Court File and Parties

CITATION: A.H., by their Litigation Guardian Xiangdong He, et al. v. Toronto District School Board, 2023 ONSC 4510

DIVISIONAL COURT FILE NO.: 023/23

DATE: 20230804

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: D.L. Corbett J.

COUNSEL: Yun Lu, for the Applicants

Jennifer Saville, for the Respondent

Shahana Kar, for the Attorney General of Ontario

HEARD: in Writing

Endorsement

D.L. Corbett J.

[1] At the direction of Nishikawa J., the Registrar issued a notice that the court is considering dismissing the proceeding as frivolous, vexatious and an abuse of process pursuant to R.2.1. The grounds for this notice, stated by Nishikawa J., are as follows:

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.

[2] The applicants provided their written submissions in response to the notice on July 26, 2023. As directed by Nishikawa J., and subsequently confirmed by this court, respondents were directed not to respond to the Applicants’ submissions unless this court subsequently directs otherwise. I have not found it necessary to request responding submissions at this point.

A. Representation by Counsel

[3] The Applicants made the following submissions in respect to their non-compliance with r.7.05(3), which requires that a party for whom a litigation guardian has been appointed be represented by counsel.

(i) the court may dispense with the requirements of r.7.05(3);

(ii) since the claims in this application are “legal and constitutional rights” and not “personal or financial remedies”, the court should dispense with the requirements of r.7.05(3);

(iii) the Applicants pursued retaining legal counsel, but were delayed because of the complexity of the issues and the limited size of the bar of “education lawyers” and the dominant position of the respondent;

(iv) the Applicants retained counsel on a “limited retainer basis” which complied with the requirements of r.7.05(3); and

(v) the Applicants now have counsel of record.

[4] The Applicants’ fifth argument is a complete answer to the first ground raised in the r. 2.1 Notice. On June 9, 2023, prior to the case conference before Nishikawa J., the applicants filed a Notice of Appointment of Lawyer that stated:

The representation scope [of counsel] is restricted to the Case Conference held on June 13, 2023 only….

This was not sufficient, for the reasons stated by Nishikawa J. However, subsequently, on June 23, 2023, the Applicants delivered a further Notice of Appointment of Lawyer in which the restriction of the retainer is not included. They have now complied with the requirements of r. 7.05(3).

[5] I would not dismiss the application because of the timing of the Applicants’ compliance with the direction to retain counsel. They have now complied.

B. The Deficient Notice of Application

[6] For reasons set out by Nishikawa J. in her endorsements, the Notice of Application is deficient in a multitude of ways. Nishikawa J. previously directed the Applicants to deliver an amended Notice of Application once they had retained counsel. The Applicants have not yet done so.

[7] The entire substantive portion of the Notice of Application states as follows:

1. The applicant makes application for: The Divisional Court to, for an admission to any Toronto District School Board (the "TDSB") school or program,

1. Declare or affirm any Ontario prospective secondary student' statutory right to attend the school or program for secondary education, for any of the valid purposes and subject to only the specific conditions, as enumerated in the Ontario Education Act.

2. Prohibit all extraneous considerations or restrictions, including but not limited to residence, race, gender, the number of schools or programs a student is allowed to apply for, etc., except the conditions or restrictions explicitly provisioned in the Education Act. This includes but is not limited to,

Prohibition of 50% reservation of the TOPS or MaCS program's seats for the local area; and

Invalidation of any TDSB policies that enforce any extraneous considerations or restrictions, including but not limited to removal of the cap for the number of schools or programs a student may apply for.

3. Restore the school principal's statutory power at the school level to make the (initial) admission decision.

2. The grounds for the application are:

Corresponding to the above-listed items for the application,

1. Section 39, in particular, Subsection 39 (1) (b) of the Education Act, confers an Ontario secondary student the statutory right to attend any secondary school, for any purpose specified in Subsection 49.2 (6), subject to only the conditions as enumerated in Subsections 39 (2), (3) and (4).

2. "A public authority in the exercise of its statutory powers may not act on extraneous, irrelevant and collateral considerations" and extraneous considerations or factors are "impermissible," as established in the case law Re Bareham et al. and Board of Education for the City of London et al., 1984 2171 (ON CA) by the Ontario Court of Appeal.

3. Sections 40 and 41 of the Education Act require the school principal to make an admission decision for secondary education, and the school board may intervene as provisioned in Subsections 41 (3) & (4), only when the admission sought is declined by the principal in a particular situation as described in Subsection 41 (2). Also, subsection 39 (3) states that "the appropriate supervisory officer" rather than the school board may certify "that there is adequate accommodation."

