COURT FILE NO.: 16-69785
MOTION HEARD: 2019/09/24
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: TARIK BOURAGBA, AHMED BOURAGBA, DJAMILA HASSANI, YASSIN BOURAGBA
PLAINTIFFS
AND:
Conseil Scolaire De District De L’Est De L’Ontario (CSDCEO), Lyne Racine, Conseil Des Ecoles Publiques De L’Est De L’Ontario (CEPEO), Stephane Vachon, Dianne Lamoureux, Annie Sicard, Ottawa Catholic District School Board (OCSB), Kevin Gilmore, Ontario Human Rights Tribunal, Genevieve Debane, Ontario Ministry of Education, Denis Chartrand, Richard Lewko, Paul Marshall
DEFENDANTS
BEFORE: Master Marie Fortier
COUNSEL: Tarik Bouragba, self-represented Plaintiff
Paul Marshall, 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, for the Defendant, Ottawa-Carleton District School Board
Jeffrey Claydon, for the Defendant, Her Majesty the Queen in right of Ontario
Charlotte Anne Malischewski for the Defendants, Ontario College of Teachers, Richard Lewko and Paul Marshall
HEARD: September 24, 2019
REASONS FOR DECISION
The Plaintiff Tarik Bouragba brings a motion seeking leave to amend and file a draft Amended Statement of Claim and, implicitly, to lift the stay of proceedings ordered pursuant to Rule 2.1 of the Rules of Civil Procedure RSO 1990, Reg 194 (“the Rules”) by Beaudoin J. in December 2016.
The Defendants oppose the Plaintiff’s motion and have brought cross-motions for:
a) an order prohibiting Ahmed Bouragba from representing the Plaintiff, Tarik Bouragba, in this action; and
b) an order staying the proceeding because the Plaintiffs failed to pay the costs orders made against them.
BACKGROUND
The Plaintiffs Tarik Bouragba, Ahmed Bouragba, Yassin Bouragba and Djamila Hassani are family members and reside in Ottawa. Ahmed Bouragba is Tarik Bouragba’s father. To date, the Plaintiffs have been represented by Ahmed Bouragba, a non-lawyer, who is a party to the action and the litigation guardian for his son Tarik Bouragba. Tarik Bouragba is no longer a minor.
The Plaintiffs commenced an action on August 29, 2016 against 17 Defendants in relation to long-standing issues involving several school boards in the Ottawa region. It is alleged that Tarik Bouragba suffered damages as a result of a series of placement decisions made by several school administrators and principals.
Tarik Bouragba states that he was refused a transfer to several schools operated by le Conseil scolaire de district catholique de l’Est ontarien (“CSDCEO”) le Conseil des écoles publiques de l’Est de l’Ontario (“ CEPEO”), the Ottawa Catholic School Board, (“OCSB”), and the Ottawa Carleton District School Board (”OCDSB”), (hereinafter collectively referred to as “the School Boards”) claiming that these decisions were unlawful, pursuant to various provisions of the Education Act, the Charter of Rights and Freedoms, and the Geneva Convention. He is seeking $3 million in damages as a result.
This matter has a long and convoluted procedural history, with many pleadings and filings by the Plaintiffs.
On September 13, 2016, the Plaintiffs appeared before Kane J, seeking an ex parte interlocutory injunction allowing Tarik Bouragba to attend L’Escale High School in Rockland, Ontario. Justice Kane ordered that the motion for injunctive relief could only proceed with notice to the Defendants. Not all the Defendants were served and consequently, the motion remained unscheduled and unheard.
Upon being served with the Statement of Claim, several Defendants wrote to the Court requesting the action be dismissed pursuant to Rule 2.1 of the Rules of Civil Procedure. The matter was referred to Beaudoin J. who stayed this action on December 13, 2016, finding that the pleading was incomprehensible and that none of the remaining Defendants could possibly respond to the Statement of Claim as drafted. Though he concluded that the action was “frivolous and vexatious”, Beaudoin J. provided the Plaintiffs with an opportunity to clarify and amend their pleadings. Beaudoin J. stayed the 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”.
The Plaintiffs did not appeal the Stay Order, and have not, until now, attempted to seek leave to amend their pleading. Rather, the Plaintiffs brought a motion for an order that Beaudoin J. recuse himself and for an interim injunction. The motion was dismissed with costs by Maranger J. on April 20, 2017.
