nan REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 23 Date: 2014 01 23 Docket: Q.B.G. 1494 of 2013 Judicial Centre: Regina BETWEEN: TRYSTAN LAWLESS, KAYLEIGH LAWLESS, AYDAN LAWLESS, KENZY LAWLESS AND RYLAN LAWLESS, BY THEIR LITIGATION GUARDIAN KHRISTINA LAWLESS and CONSEIL SCOLAIRE FRANSASKOIS Counsel: Anthony Tibbs for the plaintiffs Roger LePage and Francis Poulin for the defendant DECISION BALL J. January 23, 2014 INTRODUCTION [1] The plaintiffs are the five children of Khristina and Chad Lawless, who reside near Maryfield, Saskatchewan. Although the Lawless family has an English speaking background, from 2010 until 2013 the children attended École de Bellegarde, French language school located approximately 35 km from Maryfield. Their attendance at the school was made possible by provisional permission to attend granted to the family by the defendant. [2] During the children’s time at the school, serious disagreements arose between the school administration and the children’s mother, Khristina Lawless. The disagreements related to whether Khristina and Chad Lawless were living up to the formal commitments they had given to the defendant in return for its provisional permission for the children to attend the school, and whether the school was doing enough to accommodate the eldest child Trystan Lawless’ special educational needs. [3] In February of 2013, the defendant informed the family that the children’s provisional approval to attend École de Bellegarde would not be extended for the 2013-2014 school year. Shortly thereafter Trystan Lawless, as represented by Khristina Lawless, filed complaint with the Saskatchewan Human Rights Commission (the “SHRC”) alleging that the defendant had discriminated against him because he had service dog. [4] In August of 2013, the five Lawless children, as represented by Khristina Lawless, commenced this action against the defendant and then applied for an interlocutory injunction that would order the defendant to grant them ongoing permission to attend École de Bellegarde. On or about September 1, 2013, the five children began attending the English language school in Maryfield. On September 10, 2013, the defendant applied to strike out the statement of claim. [5] The plaintiffs’ application for an interlocutory injunction and the defendant’s application to strike out the plaintiffs’ claim were both heard in Chambers on November 7, 2013. At the conclusion of the hearing the application to dismiss the claim was reserved, while the application for an interlocutory injunction was dismissed with written reasons to follow. This decision provides the court’s reasons for decision on both applications. [6] The defendant is conseil scolaire created by s. 42.1 of The Education Act, 1995, S.S. 1995, c. E-0.2 to exercise general supervision and control over French language instruction programs and fransaskois schools in Saskatchewan. Its duties and responsibilities are outlined in detail in s. 86(b) of The Education Act. Although The Education Act distinguishes between “conseil scolaire fransaskois (or “CSF”) and “conseil ecole fransaskois (or “CÉF”) the parties consistently referred to the defendant as the “CÉF”. will do the same from this point forward. [7] Not all Canadian citizens have the right to have their children educated in French. Sections 23(1) and (2) of the Canadian Charter of Rights and Freedoms (“Charter”) state: 23.(1) Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province. (93) (2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language. [8] It is common ground that Khristina and Chad Lawless did not, and do not, have the right to have their children educated in French pursuant to s. 23 of the Charter. Accordingly, their children could only attend École de Bellegarde if the defendant agreed they could attend pursuant to s. 144 of The Education Act which provides: 144 person who has attained the age of six years but has not yet attained the age of 22 years and whose parent is not minority language adult may attend fransaskois school in any francophone education area that exists or becomes established if the attendance of that person at fransaskois school in the francophone education area is agreed to by: (a) the board of education of the school division where the person would otherwise attend school; and (b) the conseil scolaire. [9] In carrying out its authority under s. 144 of The Education Act, the CÉF has established policy for allowing anglophone parents who choose to forge genuine link with the fransaskois community to have their children to attend fransaskois school. The parents must give 10 commitments to the CÉF, all of which are designed to ensure that the children acquire french language skills and become integrated into the francophone culture and community. In return for those commitments, the children may be granted provisional or permanent permission to attend. If granted provisional permission, the commitments given by the non-rights holder parents are evaluated after 12 months. At that point, the CÉF may admit the children on permanent basis or renew the provisional permission. [10] The five Lawless plaintiffs are: Trystan, now 16 years old; Kayleigh, 12; Aydan, 11; Kenzy, and Rylan, 5. The three eldest children (Trystan, Kayleigh and Aydan) began their education at an English language school in Maryfield. In June of 2009, Trystan was diagnosed as having “Autistic Spectrum Disorder-Asperger’s Type”. Unspecified difficulties then arose between the Lawless parents and the Maryfield school. [11] In January of 2010, Khristina and Chad Lawless applied for and received provisional permission from the CÉF for Trystan, Kayleigh and Aydan to attend École de Bellegarde, which is located approximately 35 kilometres from Maryfield. Kenzy and Rylan were not yet of school age. [12] The provisional approval for the three eldest Lawless children to attend École de Bellegarde for the 2010-2011 school year was subject to the following commitments given by Khristina and Chad Lawless: 1. promote the French language and culture to the child 2. provide the child with access to French teaching resources 3. recognize that French is the language of communication and activities between the Francophone school and the parent or legal guardian 4. allow the child to be evaluated to ensure proper integration into the school curriculum 5. allow the child to attend francisation program if recommended 6. promote the child’s integration into the Francophone community 7. encourage learning of the French language in partnership with the school 8. promote the Francophone environment at the school 9. encourage further studies in French to the end of high school 10. provide my child with the necessary support to the end of high school to help improve his or her language skills in French THE ÉCOLE DE BELLEGARDE EXPERIENCE [13] When they began attending École de Bellegarde, Trystan was in grade 7, Kayleigh in grade and Aydan in grade 2. In June of 2011, the Lawless parents’ 10 commitments were evaluated and the family’s provisional admission was renewed for the 2011-2012 school year, it being understood that in September of 2011, Kenzy Lawless, then age 4, would begin attending kindergarten (maternelle) at the school. However, their provisional admission was subject to the implementation of new rules of communication that required Khristina Lawless to, as first step, communicate directly with school staff members against whom she had complaint. [14] The new rules were put in place because of developing tensions between Khristina Lawless and École de Bellegarde’s administrators. Mrs. Lawless believed that the school had failed to introduce adequate programs and services to address Trystan’s special educational and social needs. School personnel believed that Mrs. Lawless was impossible to satisfy. They believed that she continued to be harshly critical of them in speaking to members of the community, but that she would not raise her concerns with them directly. They had continuing concern that the Lawless parents were ignoring their commitments to participate in the children’s francophone education. [15] In January of 2012, Khristina Lawless informed École de Bellegarde that Trystan had been approved for service dog and that accommodation should be made so that he could have the service dog with him at school. The reaction of school administration was less than satisfactory to Mrs. Lawless. Based on the affidavit evidence, some of her concerns were understandable. Tensions between her and the school administration escalated rapidly. The issues surrounding the service dog, named “Tank”, were compounded by series of events involving Trystan’s erratic behaviour towards other students and staff members. This led to disciplinary measures being imposed by the school which Mrs. Lawless viewed as harsh and unfair. [16] In May of 2012, Robert Lessard, the Assistant Education Superintendent of the CÉF, met with Khristina and Chad