KRISTY LEE HOLLIDAY PLAINTIFF/RESPONDENT - v. -, 2023 SKKB 273

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 273 Date: 2023 12 15 Docket: KBG-RG-00211-2023 Judicial Centre : Regina BETWEEN: KRISTY LEE HOLLIDAY PLAINTIFF/RESPONDENT - and - SASKATCHEWAN TEACHERS FEDERATION, MINISTRY OF EDUCATION; SASKATCHEWAN ASSOCIATION OF SCHOOL BUSINESS OFFICIALS (SASBO); SASKATCHEWAN SCHOOL BOARDS ASSOCIATION; DARREN MCKEE C/O SASKATCHEWAN SCHOOL BOARDS ASSOCIATION; S.

MAUREEN JICKLIN C/O SASKATCHEWAN SCHOOL BOARDS ASSOCIATION; REGINA PUBLIC SCHOOL DIVISION NO. 4 (REGINA PUBLIC SCHOOL BOARD); DARREN BOLDT C/O REGINA PUBLIC SCHOOL DIVISION NO. 4; RICK STECIUK C/O REGINA PUBLIC SCHOOL DIVISION NO. 4; LISA FREI C/O REGINA PUBLIC SCHOOL DIVISION NO. 4; ERIN BETSON C/O REGINA PUBLIC SHOOL DIVISION NO. 4; KRISTA MCCAW C/O REGINA PUBLIC SCHOOL DIVISION NO. 4; CORPORAL ROBERT MACLEAN C/O REGINA PUBLIC SCHOOL DIVISION NO. 4; SANDRA COMANIUK C/O REGINA PUBLIC SCHOOL DIVISION NO. 4; JASON SHAMEL C/O REGINA PUBLIC SCHOOL DIVISION NO. 4; ROSA HAYNES C/O REGINA PUBLIC SCHOOL DIVISION NO. 4 AND MRS.

EXNER C/O REGINA PUBLIC SCHOOL DIVISION NO. 4 DEFENDANTS/APPLICANTS Appearing: Kristy Holliday self-represented plaintiff/respondent Jared G. Biden for the Minister of Education Kelsey O’Brien for Saskatchewan Association of School Business Officials (SASBO) Elise von Holwede for Saskatchewan Teachers Federation Nicholas M. Cann, K.C. for Saskatchewan School Boards Association, Darren Boldt, Rick Steciuk, Lisa Frei, Erin Betson, Krista McCaw, Sandra Comaniuk, Jason Shamel, Rosa Haynes, Darren McKee, S. Maureen Jickling, and Mrs. Exner Travis Sylvestre for Corporal Robert MacLean

JUDGMENT BERGBUSCH J. DECEMBER 15, 2023 Introduction [ 1 ] The plaintiff, Kristy Lee Holliday, issued a statement of claim against 17 defendants seeking redress for alleged bullying of her son at school and what she perceives to be an inadequate response by school authorities and others to her complaints. From the statement of claim, it appears that the plaintiff’s concerns about bullying of her son began when he was in grade 3, attending a public school in Regina, Saskatchewan, and continued until he was in grade 5.

The plaintiff pulled her son out of school in November 2022. [ 2 ] The defendants have all applied for an order striking the statement of claim in its entirety, without leave to amend, on one or more of the grounds set out in Rule 7-9 of The King’s Bench Rules . [ 3 ] For the reasons which follow, I have determined that the claim is bound to fail in its current amended state and it is struck. However, the plaintiff is granted leave to amend the claim against some of the defendants only.

If the plaintiff is able to reformulate her claim to correct the many deficiencies I have identified, she will be able to have her day in court. However, I encourage Ms. Holliday to contact counsel for the Board of Education of Regina Public School Division No. 4 to discuss alternate ways to resolve her concerns about her son’s treatment at school, as that may be far more productive and beneficial for her son than proceeding with this litigation. [ 4 ] In my decision, I will refer to the plaintiff’s son as “Billy” rather than by his given name to protect his identity.

Background [ 5 ] The plaintiff issued a 13-page statement of claim [Original Claim] on January 24, 2023, which she then proceeded to serve on the defendants. [ 6 ] During the week of February 13, 2023, five notices of application seeking to strike the statement of claim were served on the plaintiff and filed with the court. [ 7 ] On February 27, 2023, the plaintiff filed a 32-page amended statement of claim, which deletes all of the text from the original statement of claim and substitutes new underlined wording. [ 8 ] On March 3, 2023, the plaintiff filed a 38-page amended statement of claim [Second Amended Claim], which adds double-underlined wording to the earlier underlined amendments. [ 9 ] On March 8, 2023, the plaintiff filed a notice of application that appears to seek relief for contempt against the defendant Saskatchewan Association of School Business Officials [SASBO].

I adjourned that application sine die pending my determination of the defendants’ applications to strike. Issues [ 10 ] The issues raised by these applications are the following: (

a) Whether the statement of claim discloses a reasonable cause of action against each of the defendants; (

b) Whether the statement of claim is scandalous, frivolous, or vexatious; (

c) Whether the statement of claim is immaterial, redundant, or unnecessarily lengthy; (

d) Whether the statement of claim is otherwise an abuse of process. [ 11 ] There are five applications which together cover all of the defendants. The notices of applications do not all rely upon the four grounds for striking a statement of claim listed above. [ 12 ] I will review the law that applies generally to applications to strike pursuant to Rule 7-9. I will then provide reasons for my decision concerning each set of defendants. Applicable Law [ 13 ] Rule 7-9 of The King’s Bench Rules reads: 7-9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the following: (

a) that all or any part of a pleading or other document be struck out; (

b) that a pleading or other document be amended or set aside; (

c) that a judgment or an order be entered;

(

d) that the proceeding be stayed or dismissed.

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (

a) discloses no reasonable claim or defence, as the case may be; (

b) is scandalous, frivolous or vexatious; (

c) is immaterial, redundant or unnecessarily lengthy; (

d) may prejudice or delay the fair trial or hearing of the proceeding; or (

e) is otherwise an abuse of process of the Court.

