Oldford v Medicine Hat Catholic Board of Education, 2021 ABQB 79

Court of Queen’s Bench of Alberta Citation: Oldford v Medicine Hat Catholic Board of Education, 2021 ABQB 79 Date: 20210201 Docket: 2008 00362 Registry: Medicine Hat Between: Stephen Douglas Oldford Plaintiff - and - Medicine Hat Catholic Board of Education Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction [ 1 ] On October 29, 2020, Stephan Douglas Oldford [Mr.

Oldford] filed a Statement of Claim naming the Medicine Hat Catholic Board of Education [the Board] as the Defendant. Mr. Oldford’s action relates to a child of Mr. Oldford who was attending and receiving instruction in two Medicine Hat schools operated by the Board.

[ 2 ] Mr. Oldford describes how his child, who is not identified by name, attended school in 2018-2020. Mr. Oldford indicates his child has disabilities, and has cerebral palsy. It appears the child had an aide assigned to assist with the child’s school needs. Mr. Oldford describes how the schools would often request that Mr. Oldford pick up his child because the child was “acting out”, and “behaviour issues such as biting, hitting, and kicking the staff and fellow peers.” Mr.

Oldford says that his child did not attend the full school day, and is therefore not socializing with his peers, which is unfair and not right. Mr. Oldford complains that his child has not received adequate support, and attributes that to a lack of training for school staff, inadequate and/or temporary educational assistants, and “proper redirection” that “would prevent the problems.” [ 3 ] Mr. Oldford complains that sending his son home is the wrong solution and impractical: ...

The school is failing my sons self-esteem and he is being punished for every poor decision he makes while attending school instead of utilizing redirection. ... Every time my child acts out they decide that he should be sent home instead of redirection and they blame it on my son being overwhelmed but this is due to a lack of training. [Sic.] [ 4 ] Mr. Oldford indicates he has repeatedly attempted to resolve his concerns with the school principals, the Board’s Superintendent, but he has not been satisfied with those outcomes. On October 19, 2020, Mr.

Oldford withdrew his child from the Board’s school that the child had been attending. Mr. Oldford reports that afterwards he contacted the Board but the Board’s secretary said Mr. Oldford “... was no longer entitled to speak to them because my children were no longer attending their district anymore.” [ 5 ] Mr. Oldford seeks as remedies: ...

Written acknowledgement from the catholic school board that the school is neglecting in redirection and training on behalf of my child. ... 275,000 for emotional, psychological damages for my son and $2,000 in general damages due to the schools unnecessary stress and fear to return to school due to the schools negligence. [Sic.] [ 6 ] On January 21, 2021, Counsel for the Board referred Mr. Oldford’s Statement of Claim to the Court as a candidate Apparently Vexatious Application or Proceeding [AVAP] pursuant to Civil Practice Note No. 7 [CPN7].

I am designated to receive and review potential CPN7 processes in southern Alberta. Counsel for the Board also included an Alberta Human Rights Commission Complaint by Mr. Oldford against the Board [AHRC Complaint] that makes allegations related to Mr. Oldford’s Statement of Claim. [ 7 ] I have reviewed Mr. Oldford’s Statement of Claim and conclude on multiple bases that this filing is an AVAP that should be reviewed under the CPN7 document-based “show cause” procedure. II.

CPN7 [ 8 ] CPN7 is a practice implemented by the Court to better manage litigation that, on its face, appears to be unmeritorious, has no prospect of success, or is otherwise abusive and vexatious. This practice is intended to provide a timely, proportionate, and cost-effective response to the litigants: Unrau v National Dental Examining Board , 2018 ABQB 874 [ Unrau #1 ]. [ 9 ] If, on initial review by the Court, the pleading appears to be unmeritorious, has no prospect of success, or is otherwise abusive and vexatious, then the Court issues a first written decision that identifies the apparent issue(

s) which may be a basis to apply Rule 3.68 and strikes out the pleading. The party who filed the pleading is then given an opportunity to, within 14 days, provide the Court a Written Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimate action and should be permitted to continue. The Written Submission must be served on the other parties to the litigation. [ 10 ] CPN7 is not for “close calls”, but instead the Court intervenes by this mechanism when the defect(

s) in question are “apparent on the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1 , at paras 22, 24 . Only restricted forms of evidence are considered by the Court when it conducts a CPN7 review, since this process has a very narrow focus, and operates to examine a single document and its content: Ubah #2 at paras 24-48. There are exceptions to that rule.

For example, the Court may examine other documents in the same proceeding that are related to the suspect filing ( Ubah #2 at para 35), or documents and records that are evidence that the AVAP is an attempt to litigate an issue that has already been decided or closed ( Ubah #2 at para 45). III. CPN7 Analysis [ 11 ] Mr. Oldford’s Statement of Claim exhibits a number of potential issues. However, prior to addressing those, I note that I have considered the AHRC Complaint when evaluating Mr. Oldford’s Statement of Claim.