Lawless to evaluate their 10 commitments. Following that meeting, Mr. Lessard wrote an extensive report expressing number of concerns. The following excerpts from the report provide flavour of the CÉF’s perspective on the problems, as well as Mr. Lessard’s (RL’s) interpretation: 4. Allow the child to be evaluated to ensure proper integration into the school curriculum. (-) The family applied for service dog for Trystan, without including the school in the process. (-) The family [did] not provide the requested documentation to facilitate the evaluation of this type of request on the school community, and if necessary, to facilitate the integration of the child with guide dog. The family told us that they will give us documentation when they receive it, but told member of the community that it will never provide this information to the school. (-) Working with the family is very difficult. At the beginning of the year, we agreed to meet once per month to prevent misunderstandings. (The family repeated on May 23 that we have met this often). This has not been the case at all. In fact, the family has been too busy all year to come to parent/student interviews and found it difficult to attend emergency meetings. (-) High school teachers have stopped communicating with the family given the family’s refusal to cooperate. (-) The family has systematically been against all of the school’s decisions about setting up plan to make Trystan more autonomous despite consulting with an autism specialist as requested by the family. RL’s interpretation: This is the major issue that affects the family’s chances. For two years, the relationship has been very tense and collaboration with the Fransaskois school is very limited. The family has questioned several of the school’s interventions and plans. The family’s involvement in student success and [sic] strongly questioned. These findings raise questions about the effectiveness of the Fransaskois school in achieving educational success for children. During the May 23 interview, the mother talked about the importance of French in the future of her children (for jobs among other things), but this does not seem to exceed the expectations of parents who enroll their children in French immersion program. 7. Encourage leaning of the French language in partnership with the school. (-) The family does not cooperate with the teachers, language instructor, teaching assistant or administration. Homework is not done, signatures are missing when the language instructor follows up on French language learning, they refuse to speak with the administration when they want to conduct meeting, etc. (-) The parents have never attended parent/teacher meetings (interviews twice per year) for any of their four children. (-) The parents have always had great difficulty in coming to school when necessary (3Pe, meeting because of the suspension of child, meetings to discuss problems, etc.). At the May 23 meeting, they said they came to school once per month, which is false. In addition, they always question the expertise of school staff. [17] Notwithstanding its concerns, the CÉF extended its provisional permission for the Lawless children to attend École de Bellegarde for the 2012-2013 school year, subject to additional commitments from the parents. By the fall of 2012, all five of the Lawless children were attending school at École de Bellegarde, including Rylan, then four years old, who had entered kindergarten (maternelle). [18] The relationship between Mrs. Lawless and the CÉF continued to worsen. On October 30, 2012, Trystan was alleged to have thrown metre stick and dictionary at one student, missing that student but injuring another. Trystan was suspended, reinstated briefly under supervision plan, and then removed from the school again (although not “suspended”) week later because the CÉF felt it was unable to provide him with the supervision he required. Following an assessment, it was concluded that the event seemed to be an isolated one, that the school could carry on by providing “the right support and interventions”, and that there was need “to satisfy Trystan’s engagement to be in school and to learn”. Trystan returned to school on or about November 14, 2012. [19] In January of 2013, the CÉF met again with the Lawless parents to discuss their 10 commitments. Mr. and Mrs. Lawless left part way through the meeting. The CÉF gave them an opportunity to respond to the evaluation in writing, which they did on February 7, 2013. That same day, Trystan was suspended for 10 school days from École de Bellegarde for allegedly threatening to kidnap and kill two other students. [Sentence omitted]. [20] On February 15, Mrs. Lawless appealed Trystan’s suspension to the Vice-Principal of the CÉF in Saskatoon, Frances LaClare, taking the position that Trystan was not responsible for his conduct because of autism and that the school had failed to understand and address his special needs. [21] All of this had profound affect on teachers, parents and other students attending École de Bellegarde. As one example, Brian Magotiaux, teacher at École de Bellegarde and resident of the French speaking hamlet, stated in his affidavit: 15. In February 2012, after the incidents which led to the suspension of Trystan, began to reflect on the situation at the school. was living under considerable stress. thought about my relationship with Trystan and knew that Madam Lawless didn’t like me at all. felt targeted, and this led me to notify the Principal of the school that would have to take stress related leave if Trystan came back to the school and if had to again deal with the Lawlesses. believed at that time that this would be in the best interest of the students of the school because would not be able to offer them quality teaching. [22] As one other example, resident of the community and parent of two children at École de Bellegarde (one of whom had been allegedly assaulted and threatened by Trystan at school), stated in an affidavit: 21. In the event that Trystan would go back to school, we would have to find another school that would not put my daughter’s safety in jeopardy. Being right holder, an education in french is very important to us so this would be big decision because we would miss our community, but in cases like this, we have to do what is best for the safety of our daughter. (Affidavit of [T.R.], sworn September 6, 2013) THE REFUSAL TO EXTEND PERMISSION TO ATTEND [23] On February 12, 2013, the management group of École de Bellegarde made recommendation to Bernard Roy, the Director of Education of the CÉF, recommending against extending permission to the Lawless family to attend the school for the 2013-2014 school year or in the future. On February 15, 2013, Mr. Roy wrote letter to Mr. and Mrs. Lawless informing them that the CÉF had decided not to renew their provisional permission to attend for the 2013-2014 school year. Mr. Roy’s letter stated, in part: ... In accordance with the CÉF admission policy, the principal’s office of Ecole de Bellegarde completed its evaluation and formulated recommendation for me. copy of the recommendation is attached. Based on this recommendation and detailed examination of your records, reached the decision not to renew your provisional permission for admission to the CÉF for 2013-2014. Your children must therefore leave the school permanently at the end of this school year, on June 27, 2013. However, if you wish them to transfer now, we will facilitate this. ... Mr. Roy’s letter went on to state that the CÉF’s decision not to renew provisional permission was based on the Lawless parents’ failure to live up to three of their ten commitments: 1. Their failure to foster the children’s integration into the francophone community; 2. Their failure to encourage learning of the French language in partnership with the school; and 3. Their failure to encourage the children’s learning in French. [24] The letter concluded with the following: More generally, you still do not seem to have understood the mandate of Ecole de Bellegarde. This is not school dedicated to the learning of second language; its mission is to ensure the increasing use of French as first language in the community. Special emphasis is therefore placed on culture, identity development and the sense of community. Our staff have explained to you the obligations associated with these objectives. According to all the information we have, you do not seem to grasp what is required of you in this respect as non-rights holder family. Moreover, it is expected that family that obtains permission for admission would make significant contribution to the development of the francophone community. Unfortunately, the nature of our relationship with your family and the feeble contributions by your family to the Francophone undermine the possibility of fulfilling this requirement for non-rights holder family. For these reasons, your provisional permission for admission will not be renewed