CITATION: Kudrocova v. Waterloo Region District School Board, 2023 ONSC 6950
DIVISIONAL COURT FILE NO.: DC-23-182
DATE: 20231212
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, Emery and Schabas JJ.
BETWEEN:
CLAUDIA KUDROCOVA and CLAUDIA KRONBERGER, a minor by her Litigation Guardian, CLAUDIA KUDROCOVA
Respondents (Plaintiffs)
– and –
WATERLOO REGION DISTRICT SCHOOL BOARD and LEISA KUNTZ and EVELYN GIANNOPOULOS and ERIN BELL and MARIA FILIPPONE and JANE DOE and CARI CARMICHAEL and MICHELE ATACK and ELEANE REID and STEPHANIE CASSIDY and VALERIE MARTIN and CARA KERNAGHAN and BOBBIE CHATHA and ANGELA MERCIER and GRAND ERIE DISTRICT SCHOOL BOARD and ANDREA SMITH
Appellants (Defendants)
Nidhi Vinayak, for the Respondents (Plaintiffs)
Bruce Hutchison, for the Appellants (Defendants)
HEARD at Hamilton: October 30, 2023
reasons for judgment
SCHABAS J.:
Overview
[1] This is an appeal from the Order of Justice Parayeski dated August 18, 2022 dismissing the Appellants’ motion to strike the claims of the Respondent Claudia Kudrocova for failing to disclose a reasonable cause of action and for being frivolous and vexatious under rr. 21.01(1)(b) and 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] For the reasons that follow, the appeal is allowed and the action, insofar as it relates to claims by Claudia Kudrocova personally, is struck out.
Background
[3] The Respondent’s claims against the school boards and their employees, set out in a very lengthy 299-paragraph Statement of Claim, relate to the manner in which the Appellants provided information to the Respondent regarding her son, a pupil enrolled in the Boards’ schools, and incidents in which it is alleged that access by the Respondent to her son was impeded.
[4] In short, the bases for the claims can be categorized as follows:
(a) The Waterloo Region District School Board (“WRDSB”) and its employees failed to respond, or to respond in a timely way, to the Respondent’s requests for attendance records and other documents such as “a file pertaining to the children,” a “paper trail” of her son’s time at school, a “planner” and “up to date educational progress.” It is alleged that these failures were a breach of s. 266(1) of the Education Act, R.S.O. 1990, c. E.2.
(b) WRDSB and its employees failed to notify the Respondent of her son’s absences from school on several occasions, of behavioural incidents and discipline issues on five different dates, and of her son’s suspension from school on two occasions. With respect to the suspensions, the Respondent alleges the failure to notify was in breach of the Education Act.
(c) WRDSB and its employees refused to address an incident involving her son, which the Respondent had brought to their attention, and that instead she was directed to leave the school.
(d) The Respondent was impeded from speaking to her son at his WRDSB school on five occasions, and that at some point the school staff altered their emergency contact information for her son, making her a “secondary” contact and providing for additional emergency contacts.
(e) WRDSB failed to notify, and obtain the consent of, the Respondent to her son’s withdrawal from its school, and that the Grand Erie District School Board and its employee failed to notify her of her son’s enrollment in one of its schools.
[5] The Respondent claims $5,000,000 in damages asserting the Appellants committed the torts of (1) misfeasance of public office, (2) intentional infliction of mental suffering, and (3) breach of her s. 7 rights under the Canadian Charter of Rights and Freedom[^1]. The Respondent alleges, among other things, that she has “sustained serious psychological injuries” as a result of the conduct pleaded.
[6] At the time of the incidents giving rise to the action, between January 2018 and March 2020, the Respondent and her ex-husband had joint custody and a shared parenting arrangement for their twin children, a girl and a boy born in 2009. However, the son was living with his father and refused to see his mother, and their daughter was living with her mother and refused to see her father. At the time, the Respondent had final decision-making authority for the children’s education. Soon after the incidents pleaded, in March 2020, the father was awarded sole custody of the son and the Respondent was awarded sole custody of the daughter: see Kronberger v. Kudrocova, 2020 ONSC 1877; aff’d., Kudrocova v. Kronberger, 2023 ONCA 26.
