Court File and Parties

COURT FILE NO.: CV-20-0030-000 DATE: 2021-03-12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: W.B., Plaintiff – and – JOHN C. LEEK; PEEL DISTRICT SCHOOL BOARD; ANGLICAN DIOCESE OF NIAGARA; BIG BROTHERS, BIG SISTERS OF CANADA; HAMILTON-WENTWORTH DISTRICT SCHOOL BOARD; HAMILTON POLICE SERVICE, Defendants

Counsel: W.B., Self-Represented Michael O’Brien, for John C. Leek Ian Newcombe, for Peel District School Board Janeta Zurakowski, for Hamilton-Wentworth District School Board Stephen Chisholm, for Hamilton Police Service Lauren N. Bloom, for Anglican Diocese of Niagara

HEARD: February 16, 2021 via Zoom

Reasons for Decision – Motion to Strike

Regional Senior Justice M.L. Edwards:

Overview

[1] A sexual assault of any kind is a gross violation of a person’s fundamental right to be safe from any form of unwanted sexual touching. A sexual assault by a teacher on a student is a gross violation of a teacher’s position of trust. This action involves allegations of sexual assault made by the Plaintiff against the various Defendants. It was very apparent to me from the Plaintiff’s submissions that as a self represented person he wants to be heard and he wants justice for what he says happened to him when he was a young student.

[2] I am case managing this action. I intend to ensure that the Plaintiff gets his day in court and that he will be heard. The Defendants on the other hand have the right to defend the claims made against them and to seek relief from the court if there is no basis in law for a claim to proceed. The motion before this court is brought by the Hamilton-Wentworth District School Board (“Hamilton”) to dismiss the Plaintiff’s claim against Hamilton by way of a motion to strike under Rule 21.

The Facts

[3] As this is a motion to strike, the court is required to accept the facts as pleaded by the Plaintiff as being true unless they are blatantly ridiculous or incapable of proof. The facts as pleaded in the statement of claim are set forth below.

[4] Between 1975 and 1979, the Plaintiff alleges that he was a student at Oakridge Public School in Mississauga, Ontario (“the School”). The school was under the jurisdiction of the Defendant Peel District School Board (“Peel”). The Defendant John C. Leek (“Leek”) was employed as a teacher at the school. It is alleged by the Plaintiff that Leek committed various inappropriate acts of sexual grooming and molestation against him during that period of time when Leek was his teacher.

[5] The Plaintiff alleges that similar inappropriate acts also occurred at events and/or in buildings which were operated by and/or under the control of the Anglican Diocese of Niagara, as well as Big Brothers and Big Sisters of Canada.

[6] The Plaintiff pleads in his statement of claim that he contacted the Defendant Hamilton Police Service to report Leek’s alleged inappropriate conduct during the 1990s. He also alleges that he contacted Peel in early 2000 with respect to the allegations of sexual inappropriate conduct by Leek.

[7] As a result of allegations made by various complainants, Leek was arrested in October 2014 and charged with various offences. In August 2015, Leek pleaded guilty and received a four-year sentence in relation to sexual assaults perpetrated on six individuals. The guilty pleas did not relate to the Plaintiff.

[8] It is clear from a review of the statement of claim that the Plaintiff sought to bring to the attention of various authorities the surrounding circumstances relating to Leek’s misconduct. In that regard the plaintiff made efforts to contact Peel, and as it relates to Hamilton the allegations are set forth in paras. 45-47 of the statement of claim, and thereafter in para. 45-47 and 87.

[9] Specifically, the Plaintiff alleges that after the Defendant Leek had retired from working for Hamilton in 2000, he thereafter contacted Hamilton on two occasions in March 2001 to report Leek’s alleged past misconduct. In the statement of claim the Plaintiff alleges that having been advised of that misconduct, the only reply that he got from Hamilton was that Hamilton could not discuss the matter with him.