for the 2013-2014 school year. [25] On February 25, 2013, CÉF discipline committee suspended Trystan from school. The remaining four Lawless children continued to attend École de Bellegarde for the remainder of the school year. LEGAL PROCEEDINGS [26] On March 11, 2013, the Lawless parents appealed the Director of Education’s decision not to renew the children’s permission to attend École de Bellegarde to the elected board members of the CÉF. Their letter of appeal argued that the decision had been based almost entirely on Trystan’s special needs and the accommodations relating to them, and that it had “nothing whatsoever to do with learning of the French language, adoption of the French cultural [sic] or integration into the French community.” Neither party identified the provisions of The Education Act establishing this right of appeal, or conferring an appellate authority on the elected board members. [27] On or about April 16, 2013, Khristina Lawless, as litigation guardian for Trystan Lawless, filed complaint under s. 27 of The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1 (the “Code”) with the Saskatchewan Human Rights Commission (the “SHRC”). The complaint stated: ... Trystan is student that has endured, and continues to endure, differential treatment because of his disability. As student at Ecole de Bellegarde, he is treated differently because he has service dog (Autism Assistance Dog) named “Tank”. School officials will not allow Tank full access in the school. They say Tank cannot fully have access to the school premises as some people may have dog related allergies. Trystan is now exempt from certain class activities and certain classrooms. Often, he is segregated from his fellow students. Ecole de Bellegarde is aware that Trystan needs to have Tank with him at all times, but they will not accommodate his medical need. Ecole de Bellegarde has failed, and continues to fail, to provide an educational environment free from discrimination, and discriminatory harassment, which caused stress, fear and isolation. ... By letter dated May 13, 2013, the SHRC informed École de Bellegarde that the complaint had been filed, and asked for response [28] The Lawless parents’ appeal to the CÉF’s elected board members was heard in Saskatoon on June 21, 2013. By letter dated June 27, 2013, the president of the CÉF informed the Lawless parents that their request for permission for admission was rejected. The letter stated, in part: The CSF concluded that continuing the admission of the Lawless family at École de Bellegarde would run counter to its admission policy and the purpose of French first language school. The Lawless family has had ample time to integrate into the Fransaskois community of Bellegarde and to meet the 10 commitments it made during registration on January 25, 2010. Despite all the support given to the Lawless family and the many meetings to describe the difficulties that arose, the CSF noted that the Lawless family was unable to meet their commitments. It is therefore in the best interest of the Bellegarde community and École de Bellegarde to refuse continued access to the Lawless family. In addition, the CSF is convinced that it is not in the best interest of the students to continue to attend the school because support for their success does not exist in this case. [29] Since then, the position taken by Khristina Lawless on behalf of the plaintiffs has essentially been that but for the CÉF’s discrimination against Trystan and his service dog “Tank”, all of the plaintiffs would have been granted provisional permission to attend École de Bellegarde for the 2013-2014 school year. She asserts that the CÉF’s ostensible concern about the Lawless family’s failure to live up to their commitments was not the real reason for its decision not to renew the children’s provisional permission to attend. The CÉF’s position has been that its decision was based entirely on the continuing failure of Khristina and Chad Lawless to honour their commitments. Neither party openly attributes the decision to the fact that the acrimonious relationship between Khristina and Trystan Lawless, on the one hand, and the teachers, administrators and other pupils at École de Bellegarde, on the other, had made productive communication between them impossible. I. THE APPLICATION TO STRIKE THE PLAINTIFFS’ CLAIM [30] will consider the CÉF’s application to strike out the plaintiffs’ claims before turning to the plaintiffs’ application for an interlocutory injunction. will do so on the basis that if there is no viable claim, there may be no juridical foundation for an injunction. As first step, will review the plaintiffs’ claims. will then summarize the submissions of the parties and review the applicable law. At that point, will analyze the viability of each claim. After dealing with the CÉF’s application to strike the claims, explain why the plaintiffs were unsuccessful in their application for an interlocutory injunction. i. The Plaintiff’s Claims [31] My assessment of the plaintiffs’ statement of claim is that it advances four basic claims: 1. That the CÉF’s decision to not grant Trystan Lawless permanent admission to École de Bellegarde discriminated against him “as person with disability” contrary to ss. 12(1) and 13(1) of the Code, with the four Lawless children “effectively collateral damage of the attack on Trystan”; 2. That the CÉF contravened ss. 23.2(1) of The Animal Protection Act, 1999, S.S. 1999, c. A-21.1 “by unlawfully interfering with the work of service animal”; 3. That the CÉF negligently allowed other students to interact with Tank so as to compromise his ability to act as service dog; 4. That the CÉF “intentionally inflicted emotional and mental suffering on Trystan Lawless. [32] Based on the above allegations, the plaintiffs seek the remedies set out in para. 135 of the statement of claim, which are: 135. ... a) declaration that the Defendant, or its agents, employees, servants and other representatives, has discriminated against Trystan Lawless (and collaterally, his siblings) on the basis of his disability in contravention of ss. 12(1) and 13(1) of The Saskatchewan Human Rights Code and s.s. 23.2(1) of The Animal Protection Act, 1999, S.S. 1999, c. A-21.1 by, inter alia: i) interfering with his use of service animal; ii) failing to accommodate his educational needs; iii) engaging in harassing and intimidating behaviour; and, iv) unlawfully imposing disciplinary sanctions including but not limited to extended suspensions; b) declaration that the Defendant, or its agents, employees, servants and other representatives, has unreasonably withheld “permission to attend” as contemplated by s. 144 of The Education Act, because of an unwillingness to accommodate his intensive learning needs; c) an injunction pursuant to s. 38(3) of The Saskatchewan Human Rights Code precluding the Defendant from interfering with or restricting in any manner Trystan’s use of service animal; d) an injunction pursuant to s. 38(3) of The Saskatchewan Human Rights Code precluding the Defendant from excluding the Plaintiffs from Ecole de Bellegarde through the unlawful exercise of its discretion pursuant to s. 144 of The Education Act; e) an injunction pursuant to s. 38(3) of The Saskatchewan Human Rights Code precluding the Defendant from depriving the Plaintiff of necessary educational supports and accommodations on the basis of their only being available in French; f) special damages for out-of-pocket expenses incurred in connection with these matters including, but not limited to, legal expenses, travel expenses, the cost of training and re-training of the service dog, notwithstanding compensation that might otherwise be available to the Plaintiff pursuant to s. 23.3(2) of The Animal Protection Act; g) general damages; h) pre-judgment interest; and ii. The Submissions of the Parties [33] The CÉF advances two arguments in support of its application to strike the plaintiffs’ claims. The first is that the plaintiffs’ claim should be struck under Rule 7-9 (2) (e) of The Queen’s Bench Rules as an abuse of process because (i) the plaintiffs never applied for judicial review to set aside the appeal decision rendered by the elected directors of the CÉF, and (ii) Trystan Lawless’ complaint under the Code remains pending before the SHRC. The CÉF’s second argument is that s. 23 of the Charter gives it an exclusive and unfettered authority to decide whether it will admit any non-rights holders to attend fransaskois school in Saskatchewan, and neither this Court nor the SHRC may inquire into its reasons or interfere with the exercise of its discretion. [34] Counsel for the CÉF made no attempt to relate these two basic arguments to the particular claims set out in the statement of claim. For example, he did not explain how the arguments might assist the CÉF with respect to the claims that it “intentionally inflicted mental and emotional suffering” on Trystan Lawless, or that it “harassed and