Issues and Standard of Review
[7] The standard of review on this appeal is correctness: Attis v. Canada (Minister of Health) 2008 ONCA 660, 93 O.R. (3d) 35, at para. 23, leave to appeal refused, [2008] S.C.C.A. No. 491.
[8] The issue is whether the motion judge erred in law in his finding that it was not “plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action”: McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 39; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17. This requires an examination of the motion judge’s reasons and of the pleading itself.
The motion judge’s reasons
[9] The motion judge’s reasons dismissing the motion to strike were a brief 12 paragraphs. He began by observing that he believed the Respondent’s “chances of ultimate success in this lawsuit to be minimal.” He further acknowledged a “lack of duty” owed to the Respondent by the Appellants but seemed to conclude that because the Appellants responded to some of the Respondent’s requests that the lack of a duty did not matter. The motion judge saw “merit” in the Appellants’ argument that “the breaches relating to the timely release of information give rise to administrative complaints (with their own non-Court process of redress), as opposed to tort liability”, but nevertheless refused to strike the pleading. He stated that “Charter rights are fluid and ever-evolving” and that it was not for him “to decide legal issues such as the ones presented here as part of my task of vetting the pleadings.” Although he recognized that the “pleadings do not do a good job of showing how the alleged breaches have caused her injury, as well as the argument that her alleged aggravation and frustration are so trivial as to render her claims frivolous”, the motion judge said that to strike the pleading at this stage “would be to rule upon the adequacy of [the Respondent’s] evidence.”
[10] The reasons of the motion judge are inadequate and disclose errors of law. The motion judge failed to consider and apply the test under r. 21.01(1), which assesses whether it is “plain and obvious” that the action, as pleaded and accepting the facts to be true, discloses no reasonable cause of action. This required the motion judge to consider the elements of each tort pleaded, including any allegations of breaches of the Education Act, and determine whether the action could stand based on the facts alleged in the claim. He failed to conduct this analysis.
[11] The motion judge makes no reference to two of the causes of action pleaded. The only cause of action referred to in the reasons was that based on the Charter. But the motion judge avoided any discussion of it, effectively giving it a free pass because Charter rights are “fluid and ever-evolving.” The motion judge was also wrong to avoid discussion of whether, in law, the damage alleged can be the subject of an action or whether, as a matter of law, the damage claimed was frivolous, vexatious or an abuse of process. This did not require the motion judge to “rule upon the adequacy of [the Respondent’s] evidence.”
[12] The decision must therefore be set aside.
Should the pleading be struck out?
[13] The Court of Appeal has recently restated the long-accepted approach to motions under r. 21, noting in PMC York Properties Inc. v. Siudak, 2022 ONCA 635, 473 D.L.R. (4th) 136, at para. 31, that the “plain and obvious” test is a “high standard”, the facts pleaded are assumed to be true, and the “pleadings should be read generously, accommodating any drafting deficiencies because cases should be determined on their merits based on the evidence presented before judges at trial.” As Karakatsanis J. stated in Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, [2020] 2 S.C.R. 420, at para. 90, “[w]here a reasonable prospect of success exists, the matter should be allowed to proceed to trial.” On the other hand, “if the allegations do not give rise to a recognized cause of action or if the claim fails to plead the necessary elements of an otherwise recognized cause of action, it will be struck under Rule 21.01(1)(b)”: Dawson v. Baker, 2017 ONSC 6477 (S.C.), at para. 46
[14] As the standard of review is correctness, and this Court is in the same position as a motion judge to assess the adequacy of the pleading, it is appropriate for this Court to determine the motion. In this case I agree with the motion judge that the Respondent’s chances of ultimate success are “minimal”, but go further, and conclude that it is “plain and obvious” that the claim discloses no reasonable cause of action. I am also satisfied that portions of the claim are vexatious and an abuse of process.
Rule 21.01(1)(b) – no reasonable cause of action
Misfeasance of public office
[15] Misfeasance of public office is an intentional tort which requires: (i) that a public officer engaged in deliberate and unlawful conduct in their capacity as a public officer and, (ii) the public officer must have been aware both that his or her conduct was unlawful and that it was likely to harm the plaintiff: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 23. Further, where unlawful conduct is grounded in a failure to take action with no statutory duty to act, misfeasance cannot be established unless there is an intent to harm: Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526, at para. 81.
