but without prejudice to a fresh application being brought if properly constituted. In allowing for a further application to be brought, I wish to make it clear that I am not making any determination whether the decisions at issue in this application are properly the subject of judicial review.
[8] I have endorsed the Application Record as follows: “For oral reasons given, this application is dismissed. I would award the costs of today’s appearance in the amount sought by the respondent of $250.00.”
NORDHEIMER J.
Date of Reasons for Judgment: September 1, 2017
Date of Release: September 1, 2017
CITATION: Swan v. The Toronto District School Board, 2017 ONSC 5212
DIVISIONAL COURT FILE NO.: 495/17 DATE: 20170901
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
BOOTSY SWAN, A MINOR, BROUGHT BY HER LITIGATION GUARDIAN, MICHAEL SWAN
Applicant
– and –
THE TORONTO DISTRICT SCHOOL BOARD (MS. PEGGY AITCHISON (PRINCIPAL FOR ETOBICOKE SCHOOL OF THE ARTS – “ESA”), MS. SUSAN HAYHURST (SCHOOL SUPERINTENDENT FOR ESA), MR. KEVIN JOHNSON – TEACHER, ESA)
Respondents
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: September 1, 2017
Date of Release: September 1, 2017