(3) No evidence is admissible on an application pursuant to clause (2)(a). [14] The governing principles that apply to an application to strike a pleading for failing to disclose a reasonablecause of action are well established. A

summary frequently cited by Saskatchewan courts is found in Collins v Saskatchewan RuralLegal Aid Commission, 2002 SKQB 201 at para 11: [11] The principles which apply to an application to strike a plaintiff’s claim under Rule 173(

a) are the following: (

i) The claim should be struck where, assuming the plaintiff proves everything alleged in the claim there is no reasonable chance ofsuccess. (Sagon v. Royal Bank of Canada et al. (1992, (SK CA), 105 Sask. R. 133 at 140 (C.A.)); (ii) The jurisdiction to strike a claim should only be exercised in plain and obvious cases where the matter is beyond doubt. (Sagon, at140; Milgaard v. Kujawa et al. (1994), (SK CA), 123 Sask. R. 164 (Sask.

C.A.)); (iii) The court may consider only the claim, particulars furnished pursuant to a demand and any document referred to in the claim uponwhich the plaintiff must rely to establish its case (Sagon, at p. 140); (iv) The court can strike all, or a portion of the claim (Rule 173); (

v) The plaintiff must state sufficient facts to establish the requisite legal elements for a cause of action. (Sandy Ridge Sawing Ltd. v.Norrish and Carson (1996), (SK KB), 140 Sask.

R. 146 (Q.B.)). [15] When reviewing a statement of claim to determine whether it discloses a reasonable cause of action, the courtassumes all of the facts as pleaded are true, unless they are manifestly incapable of being proven: R v Imperial Tobacco Canada Ltd.,2011 SCC 42 at para 22, [2011] 3 SCR 45 [Imperial Tobacco]. [16] In Harpold v Saskatchewan (Corrections and Policing), 2020 SKCA 98 [Harpold], the Court of Appealinstructed that a chambers judge must take into consideration the whole of the statement of claim, including any technical pleading andalleged facts, to determine whether the essential elements of a cause of action are present: [26] When called upon to review a claim in response to an application under Rule 7-9(2)(a), the reviewing judge is required todetermine whether sufficient facts have been pleaded to establish the legal elements of a cause of action by considering the whole of thestatement of claim.

It is for the reviewing judge “to determine whether the combined effect of any technical pleading, together with otherfacts, properly plead the essential elements of the cause of action” (Reisinger v J.C. Architect Ltd., 2017 SKCA 11 at para 20, 411 DLR(4th) 687 [Reisinger]). [17] The defendants also refer to Rule 13-8 of The King’s Bench Rules, which sets out the general requirements forpleadings. This Rule reflects the fourfold function of pleadings, which is: 1. To define with clarity and precision the question in controversy between litigants. 2.

To give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issues disclosed by them.A defendant is entitled to know what it is that the plaintiff asserts against him; the plaintiff is entitled to know the nature of the defenceraised in answer to his claim. 3. To assist the court in its investigation of the truth of the allegations made by the litigants. 4.

To constitute a record of the issues involved in the action so as to prevent future litigation upon the matter adjudicated between theparties. (Ducharme v Davies (1984), (SK CA), 29 Sask R 54 (CA) at para 64) (See W.B. Williston & R.J. Rolls, The Law of Civil Procedure, vol 2 (Toronto: Butterworths, 1970) at 636, cited in Ducharme andHolben v Davies and Rogoschewsky (1984), (SK CA), 29 Sask R 54 (CA) and Harpold at para 29.) [18] A statement of claim that contains vague, unparticularized assertions against all defendants collectively does notmeet these objectives.

In this regard, the defendant SASBO refers to the decision in Wall Estate v GlaxoSmithKline Inc., 2010 SKQB351 at para 43, 367 Sask R 21 [Wall Estate], which concerned whether a statement of claim established a real and sufficient connectionbetween foreign defendants that had been lumped together with a Canadian corporation. Wall Estate was concerned with the court’sjurisdiction over certain defendants rather than the sufficiency of the pleading in issue and is not directly on point.

[19] Nonetheless, SASBO’s contention has merit.

For example, in Healthcare of Ontario Pension Plan Trust Fund v Neuro Discovery II Limited Partnership, 2017 BCSC 1743 at para 60, 76 BLR (5th) 147, Justice Verhoeven observed that a pleadingmust identify what causes of action are advanced against which different defendants and what facts apply to those claims: [60] Where, as in this case, a party advances several causes of action, against several parties, its pleadings must clearly specify whatcauses of action are advanced against which parties and what facts apply to those causes of action: Canfor Pulp Limited Partnership v.Siemens Building Technologies Ltd., 2016 BCSC 2089, at para. 22.

There, Voith J. added: [22] …It is inappropriate to lump defendants together in a pleading and to make blanket allegations against them, unless thosedefendants were in an identical relationship with the plaintiff. Such pleadings are necessarily imprecise, are overly general, and make itimpossible to discern on what basis each of the defendants could be held liable. Such a pleading may be struck for failing to clearlydefine the issues of fact and law that are to be determined by the court and/or for being vexatious, prejudicial to a fair trial of theproceeding, and an abuse of process; see Stoneman v.

Denman Island Local Trust Committee, 2010 BCSC 636 at para 27; The CampbellRiver Indian Band C.A. at paras 76-77; Forde v. Interior Health Authority, 2007 BCSC 1706 at paras 17-18; and Sahyoun v.