intimidated” him, or that it negligently compromised Tank’s ability to act as service dog. Those claims were not made to the elected directors of the CÉF or to the SHRC under the Code. They are not based on an alleged breach of the Code. [35] The plaintiffs argue that none of their claims should be struck because it is not “plain and obvious” the facts as pled do not support reasonable cause of action. Counsel for the plaintiffs candidly acknowledges that they commenced this action, not because they intend to pursue it to trial, but because it would provide foundation for their application for mandatory injunction requiring the CÉF to admit them to École de Bellegarde. iii. Striking Claims: The Law [36] Rule 7-9 of The Queen’s Bench Rules (formerly Rule 173) states: 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 pleading or other document be struck out; (b) that pleading or other document be amended or set aside; (c) that 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; ... (e) is otherwise an abuse of process of the Court. (3) No evidence is admissible on an application pursuant to clause (2)(a). [37] The legal test for striking out pleading on the basis that it discloses no reasonable claim was developed by the Supreme Court of Canada in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] S.C.R. 959, 74 D.L.R. (4th) 321. The court’s jurisdiction to strike out claim under Rule 7-9 (2)(a) is limited: assuming that the facts as stated in the pleading can be proved, it must be “plain and obvious” that it discloses no reasonable claim. If there is chance the claim might succeed, the plaintiff should not be prevented from proceeding. [38] In Collins v. McMahon, 2002 SKQB 201 (CanLII), [2002] S.J. No. 318 (QL), Gunn J. summarized the principles as follows at para. 11 The principles which apply to an application to strike 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 of success. (Sagon v. Royal Bank of Canada et al. (1992), 1992 CanLII 8287 (SK CA), 105 Sask.R. 133 at 140 (C.A.)); (ii) The jurisdiction to strike claim should only be exercised in plain and obvious cases where the matter is beyond doubt. (Sagon, at 140; Milgaard v. Kujawa et al. (1994), 1994 CanLII 4592 (SK CA), 123 Sask.R. 164 (Sask. C.A.)); (iii) The court may consider only the claim, particulars furnished pursuant to demand and any document referred to in the claim upon which the plaintiff must rely to establish its case (Sagon, at p. 140); (iv) The court can strike all, or portion of the claim (Rule 173); (v) The plaintiff must state sufficient facts to establish the requisite legal elements for cause of action. (Sandy Ridge Sawing Ltd. v. Norrish and Carson (1996), 1996 CanLII 7126 (SK QB), 140 Sask.R. 146 (Q.B.)). This summary was adopted by the Saskatchewan Court of Appeal in Saskatchewan Power Corp. v. Swift Current (City), 2007 SKCA 27 (CanLII), 293 Sask. R. 6. [39] In Sagon v. Royal Bank of Canada, (1992) 1992 CanLII 8287 (SK CA), 105 Sask. R. 133, [1992] S. J. No. 197 (QL)(Sask. C.A.), Sherstobitoff J.A. differentiated between striking pleadings on the basis that they disclose no reasonable claim and striking out pleadings on the basis that they are an abuse of process of the court. In relation to the former, he stated at para. 16 In determining whether claim should be struck as disclosing no reasonable cause of action, the test is whether, assuming the plaintiff proves everything alleged in his claim, there is nevertheless no reasonable chance of success, or to put it another way, no arguable case. The court should exercise its jurisdiction to strike on this ground only in plain and obvious cases and where the court is satisfied that the case is beyond doubt: Marshall v. Saskatchewan, Government of, Petz and Adams (1983), 1982 CanLII 2387 (SK CA), 20 Sask. R. 309 (C.A.); The Attorney General of Canada v. Inuit Tapirisat, 1980 CanLII 21 (SCC), [1980] S.C.R. 735. The court may consider only the statement of claim, any particulars furnished pursuant to demand, and any document referred to in the claim upon which the plaintiff must rely to establish his case: Balacko v. Eaton's of Canada Limited (1967), 1967 CanLII 369 (SK QB), 60 W.W.R. 22 (Sask. Q.B.); Lackmanec v. Hoffman (1982), 1982 CanLII 2585 (SK CA), 15 Sask. R. (C.A.). And in relation to the latter, he stated at para. 18: 18 Striking out an entire claim on the ground that it is frivolous, vexatious or an abuse of process of the court is based on an entirely different footing. Instead of considering merely the adequacy of the pleadings to support reasonable cause of action, it may involve an assessment of the merits of the claim, and the motives of the plaintiff in bringing it. Evidence other than the pleadings is admissible. Success on such an application will normally result in dismissal of the action, with the result that the rule of res judicata will likely apply to any subsequent efforts to bring new actions based on the same facts. Odgers on Pleadings and Practice, 20th ed. says at pp. 153‑4: If, in all the circumstances of the case, it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed, an order may be made. But it is jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. Its exercise would not be justified merely because the story told in the pleadings is highly improbable, and one which it is difficult to believe could be proved. [footnotes omitted] [40] The submissions made by counsel on both sides were general in nature. They did not focus on the specific claims advanced by the plaintiffs, nor offer guidance on whether those claims disclose reasonable cause of action or amount to an abuse of process. The claims have been summarized at para. 31 above. will do what can to relate the general submissions of counsel to each of those claims. First Claim [41] The plaintiffs’ first claim is that the CÉF’s decision not to grant Trystan Lawless permanent permission to attend École de Bellegarde “discriminated against him as person with disability” and that the other Lawless children were “effectively collateral damage of the attack on Trystan”. They seek two remedies arising from their claim. One, at para. 135(a) of the statement of claim, is declaration that the CÉF “discriminated against Trystan Lawless (and collaterally, his siblings) on the basis of his disability in contravention of ss. 12(1) and 13(1) of the [Code].” The other, at para. 135(d) of the statement of claim, is an injunction precluding the CÉF “... from excluding the plaintiffs from École de Bellegarde through the unlawful exercise of its discretion pursuant to s. 144 of [The Education Act].” [42] Section 12(1)(b) of the Code states: 12(1) No person, directly or indirectly, alone or with another, or by the interposition of another shall, on the basis of prohibited ground: ... (b) discriminate against any person or class of persons with respect to the accommodation, services or facilities to which the public is customarily admitted or that are offered to the public. [43] Section 13(1) of the Code states: 13(1) Every person and every class of persons shall enjoy the right to education in any school, college, university or other institution or place of learning, vocational training or apprenticeship without discrimination on the basis of prohibited ground other than age. [44] The CÉF’s first argument in response to this claim is that it should be struck as an abuse of process because the plaintiffs (i) are estopped from re-litigating the same claim as the one already dismissed by way of appeal to the CÉF’s elected board of directors; and/or (ii) cannot pursue essentially the same claim in more than one forum that is, pursue complaint to the SHRC under the Code, and pursue the same claim at the same time by way of civil proceeding in court. (i) The Appeal to the CÉF: Issue Estoppel [45] The CÉF argues that the plaintiffs are estopped from pursuing their claim of discrimination because the same claim has already been rejected by the CÉF’s elected board members. In support of that argument, counsel for the CÉF cites the recent decisions of the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (CanLII), 356 D.L.R. (4th) 595; and British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (CanLII), [2011] S.C.R. 422. [46] In Figliola, Human Rights Tribunal exercised its statutory discretion to dismiss complaint that had been appropriately dealt with elsewhere. In Penner, civil law suit was allowed to proceed against police officers who had earlier been exonerated in police disciplinary proceedings. [47] Penner is the more recent of the two decisions. In that case, the majority of the court applied the traditional concept of issue estoppel i.e. doctrine designed to prevent the re-litigation of (1) the same question, (2) which has been decided by final judicial decision, and (3) involving the same parties or those who stand in their place subject always to the court’s overriding discretion not to apply the doctrine where it would be unfair or result in an injustice. The majority in Penner made it clear that issue estoppel applies not only to multiple court proceedings, but also to multiple administrative proceedings. Equally important, the majority emphasized the importance of adhering to the Legislature’s choice of an administrative body to deal with the issues so as to prevent them from being re-litigated again in another forum. [48] The CÉF argues that because its elected board of directors rejected Trystan Lawless’ appeal of his complaint that he was discriminated against in violation of ss. 12(1) and 13(1) of the Code, and because that decision was never set aside by way of judicial review, the doctrine of issue estoppel precludes him from “relitigating” the issue in court. [49] In my view, that argument is untenable. Counsel for the CÉF did not identify any provisions in The Education Act empowering the elected members of the CÉF to sit in final appeal on any complaint, must less one that the CÉF had itself violated the provisions of the Code. [50] Moreover, in Penner the Supreme Court of Canada made it clear (at paras. 