The Plaintiffs then initiated several appeals from Maranger J.’s Order, up to the Supreme Court of Canada. These appeals included:
(a) Leave to appeal to the Divisional Court (dismissed with costs in December 2017);
(b) Leave to appeal the decision of the Divisional Court to the Court of Appeal (dismissed with costs by the Registrar for failure to perfect the appeal);
(c) An appeal Maranger J.’s order directly to the Court of Appeal, including:
(i) A motion for leave to extend time to perfect the appeal, (refused on January 26, 2018 by Feldman J.A.);
(ii) A motion to extend time to seek a full panel review of Feldman J.A.’s decision (dismissed by Pardu J.A. on April 10, 2018);
(iii) A full panel review of Justice Pardu’s decision (dismissed by Rouleau, Van Rensberg, and Sharpe JJ.A. on September 7, 2018.).
(d) Leave to appeal to the Supreme Court of Canada was refused on March 14, 2019.
- The Plaintiff Tarik Bouragba now seeks leave to file an Amended Statement of Claim on the following grounds:
a) to “correct an injustice”;
b) to “reduce the complexity of the case”;
c) to “clarify the claim for the Court by the record”; and
d) to protect the “integrity of the administration of justice and its judges”.
- The Plaintiff seeks to make changes to the Plaintiffs’ claim by:
(a) Amending the parties to:
(i) discontinue the action brought by Djamila Hassani, Yassin Bouragba, and Ahmed Bouragba;
(ii) discontinue the action as against Stephane Vachon, Diane Lamoureux, Annie Sicard, Norma McDonald, Denis Chartrand, Richard Lewko, Genevieve Debane, and the Ontario Human Rights Tribunal; and
(iii) add Emond Harnden LLP as a Defendant.
(b) Adding the following claims:
(i) Damages for breach of duty of care and civil conspiracy;
(ii) A “Declaration that the Defendants conspired agreed and/or arranged with each other to destroy and to delay the education of the Plaintiff Tarik Bouragba since 2014 for the actions of his father Ahmed Bouragba against the Defendant lawyer Mr. Paul Marshall exposing his prima facie conflict of interest at the Ontario College of Teachers when he acted as a legal Counsel for a large number of Ontario school boards at the same time while acting as an Independent Legal Counsel for the College providing legal advices to the Panel members of the College of Teachers' Discipline and Fitness to Practise [sic] committees against Members of the teaching profession appearing before the College for discipline in result of complaints made by their employers who are represented by Mr. Paul Marshall”;
(iii) A “Declaration that the Defendants violated the Ontario Education Act and violated the Plaintiff's Canadian Charter of Rights and freedom in access to public education and justice services”;
(iv) A “Declaration that the government of Ontario and the Defendant breached the Geneva Convention on the Rights of Children article 28 1. (b) (c) (d) (e)”;
(v) “Damages for loss of income, loss of competitive position in the employment market and/or other economic loss in amounts yet to be determined, the particulars of which will be provided prior to trial”.
(vi) “…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”.
(c) Removing certain remedies and lowering the claim for damages for Charter violations from $9 million to $3 million, two of which for damages or compensation, and one of which is for punitive, exemplary, and aggravated damages.
- The Defendants that remain in the draft Amended Statement of Claim include the School Boards, Lyne Racine (an employee of one of the School Boards), Her Majesty the Queen in Right of Ontario (“HMQ”) improperly named as the Ontario Ministry of Education, the Ontario College of Teachers (“the College”) and Paul Marshall. The law firm, Emond Harnden LLP (improperly named Emond-Harnden) is proposed to be added as a new party. For the purposes of this motion, these Defendants will be hereinafter known collectively as “the Defendants”.
ISSUES
(a) Whether Ahmed Bouragba can represent Tarik Bouragba in this action;
(b) Whether the Plaintiffs should be granted leave to amend and file a revised Statement of Claim as proposed in the draft Amended Claim; and
(c) Whether the proceeding should be stayed or dismissed on the ground that the Plaintiffs failed to pay the costs orders made against them.
A- Can Ahmed Bouragba Represent the Plaintiff Tarik Bouragba?
As a preliminary matter, the issue of whether Ahmed Bouragba, a non-lawyer, could represent Tarik Bouragba on this motion and in these proceedings had to be determined.
The Notice of Motion filed by the Plaintiff in this action shows only one Plaintiff – Tarik Bouragba, but describes his father, Ahmed Bouragba, as his representative. Indeed, Ahmed Bouragba sought to represent Tarik Bouragba’s interest on the motion (and in this litigation) and to speak on his behalf.
