Court File and Parties

CITATION Bouragba v. Conseil Scolaire de district de l’est de l’Ontario, 2021 ONSC 287

COURT FILE NO.: 16-69785

DATE: 2021-01-13

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Tarik Bouragba et. al., Appellants

AND

Conseil Scolaire de district de l’est de l’Ontario et. al., Respondents

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Tarik Bouragba and Ahmed Bouragba, Self-represented Appellants

Paul Marshall and Sophie Gagnier, Counsel for the Defendants, Conseil scolaire de district catholique de l’Est ontarien, conseil des écoles publiques de l’Est de l’Ontario and Ottawa Catholic School Board

Jeff Saikaley and Andréa Baldy, Counsel for the Defendant, Ottawa-Carleton District School Board

Jeffrey Claydon, Counsel for the Defendant, Her Majesty the Queen in right of Ontario

Charlotte Anne Malischewski, Counsel for the Defendants, Ontario College of Teachers, Richard Lewko and Paul Marshall

HEARD: November 23, 2020 by video conferencing

REASONS FOR DECISION

M. Smith J

[1] This is an Appeal by the Plaintiffs Tarik Bouragba and Ahmed Bouragba (the “Appellants”) from the decision of Master Fortier, dated February 7, 2020 (Bouragba et al v. Conseil scolaire de district de L'Est de l'Ontario et al, 2020 ONSC 876), denying leave to amend their Statement of Claim pursuant to Rule 26.01 of the Rules of Civil Procedure, R.S.O. 1990, Reg. 194 (the “Rules”).

[2] All of the Defendants (the “Respondents”) submit that no error was made and that there is no basis to interfere with Master Fortier’s decision.

[3] For the reasons set out below, the Appeal is dismissed.

PRELIMINARY MATTER

[4] At the outset of the hearing, the Respondents raised a preliminary issue. They objected to Mr. Ahmed Bouragba making oral submissions on behalf of his son, Mr. Tarik Bouragba. The Respondents contended that at the Motion before Master Fortier, she found and ordered that Mr. Ahmed Bouragba, a non-lawyer, was not permitted to represent or speak on behalf of Mr. Tarik Bouragba. They argued that this Order has not been appealed and stands.

[5] Mr. Ahmed Bouragba argued that his son is illiterate and cannot represent himself. Further, he indicated that he remains a Plaintiff and is entitled to make submissions before the Court.

[6] While it may be true that the Appellants have not appealed Master Fortier’s Order that Mr. Ahmed Bouragba is prohibited from acting in this action as an agent for his son, I exercised my inherent jurisdiction and allowed Mr. Ahmed Bouragba to make submissions.

[7] To be clear, this ruling cannot be interpreted to mean that I disagree with Master Fortier’s Order prohibiting Mr. Ahmed Bouragba from representing his son. It was merely made to ensure that on this Appeal, the Appellants were given the opportunity to make submissions, explain their reasoning for the Appeal and be fully heard and understood in a fair and just manner.

ISSUES ON APPEAL

[8] The Notice of Appeal sets out the relief sought:

a. The judgment be set aside and that the Appellants be granted the relief sought (file an amendment of the statement of claim while the pleading is still open);

b. Set aside the order of cost and grant costs to the Appellants; and

c. Declare Mr. Marshall in a conflict of interest, as he is a Defendant represented by the College of Teachers while, at the same time, he is representing other Defendants as a lawyer of record.

[9] The Appellants framed their grounds of appeal in thirteen different ways. In my view, they can be grouped into the following four issues:

a. Did Master Fortier err in law by denying the Appellants’ amendment of the Statement of Claim? The Appellants allege that the amendment should have been allowed because the pleadings remained open and the burden of showing prejudice was not met by the Respondents.

b. Did Master Fortier err in ruling on the Respondents’ cross motions when the action is stayed?

c. Did Master Fortier err in not dealing with the Appellants’ claim that Mr. Marshall was in a conflict of interest?

d. Did Master Fortier err in awarding costs to the Respondents?

BACKGROUND

[10] The Appellants’ claim was commenced by way of Notice of Action issued on August 29, 2016 (the “Action”). Since then, there have been several Orders rendered by the Court, at various levels. Master Fortier appropriately set out the factual and legal procedural history (at paragraphs 3-13). I see no need to repeat it.

[11] On June 28, 2019, the Appellants brought the following motion: “amending the statement of claim in file CV 16-69785”. The grounds for the motion were: (1) to correct injustice; (2) to reduce the complexity of the case; (3) to clarify the claim for the Court by the record; and (4) to protect the integrity of the administration of justice and its judges.

[12] The Appellants’ proposed amendment to the Statement of Claim sought to make, amongst other things, the following changes:

a. Discontinue the action brought by certain Plaintiffs;

b. Discontinue the action as against certain Defendants;

c. Add a new party; and

d. Add new claims such as damages for breach of duty and conspiracy, a declaration that the Defendants violated the Education Act, R.S.O. 1990, c. E.2 and the Charter of Rights and Freedoms (the “Charter”), a declaration that some of the Defendants, including the government of Ontario breached the Geneva Convention on the Rights of the Child (the “Geneva Convention”), and damages for loss of income.

[13] The Motion was heard by Master Fortier on September 24, 2019 and she rendered her decision on February 7, 2020. The relevant principles that govern the amendments to pleadings and allegations of conspiracy are set out at paragraphs 23-30 of Master Fortier’s decision:

i- Test for Permitting Amendments to Pleadings

23- Rule 26.01 of the Rules provides that courts must grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated by costs or an adjournment.

24- The Court of Appeal in Marks v. Ottawa (City) held that, although the general rule is that amendments are presumptively approved, the court has a residual right to deny amendments where appropriate. The applicable factors to be considered were summarized in Marks as follows:

a) An amendment should be allowed unless it would cause an injustice not compensable in costs;

b) The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious;

c) No amendment should be allowed which, if originally pleaded, would have been struck;

d) The proposed amendment must contain sufficient particulars.

