Court File and Parties

Court File No.: CV-12-452090 Date: 2014-05-26 Superior Court of Justice - Ontario

Re: Victoria Mendes et al., Plaintiff And: Blaisdale Montessori School, Defendant

Before: F.L. Myers, J.

Counsel: V. Purewal, for the Plaintiff N. Groen, for the Defendant

Heard: May 23, 2014

Endorsement

[1] The defendant moves for summary judgment dismissing the claim brought on behalf of the eight year old plaintiff. The claim brought by the plaintiff’s mother has previously been dismissed because it was brought after the expiry of the limitation period. The remaining claim is for breach of fiduciary duty allegedly owing by the defendant private pre-school to the plaintiff who was a 4 year old preschooler at the relevant time. The mother’s claim also included a claim for breach of contract. The child was not a party to the contract and can only be suing for breach of fiduciary duty (absent third party beneficiary issues which have not been pleaded).

[2] The breach of duty alleged, occurred when the defendant required the plaintiff to withdraw from its pre-school on thirty days’ notice due to repeated misbehavior. Under the terms of the mother’s contract, the school had the right to require the student to withdraw at any time expressly “without notice”. The contract is not disputed.

[3] My difficulty on this motion is that I have been provided with little evidence and no law to help me understand either party’s case. The defendant has delivered only an affidavit of its lawyer that purports to recite a litany of allegations made by various school teachers and the principal. The affidavit is not just replete with hearsay, but it is made by someone with no personal knowledge of the facts whatsoever. I considered drawing an adverse inference under Rule 20.02(1). However, the plaintiff’s counsel did not cross-examine the lawyer or deliver a summons to witness to any of the affiant’s informants. There is no reason for me to think that the school or its officials are ducking examination. Rather than drawing an adverse inference, I will simply ignore the lawyer’s rendition of events and refer to the school principal’s contemporaneous letter that is appended to the affidavit. The authenticity of the letter was not challenged by the plaintiff.

[4] Worse still, the plaintiff has not filed any evidence in opposition to the motion. The plaintiff has chosen to ignore Justice Henry’s oft-cited admonition, and the dictates of Rule 20.02(2), that the responding party must put it “best foot forward”. Pizza Pizza Ltd. v. Gillespie (1990), 1990 CanLII 4023 (ON SC), 75 OR (2d) 225 (Gen. Div.). The plaintiff says simply that a triable issue is raised by a letter from the plaintiff’s mother that is also appended to the defendant’s affidavit.

[5] So I have two competing letters neither of which is under oath by its author. However, the letters do not necessarily conflict. The letter from the school principal reports misbehavior by the plaintiff, the school’s efforts to engage the mother in discussing ways to help the child and stop him from misbehaving, and the mother’s refusal to engage in constructive dialogue premised upon any criticism of her child’s behavior. The letter from the mother does not deny the allegations. Rather, she sets out her own competing allegations that other children misbehaved toward her child. While the two letters can live together, the inference from the mother’s letter is that her child is an innocent victim. What can I do with that?

[6] Unfortunately I was not provided with any help to answer that question. Neither counsel had considered how this case would be dealt with under Hryniak v. Maudlin, 2014 SCC 7. The plaintiff just wants to go to discovery to hear what the principal says in response to the mother’s allegations. The defendant says I can just ignore the potential conflict in its own material. Neither counsel had any response to my question as to how the roadmap of options laid out quite expressly by the Supreme Court of Canada might apply in these circumstances.

[7] There was also no law submitted to me concerning the scope or nature of the fiduciary duties alleged. While I can imagine that a school into whose care a child is placed may well be a fiduciary to the child, in this case the issue is whether the school has any duties to assist the child and his family when the child is expelled. If children are fighting, can a school be a fiduciary to one over the other? When pressed by me to define the content of the duties alleged, the plaintiff’s counsel submitted, without precedent, that the school was required to act in the plaintiff’s best interest; to ensure the child’s safety; to help the mother find an alternative school nearby; and to prevent embarrassment to the 4 year old child upon his expulsion.