[10] In para. 87 of the statement of claim, the Plaintiff pleads as follows:

W.B. states that his injuries, losses and damages were caused by or contributed to by the negligence of the defendant Hamilton-Wentworth District School Board and/or its agents, employees or servants. Particulars of such negligence include but are not limited to the following:

• It failed to screen or inadequately screened Leek’s suitability as an agent, volunteer and/or employee.
• It failed to establish any or adequate protocols, policies and regulations with respect to appropriate standards of conduct, supervision and control of its employees and agents and volunteers including Leek;
• It failed to exercise a degree of knowledge, skill and diligence which it ought to have possessed and exercised on behalf of W.D. and all other people regarding the supervision of Leek;
• It failed to recognize or adequately recognize the risk Leek posed to any young males;
• It knew or ought to have known that Leek was a pedophile or a person with abhorrent sexual tendencies who engaged in illegal and immoral sexual activities with young boys who attended various schools in the Hamilton-Wentworth District;
• It failed to monitor Leek after W.B. reported Leek;
• It failed to remove Leek from a position in which he was a danger to students in a timely, proper or inadequate manner, nor report him to the proper authorities; and
• It showed a complete disregard for victims by hiding the truth it knew as to Leek’s criminality, preventing and delaying justice for a number of victims of Leek”.

[11] Upon receipt of the statement of claim Hamilton filed a notice of intent to defend, and thereafter sought particulars from the Plaintiff by way of a demand for particulars served on March 4, 2020. Specifically, Hamilton sought full particulars as follows:

1. With respect to the allegations about the Hamilton-Wentworth District School Board at paras. 1-44 and 47-70 of the statement of claim, please identify the paragraphs which contain allegations against the Hamilton-Wentworth District School Board; and
2. With respect to the allegations about the Hamilton-Wentworth-District School Board at para. 87 of the statement of claim: (a) Were you a student at any schools in Hamilton; (b) If the answer to 2(a) is yes, please provide the following particulars:…

[12] The Plaintiff provided a response to the demand for particulars on December 31, 2020. As to the nexus sought in para. 1 of Hamilton’s demand for particulars, the Plaintiff in his response stated:

Paragraphs 52 and 53 refer to the nexus. With the leave granted, the following provides detail. The music teacher in the employee of Buchanan Park Public School who had presented an ultimatum regarding students attending the children’s choir at Christ Church Cathedral (Niagara Diocese), did so while John Leek was principal of Buchanan Park Public School. As such, there was evidence before these employees of both HWDSB and Niagara Diocese that were aware of the heinous acts John Leek was committing upon children, and rather than report to the authorities, employers as required by the CCC, Child and Family Services Act, R.S.O. 1990, Ontario College of Teachers, Ministry of Education, and common decency, they hid the fact. This lack of action, this negligence, this conspiratorial complicity prevented existing victims from realizing justice, recover, it did nothing to prevent future victims, and only removed and ensured a risk and public relations nightmare from their presence. Paragraph 62 relates the harm.

[13] As it relates to the second particular sought, the plaintiff responded that he was never a student at any school in Hamilton.

Analysis

[14] Taking the facts as pleaded by the Plaintiff in the statement of claim, the Plaintiff alleges that he was the victim of numerous sexual assaults at the hands of the Defendant Leek when he was a relatively young boy (10 years of age and on). The sexual assaults occurred during a period of time when Leek was employed as a teacher at the school where he was a student. The Plaintiff alleges that Peel is vicariously liable for the actions of Leek.

[15] While the Plaintiff alleges that he contacted Hamilton in March 2001 on two occasions, the Plaintiff admits in his response to Hamilton’s demand for particulars that at no time was he a student at any of Hamilton’s schools. As such, unlike the situation in which Peel presently finds itself, Hamilton cannot be said to be vicariously liable for any of Leek’s actions perpetrated against the Plaintiff.

[16] The essence of the Plaintiff’s claim against Hamilton, is that Hamilton did nothing with the information provided by the Plaintiff when contacted in March 2001.