24- The principles developed under Rule 21.01(1)(b) of the Rules are applicable when determining whether to grant leave to amend a statement of claim pursuant to Rule 26.01. As held in Toronto Dominion Bank v. 1336304 Ontario Inc., "It is trite law to state that no amendment should be permitted that could be successfully attacked on a Rule 21 or Rule 25 motion.". On a motion to amend a Statement of Claim a court will consider whether a proposed claim is tenable by applying the principles developed under the Rule 21.01(1) (b) analysis. Untenable amendments have been found to be non-compensable prejudice.

25- Pursuant to Rule 21.01(1) (b), a pleading that discloses no reasonable cause of action may be struck. On such a motion, a defendant must show that it is "plain and obvious" that the claim cannot succeed. This test will be met where:

(a) A plaintiff pleads allegations that do not give rise to a recognized cause of action;

(b) A plaintiff fails to plead a necessary element of a recognized cause of action;

(c) The allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts, or where mere conclusions of law are asserted.

26- Rule 25.06 provides that every pleading must "contain a concise statement of the material facts on which the party relies for the claim or defence." The requirement to provide material facts is increased where allegations of intentional or malicious conduct are made. In those cases, Rule 25.06(8) requires specific facts supporting those claims. As previously noted, a claim may be found to be frivolous, vexatious, or an abuse of process where it contains insufficient material facts to support the allegations made and where it asserts untenable pleas.

ii- Conspiracy

27- There are several paragraphs in the Amended Statement of Claim that contain allegations of conspiracy or collusion among the various Defendants.

28- It is well settled that a pleading of conspiracy must contain full particulars 12 and include with clarity and precision the particulars of:

a) the parties and their relationship;

b) an agreement to conspire;

b) the precise purpose or objects of the alleged conspiracy;

c) the overt acts that are alleged to have been done by each of the conspirators; and

d) the injury and particulars of the special damage suffered by the plaintiffs by reason of the conspiracy.

29- The courts have held that a pleading that shows a complete absence of material facts is considered frivolous and vexatious and that bare allegations should be struck as scandalous. This is particularly so where allegations of intentional or malicious conduct are made.

30- Furthermore, a conspiracy is an agreement to accomplish an unlawful objective or to accomplish a lawful objective by unlawful means. The pleading must spell out with clarity and sufficient detail the particulars of the unlawful objective or the unlawful means.

[14] In determining that the Appellants failed to properly amend their Statement of Claim and that it does reach a minimum level of particulars required for a tenable cause of action against the Defendants, Master Fortier noted that there is no absolute right to amend a pleading and that untenable amendments constitute non-compensable prejudice. At paragraph 33, Master Fortier sets out her reasons for refusing the amendment:

33- The Amended Statement of Claim does not make clear which causes of action are being claimed against which Defendants. There is a marked absence of material facts or particulars with respect to the claims. In my view, the serious deficiencies in the pleading make it impossible for the Defendants to properly know the case they have to meet. In particular:

a) The Plaintiff's allegations of conspiracy against the Defendants in the Amended Statement of Claims fail to meet the minimum standards of pleading such an allegation. The pleading does not include, with clarity or precision (or otherwise): 1) particulars of the parties and their relationship; 2) an agreement to conspire; 3) the purpose or objects of the alleged conspiracy; 4) the overt acts that are alleged to have been done by each of the conspirators; and 5) the particulars of the special damage suffered by the plaintiffs by reason of the alleged conspiracy. Rather, the Plaintiff claims a broad conspiracy among the Defendants without identifying which of the Defendants conspired nor is there an explanation of the alleged conspirators' relationship with one another. The Amended Statement of Claim makes no mention of an agreement between two or more of the Defendants for a particular unlawful purpose and does not set out the time, place, and mode of any such agreement. Moreover, the Amended Statement of Claim makes vague and scandalous allegations of political corruption, bribery, and improper influence over the independence of the judiciary. These serious allegations are not supported by any material facts.

b) There are no facts pled to support the alleged breaches of the Charter, the United Nations Convention on the Rights of the Child or the Education Act. It is not clear if these claims are being made against all or some of the Defendants, what specific conduct gives rise to the breaches, and on what basis the Charter, the United Nations Convention on the Rights of the Child or the Education Act applies to any particular Defendant or with respect to any particular conduct.

c) The Amended Statement of Claim seeks damages for breach of fiduciary duty but pled no facts in relation to this claim.

d) The Amended Statement of Claim seeks damages for breach of duty of care. No material facts are pled that would allow the Defendants to understand on what basis the Plaintiff alleges each Defendant owed a duty of care, in what way they breach that duty, and in what way any such breach caused particular damages.

e) This Court does not have the jurisdiction to grant the relief sought by the Plaintiff for an investigation. Similarly, the Court has no jurisdiction to entertain claims for breach of United Nations Conventions.

f) The Plaintiff is statute barred from adding Emond Harnden LLP as a new party. Moreover, there are no facts pled which would give rise to any of the claims alleged in the Amended Statement of Claim. Emond Harnden is mentioned only once in the Amended Statement of claim and the only facts pled are that it is Paul Marshall's law firm and that it is based in Ontario.

[15] Master Fortier concluded that it was plain and obvious that the Amended Statement of Claim disclosed no reasonable cause of action. It was also held by Master Fortier that the pleading was incomprehensible, making it impossible for the Defendants to properly respond to the allegations contained in the Amended Statement of Claim.

[16] The Appellants’ motion for leave to amend their Statement of Claim was dismissed. They are now appealing Master Fortier’s decision.

POSITION OF THE PARTIES

The Appellants

[17] Despite the specific relief sought out in the Notice of Appeal, the Appellants say that they are appealing every aspect of Master Fortier’s decision.

[18] The Appellants argue that this is a case of miscarriage of justice and that, pursuant to section 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), I have the absolute power to do whatever I want, including the substitution of a decision.