[16] These decisions also highlight the need for the plaintiff to prove bad faith. As stated in Grand River, at paras. 93-94,
I agree with the Crown that knowledge of harm, without intent to harm, is insufficient to establish misfeasance. This court made that point in Pikangikum First Nation v. Nault, 2012 ONCA 705, 298 O.A.C. 14, at para. 77, leave to appeal refused, [2013] S.C.C.A. No. 10:
The tort of misfeasance in public office is difficult to establish. The plaintiff must prove more than mere negligence, mismanagement or poor judgment. To succeed, the plaintiff must demonstrate that the defendant knowingly acted illegally and in bad faith chose a course of action specifically to injure the plaintiff. [Emphasis added]
A similar point was made in Odhavji [Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263], at para. 28:
The requirement that the defendant must have been aware that his or her conduct was unlawful reflects the well-established principle that misfeasance in a public office requires an element of “bad faith” or “dishonesty”. In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly. A public officer may in good faith make a decision that she or he knows to be adverse to interests of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office. [Emphasis added by the Court of Appeal.]
[17] The pleading alleges misfeasance arising from the failure to provide records to the Respondent, the failure to notify the Respondent of disciplinary incidents, absences, and suspensions, the alleged interference with the Respondent’s access to her son at the school, and the failure to inform the Respondent of her son’s move to Grand Erie District School Board.
[18] There are a number of problems with this claim.
[19] First, there is a failure to plead a tenable legal wrong.
[20] With respect to the records requests, many, if not all, of the records sought by the Respondent are not covered by s. 266(1) of the Education Act, which is limited to the Ontario Student Record (OSR) as set out in guidelines from the Minister. It does not include a “paper trace” of all documents related to a child’s education, or “up to date educational progress” or a child’s “planner.” In any event, on the face of the pleading, the one set of records that might be covered by s. 266(1) of the Act – attendance records - were provided to the Respondent, albeit several months after the request was made.
[21] Similarly, although the Respondent pleads a breach of the Education Act because she was not informed of her son’s suspensions, s. 308 of the Act only requires a principal to “make all reasonable efforts to inform the pupil’s parent or guardian” within 24 hours of the suspension being imposed. The pleading only asserts that the Respondent was not advised of the suspensions; it does not assert that the father, who was the de facto custodial parent, was not informed of the suspensions (the claim identifies other circumstances where the father was notified of discipline), or that the principal failed to “make all reasonable efforts” to inform the mother or the father within 24 hours. Additionally, on at least one occasion, the pleading says that the Respondent was informed of at least one suspension.
[22] With respect to the alleged wrongfulness of the other actions, or inactions, the Respondent simply asserts that the Appellants – all of them – were aware of the joint custody order. But whether the joint custody order obligated the Appellants to act differently is not pleaded, nor is any breach of a legal duty, including a breach of a duty of care towards the Respondent. Rather, the Respondent has been careful to limit her claim to intentional torts. This is likely due to the jurisprudence holding that there is insufficient proximity between a parent of a pupil and teachers or school boards on which to ground a duty of care: Reyes v. Toronto District School Board, 2014 ONSC 2490, at paras. 12-16; Elkow v. Sana, 2006 ABQB 851, 410 A.R. 199, at paras. 13-22.
[23] The reason for not recognizing such a duty is illustrated by the facts of this case, in which teachers and principals have as their primary responsibility the safety and wellbeing of the pupils in their charge. They should not be put in a position of conflict, as they were here, of doing what they think best for the child and be put at risk of liability because the parent might disagree or even be hurt as a result. As quoted above from Odhavji, teachers, as public officers, “must retain the authority to make decisions that, where appropriate, are adverse to the interests of”, in this case, parents. This is consistent with the cautious approach the law has taken in imposing duties of care on public officials due, in part, to the specific concern that casting a duty of care too widely fails to respect the conflicting priorities faced by public officials: see Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537.
[24] In short, simply asserting that the Appellants acted in the way that they did with knowledge of a joint custody order does not make their actions wrongful or unlawful.
[25] It is also plain and obvious that the misfeasance claim fails on other grounds. Misfeasance requires “bad faith” or “dishonesty”; the person who holds a public office must deliberately engage in conduct that he or she knows will likely injure the plaintiff. However, as the Court of Appeal put it in Grand River, quoted above, “knowledge of harm, without intent to harm, is insufficient to establish misfeasance.” Yet this is precisely what has been pleaded: that in acting as they did, or in failing to act, the Appellants did so “with the knowledge… that said conduct was likely to injure Ms. Kudrocova.”
