cui and larabie
DESCRIPTION
Judgment in case of home daycare operator and family of child she cared for.TRANSCRIPT
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SC-13-26951-0000
SUPERIOR COURT OF JUSTICE
TAMMY LARABIE
Plaintiff
v.
CHRISTOPHER CUI IRIS LEE
Defendants
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE DEPUTY JUDGE LEWIS J. RICHARDSON on the 3rd day of February, 2015, at TORONTO, Ontario
APPEARANCES: M. Jacquesson Paralegal for the Plaintiff
R. Brown For the Defendant Christopher
Cui
R. Brown For the Defendant Irish Lee
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(i) Table of Contents
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SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
W I T N E S S E S
WITNESS: Examination In-Chief
Cross- Examination
Re- Examination
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
Transcript Ordered: ....................March 17, 2015 Transcript Completed: ..................March 23, 2015
Ordering Party Notified: ...............March 23, 2015
[sic] - Indicates preceding word has been reproduced verbatim and is not a transcription error.
LEGEND
(ph) - indicates preceding word has been spelled phonetically.
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1. Larabie v. Cui
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TUESDAY, FEBRUARY 3, 2015
R E A S O N S F O R J U D G M E N T
RICHARDSON DJ (Orally):
The trial of this action, together with closing
arguments was heard on October 21st, 2014 and
December 12, 2014, and I reserved judgment until
today. The plaintiff has been represented by Mr.
Jacquesson, a licenced paralegal. The defendant
has been represented by Mr. Brown, a lawyer.
The plaintiff, Tammy Larabie runs an unlicensed
daycare from her residence situated at 11 Pony
Avenue, North York, Ontario. The defendants,
Christopher Cui and Iris Lee are husband and wife
and are the parents of Ziven.
The parties entered into a written contract dated
March 19, 2013, wherein Ziven was to attend the
daycare from 7:00 a.m. to 5:30 p.m., Monday to
Friday. Ziven was in the plaintiffs home for
approximately four months from March 19, 2013
until approximately July 16, 2013.
Ziven was born May 23, 2012. Therefore he was
just under one when he commenced daycare and just
over one when he terminated. The terms of
payment were $40 per day until Ziven was one and
$35 per day thereafter. The terms of the
contract required the defendants, Christopher and
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Iris, to provide two weeks written notice in the
event that they were to remove Ziven from the
daycare. The defendants paid a $200 deposit.
It is agreed by all parties that the defendants
removed Ziven from the daycare on or about July
16, 2013, without prior notice. It is also
agreed that the plaintiff lodged a complaint with
the Childrens Aid Society on or about July 11th
without prior notice to the defendants.
It was alleged by the plaintiff to the Childrens
Aid that Zivens physical care was in danger as a
result of neglect by his parents. It is also
agreed that the defendants stopped payment on
their last cheque in the amount of $200, which
was dated July 12, 2013. As the plaintiff still
had a security deposit, it is agreed that other
than the $10 differential, the plaintiff was paid
for all of the time that Ziven was in daycare.
The plaintiff, however, sues for two weeks of
services due to the fact that there was no
written notice, in the amount of $380, together
with late fees, interest and penalties, for a
total of approximately $735 owing at the time of
the trial, together with her costs of this
litigation.
While the defendants admit removing Ziven without
notice, their position is that they were
justified in doing so on two grounds. One, the
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terms of the contract stated that, No smoking is
allowed on the premises. It is their position
that this condition was breached. Number two, it
is also the defendants position that without
proper cause and without notice to the
defendants, while Ziven was still in the
plaintiff's care, the plaintiff reported the
defendants to the Childrens Aid alleging
parental neglect and stating that Ziven was in
danger under the defendants care.
It is their position that there were no
reasonable grounds for these allegations and as
such the plaintiffs conduct amounted to a
fundamental breach of contract which justified
the defendants removing Ziven without being
required to give the two weeks written notice.