CPN7 usually focusses solely on the alleged defective filing, however one exception to that rule is where a separate document relates to other proceedings that restrict litigation alternatives: Ubah #2 at para 45. Here I am solely considering the AHRC Complaint as a potential duplicate or overlapping proceeding in a separate tribunal. A. Standing [ 12 ] Mr. Oldford is not apparently complaining that he has been injured. Mr. Oldford describes his frustration in dealing with the Board, and the impact that resulted from him having to pick up his son. However, the damages Mr.

Oldford is seeking are not for him, but for his unnamed child. The unnamed minor child is not a party to this litigation, but should be the sole Plaintiff, through Mr. Oldford as his Litigation Representative, as perfected in accordance with the rules for standard litigation in such circumstances – in essence, no

different that if the child had been involved in a pedestrian v. motor vehicle collision. [13] I therefore request that Mr. Oldford explain the basis on which he may sue in his sole name for damages on behalf of anunidentified minor third party to his proceedings, rather than as a Litigation Representative for his son? B. Inadequate Pleadings [14] An application or statement of claim sets the issues to which the opposing party must respond, and alerts that party of the caseit must meet: Whiten v Pilot Insurance Co, 2002 SCC 18 at para 87.

Proper pleadings require more than simply bare assertions, or “baldallegations” of wrongdoing: GH v Alcock, 2013 ABCA 24 at para 58; Mancuso v Canada (National Health and Welfare), 2015 FCA227 at paras 16-20. Pleadings must provide a basis for the Court and other litigants to make a meaningful response, and indicate to theresponding parties the “... who, when, where, how and what gave rise to its liability.”: Mancuso v Canada (National Health andWelfare) at para 19.

The Supreme Court of Canada in Mackay v Manitoba, (SCC), [1989] 2 SCR 357, 61 DLR (4th)485, instructed that a factual foundation, or an alleged factual foundation, is an absolute requirement for pleadings that seek potentialCharter relief. [15] Ms. Oldford cannot file inadequate pleadings and then either supplement those claims, or expect the Respondents to “fill inthe blanks”: Mancuso v Canada (National Health and Welfare) at para 20.

A lack of specificity is not merely a technical defect, butgoes to the core of the claim: GH v Alcock at para 58, citing AL v Ontario (Minister of Community and Social Services) (2006) (ON CA), 274 DLR (4th) 431, 218 OAC 150 (Ont CA). Inadequate pleadings abuse the court’s process because arespondent cannot defend against unclear and non-specific claims and the court cannot control the proceedings, identify the proposedargument, or make findings on the relevant facts: Unrau v National Dental Examining Board, 2019 ABQB 283 at para 629 [Unrau #2] [16] Mr.

Oldford’s Statement of Claim provides a great deal of detail on certain incidents where Mr. Oldford says the Board’semployees and schools did not respond adequately to his child and Mr. Oldford’s concerns. However, much information appears to bemissing from the Statement of Claim that is necessary for the Court and the Defendant to making a meaningful response. For one, thechild in question is unidentified. The legal basis for Mr. Oldford’s complaint is also unclear.

He identifies “emotional, psychologicaldamages for my son”, and “general damages”, and says “the school is neglecting in redirection and training on behalf of my child.” Thiswould seem to be a tort (negligence) claim. However, Mr. Oldford does not indicate who owed him (and/or his child) a duty of care,what is the basis for that duty of care, or how the duty of care was breached. [17] It is unclear whether Mr. Oldford’s allegations relate to specific employees, teachers, or principals, or that he alleges the issueis one of policy towards care of children with additional needs. Is Mr.

Oldford suing because he was improperly treated, or is his lawsuitabout what happened to his child? [18] Mr. Oldford is therefore requested to provide an explanation of how his Statement of Claim provides an adequate basis for theCourt and Defendant to make a meaningful response to his allegations. C. Impossible or Excessive Remedies [19] Mr. Oldford seeks a total of $277,000 in relation to emotional and psychological harm and stress and fear. These are “generaldamages”.

The maximum amount of general damages that may be claimed for pain and suffering was set in Andrews v Grand & ToyAlberta Ltd, (SCC), [1978] 2 SCR 229, 83 DLR (3d) 452 at $100,000. That was for a young adult whose injuries led tonear total disability. After inflation, the Andrews v Grand & Toy Alberta Ltd general damages cap is now about $365,000. [20] The Statement of Claim seeks somewhat over 75% of the maximum amount in general damages that is authorized by theSupreme Court of Canada. The Statement of Claim does not indicate any physical harm to the child.

The Statement of Claim does notindicate any long-term alleged consequences to the child not receiving the education and peer contact in 2018-2020 that appears to be thebasis for Mr. Oldford’s claim. I note that large general damages awards for illegal conduct are usually because the plaintiff experiencedgeneral physical impairment, or serious neural dysfunction, or long-term permanent pain.

For example, in Deboer v Kolyn, 2016 ONSC7108, general damages of $275,000 were ordered when negligent diagnosis of highly curable breast cancer led to untreatable andpredictably fatal metastatic cancer, which resulted in a much-reduced life expectancy and extensive and debilitating medical treatment. [21] Impossible or disproportionate claims are a characteristic of a hopeless action that warrants a lawsuit being terminated as anabuse of court processes: Unrau #2 at paras 620-625. I therefore conclude that Mr. Oldford’s Statement of Claim may be an abusiveproceeding because of the damages that he has claimed. D.