[26] The claim, insofar as it pleads misfeasance, does not state that any of the individual Appellants “in bad faith chose a course of action specifically to injure the plaintiff.” Proving that the Appellants knew of the joint custody order does not establish bad faith or support a finding that school staff engaged in conduct with intent to injure the Respondent. There are no facts pleaded to support bad faith or a specific intent to injure on the part of any of the employees named in the Statement of Claim and, unlike knowledge, bad faith (or malice) and intent cannot be inferred: Rules of Civil Procedure, r. 25.06(8).
[27] Accordingly, the claims by the Respondent alleging misfeasance in office should be struck out.
Intentional infliction of mental suffering
[28] It is also plain and obvious that, as pleaded, there is no reasonable cause of action for intentional infliction of mental suffering.
[29] Intentional infliction of mental suffering has three elements which must be pleaded and supported by factual allegations: “(1) conduct that is flagrant and outrageous, (2) calculated to produce harm (3) resulting in a visible and provable injury”: Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474, 161 O.A.C. 302, at para. 43, citing Rahemtulla v. Vanfed Credit Union, 1984 689 (B.C.S.C.). More recently, in Colistro v. Tbaytel, 2019 ONCA 197, 145 O.R. (3d) 538, at para. 15, the Court of Appeal confirmed these three elements of the tort, noting that the first and third elements are objective, while the second is subjective.
[30] Looked at objectively from the standpoint of the “reasonable bystander aware of all the facts” (Colistro, at para. 55), the conduct asserted, if proven, cannot rise to a level that is “flagrant and outrageous.” The allegations, as the motion judge put it, are in the nature of “administrative complaints.” Absent pleading some recognized wrongful or illegal conduct, which the Respondent has failed to do, the conduct asserted is not “flagrant” or, as it has been put by other judges, “conspicuously offensive”, “so obviously inconsistent with what is right or proper as to appear to be a flouting of law or morality”, “shockingly bad or excessive”, or “glaring, scandalous, or conspicuously wrongful”: Eks v. Tadeu, 2019 ONSC 3745, at para. 117, citing R. v. Harris (1987), 1987 181 (ON CA), 20 O.A.C. 26, 57 C.R. (3d) 356 (C.A.), at pp. 25-26, leave to appeal refused, [1987] S.C.C.A. No. 395; R. v. Jones (1988), 1988 3012 (BC CA), 24 B.C.L.R. (2d) 180, at para. 13 (C.A.), leave to appeal refused, [1988] S.C.C.A No. 392.
[31] Accordingly, viewed objectively, it is plain and obvious that the first element of the tort of intentional infliction of mental suffering is not supported by the facts pleaded, and the Respondent has no reasonable cause of action based on it.
[32] I also have concerns with the second and third elements of the tort. The Respondent asserts for each event alleged to be wrongful that the actions were “calculated to produce harm.” No facts are pleaded to support an intention to inflict harm on the Respondent other than, arguably, the knowledge that the Respondent had joint custody of the child. What is pleaded is no more than an assertion that because the Appellants knew of the joint custody order they knew that harm would occur. However, it must be pleaded, and proven, that each defendant “intended to produce the kind of harm that occurred or have known that it was almost certain to occur”: Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, at para. 44, Laskin J.A., citing Piresferreira v. Ayotte, 2010 ONCA 384, 319 D.L.R. (4th) 665, leave to appeal refused, [2010] S.C.C.A. No. 283. On the other hand, it is not necessary for the defendant to have intended to cause a particular psychological injury so long as it was known that psychological injury of some kind was almost certain to occur. While this element may be adequately asserted, it strikes me as very unlikely that the Respondent will be able to prove such subjective wrongdoing by any, let alone all, of the individual Appellants.
