Court of Appeal for Ontario

Date: 2024-02-26 Docket: M54146 (C69089) Judges: Lauwers, Paciocco and Thorburn JJ.A.

BETWEEN

Tarik Bouragba, Ahmed Bouragba, Yassin Bouragba, and Djamila Hassani Plaintiffs (Appellants/Responding Parties)

AND

Conseil des écoles publiques de l’Est de l’Ontario, Stéphane Vachon, Diane Lamoureux, Annie Sicard, Conseil scolaire de district de l’Est de l’Ontario, Lyne Racine, Ottawa Catholic District School Board, Norma McDonald, Ottawa-Carleton District School Board, Kevin Gilmore, Ontario Human Rights Tribunal, Geneviève Debané, Ontario Ministry of Education, Denis Chartrand, Ontario College of Teachers, Richard Lewko, and Paul Marshall Defendants (Respondents/Moving Parties)

Counsel for Appellants: Ahmed Bouragba (acting in person)

Counsel for Respondents: Geneviève Therrien, for the moving parties Ottawa-Carleton District School Board and Kevin Gilmore Eli Mogil, for the moving parties Paul Marshall, Richard Lewko and Ontario College of Teachers Jeffrey Claydon, for the moving parties Ontario Ministry of Education and Denis Chartrand Paul Marshall, for the moving parties Conseil scolaire de district catholique de l'Est de l'Ontario, Conseil des écoles publiques de l'Est de l'Ontario, and Ottawa Catholic School Board

Heard: February 16, 2024 by video conference

Reasons for Decision

[1] This action by the Bouragbas was started in August 2016. The Bouragbas claim that the defendants refused to admit Tarik Bouragba to several schools operated by the identified School Boards.

[2] Beaudoin J. issued an endorsement dated December 13, 2016. He was following up on an endorsement he issued on November 1, 2016 in which he directed the Registrar to give notice to the plaintiffs that he was considering making an order dismissing the action under r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In his endorsement, Beaudoin J. described the amendments Mr. Bouragba was proposing. He concluded, at para. 19:

The plaintiff has now filed two statements of claim and suggests further undrafted amendments. I accordingly invoke my jurisdiction under s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and stay this action until such time as the plaintiff serves on the remaining defendants a motion to properly amend the Statement of Claim where the merits of any claims and amendments can be resolved on a more complete evidentiary record.

[3] The action was stayed by Beaudoin J. until the Bouragbas brought a motion to properly amend the statement of claim. This order was not appealed.

[4] The Bouragbas brought a motion for leave to amend the statement of claim and to lift the 2016 stay of proceedings issued by Beaudoin J. Fortier A.J. dismissed the motion (2020 ONSC 876). She noted, at para. 41, that because she was dismissing the plaintiffs’ motion for leave to amend the statement of claim, the proceeding remained stayed under Beaudoin J.’s order. The Bouragbas appealed Fortier A.J.’s decision, which was heard and dismissed by Smith J. (2021 ONSC 287), leading to this appeal.

[5] The Bouragbas appealed the order of Smith J. On March 26, 2021, Lauwers J.A. granted the motion of the Bouragbas to extend the time to perfect their appeal (reported at 2021 ONCA 195), and ordered that they were to perfect the appeal 14 days after receipt of the transcripts and the settled order of Smith J. That order was settled some time ago, but the transcripts have not been provided to this court.

[6] This panel heard a motion brought by the moving parties on March 30, 2023 and issued an endorsement on April 6, 2023. The motion was for an order dismissing the Bouragbas’ appeal for delay under r. 61.13 of the Rules of Civil Procedure, and as an alternative, an order that the appeal be perfected within 30 days, along with an order for security of costs in the amount of $15,000 under r. 61.06 of the Rules of Civil Procedure. We adjourned the motion sine die to determine why the transcripts the Bouragbas sought had not been provided. We explained:

The moving party argues that the Bouragbas have not taken reasonable steps to obtain the transcripts from the Superior Court of Justice. However, in a series of emails in March 2021, Mr. A. Bouragba attempted to get the transcript of proceedings before Associate Justice Fortier released, but he was not successful. He also requested a recording of the proceedings before Smith J. but the Ottawa Registrar of the Superior Court of Justice has not provided it. Mr. Bouragba intends to have it transcribed.

[7] The moving parties brought the motion back on February 16, 2024.

[8] For reasons that are not clear to us, there has been no success in getting copies of any transcripts of proceedings before Smith J. or Fortier A.J. from the Ottawa Superior Court Office. However, the moving parties, supported by the other respondents, argue that transcripts are not necessary for the hearing of the appeal because, the origin being a pleadings motion, no evidence was adduced in either hearing apart from the written record. Mr. Bouragba pointed out that Paul Marshall made submissions as counsel for some of the parties at the same time that he was a defendant in the action; Mr. Bouragba called this “a conflict of interest” that was critical to the disposition of the motion and to this appeal.

[9] As noted, this is essentially an appeal on a paper record from a motion to amend pleadings. Apart from his reference to Mr. Marshall’s submissions, Mr. Bouragba points to no other evidence that might be yielded by the transcripts. Any conflict of interest on Mr. Marshall’s part would not have affected the merits of the motion before Fortier A.J., or the appeal before Smith J., or this appeal, which all depend on the law related to pleadings. We note in passing that Mr. Bouragba seems intent to argue in this appeal every point decided against him over the years, including the administrative law proceedings. But that is not the narrow task of this court on the pleadings appeal.

[10] We therefore agree with the moving parties that there is no point in waiting for the transcripts, which might never be produced. Although it would have been preferable to enable Mr. Bouragba to argue the appeal on the materials he wishes to adduce, we do not see that the transcripts would provide him with any fruit for argument.

[11] As a result, we order that Mr. Bouragba perfect the appeal within 30 days of the date of this decision, failing which the Registrar may administratively dismiss this appeal.

“P. Lauwers J.A.”

“David M. Paciocco J.A.”

“Thorburn J.A.”