Devry, Smith & Frank, LLP

K. (Litigation Guardian of) v. L Baeck Day School

 

H.K. and E.K. by their Litigation Guardian A.K.,

A.K., V.S. (Plaintiffs) and The Leo Baeck Day School, Ronna

Rubin, Eric Petersiel, Pauline Landon, Zita Gardner, Elizabeth Wolfe, Robert

Kizell, Rachel Kizell, Arnon Glatter, Heather Glatter and Jewish Family and

Child Service (Defendants)

 

Ontario Superior Court of Justice

 

Pitt J.

 

Heard:

JHeard: August 24, 2004

Judgment: August 27, 2004

 

Docket: 04-CV-273060CM1

 

 

Pitt J.

 

 

Counsel: Jeffrey Wilson, John Schuman for Plaintiffs

 

John Laskin for Defendants

 

 

Overview

 

 

1     The is a motion brought by the plaintiffs for an interlocutory mandatory order requiring the Board of Directors of the defendant, The Leo Baeck Day School, to reinstate the plaintiff, E.K. as a student at The Leo Baeck Day School, subject to the terms and conditions of the “Tuition Agreement 2004-2005″ between the plaintiffs, A.K. and V.S., and the defendant, The Leo Baeck Day School.

 

 

2     The factual matrix is unique in that, on the basis of the authorities brought to my attention, it represents the only case in which a child has been either expelled (depending on one’s point of view) or refused readmission into school, on grounds that have nothing whatsoever to do with the conduct of the child.

 

 

3     E.K., now 7 years old, and his brother H.K. have spent their entire school years in The Leo Baeck Day School, a private Reform Jewish day school which, as would be expected, caters to the special needs of Reform Jews to which community the plaintiffs belong.

 

 

4     E.K. is now 7 years old and his older brother, H.K., is now 11 years old.

 

 

5     H.K. has just completed Grade 6 and has been removed by his parents from The Leo Baeck Day School for reasons to be discussed briefly hereafter. E.K. has just completed Grade 2 and was due to start Grade 3 on September 6, 2004.

 

 

6     A serious dispute arose in the spring of 2004 between the school and the parents, A.K. and V.S. with respect to the school’s handling of allegations of bullying by other students directed to H.K., who by all accounts, was an extremely sensitive, gentle and brilliant youth. There was never any issue between the parties previously. For the purposes of this proceeding, I am prepared to accept that the parents overreacted to the unfortunate circumstances. They appeared to hold the school entirely responsible for H.K.’s difficulties, and accused the principal, Eric Petersiel and some of his staff of deliberate and/or reckless failure to act with a sense of urgency in attempting to resolve the bullying issue. They wrote a letter and made comments to other parents that could fairly be described as accusatory of both the school administration and some parents, and potentially damaging to the school’s reputation.

 

 

7     In consequence of the parents’ conduct, the school, without a hearing, advised the parents on June 22, 2004 that E.K., who not only was not alleged to have been a victim of bullying, but whose conduct was exemplary, would not be readmitted to school on September 6, 2004.

 

 

8     Attempts to resolve the issue, which, on the view of the case that I take, are not necessary to relate, were unsuccessful.

 

 

9     Needless to say, the parents were shocked. They became angry enough to launch a lawsuit against, not only the school, but also two parents, whose children had allegedly bullied H.K.. Unfortunately, while it was necessary to launch an action in order to seek the injunctive relief, the quantum of the claim and the harshness of the allegations clearly exacerbated an already acrimonious relationship. It is well to remember, however, that the acrimony developed from the relationship with H.K. only.

 

 

10     Fortunately, when the court brought to the attention of the plaintiffs the difficulties raised by the nature of the claim, in preserving the kind of relationship essential to school and parents working together in the best interests of E.K. in the next and ensuing school years, counsel for the moving party unambiguously agreed to discontinue the action if E.K. were readmitted.

 

 

Issues

 

 

11     The defendants submit that the plaintiffs cannot meet the tests for injunctive relief and particularly for what they emphasize is a mandatory interlocutory injunction, set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (S.C.C.) and several other well-known cases dealing specifically with mandatory interlocutory injunctive relief.

 

 

All the defendants’ arguments are predicated on the assumption that the parents have so poisoned the school atmosphere as to make it impossible for the cooperative relationship between school, children, and parents so necessary to the functioning of the school, to prevail.

 

 

12     The first test, in the view of the defendants, requires the plaintiffs’ case to be unusually “strong and clear”, for which they cite Ticketnet Corp. v. Air Canada (1987), 21 C.P.C. (2d) 38 (Ont. H.C.) at 43.

 

 

13     I do not agree that the plaintiffs have failed this test. It is my view that a very strong case can be made by the moving party against a respondent school that denies reentry to a 7 year old innocent child, without a hearing, on the basis that the poisoned (dysfunctional is the word used by the defendants) atmosphere created by a dispute with respect to an older child, make it impossible for the parties to work effectively in the interest of the innocent child.