[17] The first legal issue that this court must decide is whether the Plaintiff’s claim against Hamilton should be dismissed under Rule 21.01(3)(b) of the Rules of Civil Procedure for lack of standing. The second issue which this court must consider is whether the Plaintiff’s claim against Hamilton should be struck under Rule 21.01(1)(b) of the Rules of Civil Procedure for failing to disclose a reasonable cause of action.

The Standing Issue

[18] If a plaintiff has no legal capacity or legal standing to commence a lawsuit, a defendant may move under Rule 21.01(3)(b) to have the action dismissed.

[19] The importance of a plaintiff’s standing to pursue a lawsuit was dealt with by the Supreme Court of Canada in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, where Cromwell J. at para. 1 stated:

The law of standing answers the question of who is entitled to bring a case to court for a decision. Of course, it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter. Limitations on standing are necessary in order to ensure that courts do not become hopelessly overburdened with marginal or redundant cases, to screen out the mere “busybody” litigant, to ensure the courts have the benefit of contending points of view of those most directly affected and to ensure that courts play their proper role within our democratic system of government.

[20] The issue of standing was most recently dealt with by the Ontario Court of Appeal in Carroll v. Toronto-Dominion Bank, 2021 ONCA 38. Paciocco J.A., at para. 33, summarized the jurisprudence for whether a plaintiff has a “private interest standing” in a proceeding under Rule 21.01 as follows:

i. A person must have a personal and direct interest in the issue being litigated; ii. A person must themselves be specifically affected by the issue; iii. The party initiating the civil proceeding has the burden of establishing their standing by pleading facts that would support such standings; iv. Where the party initiating the litigation has a personal legal interest in the outcome, standing exists as a right; and, v. It is not enough that a person has a sense of grievance or will gain the satisfaction of righting a wrong or upholding a principal or winning a contest.

[21] The Plaintiff in his statement of claim takes issue with the fact that Hamilton was negligent in its failure to take his March 2001 complaint seriously and to act on that complaint. The complaint must also be seen in the context of the accepted fact that Leek had retired in 2000, i.e. prior to the Plaintiff’s complaint in March 2001. The complaint must also be seen in the context of the Plaintiff never having been a student at any school in Hamilton.

[22] While the Plaintiff undoubtedly has a concern about the perceived failure of Hamilton to respond to his two telephone calls in March 2001, I fail to see how the Plaintiff has any private interest standing as reflected in the decision of the Court of Appeal in Carroll, supra.

[23] The Plaintiff may ultimately establish his claim arising out of the sexual abuse alleged to have occurred between 1975 and 1979 when he was a student in the school operated under Peel’s jurisdiction. The same may also be borne out with respect to the Plaintiff’s allegations as it relates to events which were either controlled and/or operated by the Defendants Anglican Diocese of Niagara, Big Brothers and Big Sisters of Canada. The fact remains, however, as established from the facts alleged by the Plaintiff in his statement of claim and as reflected in his response to the demand for particulars, he had no contact with Leek when Leek was employed by Hamilton, nor was he in fact enrolled in any school operated by Hamilton. While Leek may have worked in some capacity with Hamilton, he nonetheless retired in 2000 and at no time did Leek have any contact with the Plaintiff while he was employed by Hamilton.

[24] When the Plaintiff contacted Hamilton, he did so as a concerned member of the public with information that he had about Leek’s past conduct. Those set of facts, however, even if accepted as true nonetheless do not reach the level where the Plaintiff would have any public interest standing to pursue a claim as a result of his perceived non-action by Hamilton. The Plaintiff’s claim under Rule 21.01 must be struck out as the Plaintiff has no legal capacity or standing to pursue the claim as pleaded.

The Plaintiff’s Claim in Negligence

[25] On a motion to strike under Rule 21.01(1)(b), the plaintiff must establish a claim that discloses a cause of action. In asserting a claim in negligence, the plaintiff must plead facts which support the well-known elements of negligence, specifically:

a. that the defendant owed a duty of care to him which includes proximity and foreseeability between the plaintiff and the defendant; b. the defendant’s behaviour breached the standard or care; c. that the plaintiff sustained damage; and d. the damage was caused in fact and in law by the defendant’s breach.

