The Ontario Court of Appeal recently considered whether a parent could bring a claim for the tort of “misfeasance in public office”, among other claims, after being banned from his children’s school. In a ruling released on June 19, 2009, the Court of Appeal allowed part of the parent’s claim against the principals and superintendents to proceed, but struck out the claims made against the trustees.

The Facts

In Foschia v. Conseil des Écoles Catholiques de Langue Française du Centre-Est, the plaintiff, Foschia, is a parent of two children registered at La Vérendrye School. Foschia was a school volunteer for various activities, including the supervision of children in classroom during lunch hour. Two parents complained to the principal that they thought Foschia gave their grade two daughters special attention during lunch time and that they were concerned for their children’s safety. They asked the principal to ensure Foschia no longer had the same kind of access to their daughters.

The principal decided to limit Foschia’s volunteer work and placed limitations on his access to the school. Foschia was unhappy about this change and made it known that he believed the complaints were groundless. He subsequently complained about the lack of action he thought should have been taken by three superintendents, the education director and trustees. After ten months, the decision was made to prohibit Foschia from all access to the school. A prerequisite to remove the prohibition was that Foschia should be respectful to the principal and respect her authority.

Foschia took his complaint to court alleging several causes of action against the principal, superintendents, the school board and trustees. His central argument was that he had been unfairly deprived of access to the school and that, as a result, he had endured pain and suffering and a loss to his reputation.

The Decisions

The Board did not file a statement of defence and, instead, brought a motion to dismiss the action. On hearing the motion, Justice Métivier, of the Ontario Superior Court, struck Foschia's claim as disclosing no reasonable cause of action. In other words, she concluded it was plain and obvious that the action could not succeed at trial. However, the Court of Appeal disagreed and has permitted Foschia to amend his statement of claim with respect to the action against the principals and superintendents for the tort of misfeasance in public office.

Causes of Action

In his statement of claim, Foschia sought the following1:

  • Mandatory order that the school board lift the principal's prohibition;
  • Declaration of negligence against the trustees for failing to assist him, failing to investigate the policy violations he alleged and failing to rescind the limitations of his access to the school; and
  • Damages for misfeasance in public office against the principals and superintendents.

The part of Foschia's claim concerning a mandatory order was struck by both the motions judge and the Court of Appeal. Both courts concluded that such a request was, in fact, an application for judicial review, which is within the jurisdiction of the Ontario Divisional Court and not the Superior Court of Justice.

In respect to the claim that the school board and/or the trustees were negligent in either failing to investigate Foschia’s allegations about the principal’s decision to ban him from the school, or that any investigations undertaken were negligent, the Court of Appeal noted that it was insufficient for Foschia to merely allege that the trustees breached the school board’s own policies by refusing to investigate. Foschia did not allege that the school board's policies gave rise to any positive duty on the part of the trustees towards him and, accordingly, this part of the claim was struck.

In regards to the principal’s decision to deny a parent volunteer access to the school, the motions judge concluded “(t)here is nothing in the law to require a school principal to accept all offers of voluntary help or to continue to accept them. His or her decision must be accepted.” The Court of Appeal agreed, stating “nothing in law obliges a school principal to continue to accept the services of a volunteer.”

However, the Court of Appeal overturned the motions judge's decision to strike the claim against the principals and superintendents for the tort of misfeasance in public office. As the Court noted, the elements of the tort are:

(1) the defendant must be a public official who was exercising public functions,

(2) the public officer must act unlawfully, which can include a breach of a statutory provision, acting in excess of the powers granted to the public official, omitting to act in circumstances in which the public officer is under a legal duty to act, or acting for an improper purpose,

(3) the public official must be aware that his or her conduct is unlawful and that it is likely to injure the plaintiff,

(4) the plaintiff must prove that the public official’s tortious conduct was the legal cause of his or her injuries, and

(5) the injuries suffered must be compensable in tort law.

The Court of Appeal noted that Foschia’s claim for misfeasance in public office arises from (i) the imposition of the complete ban preventing him from accessing school property and (ii) the continuation of the ban for years. The motions judge's reasons addressed the initial restriction, including the principal's statutory authority to exclude any person from a school's premise if in his or her judgment that person's presence is a detriment to the security or well being of other persons in the school. The Court of Appeal found, however, that the motions judge erred by failing to consider the continuation of the ban and the allegation that the continuation was made for the improper purpose of deliberately harming Foschia.

While the Court of Appeal found that Foschia's pleadings were unclear, it found that there were sufficient allegations that the actions of the principals and the superintendents were animated by personal animosity towards Foschia. The claim has, therefore, been allowed to proceed, with amendments set out by the Court of Appeal.

The motions judge made some comments which the Court of Appeal did not address. Notwithstanding its decision to grant the defendant’s motion for summary judgment to dismiss the action, the motions judge was sympathetic to the plight of a parent who is denied access to his children’s school, stating that he was “aware that a parent should have a right to discuss the progress or failure of his or her children with their teachers” [translation].

Accordingly, the principal was directed to set out in writing the way in which such discussions may take place.

Conclusion

The Court of Appeal's decision means that Foschia will be allowed to proceed with his claim against the principals and the superintendents for their decision to ban him from school premises. It remains to be seen whether the claim will be successful, but it is clear that the case will be an important statement regarding the extent of a principal's authority to ban parents from school premises.