For the reasons that follow, the Defendants’ cross- motion is granted. Ahmed Bouragba may not represent the interests of Tarik Bouragba in these proceedings. Tarik Bouragba must either represent himself or be represented by a lawyer.
In my view, it is not permissible for Ahmed Bouragba to represent or speak on behalf of Tarik Bouragba because:
a) Ahmed Bouragba is not a lawyer. Pursuant to section 26.1(1) of the Law Society Act, RSO 1990, c L8 “no person, other than a licensee whose license is not suspended, shall practice law in Ontario or provide legal services in Ontario” unless specifically permitted by the by-laws. No such exception applies in this case.
b) Tarik Bouragba, who is not under disability nor acting in a representative capacity, cannot be represented by a person who is not a lawyer. Rule 15.01(3) of the Rules provides “Any other party to a proceeding may act in person or be represented by a lawyer”. The rule does not contemplate a party being represented in litigation by a non-lawyer and the courts have held that agents are not given a right of audience under rule 15.01 (3).[^1]
c) The court has no discretion to permit a non-lawyer to act as legal representative in Superior Court proceedings.[^2]
- Following my ruling on this issue, Tarik Bouragba was provided with the opportunity to adjourn the balance of the motion on consent of the Defendants to either retain a lawyer to represent him or to give him further time to prepare his submissions in the event that he wished to represent himself. Tarik Bouragba declined and insisted on proceeding with the motion.
B- Should the Plaintiff be Granted Leave to Amend and File the Amended Statement of Claim?
The Amended Statement of Claim consists of 21 paragraphs, 5 of which outline the documents that the Plaintiff intends to rely on.
In paragraph 1, the Plaintiff states that his claim is for “violation of the Charter of Rights of Tarik Bouragba to access attend public education and as framed in legislation, systemic individuals and institutional conspiracy against him and against his father and psychological and mental damage to the victims of conspiracy.”
The Amended Statement of Claim adds a claim for a declaration of conspiracy,[^3] for a declaration that the Education Act and the Geneva Convention on the Rights of Children have been infringed, for a declaration the Plaintiff's Charter rights have been infringed,[^4] for economic damages; ,[^5] for an investigation into asserted “direct conspiracy”, [^6] and damages flowing from breaches of duties of care.[^7]
The Amended Statement of Claim also includes several allegations of some form of conspiracy or collusion among several non-parties, including public servants and a sitting Justice.
THE LAW
i- Test for Permitting Amendments to Pleadings
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.
The Court of Appeal in Marks v. Ottawa (City)[^8] 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.
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.,[^9] “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.[^10]
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.[^11]
- 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
There are several paragraphs in the Amended Statement of Claim that contain allegations of conspiracy or collusion among the various Defendants.
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.[^13]
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. [^14]
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.
ANALYSIS AND DISPOSITION
As held in Marks, there is no absolute right to amend pleadings. 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. Untenable amendments constitute non-compensable prejudice.
Against this background, in my view, the Statement of Claim has not been properly amended and does not reach a minimum level of particulars required for a tenable cause of action against any of the Defendants and ought to be struck.
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.
In my view, it is plain and obvious that these claims have no reasonable prospect of success. The pleading is incomprehensible and none of the remaining Defendants could possibly respond to the Amended Statement of Claim.
The Plaintiffs have had numerous opportunities and several years to amend the claim to plead facts to support the allegations. Time and time again they have failed do to so. As observed by Justice Pardu of the Ontario Court of Appeal in an earlier ruling in this action: “[t]he plaintiff may remove the stay simply by filing an amended statement of claim to plead viable causes of action against the remaining five defendants he wishes to pursue”.[^15]
I share the same concerns with respect to the Amended Statement of Claim that Justice Beaudoin’s had regarding the form and substance of the Plaintiff’s pleading. In particular:
a) the pleading is incomprehensible and none of the remaining Defendants can possibly respond to the Amended Statement of Claim as drafted;
b) many of the attributes of a vexatious litigant are present. In addition to what is outlined by Beaudoin J. in his endorsement of December 13, 2016 [^16] the following, in my view, are also be reflexive of the frivolous and vexatious features of this proceeding:
i- The Plaintiffs’ insistence on proceeding with numerous unnecessary motions and appeals over a three-year period;
ii- Adding a time-barred new Defendant;
iii- Adding improperly pled new claims of conspiracy;
iv- Making vague and scandalous allegations of political corruption, bribery, and improper influence over the independence of the judiciary.
