Introduction
This Divisional Court decision involves a successful motion to strike a parent’s claim against a school board for failing to disclose a reasonable cause of action and for being an abuse of process and vexatious under Rule 21.01.[1]
The claim involved complaints by the plaintiff mother about her interactions with staff over requests for her son’s school documents and access to her son while he was at school between 2018 and 2020. She claimed staff failed to provide information or failed to respond to her requests in a timely fashion about her son’s schoolwork and documents, as well as his absences and suspensions.[2] During that period, the plaintiff was involved in a custody dispute with her estranged husband. There was a joint custody order in effect, though court records indicated there was a breakdown in her relationship with her son as he refused to see her. Subsequently, in March 2020, the father was awarded sole custody of the son.[3]
The plaintiff named two school boards and a number of employees as defendants. She claimed psychological damage as a result of the defendants’ actions. The son was not a plaintiff in the action and no damages were claimed on his behalf.
In support of her claim, the plaintiff pled and relied on the joint custody order that was in effect between 2018 and 2020. That order granted her final decision-making authority with respect to her son’s education. She alleged that the defendants were aware of the custody order yet failed to sufficiently respond to her various requests about her son. She did not specify in her claim how the custody order obligated the defendants to act differently.[4] She claimed the defendants committed the intentional torts of misfeasance of public office and intentional infliction of mental suffering, and that they breached her section 7 rights under the Canadian Charter of Rights and Freedom.
Motion Judge’s Decision Set Aside by Divisional Court
The defendants brought a motion to strike the plaintiff’s claim under Rule 21.01. On such a motion, the judge is to determine whether it is “plain and obvious” that the action as pled discloses no reasonable cause of action. The elements of each tort are to be considered to determine whether the action could stand based on the facts pled.[5]
The defendants’ motion was initially dismissed. Though the motion judge believed the plaintiff’s “chances of ultimate success in this lawsuit to be minimal”, he refused to strike the pleadings.[6]
The defendants sought leave to appeal to the Divisional Court which was granted.
On appeal, the motion judge’s decision was set aside by the Divisional Court. The defendants’ motion to strike was considered anew by the Divisional Court.[7]
After careful consideration of the facts pled in relation to the three causes of action, the panel ultimately struck the plaintiff’s claim without leave to amend. This is a noteworthy decision in light of the high standard on Rule 21 motions, as the facts pled are assumed to be true, and are read generously to accommodate any drafting deficiencies in an effort to permit cases to be tried on their merits and on the evidence.[8]
In striking the claim, the Divisional Court acknowledged that the plaintiff was careful in limiting her claim to intentional torts, as it is well settled in law that there is insufficient proximity between a parent and a school board to ground a duty of care for a negligence claim. The court stated:
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.[9]
As will be discussed in this article, there are several occasions where the court highlights the duty of care owed by boards to students as an important consideration when examining claims against a board by a parent, particularly in the context of a custody dispute. The decision has the potential to deter claims that try to draw school boards into what is otherwise a private mater or family court mater.
