CITATION: A.H. v. Toronto District School Board, 2023 ONSC 3546

DIVISIONAL COURT FILE NO.: 23/23

DATE: 20230613

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: A.H., by their Litigation Guardian Xiangdong He et al., Applicants

AND: Toronto District School Board, Respondent

BEFORE: Nishikawa J.

COUNSEL: Yun Lu, for the Applicants Jennifer Saville, for the Respondent Shahana Kar, for the Attorney General of Ontario

HEARD at Toronto: June 13, 2023 (by teleconference)

CASE CONFERENCE ENDORSEMENT

[1] The applicants, by their litigation guardians, have brought an application for judicial review seeking certain relief from the Respondent, Toronto District School Board (“TDSB”), in relation to certain secondary school programs offered by the TDSB.

[2] At a case conference on March 2, 2023, the litigation guardians were directed to retain counsel, as required under Rule 7.05(3) of the Rules of Civil Procedure. The litigation guardians were also advised that the notice of application for judicial review lacked particulars regarding the decisions under review and the grounds for review. They were directed to amend the notice of application once counsel was retained. In the meantime, the application for judicial review was stayed. The litigation guardians were given 30 days to comply, failing which the application for judicial review could be dismissed for non-compliance with the Rules.

[3] A further case conference was held on June 13, 2023. The applicants seek a continued stay of the application for judicial review pending the outcome of a judicial review application before this court which raises almost identical issues. In that case, I granted the TDSB’s motion to quash the application for judicial review: Ye v. Toronto District School Board, 2023 ONSC 2918. The applicant in that case has sought review of the decision by a panel of the Divisional Court.

[4] The TDSB opposes the applicants’ request and seeks that the proceeding be dismissed for non-compliance with the Rules.

[5] At the case conference, counsel for the litigation guardians advised that he was retained on a limited scope retainer for the case conference and to attend to the withdrawal of the application on behalf of one of the applicants. This is insufficient. The role of counsel for the litigation guardians is not simply to represent the litigation guardians before the court, but to protect the parties under a disability, in this case, the minor applicants. As noted above, the litigation guardians were clearly advised that they must be represented by counsel and cannot purport to act on behalf of the minor applicants. They continue to fail to comply with Rule 7.05(3) and this court’s direction. The proceeding was commenced in January 2023. The litigation guardians have had more than ample time to retain counsel.

[6] In addition, the litigation guardians were advised in March 2023 that the notice of application for judicial review is deficient for the same reasons as in Ye v. TDSB. The notice of application itself is bare and contains no particulars as to the decision under review or the grounds for review. It does not even identify the decision under review. The litigation guardians have attached a document entitled “Description of the Decisions” which makes arguments about the TDSB’s admission policies and attaches certain screen shots. The “Description of the Decisions” is not a proper pleading and is not part of the notice of application for judicial review. For greater clarity, the “Description of Decisions” cannot be relied upon as forming part of the Notice of Application.

[7] As a result of the litigation guardians’ continued non-compliance with the Rules, I advised the parties at the case conference that I would direct the Registrar to issue a notice under Rule 2.1.01 of the Rules of Civil Procedure. Accordingly, a notice shall be issued pursuant to Rule 2.1.01 of the Rules of Civil Procedure that the court is considering dismissing the appeal pursuant to Rule 2.1.01(1) as frivolous, vexatious and an abuse of process because of the following:

(a) The litigation guardians continue to be in non-compliance of Rule 7.05(3) requiring them to be represented by counsel; and

(b) The notice of application for judicial review fails to state a basis for judicial review and is devoid of merit.

[8] Pursuant to the procedure provided for under Rule 2.1.01(3), the applicants have 15 days following the notice to respond with a written submission no more than 10 pages in length. The TDSB is not required to respond at this time.

“Nishikawa J.”

Released: June 13, 2023