The issue of reporting the defendant to the
Childrens Aid also constitutes the basis for the
defendants claim in which the defendants request
$10,000 for emotional pain and suffering as a
result of being investigated by the Childrens
Aid. Counsel requests $2,000 for Christopher and
$8,000 for Iris.
By way of further background, the plaintiff
started her unlicensed daycare in June of 2011.
She admits that she has no degrees or
certificates in daycare. She candidly admits
that her function is more of that of a
babysitter. I have no evidence to suggest that
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Ms. Larabie has any training or expertise in diet
or in medicine.
I now deal with the smoking issue. The wording
in the contract is, No smoking is allowed on the
premises. It is acknowledged that the
plaintiffs husband was a very heavy smoker who
smoked approximately one and a half packages per
day but quit smoking in June of 2013.
The evidence of the plaintiff and her husband was
that he only smoked outside in the backyard and
never in the presence of the children. Counsel
for the defendant relies on the Smoke Free
Ontario Act and the Day Nurseries Act which would
suggest that smoking outside the house but on the
premises would still be barred.
It is the plaintiffs position that she is not
bound by the legislation as she does not run a
licenced daycare and it is her interpretation of
the contract between herself and the defendants
that only smoking within the house is disallowed.
It is not disputed that second hand smoke would
still be in the house.
I accept the evidence of the defendants that
Ziven often had the odour of second-hand smoke on
his clothing. The defendants acknowledged
candidly, however, that they never confronted the
plaintiff with the smoking issue as they wanted
to keep harmony between them.
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They stated they were actively seeking an
alternative licensed daycare but could not find
one and therefore elected to keep Ziven with the
plaintiff. The plaintiffs husband testified
that he quit smoking in June and I have heard no
evidence to dispute this.
While I have very deep concerns with Zivens
exposure to second-hand smoke at his tender age,
and I question why the plaintiff would allow this
if she was so concerned with the well-being of
the children as she would have me believe, the
conduct of the defendants clearly condoned any
issues relating to smoking and this defence was
raised after the fact. I am therefore not
prepared to allow this defence to prevail.
I now deal with the issue relating to the
Childrens Aid Society. The duty to report
neglect is governed by the Child and Family
Services Act. The health, safety and welfare of
children must be protected as much as possible.
The law is designed to bring forward to the
attention of the proper authorities all
reasonable grounds for suspicious conduct and
concern with respect to the welfare of children.
The Act sets out a list of situations wherein a
person who performs professional or official
duties with respect to children and has
reasonable suspicions, must report to the Society
forthwith.
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The plaintiffs evidence is that her reporting is
based on Section 7.2(1) and (2) of the Act, which
reads as follows,
If there is a risk that the child is
likely to suffer physical harm inflicted
by the person having charge of the child
or caused by or resulting from that
persons failure to adequately care for,
provide for, supervise or protect the
child or a pattern of neglect in caring
for or providing for, supervising, or
protecting the child.
However one must also consider this section in
conjunction with Section 7(e), which I quote,
No action for making the report shall be
made against the person who acts in
accordance with this Section unless the
person acts maliciously or without
reasonable grounds for the suspicion."
By inference, therefore, it is obvious
that the conduct of reporting is
actionable if the report is made with
malice or without reasonable grounds.
It now becomes necessary to review the nature of
the complaints to determine if there are
reasonable grounds or if there has been malice.
I have very carefully reviewed the many and
constant texts between the plaintiff and Iris.
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Until the time of the report to the Childrens
Aid Society, I found nothing to suggest that
Ziven was in any danger, nor was it ever
suggested by the plaintiff. Ziven, in my view
had normal every day ailments that most, if not
all infants endure.
He had fever in May. Counsel agrees that this
alone does not constitute parental neglect. He
once had an ear infection and had several bouts
of diarrhea. No serious concerns were ever
raised.