[8] In their r. 2.1 submissions, the Applicants argue that the proceeding should not be dismissed because the form of the pleading is incorrect. I agree. However, the problem with the Notice of Application is not its form, but rather its substance.

[9] The Applicants argue that they provided the court with copies of the impugned decisions of the respondent, and that these copies should be read together with the Notice of Application. I do not accept that argument. Judicial review – in the context of this case – is a review of a decision. The Notice of Application does not refer to any decisions, does not state any reviewable basis for impugned decisions, and instead seeks broad-based declaratory and prohibitory relief respecting the respondent’s activities. The Notice of Application does not come close to setting out a proper basis for the court to take jurisdiction or for the case to proceed. Other materials provided to the court are not part of the Notice of Application, and in any event are not a basis for the court to understand what has happened in this case and why the Applicants say they have a legal basis to challenge decisions of the respondent.

[10] In their submissions, the Applicants seek a fair opportunity to amend their Notice of Application. In this regard, they argue:

The Endorsement asserted deficiencies in the Application regarding the decision under review and proper pleading. However, we were barely informed about these alleged deficiencies before the case conference of June 13, with only a vague direction via email on March 6 stating: "… The notice of application for judicial review is also deficient in that it lacks particulars regarding the decisions under review and the grounds for review."

We refrained from acting upon this direction due to its lack of specificity, our good-faith belief in the compliance and completeness of the Application's originating documents, and the expectation that retained legal counsel would manage such issues. In addition, pursuant to Subrules 7.05 (3) and 15.01 (1), at that time, we were probably disallowed to respond for any material legal matters, absent legal counsel.

The case conference held on June 13 marked the inaugural appearance of our counsel before the judge on our behalf. We have concerns about the citation of these alleged "deficiencies" without affording an opportunity for "rectification," and specifically their utilization as one of two grounds for the proposed dismissal of the case, absent consideration of the aforementioned elements of immunity, compliance, and completeness. We submit that these actions infringe upon our rights to protection under Subrule 2.01 (2) and to due process.

If provided with clear and concrete instructions and an opportunity, we and our counsel remain willing to improve the pleading and seek clarification if necessary. (emphasis added)

[11] No adjudicative facts are pleaded in the Notice of Application. No specific decisions of the respondent are impugned. No basis for impugning any decisions is identified. The remedies sought are not tied to any claim over which the Divisional Court has jurisdiction. The Notice of Application is not, remotely, a competent pleading.

[12] The Applicants now have a lawyer. It is that lawyer’s responsibility to consider his clients’ grievances and to plead those grievances properly in the Notice of Application. It is not the court’s role to educate counsel on how to do this task. The submissions that the directions of Nishikawa J. “barely informed” the Applicants of the “alleged deficiencies”, contained “vague directions” or “lacked specificity”, are without any merit. Nishikawa J. has provided the Applicants with “clear and concrete instructions and an opportunity” to provide a proper pleading. She has not gone so far as to draft the pleading for the Applicants, nor was that her role.

[13] All of this having been said, the court will afford the Applicants a further opportunity to amend their Notice of Application. In light of the history of this matter, this additional opportunity is an indulgence. In granting this indulgence, the court wishes to be clear with the Applicants about their responsibilities, as litigants.

[14] Case management directions are not suggestions. Nishikawa J. directed the Applicants to amend the Notice of Application back in March, and she told them to do so once they retained counsel (as required). At the Case Conference in June, the Applicants argued that the original Notice of Application complied with the requirements of pleading. Nothing could be more calculated to provoke a judge than an argument premised on revisiting a direction that has been made previously. Indeed, as of the conference in June, the Applicants had complied with neither of Nishikawa J.’s directions and seemed to be arguing before Her Honour that they should not be required to do so. It would have been open to Nishikawa J. to dismiss the application summarily at the case conference in June for failing to comply with her prior directions. Instead, she directed that notice be given under r. 2.1, effectively giving the Applicants further time to comply with the prior directions. The Applicants availed themselves of this opportunity to appoint counsel of record; they did not avail themselves of the opportunity to amend their pleading, and now criticize the case management judge for being “vague”, “unspecific” and for failure to provide them with “clear and concrete instructions” on drafting their pleading.

[15] Now that the Applicants are represented by counsel, the court presumes that these past difficulties will not recur. The Applicants are directed to serve and file and send a copy by email to this court of an amended Notice of Application that properly pleads claims within the jurisdiction of this court. If the Applicants do not comply with this direction by August 23, 2023, then the application will be dismissed pursuant to r. 2.1 for failing to plead an arguable claim.

[16] The application, and this r. 2.1 process, are stayed pending delivery of the Applicants’ amended Notice of Application. This court will provide further directions once it has received the Applicants’ amended Notice of Application.

Released: August 4, 2023