66-68) that the identity of the decision maker in the previous proceeding may make it unfair to preclude subsequent proceeding: 66 Applying issue estoppel against the complainant here had the effect of permitting the Chief of Police to become the judge of his own case, with the result that his designate's decision had the effect of exonerating the Chief and his police service from civil liability. In our view, applying issue estoppel here is serious affront to basic principles of fairness. 67 We emphasize that this unfairness does not reside in the Chief of Police carrying out his statutory duties. The parties accept that, given the statutory framework, there is no objection on fairness grounds to the role of the Chief and there is certainly no suggestion that he failed in any way to carry out his statutory duties. Further, no obvious unfairness arises if the disciplinary decision finds police misconduct, as this is decision against the interests of the Chief or the Police Services Board. The unfairness that concerns us only arises at the point that the Chief's (or his designate's) decision that there was no police misconduct in disciplinary context is used for the quite different purpose of exonerating him, by means of issue estoppel, from civil liability relating to the same matter. 68 Had the Court of Appeal been given the opportunity to fully consider the importance of these points, our view is that it would have seen that applying issue estoppel against the appellant in the circumstances of this case was fundamentally unfair. [51] conclude that it would be fundamentally unfair to find that the plaintiffs are estopped from pursuing their civil claim against the CÉF, simply because the CÉF has itself decided that it is not liable for the claim. (ii) The Complaint to the SHRC: Abuse of Process [52] The CEF argues that the plaintiffs’ claim for declaration that the CÉF violated ss. 12(1) and 13(1) of the Code should be struck as an abuse of process because it duplicates the plaintiffs’ complaint to the SHRC under the Code. will state my conclusion now: although do not agree that the claim should be struck, do accept that it should be stayed. The reason is that although recently enacted provisions of the Code confer jurisdiction on the court to deal with complaints of this kind, that jurisdiction is only engaged after the processes mandated by the Code have first been complied with. [53] will explain why have reached that conclusion. In Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] S.C.R. 181, 124 D.L.R. (3d) 193, the Supreme Court of Canada held that The Ontario Human Rights Code, R.S.O. 1970, c. 318 (the “Ontario Code”) implicitly foreclosed the creation of common law action for discrimination, and that claims for unlawful discrimination must be pursued exclusively under the Ontario Code. That decision has never been overruled. Since Seneca College, it has generally been accepted that common law actions are not available to address discrimination on prohibited grounds such as disability. See: Allen M. Linden Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham, ON: Butterworths, 2011) at p. 65. [54] The proposition that the only way to enforce the provisions of the Code is to follow the process set out in the Code itself has been consistently applied by courts in Saskatchewan. See: Battlefords and District Co-operative Ltd. v. Gibbs and Human Rights Commission (Sask.), (1994) 1994 CanLII 4550 (SK CA), 120 Sask. R. 166; 116 D.L.R. (4th) 109 (Sask. C.A.) per Jackson J.A., at para. 48; Yorkton Union Hospital v. Saskatchewan Union of Nurses, 1993 CanLII 6637 (SK CA), [1993] W.W.R. 129, 109 Sask 198 (Sask. C.A.) per Sherstobitoff J.A. at para. 76; Ingold v. Rural Municipality of Wheatlands No. 163, 2004 SKQB 178 (CanLII), 251 Sask.R. 75 per Matheson J. at para. 44. In Cadillac Fairview Corp. v. Saskatchewan (Board of Inquiry), 1999 CanLII 12358 (SK CA), [1999] W.W.R. 517, 177 Sask. R. 126 (Sask. C.A.), Vancise J.A. stated at para. 32 ... It has long been established that human rights codes foreclose any cause of action at common law for violation of the fundamental principles which are guaranteed by the Code and that the only method of enforcement of the substantive rights based upon breach of the provisions of the Code is the complaint procedure section in the Code itself. Any action in the courts based on public policy was also foreclosed. [55] Since there can be no action at common law to address alleged violations of the Code, the court’s jurisdiction must be found created by statute, i.e. by the Code itself. Recently enacted provisions of the Code state that the court’s authority to hear and determine the underlying issues raised by complaint to the SHRC arise upon an application for hearing to be made by the SHRC’s Chief Commissioner pursuant to s. 29.6 of the Code. [56] The relevant provisions are as follows. Section 28(1) of the Code provides: 28(1) Where complaint is filed with or initiated by the commission, the Chief Commissioner shall, subject to subsection 27(5) and section 27.1, do one or more of the following: (a) attempt to resolve the complaint by mediation between the parties; (b) attempt to negotiate settlement of the complaint; (c) investigate the complaint; (d) continue an investigation of the complaint after an unsuccessful attempt to mediate or settle the matter. While s. 29.6(1) of the Code states: 29.6(1) At any time after complaint is filed or initiated pursuant to section 27, the Chief Commissioner may apply to the court for hearing of the complaint at the judicial centre nearest to the place where the subject‑matter of the complaint arose. (2) If the Chief Commissioner applies for hearing pursuant to subsection (1), the Chief Commissioner shall serve the person against whom the complaint was made with copy of the application. And, ss. 29.7(1), (2) and (3) state: 29.7(1) Subject to subsection (2), on the receipt of an application for hearing pursuant to subsection 29.6(1), the court shall fix date, time and place for the hearing. (2) Before setting hearing date, the court may direct the parties to participate in pre‑hearing conference. (3) Except where modified by this Act, The Queen’s Bench Rules apply to hearing pursuant to this section. [57] These provisions demonstrate the legislature’s intention that complaints of discrimination under the Code are to be made in the first instance to the SHRC, with the court’s jurisdiction arising after the complaint has been investigated by the SHRC and there has been an attempt to mediate or settle the matter. [58] In summary, by conferring authority on the court to hear complaints alleging violations of the Code, while at the same time requiring those complaints to be made in the first instance to the SHRC, the Legislature has provided the court with statutory authority to do what Seneca College determined it could not do at common law. That said, the court’s jurisdiction is not an alternative to, nor substitute for, the process set out in the Code for addressing those complaints. To put it another way, it does not allow those who would prefer to circumvent the entire process mandated by the Code to do so by commencing an action by statement of claim in court. [59] The plaintiffs submit that the court is authorized to grant the declarations they seek by ss. 38(3) and (3.1) of the Code, which state: (3) The commission or any person may, by statement of claim, commence an action in the court against any person for an injunction to restrain the person: (a) from depriving, abridging or otherwise restricting or attempting to deprive, abridge or restrict person or class of persons in the enjoyment of right pursuant to this Act or any other Act administered by the commission; or (b) from contravening or attempting to contravene any provision of this Act or any other Act administered by the commission. {emphasis