[19] The Appellants raised the following issues in their Notice of Appeal:

a. The Master made palpable and overriding errors by failing to grant the requested amendment of the Statement of Claim while the pleadings are still open;

b. The Master made a serious error in law by dismissing the motion to amend the Statement of Claim and also engaging in making procedural decisions and rulings on the Defendants’ cross motions in a stayed action;

c. The Master misapprehended the test under Rule 26.01;

d. The Master failed to observe that the burden of showing prejudice that would militate against allowing the amendments rests with the Defendants;

e. The Master erred by ignoring the Plaintiffs’ main position entirely and adopting the full position and speculation of the strong and rich Defendants;

f. The Master erred in law by relying on Justice Beaudoin’s error in the application of Rule 2.1 by continuing to stay the action in his second endorsement dated December 13, 2016 without engaging the legal test in staying an action in reference to the three stage test (merit, balance of harm and convenience which all favor the Plaintiff’s position and his urgent access to education, student cannot stay out of school while the Court is engaged in any procedural matters);

g. The Master relied on the lawyers’ speculation that some of their clients were not properly served with the initial Statement of Claim;

h. There was a denial of access to justice and procedural fairness when the Master was clearly informed that no cross motion or decision could be made without lifting the stay;

i. The Master failed to deal with Mr. Marshall’s conflict of interest;

j. The Master demonstrated that she was clearly confused in her endorsement by stating that the three years’ time were spent in motions and appeals which were not successful;

k. The Master relied on Marks v. Ottawa (City), 2011 ONCA 248, that firmly supports the Appellants’ position and not the Defendants’ position;

l. The Master failed to consider that education is a public service, so the duty of care is an obligation by all the Defendants; and

m. The Master failed to consider the serious violations of Rule 7 of the Law Society of Ontario’s Rules of Professional Conduct by all lawyers in this case (i.e. duty to report misconduct: 7.1-3).

[20] The Appellants submit that, because the pleadings remain open, leave of the Court is not required to amend their Statement of Claim. The Appellants rely upon Rule 26.02 of the Rules.

[21] The Appellants say that they have an absolute right to amend their pleadings, without Court intervention. At paragraph 8 of the Appellants’ factum, they state, in part:

8- The endorsement made by Beaudoin had a number of deficiencies in law, he imposed terms while the pleading was open so it was a major error in law against Rule 26 that gives the absolute right to the Plaintiffs for unlimited number of amendments without leave of the court, second Beaudoin did not have the jurisdiction to stay a civil action without engaging the Stay Legal Test, third, his involvement was justified by Rule 2.1 that was not applicable due to the clear merit, and the fact of having his jurisdiction limited to only dismiss the action as frivolous, vexatious or an abuse or to let the action continues its process due to the nature of Rule 2.1 that limits the judge to decide on the surface of the statement of claim without any evidence or record…

[22] The Appellants indicate that the amendments to the Statement of Claim are clear and that all required particulars are present.

[23] The Appellants submit that Master Fortier should not have ruled on the Respondents’ cross motion because the action was stayed. It is submitted that Master Fortier was well aware that she had no jurisdiction to proceed with the cross motion. The Appellants refer on paragraph 41 of Master Fortier’s decision, which they say is a recognition of her mistake. It reads:

41- The court, pursuant to Rules 57.03(2) and 60.12, has the authority to dismiss or stay an action where a party has failed to pay a cost award. As the Plaintiff's motion for leave to amend the Statement of Claim has been dismissed, the proceeding remains stayed pursuant to Beaudoin J.'s order. Under the circumstances, I decline to make a further ruling in that regard.

[24] In regard to the allegations of conspiracy in the Amended Statement of Claim, the Appellants state that Master Fortier failed to properly analyse the allegations and simply relied upon the position of the Respondents, which they qualify as the “strong party” as opposed to the “weak party” (i.e. the Appellants). The Appellants argue that the elements of common design, a requirement for an allegation of conspiracy, are found within the pleadings.

[25] In ordering that the Appellants are prohibited from bringing any further motions in these proceedings without first paying the various outstanding costs awards, the Appellants submit that this type of order is inconsistent with the basics of justice and there has been a violation of the rule of law.

[26] On the issue of Mr. Marshall’s conflict of interest, the Appellants claim that it was a live issue at the Motion before Master Fortier. They argue that as the gatekeeper, Master Fortier was obliged to address the conflict of interest. At paragraphs 48 and 49 of the Appellants’ factum, they explain it as follows:

48- The Master failed to assume her responsibilities as a judicial gatekeeper as required, a judge acts as a gatekeeper analogous to the traditional function of the judge in determining whether the procedural fairness is respected or not, there is a significant and irreparable damage and prejudice to Mr. Marshall’s 10 clients to include his own counsels (Paul Marshall himself, and his two lawyers who represent the College of Teachers: Mr. Eli Mogil and Ms. Charlotte-Anne Malischewski, Superintendent Lyne Racine, superintendent Stephane Vachon, principle Diane Lamoureux, principal Norma McDonald, vice principal Annie Sicard and their school boards CSDCEO, CEPEO and OCSB who all participated illegally in the systemic denial or removal of the student Tarik from their schools by conspiracy and collusion with Paul Marshall, superintendent Stephane Vachon even signed an affidavit prepared by Mr. Marshall for Lyne Racine school board asking her to deny Tarik’s education after one month of attendance, Mr. Vachon acted against Tarik’s education even in a school board that was not under his jurisdiction. All the violators share the same lawyer Mr. Marshall).

49– the master, by not eliminating or at least questioning Mr. Marshall’s conflict of interest, despite the fact that she promised to deal with it at the hearing as a life issue, the complete disregard to decide the conflict of interest and focus only on how to prohibit Tarik’s father from representing his son is an evidence of the absolute lack of fairness by the Master. This serious procedural error cannot be mitigated at any step and it has a serious negative impact on the image of the administration of justice and on the other lawyers, as they must report Mr. Marshall to the Law Society otherwise, they all would be in violation of section 4, 7 of the professional misconduct. Judges and masters are not allowed to conceal and to protect conflicts of interest, it is a question of public interest and integrity of the courts.

[27] The Appellants state their position was ignored by Master Fortier. They are vulnerable litigants and there has been a lack of procedural fairness. The Appellants allege that at the Motion, Master Fortier accepted a USB key from Mr. Marshall, which was improper as all documents were printed and filed.

The Respondents

[28] The Respondents say that the Appeal is without merit because the Appellants have not identified a reviewable error.