Ho, 2013BCSC 1143 at paras 53-54. [20] See also Dowd v Skip the Dishes Restaurant Services Inc., 2019 MBQB 63 at paras 58-67, [2020] 2 WWR 87.Unless defendants are in an identical position in relation to the plaintiff, the pleadings cannot combine them and must set out the basisfor a claim against each defendant. [21] Pleadings that do not achieve technical compliance with The King’s Bench Rules should not necessarily bestruck if they adequately serve their purpose, which is to define the issues in dispute and give notice to the other side of what is claimed.The court’s focus in assessing an application to strike all or part of a claim as disclosing no reasonable cause of action is on the substanceof the pleading rather than its form: Thirsk v Public Guardian and Trustee of Saskatchewan, 2017 SKQB 66 at paras 21 and 23 [Thirsk];Harpold at para 32. [22] Screening out claims that have no chance of success enhances efficiency, promotes fairness, and avoidsunnecessary costs: Harpold at para 33; Imperial Tobacco at paras 19-20.

However, requiring strict compliance with the technical rulesof pleadings may deprive plaintiffs, especially self-represented litigants, of access to the court: Harpold at para 34. [23] In Harpold at para 37, the Court of Appeal recognized that it may be difficult to identify a valid cause of actionin a statement of claim that is verbose, poorly drafted and fails to use technical language.

Despite the presence of such defects, a judgemay still be able to discern a reasonable claim from the narrative facts pleaded, even if standard legal terms are missing, as long as therequired elements of a cause of action are found within the whole of the document. However, where the statement of claim simplyincludes headings that identify alleged torts amid a lengthy recitation of facts, the court has the discretion to construe the pleading against the drafter: Reisinger v J.C.

Akin Architect Ltd., 2017 SKCA 11 at para 49, 411 DLR (4th) 687 [Reisinger]. [24] As an alternate ground for striking the claim, some of the defendants rely upon Rule 7-9(2)(

b) of The King’sBench Rules, contending that the statement of claim is scandalous, frivolous, or vexatious. Each of these objections has a distinctmeaning in this context. As explained by Justice Mitchell in Siemens v Baker, 2019 SKQB 99 at para 23 [Siemens], a pleading isscandalous if it “levels degrading charges or baseless allegations of misconduct or bad faith against an opposite party”.

A pleading isfrivolous if it is “plain and obvious” or “beyond reasonable doubt” that the claims it advances are “groundless and cannot succeed”:Siemens at para 25; Yashcheshen v Janssen Inc., 2022 SKCA 140 at para 20 [Janssen].

A pleading is vexatious if it has been“commenced for an ulterior motive (other than to enforce a true legal claim) or maliciously for the purpose of delay or simply to annoythe defendants”: Siemens at para 24; Janssen at para 20. [25] Some of the defendants also submit that the statement of claim should be struck because it is “immaterial,redundant or unnecessarily lengthy.” For a discussion of this ground, see Shaw v Shaw, 2020 SKQB 320 at paras 49-50 and thediscussion in Reisinger at paras 32-39. [26] Finally, several defendants contend that the statement of claim should be struck pursuant to Rule 7-9(2)(

e) as anabuse of process. The doctrine of abuse of process “is flexible and is unencumbered by specific doctrinal requirements...”: Walker vMitchell, 2020 SKCA 127 at para 24, [2021] 4 WWR 555. In determining whether a claim is an abuse of process, a judge may considerthe merits of the claim and the motives of the plaintiff in bringing it, and evidence other than the pleadings is admissible: Sagon v RoyalBank of Canada (1992), (SK CA), 105 Sask R 133 (WL)(CA) at para 18. It must be “plain and obvious” that a claimis bound to fail before it can be struck as an abuse of process: GHC Swift Current Realty Inc. v BACZ Engineering

(2004) Ltd., 2022 SKCA 38 at paras 25-26, 29 CLR (5th) 294; Merchant Law Group LLP v Slusar, 2022 SKCA 75 at para 42. [27] If a deficient statement of claim can be rehabilitated through amendments, a plaintiff should be given leave todo so before the claim is struck: Yashcheshen v Teva Canada Ltd., 2022 SKCA 49 at para 43, [2022] 8 WWR 60; Wilson v Saskatchewan Water Security Agency, 2023 SKCA 16 at paras 19-20, 478 DLR (4th) 170 [Wilson]. This is so even if the plaintiff has notexpressly applied to amend the pleading: Thirsk at para 11; Wilson at para 21.

A judge can consider extrinsic evidence when decidingwhether the plaintiff should be given an opportunity to amend the claim: Wilson at para 22. [28] There is authority for the proposition that the court should decide the defendants’ strike applications based onthe statement of claim in its form when the applications were served: see the discussion in Gurniak v Saskatchewan Government Insurance, 2016 SKQB 391, 97 CPC (7th) 396 [Gurniak].

While I could follow that approach here, if I determined that the OriginalClaim should be struck, I would then have to consider the Second Amended Claim to see whether the plaintiff should be given anopportunity to amend. Unlike Gurniak, this is not a case where the plaintiff attempted to amend the claim after the strike applicationshad been argued and the decision was under reserve. It will be more efficient if I decide the applications to strike having regard for theSecond Amended Claim. As well, during oral argument counsel for the defendants directed their arguments toward the amendmentsmade by the plaintiff.

Overview of Second Amended Claim [ 29 ] The starting point is for the court to review the statement of claim as a whole.

As mentioned, the Second Amended Claim is 38 pages long, although that total includes pages of crossed out text from the Original Claim. [ 30 ] The Second Amended Claim begins with a modified title: AMENDMENT – AMENDMENT – NOTICE TO DEFENDANT – STATEMENT OF CLAIM – PROFESSIONAL NEGLIGENCE IN TORT LAW: THE RULES OF RES IPSA LOQUITUR AND NEGLIGENCE PER SE: [ 31 ] What follows is the plaintiff’s modified version of the standard form “Notice to Defendant” which is prescribed by Form 3-9 of The King’s Bench Rules .

The purpose of the notice is to alert defendants to their rights to respond to the claim and the timelines for doing so. The plaintiff’s modifications to this form are improper. [ 32 ] At para. 8, the Second Amended Claim provides particulars of the plaintiff, indicating that she makes the claim on behalf of her minor child and on her own behalf. [ 33 ] Paragraph 7 of the Second Amended Claim sets out long descriptions of the defendants, much of which is repetitive. [ 34 ] Beginning at para. 8.2, the plaintiff has attempted to explain the foundation of the claim.