[33] Turning to the third element of the tort, the Respondent’s damage claim asserted that the Appellants’ actions “resulted in Ms. Kudrocova sustaining a visible and provable medical illness.” Later in the pleading, it is asserted that the Respondent experienced “severe psychological suffering, profound shock, sleep disturbance, nightmares, headaches, dizziness, anxiety, depression, mental anguish, loss of cognitive ability, personality changes, psychological changes, behavioural changes, emotional trauma, and diminished energy.” This is a sweeping assertion of damage inconsistent with the constraints of this tort, in which a plaintiff must plead the specific harm caused by specific acts. As Hoy A.C.J.O. stated in Colistro, at para. 26, “The bar is necessarily high where a defendant is to be liable for all of the consequences of an intentional wrongful act.” Here, the Respondent has alleged intentional infliction of mental suffering arising from many incidents involving different Appellants. In my view, the pleading would, at the very least, require much more specificity as to what actions caused what harm if the cause of action was tenable at all.
[34] Policy concerns that prevent recognizing a duty of care for school employees also apply to the application of the tort of intentional infliction of mental suffering to this situation. In Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99, at para. 47, Wilson J., dissenting, discussed the concern with extending the tort to custody and access disputes where spouses “are undergoing a great deal of emotional trauma which they believe is caused by the other spouse.” Those concerns exist in cases like the present one, where teachers and principals are put in the middle of custody battles.
[35] Here, the Respondent was engaged in a bitter custody dispute which appears to be ongoing given the decision of the Court of Appeal earlier this year. The issue of “parental alienation” by the father was raised by the Respondent in the family proceeding. MacLeod J. noted, at para. 31 of his decision, that therapeutic intervention had failed, and the parties remain “polarized.”
[36] Although the Respondent argues that she is not seeking damage for alienation of affection, this action is grounded in the Respondent’s position as a custodial parent, claiming harm arising from actions, or lack of action, taken by the school boards and their employees relating to the Respondent in that capacity. Her general claim for damages, asserting serious psychological suffering and emotional trauma, must therefore be considered in the context of the custody battle and her position as a parent.
[37] In Frame v. Smith, the Supreme Court declined to recognize a tort of “alienation of affection.” LaForest J. referred to the long-standing refusal of the common law to recognize such a tort in suits between parents, but he also recognized, more broadly, the “undesirability of provoking suits within the family circle”, and beyond, “for interfering with rights of access.” As he stated, “the disruption of the familial and social environment so important to a child's welfare may well have been considered reason enough for the law's inaction, though there are others”: para. 9. Those other reasons include the challenge of defining such a tort. As LaForest J. observed at para. 10, “it seems to me that there is no clear boundary between ordinary interruptions to access and sustained, putatively actionable interference, and where the point is reached where permissible advice intended for the child's benefit stops and malicious obstruction begins is virtually impossible to divine.”
[38] The Respondent is clearly unhappy with how the Appellants responded to her during the time period of the claim. However, absent a clear factual allegation of flagrant and outrageous conduct intended to cause direct harm to her, school boards and their employees, who, I repeat again, have conflicting duties, should not be drawn into the collateral damage of custody disputes.
Alleged breach of the Respondent’s s. 7 Charter right
[39] It is also plain and obvious that there is no reasonable cause of action for breach of s. 7 of the Charter. On this issue the Respondent asserts that “at all material times, her right to life, liberty and security of the person pursuant to s.7 of the Charter encompassed a right to a protected sphere of parental decision-making in relation to [F.K.’s] well-being, including but not limited to a right to make decisions concerning [F.K.’s] health and well-being.” In support of this claim she relies on her custodial rights and her right to make decisions about her son’s education.
[40] The Supreme Court has recognized that the right to liberty in s. 7 includes “a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children”: B. (R.) v. Children's Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315, at p. 372. However, that sphere has only been recognized in the context of “fundamental matters” such as decisions regarding medical treatment or “where state compulsions or prohibitions affect important and fundamental life choices”: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 49. It has not been extended to include the right to choose one’s child’s school, let alone to some emotional upset or complaints about day-to-day supervision of a child at school: Jackson v. Toronto Catholic School Board (2006), 214 O.A.C. 39, 2006 23951 (Div. Ct.), at para. 68.
[41] The liberty interest of a parent in s. 7 is not a wide-open freedom that is engaged every time a teacher or other state actor does something that relates to a child which the parent dislikes. Children have rights too, and teachers and principals have obligations towards them. It would trivialize the Charter to say that a parent’s s. 7 rights are infringed every time a school has been slow, or failed, to provide information to a parent, or because the school restricted a parent’s access to their child during the school day. That is not to say that deliberate and egregious wrongful conduct respecting a child could never amount to a s. 7 breach, but such facts simply do not arise on the pleading in this case.