added) (3.1) In an action pursuant to subsection (3), the judge may make any order that the judge considers fit. (Emphasis added) [60] In my view, Section 38(3) of the Code is not intended to confer an original jurisdiction on the court to hear and determine underlying issues in human rights complaints as an alternative to, or in manner that would bypass, the Code’s other provisions for initiating, investigating and attempting to settle those complaints. Until those processes are followed and an application to the court is made pursuant to s. 26.9 of the Code, the court’s jurisdiction does not arise. In the interim, s. 38(3) of the Code confines the court’s jurisdiction to granting injunctive relief in appropriate circumstances. [61] will add what may be self-evident. An applicant seeking injunctive relief under s. 38(3) of the Code must satisfy the established criteria for the granting of that relief. One of those criteria involves preliminary assessment of the merits to determine if there is serious issue to be tried. There are, of course, other criteria. In this case, for the reasons to be given in moment, the plaintiffs did not meet those criteria. [62] turn now to the plaintiffs’ claim that Kayleigh, Aydan, Kenzy, and Rylan Lawless are “effectively collateral damage of the attack on Trystan” claim that is also connected to the request (at para. 135(b) of the statement of claim) for declaration that the CÉF unreasonably withheld its “permission to attend” under s. 144 of The Education Act. In my view, that claim cannot succeed unless Trystan Lawless establishes that his rights under ss. 12(1) and 13(1) of the Code were violated. [63] Counsel for the CÉF, Mr. Lepage, advances the general argument that these claims should be struck because the CÉF has complete and unfettered discretion to grant or deny any non-rights holder permission to attend French language school under s. 144 of The Education Act, and further, that the manner in which it exercises its discretion is not reviewable by court or administrative body. He argues that the CÉF’s discretion to grant or withhold permission for non-rights holders to attend the Fransaskois school system is not subject to review because it is derived from The Minority Language Educational Rights set forth in s. 23 of the Charter. [64] As stated by Mr. Lepage in his written submission: 39. The CEF therefore submits to this Court that there is no cause of action relating to the admission of non-rights holders because even if the Court or the Commission finds that there is discrimination under the Code, the remedies claimed by the Plaintiffs are not available to them. All the more so because this Court or the Commission do not have the authority to order the admission of non-rights holders to the Fransaskois school system. [65] accept that s. 144 of The Education Act confers broad discretion on the CÉF to decide whether child of non-rights holder will be granted permission to attend school in the Fransaskois school system. also accept that the CÉF’s authority is rooted in s. 23 of the Charter. But, do not accept that the CÉF may exercise its discretion under s. 144 of The Education Act in manner that infringes upon other protected fundamental rights and freedoms. [66] Section 15 of the Charter states: 15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [67] Certain provisions of The Education Act and the Code are rooted in s. 15 of the Charter. This includes s. 178 of The Education Act, which obligates boards of education and conseils scolaire to provide educational services to pupils consistent with the pupil’s intensive needs. It also includes s. 13 of the Code (see para. 44 above) which confers right to an education on any person without discrimination on prohibited ground other than age. Subsections (m.01), (d.1) and (i.1) of the Code collectively make it clear that “prohibited ground” includes any degree of physical, mental or intellectual disability or impairment. [68] Having regard to all of these provisions, reject the argument that the CÉF has an unfettered discretion to deny admission to students under s. 144 of The Education Act for whatever reason it chooses if those reasons infringe upon disabled student’s Charter protected rights and the CÉF’s own obligations under The Education Act and the Code. also reject the argument the CÉF is exempt from judicial and/or SHRC oversight in its obligations to comply with the requirements of the Charter, the Code and The Education Act. [69] That said, conclude that the claim being advanced by Kayleigh, Ayden, Kenzy and Rylan Lawless cannot proceed independently from the claim being advanced by Trystan Lawless for declaration this his rights under the Code were violated. The allegation that the four children were “collateral damage”, while not clarified in the statement of claim, appears to mean that the remedy they seek is derived from, and depends for its success upon, the granting of that declaration. Since Trystan Lawless’ claim for declaration must be stayed, it follows that the four children’s claim of “collateral damage” must be stayed as well. [70] What is the end result of this analysis? To summarize: (1) the underlying issues raised by the plaintiffs’ claim for declaration determining that their rights under ss. 12(1) and 13(1) of the Code were violated are complaints that must be addressed by following the processes set out in the Code itself; (2) the court’s jurisdiction to hear and determine those issues must be conferred upon it by statute; (3) the Code confers jurisdiction on the court to hear complaint following an application by the Chief Commissioner pursuant to s. 26.9(2) of the Code; and (4) until that application is made, the plaintiffs’ claim for declaration must be stayed, with the court’s jurisdiction confined to granting injunctive relief under s. 38(3) of the Code. [71] For all of the above reasons, the plaintiffs’ claims for a declaration that the CÉF violated ss. 12(1) and 13(1) of the Code will be stayed on the basis that the underlying issues may only be heard by the court upon an application by the Chief Commissioner of the SHRC pursuant to s. 29.6 of the Code. Second Claim [72] The plaintiffs’ second claim is that the CÉF interfered with the work of Trystan Lawless’ service dog Tank. They seek a declaration that the CÉF contravened s. 23.2(1) of The Animal Protection Act, 1999, by interfering with the use of a service animal. The essence of their claim is that if the CÉF were to be charged and convicted of the offence set out in ss. 23.2(1), it would be liable to compensate the plaintiffs for the loss of the service dog. The claim will be struck for the reasons set out below. [73] Sections 23.2 and 23.3 of The Animal Protection Act, 1999 provide: 23.2(1) No person shall harm, attempt to harm, touch, feed, impede or interfere with service animal without lawful excuse or authority. (2) No person responsible for an animal shall allow that animal to harm, attempt to harm, touch, impede or interfere with service animal without lawful excuse or authority. 23.3(1) person who contravenes section 23.2 is guilty of an offence and liable on summary conviction to fine of not more than $25,000, to imprisonment for not more than two years or to both. (2) In addition to any penalty imposed pursuant to subsection (1), the court may order the convicted person to pay compensation to the person responsible for the service animal for loss or damage suffered as consequence of the commission of the offence, in an amount that the court may determine. (3) The person to whom compensation is payable pursuant to subsection (2) may file certified copy of the order in the office of the local registrar of the Court of Queen’s Bench at the judicial centre nearest to the place where the person resides. (4) certified copy filed pursuant to subsection (3) has the same force and effect as if it were judgment obtained in the Court of Queen’s Bench for the recovery of debt in the amount specified in the order, together with any reasonable costs and charges with respect to its filing. [74] Subsection 23.2(1) of The Animal Protection Act, 1999 enacts summary conviction offence to be tried in Provincial Court. Even though the CÉF has never been charged, much less convicted, of that offence, the plaintiffs seek declaration that it is guilty. That declaration would presumably be based on the civil standard of proof by balance of probabilities, while if the CÉF has been charged, the standard would be proof beyond reasonable doubt. The plaintiffs cannot circumvent the provisions of The Animal Protection Act, 1999, nor eliminate the CÉF’s right to be charged and tried in Provincial Court, through the expediency of claiming declaration in civil action. The claim will be struck pursuant to Queen’s Bench Rules 7-9 (2)(a) and (e). Third Claim [75] The plaintiffs’ claim that the CÉF negligently allowed other students to interact with Tank so as to compromise his ability to act as service