The claim refers to the defendants and “Professional Negligence in Tort law: The Rules of Res Ipsa Loquitur and Negligence Per Se”. Under “Duty of Care”, the claim alleges that the defendants breached a duty of care owed to Billy, who “endur[ed] a series of physical, emotional and social violent and bullying behaviors” [bullying] while in the defendants’ care attending school. Referring to the “reasonable person standard,” the claim alleges that “all caregivers of minor children fall under in loco parentis pursuant to:” and then cites

Article 26 of the “Universal Declaration of Human Rights”, the “Convention on the Rights of the Child”, the Canadian Charter of Rights and Freedoms [ Charter ], The Saskatchewan Human Rights Code, 2018 , SS 2018, c S-24.2 , The League of Educational Administrators, Directors and Superintendents Act, 1991 , SS 1990-91, c L-9.02 , and General Comment No. 13 (2011) on the right of children to freedom from all forms of violence, paras. 3(

b) and 11. [ 35 ] At para. 8.9, the claim alleges that Billy has not been attending school since November 29, 2023 (presumably, 2022) “due to safety issues and refusal of the Defendants to foster a safe and affirming environment.” The paragraph refers to a threat of physical violence if Billy returns to school, which was reported to the defendants Frei and Steciuk. [ 36 ] Paragraph 8.13 repeats the bullying allegation and alleges that this activity was preventable.

The paragraph then alleges that the defendants as “Educational partners” committed professional negligence by not following safety protocols, filling out administrative incident reports and offering safety planning with the plaintiff and her son. [ 37 ] At paragraph 8.14, the claim alleges that “All incidents were witnessed by, perpetrated by, and/or reported to” all of the individual defendants as well as the Regina Public School Board No. 4, the Saskatchewan Teachers Federation [STF], and the Ministry of Education [Ministry].

Although the remainder of the paragraph is hard to follow, the claim appears to suggest that the defendants committed professional negligence, by failing to follow protocols and procedures governed by The Education Act, 1995 , SS 1995, c E.-0.2 or other enactments, by wilfully failing to fulfil their duties, and by neglecting to respond adequately to the bullying, which was “not handled in good faith”. [ 38 ] Paragraph 8.15 alleges that Billy was targeted by one or more students at school with threats of violence, acts of violence, name calling, social exclusion, verbal attacks, and intimidation.

A replica weapon was allegedly brandished in Billy’s face. The claim alleges that all incidents were reported. [ 39 ] Beginning on page 20, the Second Amended Claim provides details of the various incidents involving Billy. These include: (

a) Between September and October 2020, “2 notable incidents involving Rosa Haynes that required Erin Betson (Principal of [the school]) to intervene”. (

b) Between March 31 and June 28, 2022: (

i) A student brandished a nerf gun in Billy’s face contrary to school policies, in the presence of the defendant Exner. (ii) Eight incidents of physical and verbal attacks, which were not documented and where no one intervened. (

c) From September 2022 to March 2023: (

i) On October 5, 2022, Billy was verbally threatened by a student. (ii) On November 15, 2022, the defendant Shamel is alleged to have breached “LAFOIP” by forwarding one or more of the plaintiff’s emails to other parents. (iii) On November 17, 2022, Billy disclosed to the defendant Betson and to the plaintiff that, earlier that day, he had been punched several times on the playground by three students and he had also been punched in the head the day before by one of the students while they were traveling on a bus to a school event. (

d) On November 21, 2022, the plaintiff attended the School Board office with the defendants McCaw, Betson, Frei, and Steciuk. The defendant MacLean was not present, although the plaintiff had requested that he attend. The plaintiff alleges that she requested a safety plan but was told that the incident involving her son was not serious and would not happen again. After this meeting, Billy

endured more bullying, as well as “teacher intimidation” and lack of supervision. [40] At page 22, the claim alleges that the defendants are “vested with public interests” pursuant to a long list ofstatutes and regulations.

The claim alleges that, on May 26, 2022, the plaintiff received an email from the defendant Jickling actingagainst the best interests of her son “through Professional Negligence” and then refers to The Legal Professions Act, 1990, SS 1990-91, cL-10.1, and the Law Society of Saskatchewan Code of Professional Conduct (Regina: Law Society of Saskatchewan, April 2023). [41] At page 23, the claim alleges that the plaintiff received a telephone call from her son, who was hiding under hisdesk in his school classroom. He was scared and being attacked.

The plaintiff removed him from the school and has not sent him backbecause of a threat made to him by another student, who had previously threatened him and was violent toward him, and because of thelack of safety planning and acknowledgement of bullying by numerous defendants. [42] The claim alleges missing incident reports on Billy’s school file and unspecified “possible fraudulent orscandalous behavior” in relation to her son’s report card. [43] At page 31, the Second Amended Claim outlines the terms of an order sought by the plaintiff “pursuant to Rule142(2).” No such Rule exists.

The list of items for which the plaintiff seeks an order is simply a word salad of legal terms and arepetition of facts about Billy being bullied and the plaintiff’s efforts to seek redress. For example, the plaintiff seeks an order granting“Res Ipsa Loquitor for Negligent Acts breaching Duty of Care by the Defendants resulting in Strict Vicarious Liability Tort andCompensation as per Tort Law under the 5 elements of Tort Negligence”.

At several points in the lengthy list the plaintiff alleges that sheand her son have suffered mental anguish and loss of enjoyment of daily life as a result of the events complained of. The plaintiffappears to claim that she has suffered business losses because she has had to take time away from clients to advocate for her son and toresearch the law. [44] At page 36, the plaintiff seeks damages in the amount of $50 million to be paid proportionately by thedefendants.