- For these reasons, the Plaintiff’s motion for leave to amend the Statement of Claim is dismissed.
C- Should the proceeding be stayed or dismissed on the ground that the Plaintiffs failed to pay the costs orders made against them.
- The Plaintiffs unsuccessful motions and appeals in this proceeding have resulted in several costs awards made against them. Based on the evidence before me, [^17] the following costs have been awarded to the Defendants to date:
a) Conseil scolaire catholique de district de l’Est ontarien : $4,250.00
b) Ottawa Carleton District School Board: $1,250.00
c) Ottawa Catholic School Board: $1,000.00
d) Defendants: $750.00
e) HMQ : $1,692.59
f) College : $500.00
Although the Plaintiffs have paid the costs awarded to the Ottawa Catholic School Board in the sum of $1,000.00, the remaining costs remain unpaid.
The School Boards have brought cross-motions seeking an order staying or dismissing the proceeding because the Plaintiffs have failed to pay several costs orders made against them.
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.
I am mindful that the Plaintiffs have not been successful at any stage of this action, whether on motions, appeals or applications for leave to appeal to the Divisional Court, the Ontario Court of Appeal or the Supreme Court of Canada and they have failed to pay all but one cost award against them. I order that all costs awards against any of the Defendants are to be paid as a condition precedent to any further motions before this court.
Conclusion
- For the reasons outlined above:
i- The Plaintiff’s motion seeking leave to amend the Statement of Claim in accordance with the draft Amended Statement of Claim in the Plaintiff’s motion materials is dismissed.
ii- The Defendants’ cross-motion seeking an order that Ahmed Bouragba is prohibited from acting as agent for Tarik Bouragba is granted.
iii- The Plaintiffs are prohibited from bringing any further motions in this proceeding without filing an affidavit establishing that all outstanding costs orders in favour of the Defendants have been paid.
iv- The Plaintiffs may file a notice of discontinuance against any of the currently named Defendants without prejudice to any claims for costs that such Defendants may be entitled to assert.
- If the parties cannot agree as to costs of the motion and cross-motion, they may make brief submissions in writing, not to exceed three pages in length within 30 days of the date of this Order.
Master Fortier
DATE: February 07, 2020
[^1]: Gagnon v. Pritchard, 2002 CanLII 49419 (ON SC), 2002 CarswellOnt750 at para 44.
[^2]: Direk v. Ontario (Attorney General), [ 2010 ONSC 3428, 2010] O.J. No. 2503 (SCJ) at para. 6; Gagnon at para. 44
[^3]: Amended Statement of Claim, at para. 1(a), PLF MR, Tab 3.
[^4]: Amended Statement of Claim, at para. 1(b)-(c), PLF MR, Tab 3.
[^5]: Amended Statement of Claim, at para. 1(f), PLF MR, Tab 3.
[^6]: Amended Statement of Claim, at para. 1(h), PLF MR, Tab 3.
[^7]: Amended Statement of Claim, at para. 1(d), PLF MR, Tab 3.
[^8]: 2011 ONCA 248, at para. 19.
[^9]: [2003] O.J. No. 1019, at para. 40.
[^10]: Brookfield Financial Real Estate Group Ltd. v. Azorim Canada (Adelaide Street) Inc. 2012 ONSC 3818 at para. 24.
[^11]: Aristocrat Restaurants Ltd. v. Ontario, [2003] OJ No 5331 at paras. 18-19.
[^12]: Rules of Civil Procedure, RRO 1990, Reg 194, r 25.06 (8).
[^13]: Aristocrat at para. 40.
[^14]: Wilson v. Toronto Police Service, [2001] O. No. 2434 (SCJ). at paras. 66-67, aff’d., 2002 CanLII 4770 (ON CA), [2002] O.J. No. 383 (Ont. C.A.).
[^15]: Bouragba et al v. Conseil Scolaire de District de L’Est de l’Ontario et al, (unreported, endorsement of Pardu J.A. April 10, 2018).
[^16]: Bouragba v. Conseil Scolaire de District de l’Est to l’Ontario, 2016 ONSC 7798 at para. 18.
[^17]: Affidavit of Patrick Twagirayezu paras. 21, 22, 24, 27, cross motion record of the defendants CSDCEO, CEPEO, OCSB.