[42] As for the assertion that the Appellants failed to notify or consult with the Respondent over her son’s alleged withdrawal from a WRDSB school and enrollment in the Grand Erie District School Board, it is not pleaded that the boy actually moved to a different school or that anything happened to him against the Respondent’s wishes. Indeed, it appears that the child did not move schools at all. As noted by MacLeod J. in the family proceeding in March 2020:
[F.] continues to attend school in Cambridge at the insistence of the mother, who is utilizing the powers granted to her under the final order of May 3, 2019. Father attempted to enrol [F.] in school in Brantford but, after rigourous objection by the mother, the Brantford school was forced to acknowledge the authority of the governing order and refused to allow [F.] to attend. Kronberger v. Kudrocova, [2020 ONSC 1877](https://www.minicounsel.ca/scj/2020/1877) at para. [25]
[43] Accordingly, even if the sphere of parental decision-making extended to the choice of a child’s school, it is plain and obvious that the Respondent’s s. 7 rights were not infringed.
Rule 21.01(3)(d) – the action is vexatious and an abuse of process
[44] In light of my finding that the action brought by the Respondent should be struck for disclosing no reasonable cause of action, it is not necessary for me to address this alternative argument. However, the Appellants’ submissions on this point are not without merit. The assertions made by the Respondent are largely in the nature of administrative complaints. Much of the information she sought was provided to her, some of it promptly, some not. The complaint about the son moving to a different school is not supported by the pleading and is contradicted by a finding of another judge of the Superior Court.
[45] In addition, as I have discussed above, I have serious concerns about parents drawing schools and their employees including, as here, teachers, principals, and support staff, into lawsuits arising from day-to-day conduct of educators charged with doing their best for children in their care. There is no claim made on behalf of the Respondent’s son, but only by the mother. The damage claimed to have been caused to her is broad and general, yet she has pleaded specific acts by different individuals has caused her harm, all in the context of a bitter custody dispute which has led to her alienation from her child, a harm the courts have been unwilling to recognize as giving rise to a cause of action. In these circumstances, I find the action to be vexatious and an abuse of process.
Conclusion and costs
[46] In light of my findings, and considering the extensive pleading presented, I see no point in granting leave to amend the Statement of Claim. The causes of action, strategically drafted to only plead intentional torts, cannot be sustained on the facts asserted.
[47] Accordingly, an Order shall issue striking the claims of the Respondent, which are set out in paras. 53-89, 105-118, 121–191, 228-258, and 267-287 of the Statement of Claim, without leave to amend. The action shall therefore be dismissed against Leisa Kuntz, Evelyn Giannopoulos, Erin Bell, Maria Filippone, Cara Kernaghan, Bobbie Chatha, Angela Mercier, Grand Erie District School Board and Andrea Smith.
[48] The Appellants shall be awarded costs in the amount of $15,000, as agreed between the parties.
___________________________ Paul B. Schabas J.
I agree
Lococo J.
I agree
Emery J.
Date: December 12, 2023
CITATION: Kudrocova v. Waterloo Region District School Board, 2023 ONSC 6950
DIVISIONAL COURT FILE NO.: DC-23-182
DATE: 20231212
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Emery and Schabas JJ.
BETWEEN:
CLAUDIA KUDROCOVA and CLAUDIA KRONBERGER, a minor by her Litigation Guardian, CLAUDIA KUDROCOVA
Respondents (Plaintiffs)
– and –
WATERLOO REGION DISTRICT SCHOOL BOARD and LEISA KUNTZ and EVELYN GIANNOPOULOS and ERIN BELL and MARIA FILIPPONE and JANE DOE and CARI CARMICHAEL and MICHELE ATACK and ELEANE REID and STEPHANIE CASSIDY and VALERIE MARTIN and CARA KERNAGHAN and BOBBIE CHATHA and ANGELA MERCIER and GRAND ERIE DISTRICT SCHOOL BOARD and ANDREA SMITH
Appellants (Defendants
REASONS FOR JUDGMENT
Schabas J.
Date: December 12, 2023
[^1]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11