The claim says that a portion of the monies received will be used to focus on bullying prevention under a “law” named forher son. [45] Because the allegations are lengthy and convoluted, I have attempted to distil them for

summary purposes. Ihave omitted references to evidence and many superfluous details of communications between Ms. Holliday and school officials. [46] Looking at the Second Amended Claim as a whole, my impression is that it is a sincere and heartfelt effort by avery concerned parent to record all of her concerns about her son’s treatment at school, her efforts to advocate for him, and herfrustration at the reaction to her concerns. The plaintiff has turned to the court for help because she is not satisfied with the response shehas received elsewhere.

However, the court is not equipped to provide many of the solutions she seeks. Discussion Applicable to all Defendants [47] The Second Amended Claim refers to negligence but fails to allege the material facts necessary to establish eachelement of this tort.

These elements were summarized in Mustapha v Culligan of Canada Ltd., 2008 SCC 27 at para 3, [2008] 2 SCR114: [3] A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) thatthe defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, infact and in law, by the defendant’s breach. … [48] The Second Amended Claim also refers to professional negligence but does not identify a professional standardof care for any of the defendants or explain how any have fallen short of the standard applicable to them.

The most that can be said is thatthe claim identifies the profession of some of the defendants and lists some statutes related to professional regulation. This does not comeclose to pleading a reasonable cause of action for professional negligence. [49] In addition, the Second Amended Claim contains references to “negligence per se.” I am not sure what theplaintiff intends by this. Historically negligence per se referred to a theory of liability that an unexcused statutory breach constitutednegligence in itself and could give rise to absolute liability.

The Supreme Court rejected this concept in The Queen (Can.) vSaskatchewan Wheat Pool, (SCC), [1983] 1 SCR 205 [Sask. Wheat Pool]; see also Saskatchewan (Agriculture, Foodand Rural Revitalization) v Holland, 2007 SKCA 18 at para 39, 299 Sask R 109 [Holland]. The claim does not even specify any statutorybreaches that might constitute evidence of negligence, as permitted by Sask. Wheat Pool.

Thus, the references to negligence per se do notidentify a reasonable cause of action or shore up the deficient negligence pleading. [50] The Second Amended Claim also mentions res ipsa loquitur, a doctrine holding that negligence could beinferred from the circumstances of an occurrence: Fontaine v British Columbia (Official Administrator), (SCC),[1998] 1 SCR 424 at para 39 [Fontaine].

In Fontaine at paras 26-27, the Supreme Court held that this so-called doctrine was “moreconfusing that helpful” and “should be treated as expired and no longer used as a separate component in negligence actions.” Res ipsaloquitur was not a standalone basis for a claim and, after Fontaine, it cannot be used in negligence actions. Thus, these additions to theclaim are futile. [51] The Second Amended Claim lists various policies and sources of international and domestic law withoutidentifying a specific contravention by a defendant.

The defendants argue that references in the claim to The Education Act, 1995,“Caring and Respectful Schools – Bullying Prevention: A Model Policy,” The Contributory Negligence Act, RSS 1978, c C-31, “TheRegina Public School Shared Values, Administrative Procedure 381,”

Article 26 of the Universal Declaration of Human Rights, theUnited Nations Convention on the Rights of the Child, the Canadian Charter of Rights and Freedoms, The Saskatchewan Human RightsCode, 2018, and The League of Educational Administrators, Directors and Superintendents Act, 1991, do not disclose a reasonable causeof action. I agree. While I will not attempt to give every reason why this hodgepodge of instruments does not give the plaintiff a right ofaction against the defendants, a few examples will suffice:

(

a) The plaintiff does not explain how the international conventions and declarations form part of the law of Saskatchewan or grant aprivate right of action: see M.R.L.P. v Canada (Attorney General), 2020 SKQB 101 at para 84 [M.R.L.P.]. (

b) The plaintiff does not allege the breach by a government actor of a particular right or freedom guaranteed in the Charter.Moreover, generally speaking, the Charter applies to government action, not inaction: Rogers v Faught (2002), (ONCA), 212 DLR (4th) 366 (Ont CA) at para 32. The plaintiff’s concerns in the claim appear to relate to inadequate supervision – inaction– rather than to actions taken by school officials. (

c) The plaintiff cannot bring a claim for a breach of The Saskatchewan Human Rights Code, 2018, without following the proceduresin ss. 29 to 35 of the Code: Yashcheshen v Law School Admission Council Inc., 2021 SKCA 149 at paras 27-29. In addition, the claimdoes not say what right has been violated and by whom. (

d) Breach of a statute, such as The League of Educational Administrators, Directors and Superintendents Act, 1991 or The EducationAct, 1995, is not a basis for a claim: see the discussion of negligence per se above.

In addition, the claim does not pinpoint acontravention of the cited legislation. [52] The Contributory Negligence Act does not establish a separate cause of action but is concerned withapportionment of damage or loss between two or more responsible individuals. [53] Many of the “orders” requested in the Second Amended Claim are not remedies at all or are not forms of reliefthat a judge of this Court can grant. For example, the court cannot compel admissions or apologies by the defendants. The court alsocannot implement safety protocols or compel defendants to apply new bullying strategies.

Further, while the court can award monetarydamages to a successful plaintiff, the amount of the loss must be proven and must have been caused by the defendants. The plaintiffclaims damages for her business losses, for counselling costs, for costs of her son’s martial arts training, for mental anguish and loss ofenjoyment of life. Given the types of losses alleged, seeking an award of $50 million is so exaggerated that it undermines thereasonableness of the claim as a whole.

Further, by proposing that a portion of this amount would be used to establish a fund to enhancethe lives of those affected by bullying, the claim confirms that the damages are largely non-compensatory. [54] Finally, the Second Amended Claim does not particularize what wrongs were committed by which defendants.Lumping all defendants together does not give any of them sufficient clarity about the claims they have to meet. [55] For all of these reasons, the Second Amended Claim must be struck against all of the defendants on the basisthat it fails to disclose a reasonable cause of action and it is plain and obvious that the claim is bound to fail. [56] In keeping with recent decisions of the Court of Appeal summarized above, I must consider whether the plaintiffshould be given an opportunity to amend the statement of claim.