[8] Looking at para. 66 of Hryniak, I do not think that I have the evidence required to fairly and justly adjudicate the dispute under Rule 20.04(2)(a). However, it appears very clear to me that if I use the enhanced powers provided in Rule 20.04(2.1) there will be a fair and just result that does serve the goals of timeliness, affordability and proportionality. Under Hryniak’s second step, I believe that I can have confidence that I can find the facts necessary and apply the relevant legal principles so as to resolve this dispute in the interests of justice based on the following factors:

First, the plaintiff’s entitlement to be at the school was contractual. The school was entitled to require him to withdraw without notice. The school’s duties to the child are tempered by the circumstances. It is trite law that not everything done by a fiduciary is necessarily done in a fiduciary capacity.

Second, the plaintiff does not deny the misbehavior alleged by the school principal. The very lengthy list of aggressive acts reported over a very short time frame readily engaged the school’s duties not just to the plaintiff, but to other students too.

Third, the plaintiff’s mother’s allegations that other students misbehaved are generally irrelevant except to the extent that they might lead to an inference that the plaintiff was innocent of any misbehavior or that he was provoked. Common sense suggests the legal principle “it takes two to tango” would seem to apply.

Fourth, the school reports that the plaintiff’s mother was utterly unwilling to engage constructively. Her own letter bears this concern out completely.

Fifth, the plaintiff has not delivered any evidence on this motion to deny the allegations in the school’s correspondence or to establish any other factual basis for the fiduciary duties alleged.

Sixth, the plaintiff has not put forward any evidence of any damages having been suffered at all. It is not self-evident to me that a 4 year old suffers compensable loss from being asked to withdraw from pre-school or from the school failing to find an alternative pre-school – even assuming that it had such a duty. (n.b. The school refunded tuition to the parents.)

Seventh and perhaps most significant, the allegations in paragraph 7 of the Statement of Claim and the nature and scope of the fiduciary duties alleged by counsel, without any supporting law, do not strike me as fiduciary in nature or compensable at the suit of the child if at all.

[9] Under Rules 20.04(2.1)(1), (2), and (3) it is fair to note the mother’s self-interest and embarrassment at the broad swath of misbehavior committed by her son. What parent would not be mortified to receive such a letter from the school principal? By contrast, the school has no interest in creating an incident with the plaintiff or his family. The school and its employees have an interest in maintaining paying students, showing that they can help solve children’s problems, and minimizing conflict. The common sense approach to the situation says that the school would have tried to work with the mother to smooth over the situation and help the plaintiff and the other children to socialize. The school’s evidence is surely going to be given greater weight than a well-meaning but biased mother before even considering whether this mother has a credibility issue given the degree of her defensive aggressiveness.

[10] The plaintiff obviously had problems getting along with some of the other children. On the plaintiff’s theory, are we then going to have a trial over which of the four year old children hit first and who hit whom and when? We do not know what the school did to engage other parents. However, we know that the school sought to engage the plaintiff’s mother and was rebuffed. I know of no law requiring the school to prove that the one child was singularly or even more responsible than another before exercising a contractual right to ask the child to withdraw giving more notice than was required by the contract.

[11] Absent evidence or law to establish that in dealing with a number of children in conflict, a pre-school is a fiduciary to one child ahead of all the others, I do not see how the plaintiff can succeed. Put another way, under the mother’s contract, the school’s decision to ask a child to leave is not a fiduciary decision at all. It was a contractual decision between mother and school. Even if the decision was fiduciary vis-a-vis the plaintiff, absent evidence of damages (or any indication that there could realistically be evidence of damages) there is no basis for the claim to succeed.

[12] It seems to me that it does no service to the minor plaintiff or the school to continue this litigation where the outcome is inevitable. It is in the interest of the just and most expeditious resolution of the action on its merits that I infer that the plaintiff does not have credible evidence to satisfy the conditions for the imposition of a fiduciary duty nor to prove that he suffered any damages in these circumstances. Given the factors set out above and the failure of the plaintiff to “lead trump” or provide any evidence to meet his persuasive burden under 20.02(2), I do so infer.

[13] I therefore dismiss this action. The plaintiff seeks costs of this action on a partial indemnity basis in the amount of $24,294. The hours claimed are reasonable. Counsel’s billing rates are very modest indeed. Accordingly, the plaintiffs will pay costs to the defendant of $24,294.

F.L. Myers, J.

Date: May 26, 2014