[29] It is submitted that Justice Beaudoin stayed the proceedings until such time as the Appellants brought a proper motion to amend. Leave was required because Justice Beaudoin’s Order was explicit in that regard. Paragraph 19 of Justice Beaudoin’s Order dated December 13, 2016 reads: “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”: see Bouragba v. Conseil scolaire de district de l’Est de l’Ontario et al., 2016 ONSC 7798, at para. 19.

[30] The Respondents note that Justice Beaudoin’s Order dated December 13, 2016 was not appealed.

[31] The Respondents say that the Appellants have raised a number of issues on this Appeal, including their criticism on previous decisions made, all of which they argue are collateral attacks on those decisions and not relevant to the issues at hand.

[32] The Respondents argue that there was a marked absence of material facts in the proposed Amended Statement of Claim, it was incomprehensible, and it lacked the minimum particulars required for a cause of action. Further, when dealing with conspiracy allegations, the pleading rules are quite specific, and the Appellants have failed to adhere to them.

[33] The Respondents say that Master Fortier properly identified the law, appropriately set out the guiding principles as found in the authorities and considered the tenability of the proposed amendments to the Statement of Claim. Master Fortier was correct in finding that that the amended pleading did not give rise to a tenable claim. The Respondents would be unable to respond to the proposed Amended Statement of Claim.

[34] In response to the Appellants’ allegations that Master Fortier acted without jurisdiction when dealing with the Respondents’ motions, they first say that they brought cross-motions and not a motion within a stayed action. Second, Master Fortier had the inherent jurisdiction to control the proceedings and make any orders that were just and reasonable in the circumstances. Her Orders that the Plaintiff Tarik Bouragba represent himself and that the costs be paid before proceeding with further motions were not only proper but correct in law.

[35] In specific reference to the allegations of Mr. Marshall’s conflict of interest, the Respondents argue that the Appellants’ claims are gratuitous, and they have never filed any evidence or taken any formal legal proceedings to deal with the alleged conflict of interest.

[36] Lastly, in response to the allegation that Mr. Marshall improperly submitted electronic evidence to Master Fortier, six copies of the motion materials were stored electronically on a USB and provided to the Court and other parties. The Appellants refused to accept it.

STANDARD OF REVIEW

[37] The Standard of Review on appeal from a Master’s decision was summarized in the decision of Shibish v. Scher, 2015 ONSC 1844. The relevant and applicable principles to the case at bar are:

a. Appellant interference will only be warranted if the Master made an error of law or exercised his/her discretion on the wrong principles or misapprehended the evidence such that there is a palpable and overriding error.

b. The standard of review on a question of law is correctness.

c. An appeal from a Master’s decision is not a re-hearing.

[38] The Respondents submit that Master Fortier’s findings concerning the tenability of the proposed Amended Statement of Claim is a question of law which attracts the standard of correctness. In the Notice of Appeal, the Appellants argued that Master Fortier made “palpable and overriding errors” yet, during oral submissions, they conceded that the correctness standard applies.

[39] In my view, the issues of whether the amendments to the Statement of Claim were untenable and disclosed no reasonable prospect of success pertain to questions of law and not a misappropriation of the evidence. As such, I find that the proper standard is one of correctness.

THE LAW

[40] Rule 26.01 of the Rules states that “on a motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.”

[41] Rule 21.01(1)(b) of the Rules says that “a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence.”

[42] Rule 25.06 of the Rules provides that “every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.” Further, when there are allegations of malicious or intentional conduct, Rule 25.06(8) requires that “the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.”

ANALYSIS

Issue #1 - Did Master Fortier err in law by denying the Appellants’ amendment of the Statement of Claim?

[43] Master Fortier did not make a reversible error in dismissing the Appellants’ motion to amend. For the reasons set out in the paragraphs to follow, I find that Master Fortier’s decision was correct in law and she was right in her analysis and conclusions.

Pleadings remained open

[44] Let me first address the Appellants’ argument that leave was not required because the pleadings remained open. The Appellants’ reasoning is flawed for several reasons. First, the Appellants fail or refuse to recognize that Justice Beaudoin’s Order, dated December 13, 2016, conditionally stayed the action. As a result of this Order, the Appellants were no longer able to rely upon Rule 26.02(a) of the Rules. Second, despite the Appellants’ claim that Justice Beaudoin’s Order was a “major error of law against Rule 26”, they took no steps to appeal Justice Beaudoin’s Order. Therefore, in order to lift the stay, the Appellants had no choice but to bring a motion for leave to amend their Statement of Claim. Third, in accordance with Justice Beaudoin’s Order, the Appellants brought a motion for leave to amend their pleading. To now suggest that Master Fortier erred because leave was not required is, with respect, nonsensical. The Appellants appropriately sought leave to amend and that is precisely what needed to be adjudicated by Master Fortier. Lastly, even if the Appellants were entitled to rely upon Rule 26.02(a) of the Rules, which they are not, this rule is not applicable because the amendments to the Statement of Claim contravene this rule by including both the deletion and addition of parties to the action.

[45] The Appellants ask this Court, in the interest of justice, to lift the stay by allowing the amendment to the Statement of Claim. Although section 134 of the CJA gives expansive powers to address any errors that have been made by the Court appealed from, it does not, in my view, give me the power to alter Justice Beaudoin’s Order.

The test to amend

[46] The Appellants’ contention that Rule 26.01 of the Rules “gives the absolute right to the Appellants for unlimited amendments without leave of the court” is simply wrong in law.

[47] Master Fortier accurately stated that the test on a Rule 26.01 motion requires that the Court should grant leave unless prejudice would result that could not be compensated by costs or an adjournment. Master Fortier then correctly stated that an amendment under Rule 26.01 is not absolute, but rather discretionary. In this regard, Master Fortier appropriately set out the guiding principles that had been enunciated by the Court of Appeal for Ontario in Marks v. Ottawa (City).