Accordingly, I will address briefly the other grounds for striking theclaim advanced by many of the defendants. [57] Some defendants submit that the Second Amended Claim is scandalous. I am not persuaded that the pleadingmakes “degrading charges or baseless allegations of misconduct or bad faith against an opposite party”: Siemens at para 23. It has alsobeen argued that the claim is vexatious, but none of the defendants has adduced evidence that the claim was commenced for an ulteriormotive or maliciously.

While the claim seeks remedies that are beyond the power of a judge to grant, as well as an absurd damagesaward, I attribute these mistakes to the fact that the plaintiff is self-represented. Nothing suggests the plaintiff had an improper motive inbringing the claim and it is not plain and obvious to me that the claim is an abuse of the court’s process.

At its core, the claim is about amother’s concern that her son is being bullied at school and not enough is being done about it. [58] I do have no hesitation in finding that the Second Amended Claim contains immaterial and redundantinformation and is unnecessarily lengthy, so much so that I would strike it on that basis as well.

However, if that were the only problemwith the claim, I would give the plaintiff an opportunity to edit it. [59] I will now discuss arguments that apply to subsets of defendants, as those considerations will inform mydecision whether the plaintiff should be given an opportunity to amend the claim. Analysis Specific to Each Defendant Ministry of Education [60] Counsel for the Ministry argues, and I agree, that the statement of claim does not contain any factual allegationsagainst the Ministry or any of its officials.

The claim does not plead that the Ministry owed the plaintiff a duty of care, that the Ministrybreached any applicable standard of care, or that any loss claimed by the plaintiff was caused by acts or omissions of the Ministry. Giventhe absence of material allegations against the Ministry, there is no case for the Ministry to meet and it is plain and obvious that thestatement of claim, in its current form, is bound to fail. [61] The Ministry also relies upon the statutory immunity clause found at s. 369.1 of The Education Act, 1995.

When the Original Claim was issued, s. 369.1 read as follows: 369.1 No action or proceeding lies or shall be commenced against the minister, the Government of Saskatchewan, a person appointed asan official trustee pursuant to clause 4(1.1)(j), or any employee or agent of the Government of Saskatchewan for any loss or damagesuffered by a person by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done oromitted to be done by any of them pursuant to or in the exercise or supposed exercise of any power conferred by this Act or theregulations or in the carrying out or supposed carrying out of any duty imposed by this Act or the regulations. [62] Decisions addressing similar immunity provisions have held that these provisions bar an action unless bad faithis expressly pleaded and sufficient particulars are also pleaded in support of that allegation: see M.R.L.P. at paras 45-49; Yashcheshen v

College of Physicians and Surgeons of Saskatchewan , 2019 SKQB 43 at paras 38-43 . The same considerations apply to s. 369.1 of The Education Act, 1995 . The statement of claim says that the bullying “was not handled in good faith” but does not set out particulars of any bad faith alleged against the Ministry.

For that reason, as well, it is plain and obvious that the plaintiff’s claim as presently drafted has no reasonable chance of success. [ 63 ] The claim was commenced against “Ministry of Education”, although the proper designation of the defendant should be the Government of Saskatchewan: The Proceedings Against the Crown Act, 2019 , SS 2019, c P-27.01 , s 12.

Of course, if that were the only defect with the allegations against the Ministry it could be rectified easily. [ 64 ] The Ministry also submitted that the statement of claim cannot be cured through amendment, arguing that it does not owe any private law duty of care to the plaintiff or to her son related to his attendance at school. I agree with this submission. The Ministry is not involved in the day-to-day operation of schools.

In the circumstances alleged in the Second Amended Claim, a sufficient relationship of proximity does not exist between the plaintiff and her son, on the one hand, and the Government of Saskatchewan, on the other, that warrants imposing liability on the Government for bullying resulting from negligent supervision of students in school: Wilson v Saskatchewan , 2007 SKQB 141 , 295 Sask R 53; Holland . [ 65 ] Consequently, the Second Amended Claim is struck against the Ministry without leave to amend.

Saskatchewan Association of School Business Officials [ 66 ] The Second Amended Claim alleges that SASBO “has duties and responsibilities to the students within their own Enactments” and works in collaboration with the Ministry, “Educational Partners LEADS, SASBO, STF, The Regina Police Service SRO Officer Robert MacLean, and Regina Public School No. 4.” The claim also refers to a “Records Retention and Disposal Guide for Saskatchewan School Divisions” (September 2019) and claims that SASBO, in partnership with the Saskatchewan School Boards Association, assists school divisions in decisions on records retention and disposal. [ 67 ] Apart from naming SASBO as a defendant and making some allegations about its role in the education system, the Second Amended Claim does not set out the particulars of any cause of action against SASBO. [ 68 ] I would also dismiss the claim as against SASBO pursuant to Rule 7-9(2)(

b) of The King’s Bench Rules on the ground that it is frivolous. As explained in the Affidavit of Jaime Valentine, SASBO’s executive director, SASBO is a non-profit corporation that provides educational and networking opportunities to school division business officials who have joined the organization. SASBO members are employees of school divisions in areas such as transportation, facilities, technology, human resources, payroll, communications, finance, and procurement.

SASBO does not provide services to school administrators, such as principals and vice-principals. [ 69 ] SASBO has no regulatory function or responsibility for oversight of its members or school operations. None of the individual defendants named in the Second Amended Claim are directors, employees, or members of SASBO. [ 70 ] I see no basis on which SASBO could be liable to the plaintiff for bullying experienced by her son at school. I conclude that the claim against SASBO is frivolous as it is groundless and lacks substance. Therefore, the claim against SASBO is dismissed without leave to amend.