Alternative Remedies [22] Mr. Oldford’s first remedy seeks a “[w]ritten acknowledgement ... that the school is neglecting in redirecting and training onbehalf of my child.” This seems to seek the Court give some kind of direction to the Board concerning the child. [23] Mr. Oldford’s complaints concerning the Board relate to the child receiving an appropriate education. Education Act, SA2012, c E-0.3, s 11(4) requires the Board provide “specialized supports and services” where appropriate.

Education Act, s 41 alsorequires that the Board: ... establish a policy respecting the resolution of disputes or concerns at the school level between parents and school staff that supports aco-operative and collaborative learning environment for students. [24] If Mr. Oldford disagrees with provision of “specialized supports and services”, or the Board responding to other complaints byMr. Oldford, as a parent, then Mr. Oldford is permitted to request that the Minister of Education review the Board’s decision(s):

Education Act, ss 43-44. Mr. Oldford does not indicate he took that step. If Mr. Oldford disagreed with the Minister’s decision then Mr.Oldford could also seek to have this Court review that decision via judicial review. It is an abuse of process to pursue judicialproceedings without first exhausting the administrative regime: Al-Ghamdi v Alberta, 2017 ABQB 684 at paras 126-128, aff’d 2020ABCA 81. [25] I therefore ask why this Court should involve itself in the Board’s interactions with his child when Mr.

Oldford has notexhausted his remedies provided for by legislation and via the Court? [26] A second and related issue is the AHRC complaint against the Board dated November 2, 2020. In that document Mr. Oldfordcomplains the hours that the child attended school were inadequate, and demands that his child should: ... be treated the same as any other child. He should be allowed to attend the same start and end times as his peers regardless of thecomplex needs he has. I want him to be prepared for the future. At a minimum, the subject matter of Mr. Oldford’s Statement of Claim and the AHRC complaint overlap. [27] Mr.

Oldford advances the AHRC complaint on the basis of mental and physical disabilities. Civil claims that are based ondiscriminatory conduct are not within this Court’s jurisdiction. That jurisdiction was displaced by legislation that makes the AHRC theproper forum for complaints of this kind: Seneca College v Bhadauria, (SCC), [1981] 2 SCR 181, 124 DLR (3d) 19;Hamilton v Rocky View School Division No 41, 2009 ABQB 225 at paras 23-24, aff’d 2010 ABCA 217, leave to appeal to SCC refused,34151 (18 August 2011). [28] I therefore request Mr.

Oldford explain why he has failed to seek alternative remedies, and why this Court should hear hismatter considering Mr. Oldford has already initiated a complaint concerning differential treatment on the basis of discrimination in hisAHRC complaint. [29] In all of these matters, while a Litigation Representative for the child can act without a lawyer, it would be useful for Mr.Olford to seek a lawyer to assist him in presenting a proper claim in the proper way. IV. CPN7 Analysis [30] Mr. Oldford’s Statement of Claim appears to be a suitable candidate for review per CPN7.

The Court therefore seeks aresponse from Mr. Oldford on these questions: 1. How may Mr. Oldford sue on behalf of an unnamed minor third party? 2. How does the October 29, 2020 Statement of Claim provide a basis for a meaningful response by the Court and Defendant? 3. Why are damages claimed in the Statement of Claim not impossible or excessive? 4. Why should the Court permit this litigation when Mr. Oldford has alternative mechanisms to obtain a remedy? 5. Why should the Court permit this litigation when Mr.

Oldford has already initiated a related complaint with the AHRC, and theAHRC has sole jurisdiction over allegations of discrimination? [31] Mr. Oldford’s Alberta Court of Queen’s Bench Action 2008 00362 lawsuit is stayed. CPN7 now advances to its second step. 1. Mr. Oldford has until 14 days after this decision is filed to file and serve a Written Submission of no more than a total of 10pages, pursuant to CPN7, para 3(b). The Written Submission should be clearly addressed: “To the Attention of Associate Chief JusticeRooke”. 2.

If no Written Submission is received by the Court by that deadline, the Court will proceed to render its final decision on whetherthe Application should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(c)). 3. If Mr. Oldford provides and serves a Written Submission, then the Defendant has seven days to make a Written Reply of up to atotal of 10 pages in length (CPN7, para 3(d)). The Written Reply should be clearly addressed: “To the Attention of Associate ChiefJustice Rooke”. 4. After receipt of Mr.

Oldford’s Written Submission, and the Defendant’s Written Reply, if any, the Court will render its finaldecision on whether the Alberta Court of Queen’s Bench Action 2008 00362 Statement of Claim should be struck out in whole or in part,pursuant to Rule 3.68 (CPN7, para 3(e)). [32] The Court will prepare and serve the Order staying this action. Mr. Oldford’s approval of that Order is dispensed with,pursuant to Rule 9.4(2)(c). Dated at the City of Medicine Hat, Alberta this 1st day of February, 2021.

J.D. Rooke A.C.J.C.Q.B.A. Appearances: Alexis N. Moulton McLennan Ross LLP for the Defendant