2011 QCCQ 15518, 2011 QCCQ 15518

United Talmud Torahs of Montreal Inc. c. Lewandowski 2011 QCCQ 15518 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-32-129040-111 DATE: November 22, 2011 ______________________________________________________________________ BY THE HONOURABLE ELIANA MARENGO, J.C.Q. ______________________________________________________________________ UNITED TALMUD TORAHS OF MONTREAL INC. Plaintiff v.

MARTIN LEWANDOWSKI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff operates a private school. It is suing defendant, on account, for $1,832,50, for services allegedly rendered. [ 2 ] Defendant is the father of student Daniel Lewandowski ("Daniel").

He denies owing said amount for the following reasons: "- Services not rendered as outlined in mission statement of school. - Verbal harassment/abusive by staff to degree of bullying. - Discussing our private matters (school and personal) with other parents. - Having to remove our son midyear (losing education time, making him feel like a failure. Low self esteem). - Telling him "Your hopeless" or "Your teachers want you out!" and more." (sic) (contestation dated July 4, 2011) [ 3 ] As cross-plaintiff, defendant is also suing plaintiff for $5,000.00 "for services not rendered properly from

(2010) Sept 1 – Jan 31 (2011). School tuition paid. I would like reimbursement. No resources, or educational assistance given" . (sic) [ 4 ] In 2009, plaintiff accepted Daniel into grade 7, with the proviso that he attend a remedial math class.

Defendant paid $1,200.00 for this service alone and $7,355.00 tuition in all. [ 5 ] Plaintiff also undertook to offer Daniel Jewish studies, as an integral part of the educational program. [ 6 ] However, plaintiff committed an error in Daniel's schedule, thereby creating a conflict between his remedial math and Jewish studies classes. [ 7 ] Despite its undertakings to correct the problem, plaintiff failed to do so. [ 8 ] This resulted in Daniel being repeatedly yanked out of his remedial math class, by his Jewish studies teacher, one Yosefa Lazar, who then proceeded to berate and chastise the child for the conflict. [ 9 ] Lazar was "very hard" on Daniel, and went so far as to give the child a "O" grade in her class (exhibit D-3), although he was obviously not responsible for the scheduling error. [ 10 ] Eventually, after much stress and aggravation to Daniel and his family, he was told by plaintiff's director not to attend his Jewish studies class, although it allegedly formed an integral part of the program. [ 11 ] Daniel's friends and family also attended the school; so, despite the problems with his remedial and Jewish studies classes,

defendant re-registered Daniel for the 2010-2011 (grade 8) school year. It would be the last time. [ 12 ] Plaintiff insisted that Daniel take a remedial math class, again, but defendant refused. [ 13 ] As regards the Jewish studies class, despite Lazar's attitude towards Daniel, she was once again assigned to him as a teacher; and, once again, Lazar gave Daniel zeros for his efforts in her class! [ 14 ] In November, 2010, both Daniel and his parents attended the parent-teacher meeting. At this time, Lazar had the audacity and temerity to qualify the situation as "impossible", and Daniel as "hopeless".

She further described the situation as "mission impossible", and said that she wanted to have "nothing to do with (Daniel)". [ 15 ] Stupefied, defendant approached plaintiff's Housefather, who advised that the Minister of Education would supply a "reader" for Daniel, if defendant obtained a psycho-educational assessment, that which he did, at a cost of $850.00 (exhibit D-2). [ 16 ] The assessment indicated that Daniel required accommodations at school, with a view to assist him with his reading and spelling difficulties.

This would include, inter alia, the assistance of a "reader" and a "counsellor", as well as a "tracking system". [ 17 ] For reasons which will forever remain incomprehensible to the Court, the reader assigned to Daniel, by plaintiff, was Lazar! [ 18 ] Daniel now had to write his exams, in December, 2010, with the one person who had denigrated and disrespected him the most, by his side.

This utterly unacceptable gesture constitutes an intentional and gross fault on plaintiff's part. [ 19 ] Evidently, under the circumstances, defendant had no other recourse but to remove Daniel from the school, mid-year, with the unfortunate and disruptive consequences which that entailed. [ 20 ] In acting as it did, plaintiff did not honour its contractual obligations towards neither defendant nor Daniel. [ 21 ] In fact, in so doing, plaintiff contravened articles 1375 and 1458 of the Civil Code of Quebec . [ 22 ] The Court found defendant's testimony, as well as Daniel's mother's testimony, to be straightforward, truthful and convincing. [ 23 ] Plaintiff's representative, on the other hand, was flippant and arrogant, and only further convinced the Court that defendant's allegations were well-founded. [ 24 ] Plaintiff presented no evidence in response thereto, other than to file a contract, a statement of account and a demand letter, into the Court record. [ 25 ] Plaintiff forgets that it had an obligation to provide not just any educational services, but services worthy of Daniel, who came to the school with both his strengths and weaknesses. [ 26 ] Plaintiff also had an obligation to provide Daniel with teachers who would treat him with respect, and deal with his learning challenges, with competence, compassion and without cutting him down, belittling him and blaming him for the teacher's inabilities and shortcomings. [ 27 ] What is more, plaintiff failed to honour its contractual obligations, in that it did not take reasonable measures to implement the recommendations contained in the psycho-educational assessment, which it asked for, nor did it rectify the scheduling error for which it alone was responsible. [ 28 ] Finally, it is interesting to note that, after transferring to another school, Daniel scored 85% on his Mathematics 306 test (exhibit D-3). [ 29 ] GIVEN the evidence; [ 30 ] WHEREAS plaintiff did not provide the educational services to which Daniel was entitled in accordance with contract P-1; [ 31 ] WHEREAS plaintiff was reckless, careless and negligent, in its actions and behaviour towards Daniel, despite his parents' numerous requests and complaints; [ 32 ] WHEREAS plaintiff did not act in Daniel's best interest; [ 33 ] WHEREAS Lazar was generally a rude, ineffective and incompetent teacher to Daniel; [ 34 ] GIVEN Lazar's professional misconduct; [ 35 ] WHEREAS, ultimately, providing Daniel with Lazar as a reader was the most manifestly unjust gesture possible, for which plaintiff cannot be excused [1] ; [ 36 ] WHEREAS not only did plaintiff's numerous faults cause psychological distress and trouble and inconvenience to both Daniel and his parents on a daily basis, but they also caused financial injury to defendant, as neither he nor Daniel received the services for which he paid thousands of dollars; [2] [ 37 ] GIVEN articles 1458, 1591 and 1375 of Civil Code of Quebec ; [ 38 ] WHEREAS plaintiff is not entitled to the amount claimed;

[ 39 ] WHEREAS plaintiff is further liable to defendant for the reimbursement of the tuition paid for the 2010-2011 school year, in the amount of $3,115.00 ($728.75 X 4 plus $200 X1); WHEREFORE THE COURT HEREBY: DISMISSES plaintiff's action, with costs; GRANTS defendant's cross-demand, in part; CONDEMNS plaintiff to pay defendant the sum of $3,115.00, plus legal interest and the additional indemnity provided for in

article 1619 of Civil Code of Quebec , from July 13, 2011 and costs in the amount of $89.00. __________________________________ ELIANA MARENGO, J.C.Q. Date of hearing: October 8, 2011