Saskatchewan Teachers Federation [ 71 ] As with SASBO, the Second Amended Claim describes the STF as having “duties and responsibilities to the students within their own Enactments” and working in collaboration with the Ministry, “Educational Partners LEADS, SASBO, STF, The Regina Police Service SRO Officer Robert MacLean, and Regina Public School No. 4.” According to the claim, the STF is: i. An organization that has a long history of working in partnership with others for the betterment of education and expects to be included in the conversation when educational decisions are made.

They govern teachers in their performance, roles, responsibilities, and educational requirements and supports; and ii. The [STF] has advanced the interests of teachers and advocated for excellence in public education for more than 80 years. [ 72 ] Paragraph 14 of the Second Amended Claim alleges that “All incidents were witnessed by, perpetrated by, and/or reported to” many defendants including the STF.

At pages 21-22, the claim states the defendants “are all bound to or have vested with public interests as Educational Partners relating to students learning, environment, overall wellbeing, safety measures within and this Statement of Claim and case is vested with public interests pursuant to and not limited to:” and then lists numerous statutes including The Teachers’ Federation Act, 2006 , SS 2006, c T-7.1 .

I cannot make sense of this allegation. [ 73 ] The STF asserts that, under its governing statute, The Teachers’ Federation Act, 2006 , it owes no duties or obligations to the plaintiff to ensure the safety and wellbeing of children in schools or to foster a safe learning environment.

The STF refers to its powers, set out at s. 4 of the legislation, and its purposes, which are enumerated at s. 5. [ 74 ] The purposes of the STF are to represent and support teachers, including in collective bargaining; to carry on activities that improve the quality of education; to provide plans and pension plans for the benefit of members or former members; to raise the status of the teaching profession; to promote the interests and influence of teachers; to establish and maintain standards of professional ethics and practice; and so on.

The STF’s legislative mandate does not include a role in the operation of schools, maintenance of school discipline, protection of individual students from bullying, and so on. [ 75 ] In my view, it is also plain and obvious that the claims advanced in the Second Amended Claim are groundless and cannot succeed as against the STF. Therefore, I would also strike the claim as against the STF pursuant to Rule 7-9(2)(

b) because it is frivolous, without leave to amend.

Saskatchewan School Boards Association, Darren McKee, S. Maureen Jickling, Regina Public School Division No. 4, DarrenBoldt, Rick Steciuk, Lisa Frei, Erin Betson, Krista McCaw, Sandra Comaniuk, Jason Shamel, Rosa Haynes, and Keltie Exner [76] This group of defendants has applied to strike the statement of claim on the bases set out in Rule 7-9(2)(a), (b),(c), and (

e) of The King’s Bench Rules. They submit that the claim does not plead the essential elements of a cause of action, but simplyrefers to negligence without more. They submit that the claim contains a compilation of factual allegations without connecting them toany cause of action. They have not filed any evidence in support of the application pursuant to Rule 7-9(2)(b), (c), and (e). [77] The Saskatchewan School Boards Association is described in the Second Amended Claim as a non-profitorganization that ensures advocacy, leadership and support for its member boards of education.

It is not alleged that this association hasany role in school operations. I conclude that the association does not owe a duty of care to the plaintiff or her son, given its role asdescribed. The Second Amended Claim also names the association’s executive director, Darren McKee, and its solicitor, S. Maureen Jickling. I do not see any basis on which the plaintiff could assert a viable cause of action against any of them. The claimagainst these three defendants is frivolous and is struck without leave to amend. [78] The Second Amended Claim also names Regina Public School Division No. 4, which is a misnomer.

A board ofeducation is responsible to administer and manage the educational affairs of the school division, exercises general supervision andcontrol over the schools in the school division, and employs teachers, principals and other assistants for the school within the schooldivision: s. 85 of The Education Act, 1995. The proper corporate defendant would be the Board of Education of the Regina Public SchoolDivision No. 4 [Board]. This error could be corrected. [79] According to the claim, Darren Boldt is the chief executive officer of Regina Public School Division No. 4.

Assuch, he is a “director” as defined at s. 2(1) of The Education Act, 1995 and is responsible to exercise general supervision of the schoolsand the work of principals, teachers, and other personnel employed by the Board: s. 45(2) of The School Division AdministrationRegulations, RRS c E-0.2 Reg 26. However, the Second Amended Claim does not include any factual allegations about Mr. Boldt. [80] Lisa Frei is named as superintendent and Rick Steciuk as superintendent/acting director of student services ofRegina Public School Division No. 4.

Erin Betson is named as principal and Krista McCaw as vice principal of Billy’s school. SandraComaniuk is identified as the “Administrative Assistant who had direct contact with students’ records, absences and first point of contactat the office …” Jason Shamel is named as Billy’s “acting Teacher for Grade 5”.

Rosa Haynes is named as the “acting Specialiste/Art”and Keltie Exner as a “substitute teacher.” The facts alleged in the claim regarding these individuals are summarized above. [81] I must consider whether the plaintiff should be given an opportunity to amend the claim in order to remedy thedeficiencies in the pleading against these defendants. [82] The plaintiff filed a brief of law, which was mostly of little assistance. Many of the court decisions the plaintiffreferred to were inapplicable or are no longer good law: e.g.

Saskatchewan Government Insurance Office v Balogh, (SK KB), [1974] 3 WWR 38 (Sask Dist Ct) (necessity of pleading res ipsa loquitur). However, the plaintiff did cite Ellis v Moose JawPublic School District, (SK CA), [1946] 2 WWR 19 (Sask CA) [Ellis], which involved a negligence claimagainst a school district and a contractor related to injuries suffered by a student during recess. The board of trustees of the schooldivision was found liable because of the principal’s inadequate supervision.

The duty of supervision imposed on school authorities wasfound to include “at least some keeping of order, some stopping of fights, some general protection of the children against dangers that areknown or that are to be apprehended”: Ellis at para 28. [83] The leading Canadian case recognizing an obligation on school authorities to adequately supervise and protectstudents is Myers v Peel County Board of Education, (SCC), [1981] 2 SCR 21. In that case, a 15 year old boy sufferedserious injuries when he dismounted from rings in a gymnastic class, falling and breaking his neck.