Intentional Torts: Misfeasance & Intentional Infliction of Emotional Distress
Misfeasance of public officers requires two elements: (1) that a public officer engaged in deliberate and unlawful conduct and (2) that the public officer was aware that their conduct was unlawful and likely to harm the plaintiff. It is necessary to plead facts in support of the element of bad faith by the defendants as malice cannot be inferred.[10]
The Divisional Court found that the plaintiff failed to plead a tenable legal wrong. It was noted that simply asserting that the staff failed to respond to her requests with knowledge of a joint custody order did not make their actions wrongful or unlawful, nor did it establish bad faith or intent to harm.[11] The court also found there was no breach of the Education Act with respect the request for school records or notices of suspensions, given the scope and requirements under the Act.[12]
With respect to intentional infliction of emotional distress, the tort requires conduct that is: (1) flagrant and outrageous, (2) calculated to produce harm, and (3) results in a visible and provable injury.[13]
The first element, whether conduct is flagrant and outrageous, is objective and is considered from the perspective of a “reasonable bystander aware of all of the facts”.[14] The Divisional Court took notice of the motion judge’s description of the plaintiff’s allegations being in the nature of administrative complaints. The conduct complained of did not rise to the level of “conspicuously offensive” or “shockingly bad or excessive” to be considered flagrant and outrageous.[15] Thus, it was plain and obvious that the tort was not supported by the facts pled.[16]
In its analysis, the court noted the action was grounded in the plaintiff’s position as a custodial parent, as she was claiming harm arising from her dealings with school staff in that capacity. Thus, her claim needed to be considered in the context of the custody battle and her position as a parent. This is relevant because there are policy reasons against permitting intentional infliction of mental suffering claims in the realm of custody disputes as between parents as they can be used as a weapon to the detriment of children. This logic extends to claims against schools where staff are put in the middle between parents who may be engaged in a biter dispute. Absent clear factual allegations to support the intentional tort, the court stated “school boards and their employees, who, I repeat again, have conflicting duties, should not be drawn into the collateral damage of custody disputes”.[17]
Section 7 – Charter Right Claim
The right to life, liberty and security is set out in s. 7 of the Charter and has been interpreted by the Supreme Court to include “a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children”.[18] However, the Divisional Court agreed with the defendants’ argument in this case that the sphere has only been recognized in the context of “fundamental matters” such as decisions regarding medical treatment or important life choices. It found it was plain and obvious that the plaintiff’s s. 7 rights were not infringed.[19]
In arriving at this conclusion, the court cited a 2006 case involving judicial review of an appeal from a suspension which raised the suspended student’s and his mother’s rights under section 7. The court stated section 7 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.”[20]
The court went further and also clarified that “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.”[21] The court found that it would trivialize the Charter to say that a parent’s s. 7 rights are infringed every time a school is slow to respond to a parent, or because the school restricted a parent’s access to their child during the school day. It emphasized again the primary obligations that school staff have to their students.[22]
Abuse of Process and Vexatious
Though the Divisional Court did not need to decide whether the claim was an abuse of process or vexatious based on its findings the claim disclosed no reasonable cause of action, the court saw merit in the defendants’ argument on this point. The court noted the administrative nature of the plaintiff’s complaints and the fact that she did receive some of the information that she requested.[23] Perhaps more significantly, the court took yet another opportunity here to express serious concerns about parents drawing schools and their employees into lawsuits “arising from day-to-day conduct of educators charged with doing their best for children in their care.”[24] It noted that there was no claim made on behalf of the plaintiff’s son. It considered the claim in the context of the custody dispute and the obvious alienation she was experiencing from her son, which likely drove the litigation, to reach the conclusion that the claim was both an abuse of process and vexatious.[25]
Conclusion
The decision repeatedly emphasizes the primary duty of care that boards owe to their students. This impacts how a court should assess any claims by a parent against a school board for conduct related to their children’s education. What the Divisional Court may be signalling here is that they want to avoid any findings that suggest boards have conflicting duties between caring for students and addressing the needs of parents because those may not always align.
While there are several cases that establish no duty of care is owed by boards to parents to rule out negligence claims, this case examines the feasibility of intentional tort claims and Charter claims by parents over their children’s education. Absent allegations that support deliberate and egregious conduct, the court may take a cautious approach in permitting claims to advance where they only raise complaints about day-to-day conduct of staff in operating the school, that is more akin to a negligence claim that would not otherwise succeed or be permitted.
[3] Kronberger v Kudrocova, 2020 ONSC 1877; aff’d., Kudrocova v Kronberger, 2023 ONCA 26.
[4] Kudrocova v Waterloo Region District School Board, 2023 ONSC 6950 at paras 6 and 22.
[7] Id. at paras 12 and 13.
[10] Id. at paras 15 and 26.
[11] Id. at paras 19 to 26.
[12] Most of the documents requested fell outside of the scope of what the board was required to produce for inspection on request by the plaintiff under s. 266(1). As for notice of any suspensions, the plaintiff did not plead whether the father, who had de facto custody of the son, received such notice, and she did not assert a failure to make all reasonable efforts to inform by the board.
[16] The Divisional Court found that the plaintiff failed to plead facts in support of the other two elements as well, as the claim only included a bald assertion that because the defendants knew of the joint custody order, they knew that harm would occur; and there was a failure to plead specific harm caused by specific acts (see paras 32 and 33).
[17] Id. at paras 34 to 38.
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