dog. They seek unspecified special damages for out-of-pocket expenses incurred, notwithstanding that compensation might otherwise be payable pursuant to s. 23.3(2) of The Animal Protection Act, 1999. [76] Nothing in the submissions by counsel for the CÉF mention or, as far as can determine, relate to this claim. Assuming the facts as plead are true, the claim is viable one. It is based on the common law tort of negligence. It seeks damages caused by that negligence. It does not duplicate any claim made to the SHRC under the Code, nor is it conditional on provincial court determination that the CÉF is guilty of an offence under ss. 23.2(1) of The Animal Protection Act, 1999. For these reasons, the claim will not be struck pursuant to Rules 7-9 (2) (a) or (e) of The Queen’s Bench Rules. Fourth Claim [77] The plaintiffs’ claim that the CÉF “intentionally inflicted emotional and mental suffering on Trystan Lawless”. Although the claim is not well drafted, the allegation would appear to be connected to the plaintiffs’ request for declaration that the CÉF discriminated against him by “engaging in harassing and intimidating behavior” and “unlawfully imposing disciplinary sanctions including but not limited to extended suspensions”. It also appears to be connected to the plaintiffs’ claim for general damages. [78] The above claim appears to be based on the long recognized tort of intentional infliction of mental suffering. The key requirements for establishing that tort are (1) flagrant conduct; (2) calculated to produce harm; and (3) resulting in visible and provable harm (See: G.H.L. Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Carswell, 2010) at p. 69; Canadian Tort Law, supra, at p. 55 and cases cited therein). [79] Counsel for the CÉF did not advance any reasons why this claim should be struck. Accepting the facts as plead, it is not sufficiently plain and obvious that it cannot succeed. It is substantively different from the plaintiffs’ claim of discrimination by reason of disability under the Code. Accordingly it will not be struck pursuant to either Rule 7-9 (2) (a) or 7-9 (2) (e). If it chooses to do so, the CÉF may apply for summary judgment in respect of this claim pursuant to Rule 7-2 of The Queen’s Bench Rules. II. THE APPLICATION FOR AN INTERLOCUTORY INJUNCTION [80] The plaintiffs applied for an interlocutory injunction that, had it been granted, would have required the CÉF to permit the plaintiffs to attend École de Bellegarde until further order of this Court. Before explaining my specific reasons for dismissing that application, will summarize the submissions of the parties and review the law as it relates to the granting of interlocutory injunctive relief. (i) The Submissions of the Parties [81] Counsel for the Lawless family submitted that the facts as pled in the statement of claim disclose serious issue to be tried. He argued that unless the court issued an interlocutory injunction requiring the CÉF to admit the Lawless children to École de Bellegarde, they would suffer irreparable harm because they would be deprived of an opportunity to learn in French language only environment. On the issue of balance of convenience, he argued that requiring the CÉF to re-establish the services necessary to educate the Lawless children would amount to nothing more than the “preliminary inconvenience of operating publicly funded education system.” [82] Counsel for CÉF submitted that the plaintiffs had not satisfied any of the requirements for the granting of an interlocutory injunction which are (i) that there is serious issue to be tried; (ii) that they will suffer irreparable harm if the injunction is not granted; and (iii) that the balance of convenience weighs in favor of granting the order. [83] The court’s authority to grant an interlocutory injunction is found in s. 65 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 which states: 65(1) judge may, on an interlocutory application, grant mandamus or an injunction or appoint receiver where it appears to the judge to be appropriate or convenient that the order should be made. (2) An order pursuant to subsection (1) may be made unconditionally or on any terms and conditions that the judge considers appropriate. (3) If an injunction is sought, whether before, at or after the hearing of an action or matter, to prevent any threatened or apprehended waste or trespass, judge may grant the injunction: (a) whether the person against whom the injunction is sought: (i) is or is not in possession under any claim of title or otherwise; or (ii) if not in possession, does or does not claim right to do the act sought to be restrained under any colour of title; and (b) whether the estates claimed by any of the parties are legal or equitable. [84] In RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] S.C.R. 311, 111 D.L.R. (4th) 385, the Supreme Court of Canada dealt with the approach to be taken in granting an interlocutory injunction, stating at p. 334 (h-i): ...First, preliminary assessment must be made of the merits of the case to ensure that there is serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending decision on the merits. [85] In Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership, 2011 SKCA 120 (CanLII), 377 Sask.R. 78, the Saskatchewan Court of Appeal dealt with these requirements by stating at para. 113 In the interest of clarity, it may be useful to recapitulate the basic points which have been developed in the course of these reasons and to summarize the approach judge should typically take when deciding whether to grant interlocutory injunctive relief. This can be done as follows: (a) The judge should normally begin with preliminary consideration of the strength of the plaintiff's case. The general rule in this regard is that the plaintiff must demonstrate serious issue to be tried, i.e. the plaintiff must have claim which is not frivolous or vexatious. If the plaintiff raises serious issue to be tried, it is necessary for the judge to turn to the matters of irreparable harm and balance of convenience. (b) Irreparable harm is best seen as an aspect of the balance of convenience. The general rule here is that the plaintiff must establish at least meaningful doubt as to whether the loss he or she might suffer before trial if an injunction is not granted can be compensated for, or adequately compensated for, in damages. Put another way, the plaintiff must demonstrate meaningful risk of irreparable harm. If this is done, the analysis turns to the balance of convenience proper. (c) The assessment of the balance of convenience is usually the core of the analysis. In this regard, the relative strength of the plaintiff's case, the relative likelihood of irreparable harm, and the likely amount and nature of such harm will typically all be relevant considerations. Depending on the particulars of the case, strength in relation to one of these matters might compensate for weakness in another. Centrally, the judge must weigh the risk of the irreparable harm the plaintiff is likely to suffer before trial if the injunction is not granted, and he or she succeeds at trial, against the risk of the irreparable harm the defendant is likely to suffer if the injunction is granted and he or she prevails at trial. That said, the balance of convenience analysis is compendious. It can accommodate range of equitable and other considerations. (d) The judge's ultimate focus in considering whether to grant interlocutory injunctive relief must be on the overall equities and justice of the situation at hand. (iii) Reasons for Decision [86] I turn now to my specific reasons for dismissing the plaintiffs’ application for an interlocutory injunction ordering the CÉF to admit the plaintiffs to École de Bellegarde. They may be briefly stated at the outset as: 1. The plaintiffs’ claims that have not been struck or stayed are not rationally connected to the granting of an interlocutory injunction requiring the CÉF to admit the plaintiffs to École de Bellegarde. 2. Even assuming that the remaining claims present a serious issue to be tried, they do not justify a finding that the plaintiffs will suffer irreparable harm if the injunction is refused. 3. The balance of convenience weighs against the granting of an interlocutory injunction. This includes concerns about the court’s ability to craft clear and specific mandatory order with respect to Trystan Lawless that would be amenable to effective judicial supervision on an ongoing basis. will comment further on each of these reasons: 1. The plaintiffs remaining claims are not rationally connected to the interlocutory injunction they seek. [87] The only claims that have not been struck out or stayed are: (1) claim for special damages arising from the CÉF’s alleged negligent interference with Trystan Lawless’ service dog Tank; and (2) claim for general damages arising from the alleged intentional infliction of emotional suffering on Trystan Lawless. Neither claim is rationally connected to the granting of an order requiring the CÉF to re-admit some or all of the Lawless children to École de Bellegarde. They are stand alone claims which seek monetary damages as remedy. 