The boy’s teacher and the schoolboard were found liable for failing to supervise adequately and to supply adequate protective mats. The Supreme Court held that thestandard of care to be exercised by school authorities in providing for the supervision and protection of students is that of the careful orprudent parent. [84] The law in this area was thoroughly canvassed in Patrick v St. Clair Catholic District School Board, 2013ONSC 4025 at paras 200 and 208-246, a decision after a trial. The plaintiff had suffered a serious brain injury when he was assaulted byanother student in the school yard.

The plaintiff had been the target of bullying at the school.

While the claim against the Board, theprincipal, the vice-principal and two teachers was dismissed by the trial judge, it is apparent from the decision that the claim was notfrivolous. [85] Given the case law and the facts that can be discerned in the Second Amended Claim, it is not plain and obviousthat the plaintiff, as litigation guardian for her son, could not plead a reasonable cause of action for negligent supervision against theBoard and those employees of the Board responsible for direct supervision and for establishing and enforcing standards of supervision atBilly’s school.

This could include the CEO of the Board, the superintendents of the school division (depending upon their areas ofresponsibility), the principal and vice-principal of the school, and Billy’s teacher. Accordingly, I have concluded that the plaintiffshould be given an opportunity to amend her pleading if she wishes to assert a claim for negligence against those parties. [86] However, I have concluded that the claim should be struck against these three defendants without leave toamend: (

a) Rosa Haynes, as the claim discloses no particulars of the two “notable incidents” which involved her. (

b) Keltie Exner, whose only alleged involvement was as a substitute teacher present in the classroom when a student waved a toy gunin Billy’s face. This allegation is frivolous. (

c) Sandra Comaniuk, who is named as an administrative assistant, as I see no basis upon which she could be liable.

[ 87 ] Accordingly, the Second Amended Claim in its current form is struck against all of these defendants. If the plaintiff wishes to assert a claim for negligent supervision against the Board of Education of Regina Public School Division No. 4, CEO Boldt, Superintendents Frei and Steciuk, Principal Betson, Vice-Principal McCaw, and Jason Shamel, Billy’s teacher, she has leave to amend the Second Amended Claim to do so.

Despite the lack of any specific allegations against him in the Second Amended Claim, I have included CEO Boldt in this list because his statutory responsibilities include supervisory oversight of schools, principals, and teachers. [ 88 ] I have reached this conclusion with considerable reluctance, as I have no confidence that the plaintiff will be able to amend the statement of claim so that it conforms with the requirements for pleading set out in The King’s Bench Rules and the common law.

As many of the defendants have noted, the plaintiff has already attempted to amend the statement of claim twice, and it has only become more convoluted.

Corporal Robert MacLean c/o Regina Public School Division No. 4 [ 89 ] According to para. 14 of the Second Amended Claim, Robert MacLean “reports to Regina Police Service who is a partner to Regina Public School Division No. 4 …” Further, the pleading asserts that 12 constables, 2 corporals, and 1 sergeant are assigned to the Regina Public School Division and Regina Catholic School Division to “meet the needs of the school community during the school year: education; investigation; law enforcements; counselling (relative to the law); crime prevention; and community relations in collaboration with educational partners.” Although the Second Amended Claim does not say so expressly, I infer that Robert MacLean is one of the police members assigned to Regina Public School Division No. 4. [ 90 ] Beyond that, Robert MacLean is one of many defendants listed in para. 14 of the Second Amended Claim – the passage alleging that “All incidents were witnessed by, perpetrated by, and/or reported to” many of the defendants. [ 91 ] For the reasons expressed above, the Second Amended Claim is struck against Robert MacLean.

The only remaining issue is whether the plaintiff should have leave to amend the claim against him. [ 92 ] There are two other references to Robert MacLean. On page 20, the plaintiff alleges that she communicated with Mr. MacLean and the school principal about violence committed against Billy by another child. On page 21, the plaintiff alleges that Mr. MacLean failed to attend a meeting at the school board office on November 21, 2022, despite her request that he be present. [ 93 ] These two allegations are insufficient to ground a cause of action. In my view, it is plan and obvious that the claim against Mr.

MacLean is frivolous. Accordingly, the claim against him is struck without leave to amend. Conclusion [ 94 ] For the foregoing reasons, the Second Amended Claim does not disclose a reasonable cause of action against any of the 17 defendants and is struck. [ 95 ] The allegations in the claim are also frivolous and bound to fail against the following defendants: Ministry of Education, Saskatchewan Association of School Business Officials, Saskatchewan Teachers Federation, Saskatchewan School Boards Association, Darren McKee, S. Maureen Jickling, Sandra Comaniuk, Rosa Haynes, Keltie Exner, and Robert MacLean.

Leave to amend the claim is denied in relation to these defendants. [ 96 ] However, given the allegations of fact set out in the Second Amended Claim, a reasonable cause of action could be pleaded against the Board of Education of Regina Public School Division No. 4, the Board’s CEO and superintendents, the school principal and vice-principal, and Billy’s teacher.

Some of these defendants may be able to rely on statutory immunity provisions, but that was not argued and must be left to another day. [ 97 ] The plaintiff shall have 30 days from the date of this decision to serve and file a further amended statement of claim, limited to the defendants listed in the preceding paragraph. The amendments must correct the deficiencies identified in this decision.

If the plaintiff fails to amend the statement of claim within this timeframe, the statement of claim shall stand dismissed. [ 98 ] I encourage the plaintiff to seek legal assistance if she intends to amend the claim. [ 99 ] The Ministry and the Regina Public School Board No. 4 group of defendants advised that they were not seeking costs. SASBO, STF and Mr. MacLean are each awarded costs on column 1. J. P.T. BERGBUSCH