[48] Master Fortier also considered Rules 21 and 25 of the Rules. She relied upon the decision of Toronto Dominion Bank v. 1336304 Ontario Inc., [2003] O.J. No. 1019 (Ont. S.C.), which stands for the proposition that no amendment should be permitted if it could be attacked on a Rule 21 or 25 motion. The Appellants do not dispute that this was inappropriate. In considering whether the Appellants’ proposed amended pleading disclosed a tenable cause of action, Master Fortier was correct in applying the tests under Rules 21.01(1)(b) and 25.06 of the Rules. I find that it was proper for Master Fortier to consider whether the Appellants’ proposed amendments disclosed a reasonable cause of action.

[49] I do not agree with the Appellants’ interpretation of Rule 26.01 of the Rules. I acknowledge that the language under this rule is very permissible, but it is certainly not mandatory as suggested by the Appellants. Master Fortier’s determination that there is no absolute right to amend a Statement of Claim is, without any doubt, correct.

Misapprehension of the test

[50] The Appellants say that Master Fortier’s reliance on Marks v. Ottawa (City) was improper because it “firmly supports the Plaintiffs’ position and not the Defendants position”. It is submitted by the Appellants that in the Marks v. Ottawa (City) case, the plaintiff “won the appeal in part and their amendments were allowed” and Master Fortier should have done the same. In the Notice of Appeal, they write: “the Master could have accepted the amendments in part and strike what could be struck in her opinion to show some fairness to the unrepresented individual Plaintiffs but she chose to attack the entire pleading relying on the pure speculation of the Defendants.”

[51] As I understand the Appellants’ argument, they are not challenging Master Fortier’s determination of the test to follow or the factors to consider when deciding if an amendment should be permitted (as set out in Marks v. Ottawa (City) and Toronto Dominion Bank v. 1336304 Ontario Inc.) but rather they argue that Master Fortier’s misapprehended the test.

[52] The Appellants submit that Master Fortier misapprehended the test in four ways:

a. The pleading does not cause any injustice to the Defendants. Rather, the injustice is caused to the Plaintiffs by the dismissal of their motion;

b. The proposed amendment is prima facie meritorious;

c. No originally pleaded amendment was ever struck; and

d. Claiming that the amendments do not show particulars or are not tenable cause of action is unreasonable and highly prejudicial.

[53] Master Fortier was required to look at the merits of the Appellants’ proposed amendments to ensure that they were tenable at law. If they were not, Master Fortier was well within her jurisdiction to refuse to grant the Appellants’ amendments to the Statement of Claim.

[54] Master Fortier found that the minimum level of particulars that is required to have a tenable cause of action was not reached. In making such a finding, non-compensable prejudice follows. Further, she found that it was not plain and obvious that the Appellants’ claims have no reasonable prospect of success.

[55] I find that Master Fortier’s application of the test was correct. As set out in greater detail below, I agree with her analysis and conclusions reached at paragraph 33 of the decision.

Paragraph 33(a)

[56] Master Fortier clearly enunciated the five particulars that must be included in a pleading of conspiracy. She held that the Appellants’ allegations of conspiracy did not meet the minimum standards of pleadings.

[57] The Appellants argue that the particulars of common design (the term preferred by the Appellants to describe conspiracy) were indeed present. Also, during oral submissions, the Appellants stated that Master Fortier should have asked them for more clarification on their pleadings and that her failure to do so was an error. I disagree.

[58] Master Fortier was entitled to rely upon the proposed Amended Statement of Claim that was before her to determine if there were sufficient particulars to plead conspiracy. The Appellants cannot simply make bald and unparticularized claims of conspiracy. They are required to plead the requisite elements of conspiracy with particularity: describe the parties to the conspiracy and their relationship with each other, including the agreement between them to conspire, outline the purpose of the alleged conspiracy, and set out the overt acts and the damages suffered.

[59] The proposed Amended Statement of Claim makes wide ranging references to a conspiracy between Ms. Lyne Racine and Mr. Paul Marshall, between the school boards, between the Ontario College of Teachers and Mr. Paul Marshall, and between the Ontario College of Teachers and the Ministry of Education. The Appellant further pleads that Mr. Marshall “was successful in his systemic conspiracy” and that the conspiracy was proven against him because “the College not only failed to discipline Mr. Marshall but provided him with full protection and lawyers against a vulnerable student which went against the mandate of the College”. At best, in reading the proposed amendments liberally and generously, it could be said that there was a general description of the parties that conspired with one another and that its purpose is broadly defined as being to destroy and delay the Plaintiff Tarik Bouragba’s education. However, the relationship between the parties is not clearly identified, there are no facts pleaded to establish an agreement to conspire, and the claim does not set out with any degree of precision the overt acts undertaken by the Defendants. Master Fortier was therefore correct in determining that the necessary requirements with respect to a reasonable cause of action for conspiracy had not been met.

Paragraph 33(b)

[60] The Appellants seek damages for the breach of the Charter, the Convention, and the Education Act. Master Fortier found that the proposed amendments failed to plead any facts in support of the alleged breaches, failed to identify which Defendant was alleged to have caused the breaches and failed to set out the basis for these alleged breaches.

[61] I acknowledge that the Appellants identify the sections that have allegedly been breached in the Charter, the Convention, and the Education Act. Nevertheless, they do so without pleading any material facts to support the alleged breaches. The assertions in the pleading are general in nature such as “Tarik’s Canadian Charter of Rights and Geneva convention were also breached in a prima facie way”. It is insufficient to make these general references. The Appellants must plead the necessary facts to bring it within the sections of the various statutes and identify with specificity which party has breached the statutes.

[62] I agree with Master Fortier’s decision that particulars are required.

Paragraphs 33(c) and (d)

[63] Master Fortier held that the Appellants have not pleaded any facts in support of the allegations of the breach of the duty of care and fiduciary duty.

[64] The Appellants seek damages for these breaches. There is some vague reference in the amended claim that the Ontario College of Teachers had a duty to protect the public interest. Also, the Appellants allege that each of the Defendants had a “duty of care to any Ontario student who has a basic right to access public education”.

[65] The Appellants must plead the facts that show how the Defendants breached their duty of care and fiduciary duty. The Amended Statement of Claim is devoid of any materials facts to support such allegations. Master Fortier was correct.