See Tran v. University of Western Ontario, 2015 ONCA 295, at para. 16, and Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at para. 3.

[26] The Plaintiff asserts as against Hamilton that as a result of the March 2001 telephone calls that he made to Hamilton, that Hamilton was negligent and thus owes him damages.

[27] In my view, the Plaintiff fails to plead any of the necessary elements of negligence in order to sustain a claim against Hamilton. The Plaintiff provides no facts that establish why Hamilton owes him a duty of care as an aggrieved member of the general public, or for that matter in any other capacity since the allegations in the statement of claim make no link between the Plaintiff and Leek, when Leek was employed by Hamilton. There are no facts pleaded by the Plaintiff which establish that Hamilton breached its standard of care, nor are any facts alleged that establish that as a result of such breach the Plaintiff sustained damages.

[28] In coming to the aforesaid conclusion, I am in no way suggesting that should it be established that the Plaintiff was the victim of a sexual assault at the hands of the Defendant Leek, that he did not suffer any damages. That is not the conclusion that I am reaching in this motion. Rather, I have concluded that as a matter of law the Plaintiff does not have the standing to pursue a claim against Hamilton.

[29] I am satisfied from a review of the facts as pleaded in the statement of claim and applying the law that I am required to apply under Rule 21, that it is in fact plain and obvious that the Plaintiff’s claim against Hamilton does not disclose a reasonable cause of action and that it is doomed to fail.

[30] In the Plaintiff’s submissions, he made it clear that he is seeking justice and wants his day in court. While the Plaintiff has been unsuccessful with respect to this motion, he nonetheless has a claim against the remaining Defendants. Those Defendants have filed statements of defence. Time will tell whether or not the Plaintiff will succeed in his claims against the remaining Defendants, but the fact remains that the Plaintiff is entitled to pursue those claims and it follows that the remaining Defendants are equally entitled to defend the claims.

[31] In a case like this where there are allegations of sexual assault, the old adage “justice delayed is justice denied” is an important factor that the court must weigh in the balance. As the case management judge in this matter, I intend to ensure that this action proceeds in a timely fashion.

[32] In order to ensure that this matter is in fact adjudicated in a timely fashion, I intend to place this matter on a trial list to be heard during the November 2022 sittings. This should leave adequate time to have this matter prepared for trial. While I am not ordering a timetable, I am providing the parties and counsel direction. I am prepared to hear submissions from the Plaintiff and counsel as to why the direction reflected below and my order that this matter be tried in the November 2022 sittings should be reconsidered. Subject to any reconsideration at a future case conference, I am directing as follows:

a. All parties shall exchange affidavits of documents and productions on or before August 1, 2021; b. Examinations for discovery shall be completed on or before February 1, 2022. c. Any refusals, undertaking motions and other interlocutory motions shall be heard on or before April 1, 2022; d. The Plaintiff shall serve all expert’s reports on or before June 1, 2022. e. Defendants shall serve any expert’s reports on or before July 31, 2022. f. A Pre-trial shall be conducted before me on or before September 30, 2022; and, g. The Trial date shall be fixed to occur during the November 2022 civil sittings.

[33] If counsel cannot agree on specific dates for examinations for discovery or any other timetabling issue, they may contact me through my assistant, Arzu Kaya, and I will conduct a case conference by telephone.

[34] As it relates to the costs of this motion, counsel for Hamilton indicated at the completion of argument that Hamilton was not seeking any costs. Counsel for all the remaining Defendants further indicated that as they were not participating in this motion, they were not seeking costs. The motion is therefore granted. The motion as against Hamilton is struck out. There are no costs awarded on this motion.

Regional Senior Justice M.L. Edwards Released: March 12, 2021