 

 

14     The defendants’ argument that the discretionary right provided to the school “to require the withdrawal of any student at any time” is dispositive of the issue, is not supported by any legal precedent or principle. See for example, Burke v. Yeshiva Beit Yitzchak of Hamilton, [1996] O.J. No. 937 (Ont. Div. Ct.) and D. (C.) (Litigation Guardian of) v. Ridley College (1996), 140 D.L.R. (4th) 696 (Ont. Gen. Div.) at 708.

 

 

15     The other argument that a future working relationship is impossible, flies in the face of the responsibility of schools to children generally; and what is more, rests on the false assumption that the school principal and teachers are not mature enough to “let bygones be bygones” in the interest of an innocent 7 year old child.

 

 

16     The second test requires the plaintiffs to show irreparable harm. With due respect, I would have thought it self evident that the expulsion from school or denial of the right to reentry to school of an innocent 7 year old child on the grounds of a major dispute between school and parents with respect to an older sibling, would cause irreparable harm to both the innocent child and parents.

 

 

17     It is useful to note the comment of Sharpe J. in his work on Injunctions and Specific Performance, Second Edition, Canada Law Book at 2.600, that terms like

 

 

“… irreparable harm” … do not have a precise meaning. They are more properly seen as guides which take colour and definition in the circumstances of each case.

 

 

This case would, in my view, be one of the clearest cases of irreparable harm.

 

 

18     Further, in addition to the evidence of potential blacklisting provided by the plaintiffs, I am prepared to find that upholding the school’s decision must necessarily have a severe negative impact on the child’s perception of justice and fairness at such an early stage of his life.

 

 

19     The third test requires that the balance of convenience must favour the plaintiffs, in the sense that they must show that they will suffer greater harm from the refusal to grant the relief than the defendants will suffer from the granting of the relief.

 

 

20     Respectfully, I say to pose this question is to answer it. There is no real contest. The balance of convenience clearly favours the plaintiffs.

 

 

Interlocutory Mandatory Orders Generally

 

 

21     I readily agree with the defendants that the court ought to be especially careful in granting such orders. However, Sharpe J.A. [supra] noted at 2.640 that such orders can be made in appropriate cases: He cited 11 cases in which such orders were granted: Mearns v. Petrolia (Town) (1880), 28 Gr. 98 (Ont. H.C.); Wyman v. Vancouver Real Estate Board (1956), 26 W.W.R. 188 (B.C. S.C.); Pratt v. Scheveck, [1926] 4 D.L.R. 1169, [1926] 3 W.W.R. 657 (Sask. C.A.); 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., 25 D.L.R. (3d) 386, [1972] 2 O.R. 280 (Ont. C.A.); Sutton v. Vanderburg, [1946] 3 D.L.R. 714, [1946] O.R. 497 (Ont. H.C.); Cyprus Anvil Mining Corp. v. White Pass & Yukon Corp., [1980] 6 W.W.R. 526, 21 B.C.L.R. 93 (B.C. S.C.), affd [1980 CarswellBC 153 (B.C. C.A.)] W.W.R. loc. cit. p. 536, B.C.L.R. loc. cit. p. 282; Canadian Pacific Railway v. Gaud, [1949] 2 K.B. 239 (Eng. C.A.); Allport v. Securities Co. Ltd. (1895), 72 L.T. 533 (Eng. Ch.); Luganda v. Service Hotels, [1969] 2 Ch. 209 (Eng. C.A.); Ryder v. Bentham, Ves. Sen. Supp. 242, (1750), 28 E.R. 513 (Eng. Ch.); Robinson v. Lord Byron (1785), 1 Bro. C.C. 588, 28 E.R. 1315 (Eng. Ch.); Manitoba (Attorney General) v. Campbell (1983), 24 Man. R. (2d) 70, 26 C.C.L.T. 168 (Man. Q.B.).

 

 

Procedural Fairness

 

 

22     There were many submissions by all parties on this issue. Subsequent to the decision not to readmit E.K. without a hearing, the defendants attempted to remedy the alleged procedural unfairness by giving the plaintiffs an opportunity to meet with the Director of Education for discussion and reconsideration of the school’s decision. An offer to that effect remains open.

 

 

23     The plaintiffs also stand willing to meet with the defendants to attempt a peaceful resolution of the issues. They have made such a meeting conditional on certain ground rules that the defendants are not willing to accept.

 

 

Disposition

 

 

24     Whatever order I make, it is my fervent hope that it will not diminish the efforts of the parties to resolve their differences.

 

 

25     The motion is granted. The defendants are ordered to reinstate E.K. as a student at The Leo Baeck Day School.

 

 

26     The plaintiffs are ordered to file and serve a notice of discontinuance of the within action forthwith.

 

 

Costs

 

 

27     Subject to any agreement between the parties, brief written submissions on costs, including costs to the defendants on the discontinuance, are to be made within 30 days of the release of these reasons.

 

 

Motion granted.