Paragraph 33(e)

[66] At paragraph 1(h) of the Amended Statement of Claim, the Appellants seek the following: “Any other remedy that the Court deems just to include an investigation to prove the direct conspiracy between Mr. Paul Marshall and Lyne Racine and the manipulation of the administration of justice to serve injustice against a Canadian vulnerable student by the Defendants’ counsels.” The Appellants do not plead the legal basis for the relief sought in this paragraph.

[67] Master Fortier held that the Court did not have any jurisdiction to grant this type of relief.

[68] I agree with Master Fortier’s conclusion that the Court has no jurisdiction to order that an investigation be launched. Even if the Court had such jurisdiction, there is no basis for ordering an investigation because there is no evidence of conspiracy and the Appellants have failed to plead the essential elements for a conspiracy claim.

Paragraph 33(f)

[69] The Appellants attempted to add a party (Emond Harnden LLP) well beyond the limitation period. Master Fortier looked at this issue and determined that, not only were the Appellants statute barred from adding this new party but, more importantly, there were no pleaded facts that would give rise to a claim against Emond Harnden LLP. Master Fortier correctly pointed out that this new party is only mentioned once in the proposed amendment. Paragraph 3 of the proposed Amended Statement of Claim describes Mr. Marshall as a “lawyer with Emond-Harnden law firm based in Ontario”. Nothing more. The Appellants failed to plead material facts to support the existence of a tenable claim against the law firm.

[70] Although not referenced in Master Fortier’s decision, the Court of Appeal has clearly set out that, when a limitation period has expired and a new amendment is sought, this gives rise to a presumption of prejudice. This presumption of prejudice is determinative unless the party seeking the amendment can demonstrate the existence of special circumstances to rebut the presumption (Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, 90 O.R. (3d) 401). The Appellants led no evidence to demonstrate that there was no prejudice. Clearly, the Appellants have not rebutted the presumption of prejudice.

[71] The proposed amendment to add a new party lacks any particulars to make out a viable claim. As such, Master Fortier’s determination on this issue was entirely correct.

Disposition

[72] In my view, Master Fortier did not misapprehend the test for an amendment to the pleadings. Master Fortier properly set out the principles to be applied in such a motion. Then, after a review of the Amended Statement of Claim, Master Fortier determined that the action, as drafted, was untenable. As described above, there was a well thought out legal basis for refusing the Appellants’ leave to amend.

[73] I agree with Master Fortier’s conclusion that the Appellants’ Amended Statement of Claim is incomprehensible. Not only does it fail to plead material facts, it contains vague and broad allegations as well as extravagant and inflammatory statements, all of which are inappropriate for a Statement of Claim. It would be unfair and unjust to expect the Respondents to deal with the Appellants’ pleadings.

Issue #2 - Did Master Fortier err in ruling on the Defendants’ cross motions when the action is stayed?

[74] The Appellants argue that Master Fortier could not have ruled on the Respondents’ cross motions without lifting the stay of proceedings.

[75] The Respondents argue that this issue does not form part of the Appeal.

[76] I agree with the Respondents. The Notice of Appeal does not address Master Fortier’s decision prohibiting the Plaintiff Ahmed Bouragba from acting as agent for the Plaintiff Tarik Bouragba or the Appellants’ prohibition from bringing any further motions until such time as all outstanding costs orders have been paid. Master Fortier’s decisions on these two matters stand. If I am wrong in my determination that the Appellants have not appealed the entirety of Master Fortier’s decision, I find that the Appellants’ Appeal regarding the Respondents’ cross motions is without merit.

Justice Beaudoin’s Order to stay the Action

[77] On November 1, 2016, Justice Beaudoin directed the Registrar to give notice to the Appellants that he was considering making an order under Rule 2.1.01 of the Rules. The Appellants responded to the notice. Then, on December 13, 2016, Justice Beaudoin found that there were frivolous and vexatious features in the Appellants’ proceeding. He stayed the Action against the Appellants until such time as they brought “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”: see Bouragba v. Conseil scolaire de district de l’Est de l’Ontario et al., 2016 ONSC 7798, at para. 19.

[78] Justice Beaudoin relied upon section 106 of the CJA to stay the Action. Section 106 of the CJA reads: “A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.” The terms imposed by Justice Beaudoin were very clear and solely directed at the Appellants. Other than a motion to amend their Statement of Claim, the Appellants were prohibited from taking any further steps in the legal proceedings. Justice Beaudoin’s Order does not prohibit the Respondents from making any further motions. As such, I find that the Respondents’ cross motions were properly brought before the Court and Master Fortier was well within her jurisdiction to consider them.

[79] It is worth repeating that Justice Beaudoin’s Order was never appealed by the Appellants. Nonetheless, the Appellants continue to argue that Justice Beaudoin’s Order was incorrect and that he did not have the jurisdiction to stay the action. I agree with the Respondents’ submissions that the Appellants’ ongoing criticism of Justice Beaudoin’s Order is a collateral attack on an issue that has long been decided and was not overturned.

Ahmed Bouragba prohibited from representing his son

[80] At the time of the issuance of the Statement of Claim, the Plaintiff Tarik Bouragba was a minor. The Plaintiff Ahmed Bouragba was acting in person and in his capacity as litigation guardian for his son.

[81] The Plaintiff Tarik Bouragba reached the age of majority by the time that he appeared before Master Fortier.

[82] Rule 15.01 of the Rules provides that if a party acts in a representative capacity, this party shall be represented by a lawyer. Any other party must act in person or be represented by a lawyer.

[83] In addition, section 26.1 of the Law Society Act, R.S.O. 1990, c. L.8 (“LSO”) prevents any person other than a licensee from practicing law or providing legal services in Ontario.

[84] The language of Rule 15.01 of the Rules and section 26.1 of the LSO is mandatory. It is not permissible to allow a non-lawyer to act on behalf of another party.

[85] Master Fortier correctly applied the Rules and the LSO. There was simply no basis in law upon which the Plaintiff Ahmed Bouragba could represent the Plaintiff Tarik Bouragba.