2. The plaintiffs have not demonstrated irreparable harm. [88] Again, the only two claims that have not been struck are for monetary damages. One relates to the claim for special damages for negligently allowing other students to interact with Tank, in the result compromising his ability to act as service dog. The other is Trystan Lawless’ claim for general damages for the intentional infliction of mental suffering. The claims as pled indicate that monetary damages will constitute an adequate remedy. [89] Quite apart from the pleadings, the facts do not demonstrate that an injunction will be necessary to prevent irreparable harm. Khristina Lawless may feel aggrieved at what she perceives to be the CÉF’s harassment of her son, Trystan, and its failure to accommodate his special needs, including his service dog, Tank. However, Trystan and his siblings are all attending their former English language school in their home community of Maryfield. Their family culture and heritage is English. cannot conclude that they will suffer irreparable harm if the CÉF is not immediately ordered by the court to permit them to resume their attendance at Fransaskois school. More specifically, the evidence does not demonstrate that Trystan Lawless, 16 year old with an English only background and special educational needs who has struggled to cope in French language only environment, will suffer irreparable harm unless he is placed back into that same environment. [90] In my view, all of the Lawless children are in the same situation as any other child of English speaking background who attends an English language, or French immersion school. This is not case in which the plaintiffs seek an injunction to enforce Charter protected language rights: it is acknowledged that they are not rights holders under s. 23 of the Charter, and they make no claim based on the Charter. On the evidence before me, it would not be appropriate for an interim mandatory injunction to issue that would have the effect of immediately elevating the members of the Lawless family from non-rights holders to rights holders. 3. The balance of convenience weighs against granting the interlocutory injunction. [91] Counsel for the Lawless family submitted that an order requiring the CÉF to permit all of the Lawless children to attend École de Bellegarde would amount to nothing more than the “preliminary inconvenience of operating publicly funded education system”. That may be so with respect to Kayleigh, Ayden, Kenzy and Rylan Lawless but, in my respectful view, it is not so for Trystan Lawless. His special needs require substantial educational supports, not only within the school but within the broader community. The court has no capacity to order any third parties to work co-operatively with the CÉF to provide those supports. Moreover, given the acrimony between the parties, it seems probable that no matter what supports could be introduced for Trystan pending the trial of this action, the disagreements between Khristina Lawless and the CÉF as to their adequacy would be ongoing. [92] This leads to the question of whether any interlocutory order could be adequately supervised. As it relates to Trystan Lawless, am satisfied that it could not. [93] The court’s reluctance to make an order that will require further judicial direction or intervention is familiar theme, especially in mandatory injunction cases. In Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52 (CanLII), [2006] S.C.R. 612, Deschamps J., writing for the majority, noted the following: 24 Despite their flexibility and specificity, Canadian relief orders are fashioned following general guidelines. The terms of the order must be clear and specific. The party needs to know exactly what has to be done to comply with the order. Also, the courts do not usually watch over or supervise performance. While the specificity requirement is linked to the claimant's ability to follow up non‑performance with contempt of court proceedings, supervision by the courts often means relitigation and the expenditure of judicial resources. This factor is discussed by R. J. Sharpe, in Injunctions and Specific Performance (2nd ed. (loose‑leaf)), at para. 7.480: From this perspective, the supervision concern differs from other criteria determining the availability of specific relief. It is based not upon the weighing of relative advantage and disadvantage to the parties but rather on the weighing of the advantage of doing justice by granting specific relief against the general cost to society of having justice administered. By way of contrast to specific relief, damage awards do hold certain advantages. money judgment is final and enforcement is left to the administrative rather than the judicial machinery of the court. The cost of enforcement is largely borne by the parties. decree for specific performance does involve substantially higher risk that further judicial resources will be required. The more complex or extended the performance, the more likely further proceedings will be needed to ascertain whether the defendant has complied with his or her obligations. This fear of extended and complex litigation and the need for repeated requests for judicial intervention may be seen as legitimate concern. The cost to society of providing the resources necessary to implement specific performance decrees is properly considered by the court when weighing the advantages the specific relief might otherwise offer. [94] For all of these reasons, the plaintiffs application for an interlocutory injunction was dismissed. CONCLUSION [95] With respect to the defendant’s application for an order striking out the plaintiffs’ claim:1. The plaintiffs’ claims for a declaration that the CÉF has violated their rights under ss. 12(1) and 13(1) of The Saskatchewan Human Rights Code, both directly and as “collateral damage”, are stayed pending an application to the court pursuant to s. 29.6 of the Code. 2. The plaintiffs’ claim that the defendant has violated ss. 23.2(1) of The Animal Protection Act, 1999 is struck out. 3. The CÉF’s application for an order striking out the plaintiffs’ claim for special damages arising from alleged negligence in relation to the service dog, Tank, is dismissed; and 4. The CÉF’s application for an order striking out the claim for damages arising from alleged “intentional infliction of emotional and mental suffering” on Trystan Lawless is dismissed; [96] The hearing of this application and the material filed in support was in both French and English. In view of the need to expedite this decision, it has been released in the English language only. translation of this judgment in the French language will be provided in due course. [97] Counsel may speak to the issue of costs if they are so advised.
Civil Procedure Injunction HELD: The first portion of the statement of claim is an attempt by the plaintiff to have the Court take jurisdiction over a matter that is already before the Saskatchewan Human Rights Tribunal. While the court has jurisdiction to hear human rights complaints, the jurisdiction only arises after the tribunal process has been exhausted. Since the tribunal procedure has not been completed, the portions of the statement of claim dealing with the human rights complaint are stayed on the basis that the underlying issues may only be heard by the court upon application of the Chief Commissioner of the Saskatchewan Human Rights Code pursuant to s. 29.6 of the Code. With respect to the claim that the defendant breached The Animal Protection Act, the essence of the claim is to seek damages against the plaintiff for the loss of the service dog. That portion of the claim must be struck because the plaintiffs cannot circumvent the provisions of The Animal Protection Act, 1999 nor eliminate the defendant’s right to be charged and tried in Provincial Court through the expediency of claiming a declaration in a civil suit. The third claim is that the defendant was negligent in allowing other children to interact with the service dog will not be struck because, assuming the facts in the pleadings are true, the claim for damages is viable. Likewise, the fourth claim that the defendant intentionally inflicted mental and emotional suffering on the autistic plaintiff will not be struck as is not plain and obvious from the pleadings that the claim cannot succeed. The plaintiffs’ application for an interlocutory injunction was dismissed because the claims that have not been struck are not rationally connected to the injunction, even assuming the remaining claims present a serious issue to be tried they do not justify a finding that the plaintiffs will suffer irreparable harm if the injunction is refused and the balance of convenience weighs in favour of not granting an injunction.