Prohibition from taking further steps until the cost Orders have been paid

[86] Having dismissed the Appellants’ Motion to amend, Master Fortier concluded that the Appellants’ action remains stayed pursuant to Justice Beaudoin’s Order. She referred to Rules 57.03(2) and 60.12 of the Rules which provide the Court with the power to stay or dismiss an action if there is non-compliance with previous orders. Given that the Action was still stayed, Master Fortier declined to make any further Orders in this regard. This was proper. It was by no means an acknowledgment that she was without jurisdiction, as the Appellants have argued.

[87] The Appellants say that Master Fortier failed to take into account the circumstances of this case. They further indicate that not only was it an unreasonable decision, but it was inconsistent with the basics of justice and a violation of the rule of law. I disagree.

[88] Master Fortier quite accurately stated that, other than a payment of $1,000.00, the Appellants have failed to pay the cost Orders against them. This fact does not appear to have been disputed by the Appellants.

[89] The Respondents rightfully rely upon Apollo Real Estate v. Streambank Funding Inc., 2018 ONSC 392, which reiterated a long-standing concern for the Court, namely compliance with Court Orders. Failure to enforce compliance with a Court Order is corrosive of the entire justice system.

[90] The Appellants are litigious but nevertheless entitled to be heard. However, if they are unsuccessful in one of their motions or appeals, and a cost award is made against them, they must comply. Court Orders are not optional.

[91] Master Fortier was correct in making the prohibition Order. It maintains the integrity of the justice system and there were no compelling reasons to deviate from the enforcement of a Court Order.

Disposition

[92] Master Fortier had the appropriate jurisdiction to rule on the Respondents’ cross motions and no reversible errors can be attributed to Master Fortier in granting the relief sought by the Respondents.

Issue #3 - Did Master Fortier err in not dealing with the Appellants’ claim that Mr. Marshall was in a conflict of interest?

[93] The Appellants contend that this was a live issue at the hearing of the Motion. It formed part of the factum and it is alleged that Master Fortier promised the Plaintiff Tarik Bouragba that she would be dealing with the matter. The Appellants claim that this would have been clear on the transcript of the Motion, however they were not allowed to obtain a copy of the transcript.

[94] The Appellants argue that they do not need evidence in respect to the conflict of interest. As a gatekeeper, Master Fortier had to take action and she had an obligation to ensure that the process in Court was followed with integrity. It is submitted that Mr. Marshall has been in conflict from the start of these proceedings and it is putting the justice system into disrepute.

[95] The Appellants have been fixated with Mr. Marshall’s involvement in this matter since the very beginning and five years later, it is still being argued at this Appeal. They say that the Plaintiff Ahmed Bouragba’s first intervention to deal with Mr. Marshall’s alleged conflict of interest commenced in October 2013 and it has continued since that time.

[96] The Appellants argue that the judiciary has also been involved in concealing this alleged conflict of interest. At paragraphs 28 and 29 of the Appellants’ factum, they write:

28- In his endorsements, J. Beaudoin was successful in concealing Mr. Marshall’s direct conflict of interest and he focused solely on Mr. Marshall and his clients interest, for example J. Beaudoin removed Lyne Racine from the pleading even when the Plaintiffs did not ask for her removal.

29- It was a fact that J. Beaudoin undermined his colleague J. Kane endorsement, concealed Mr. Marshall’s direct conflict of interest prejudicing his clients as lawyer Marshall cannot be a defendant and at the same time representing a majority of other defendants.

[97] The Appellants also submit that all the other lawyers are in breach of their ethical standards on the basis that they have not reported Mr. Marshall’s alleged conflict of interest. At paragraph 51 of their factum, they write the following:

51- Are the other lawyers in breach of the Law Society Ethical Standards (Duty to report) causing significant prejudice to Mr. Marshall’s clients and misleading the administration of justice? Yes, furthermore, the lawyers of the Ontario College of Teachers had a responsibility to inform Mr. Marshall about his conflict and they should not allow him to continue acting for others while he is their clients, this fact is significant in showing and proving the Defendants’ bad fait and the magnitude of the injustice in this file. The Plaintiffs are asking this honourable court to report the case to the law society for further investigation of the behaviour of all the lawyers who mislead the administration in bad faith causing harm to the image of the justice system and causing total failure of justice against the Plaintiff Tarik who lost his education entirely.

[98] The Appellants say that it would be in the public’s interest for the Court to declare that Mr. Marshall is acting in conflict of interest and that the other counsel representing the Defendants are acting in bad faith and “misleading the administration of justice defeating thee end of justice and supporting systemic conflict of interests”.

[99] The Respondents argue that Mr. Marshall’s alleged conflict of interest is not properly before the Court on this appeal. This issue was not before Master Fortier and, in any event, when seeking the removal of a Solicitor of Record, there is a formal process to follow, including the filing of a motion, supported by affidavit evidence, and the opportunity to cross-examine the deponent that is seeking Mr. Marshall’s removal.

[100] First and foremost, despite the Appellants’ insistence that Mr. Marshall should be removed as Solicitor of Record, the Appellants have never brought a motion to remove him from the record. The Notice of Motion that was prepared and filed by the Appellants simply read: “The Motion is for: a) Amending the statement of claim in file CV 16-69785”. Moreover, the alleged conflict of interest never formed part of the grounds for the Motion.

[101] During submissions, Mr. Marshall acknowledged that Master Fortier asked the Plaintiff Tarik Bouragba if Mr. Marshall had ever represented him, to which he answered “No”. Even if the matter was discussed at the Motion, it was still not properly before the Court and ought not to have been considered by Master Fortier.

[102] The request to remove a Solicitor of Record is serious. There is a body of caselaw that sets out the guiding principles on a motion to remove a lawyer of record. There must be evidence of the existence of the conflict of interest to counter the strong principle in favour of allowing parties to keep their counsel of choice.

[103] I agree with the Respondents’ submissions that when a party requests that a lawyer be removed from the record, that lawyer should be afforded the opportunity to cross-examine and challenge the evidence against him. Procedural fairness dictates and necessitates that Mr. Marshall is entitled to have the full opportunity to respond to these allegations of conflict of interest. This has never taken place.

Disposition

[104] In the absence of a motion on the part of the Appellants explicitly objecting to Mr. Marshall’s alleged conflict of interest and requiring his removal, I find that Master Fortier was correct in not addressing it. This important issue was not put directly to Master Fortier by formal means of a motion. Also, in exercising her gatekeeper function, it would have been inappropriate for Master Fortier to intervene on her own volition to remove counsel in order to address an alleged conflict of interest where the Appellants had not brought a formal motion to argue for Mr. Marshall’s removal.

Issue #4 - Did Master Fortier err in awarding costs to the Defendants?

[105] The Appellants seek to set aside Master Fortier’s Order of costs. More specifically, at paragraph 53(c) of their factum, the Appellants seek the following Order:

53c- Costs fort his appeal in the amount of $27,100.00 and costs for the motion before master Fortier in the amount of $19,500 paid forthwith by the five corporations and their lawyers for misleading the administration of justice and for defeating the end of justice. The lawyers were responsible for the abuse of the court process, misleading the administration of justice and covering conflicts of interest. Our courts have ordered significant costs orders against counsels who acted in bad faith or delayed the justice.

[106] Costs Orders are at the discretion of the Court (section 131(1) of the CJA). A high degree of deference is afforded to the decision maker unless there was an error in the award of costs.

[107] I have not been provided with a copy of Master Fortier’s decision on costs.

[108] The Appellants have presented no grounds in support of their Appeal that Master Fortier erred in awarding costs or that the quantum is inappropriate.

[109] The Appellants motion to amend was dismissed and the Respondents were entirely successful on their cross motions. While I have not been given a decision on costs to review and consider, I see no reason why costs would not follow the result.

Disposition

[110] On the materials before me, there are no grounds to set aside an Order of costs or grant costs to the Appellants.

MISCELLANEOUS MATTERS

[111] I would be remiss if I did not specifically address some of the other matters raised by the Appellants. Although I do not believe that it has any bearing on the merits of the Appeal, it is worth mentioning very briefly.

[112] At paragraphs 3 and 4 of the Appellants’ factum, they write, in part, the following:

3- The administration of justice was brought significantly into disrepute since day 1 of this action, the most recent lawbreaking and falsification was committed on October 13, 2020 when lawyer and defendant Paul Marshall obtained a new entered falsified original Order changing the content of the first original Order made by Maranger on April 20, 2017 which was issued and entered on August 08, 2017 and was appealed in 2017 (see pages repeated under number 60 of the Appeal Record) and compare it with the new falsified order entered and issued on October 13, 2020 by Mr. Jean Saikaley…

4- What are the main points of falsification between the two entered orders made by Maranger, the real Order was entered three years ago and it was even appealed up to the Canada Supreme Court, the fake is significantly falsified, Mr. Marshall changed the interest rate from 0.8 to 2% and the 1250$ that was ordered by Maranger for the three school boards was forged to show only one school board (Lyne Racine’s School Board CSDCE), the other falsifications were: the signature on the last page in the real one demonstrates that defendant Marshall was acting for himself and for his clients, the forged one does not show Marshall’s title acting for himself…

[113] This serious accusation of falsification was not only unwarranted but irrelevant to the Appeal. It is yet another example of the Appellants’ claim of wrongdoing against Mr. Marshall that is defamatory and highly inappropriate.

[114] The Appellants allege that they have been denied access to justice and procedural fairness during the Motion for several reasons. I do not agree. The first reason given by the Appellants is that pursuant to Rule 2.1 of the Rules, Master Fortier was prohibited from dealing with the cross motions without lifting the stay. As set out above, there is no merit to this argument. The second reason is in reference to the incident regarding the USB key that Master Fortier received directly from Mr. Marshall at the end of the Motion. Providing a USB key that contains an electronic version of the Motion materials (Plaintiffs and Defendants) is not improper. The third reason is the “ignorance of high merit, the complete disregard to the Plaintiffs relief sought in term of accepting the amendment”. With respect, the Appellants’ Motion was not of high merit and in my view, was deserving of a dismissal, as set out in Master Fortier’s analysis. The fourth reason is that Master Fortier ignored Mr. Marshall’s alleged conflict of interest. This is inaccurate. A discussion of the conflict during the Motion is not an acknowledgment by Master Fortier or the Respondents that it formed part of the Motion. The fifth reason is the Appellants’ prohibition to file any further motions. Non-compliance with a Court Order should not be taken lightly. Master Fortier’s approach in dealing with the Appellants’ failure to pay cost Orders was completely appropriate.

[115] The Appellants submit that Master Fortier

failed to consider that the education is a public service so the duty of care is an obligation by all the Defendants, the plaintiff was a minor vulnerable and all the Defendants were in the obligation to care and provide him with his basic constitutional right instead of ensuring that he is out of school, fighting for his education in the tribunals and courts, the Master by ignoring this fact – made another palpable and overriding error causing further injustice

[116] At this stage of the proceedings, there was no necessity to decide whether education is a public service or that it is a duty imposed upon by the Defendants. Master Fortier was tasked in determining if the Appellants’ Amended Statement of Claim met the criteria outlined in Rule 26 of the Rules, nothing more.

[117] The Appellants say that Master Fortier “failed to consider the serious violations of Rule 7 of the Law Society by all lawyers in this case: duty to report misconduct”. Similar to the allegations of Mr. Marshall’s conflict of interest, this was not an issue that needed to be considered by Master Fortier. Not only was the allegation without merit, it was not properly brought before the Court.

CONCLUSION

[118] In the result, the Appeal is dismissed with costs to the Respondents.

[119] The Respondents shall file and serve their written submissions on costs (5 pages maximum) excluding their Bill of Costs and Offers to Settle, within 20 days of the release of this decision. The Appellants may, within 10 days of the receipt of the Respondents’ materials, file and serve their written submissions on costs (5 pages maximum), excluding their Bill of Costs and Offers to Settle. The Respondents shall serve a reply (2 pages maximum), if required, by no later than 5 days of the receipt of the Appellants’ materials.

M. Smith J

Released: January 13, 2021