How did the parents deal with these issues? Iris
was in constant contact with the plaintiff to
monitor his progress. She, on several occasions,
kept him out of daycare and stayed home with him,
taking a day off work when he was sick. She
regularly took him to his pediatrician and
followed the doctors advice. She even made
special meals for him instead of having him eat
the plaintiffs food. The doctor advised that
the plaintiffs menu contained too much salt. As
a result, Iris provided a special diet of rice,
fruit, vegetables and meat as recommended by the
doctor.
I find nothing in Zivens health history, either
individually or in totality to suggest that he
was in any physical danger. I find no evidence
relating to the parental care which would suggest
that they were not totally and properly attentive
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to his physical needs.
It was only after the reporting to the Childrens
Aid Society and after Ziven was removed from the
plaintiffs daycare that the plaintiff wrote
letters to the defendants expressing concern.
The plaintiff vigorously raises the issue that
Ziven lost one percentile in weight.
The plaintiff had no notion that he lost weight
until told by the defendants, who took him to the
doctor who advised of same and the defendants
openly shared this information with the
plaintiff. It is common knowledge that doctors
have a legal and professional duty to report
neglect. This was not done in this case.
The plaintiff, Ms. Larabie, had all contact
information of the doctor but took no steps in
attempting to contact the doctor herself or speak
to the defendants at any time. The plaintiff
does not have any professional skills or
background to question or criticize the
recommendations of the doctor.
She went on Google and formed her own medical
opinion which has not been substantiated and
makes no sense. She, after the fact, expressed
concerns that Ziven slept too much in the
afternoon and more than the other children. It
is to be noted that Ziven was eight months
younger than the next oldest child and obviously
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required more sleep. I have heard no evidence to
suggest that the amount of sleep was abnormal or
presented any signs of danger.
She criticized the defendants diet saying it did
not provide enough nutrition, yet knowing through
a number of conversations with Iris, that it was
suggested by the pediatrician. The plaintiff has
no expertise in diet or nutrition. I find that
the July letters of the plaintiff, all after the
termination, to be self-serving, only to protect
the plaintiffs position. They raise concerns
that were never before raised. They go so far as
to suggest that the defendant should seriously
question the wisdom of their doctors
recommendations advising that doctors can make
mistakes.
In matters of credibility, I much prefer the
evidence of the defendants in matters where the
evidence is in conflict. It is most important in
this litigation to note that on or about July 8,
2013, approximately three days before reporting
the defendants to the Childrens Aid Society, a
child died in an unlicensed daycare.
It is also important to note that at the time,
the competency of unlicensed daycare operators
receive considerable media coverage and scrutiny.
The plaintiff admitted that in reporting the
defendant to the Childrens Aid Society, she was
trying to protect herself and also trying to
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protect Ziven.
I do not accept this explanation. I find that
her reporting the defendants to the Childrens
Aid was a reaction, if not an over-reaction to
the current public pressure on unlicensed
daycares.
I am satisfied on the evidence and demeanour of
the plaintiff, that she panicked and over-reacted
when reporting the defendants to the Childrens
Aid. It is not reasonable to conclude on the
evidence before me that the child was in any
danger or that there was any parental neglect.
I am also satisfied that the plaintiff had no
such realistic concerns, particularly as they
were all expressed only after the termination of
her services. While her actions may not meet the
test of malice, I am satisfied that the report
was not at all for the purposes of protecting
Ziven, but for the purposes of protecting the
plaintiff and that there were no reasonable
grounds for the complaint.
A report from the Childrens Aid Society dated
August 8th concluded after an investigation that
the plaintiffs claims were not substantiated. A
letter from the childs pediatrician dated August
15th, confirmed that the child was always in good
health and received excellent care from his
parents.
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In the contractual relationship between the
parties, the plaintiff had a duty of care to the
parents not to make boundless complaints. The
Supreme Court of Canada has ruled that good faith
is an integral part of contract law which I find
was not present in this case.
I find that the unfounded complaint to the
Childrens Aid Society created emotional distress
to the defendants and that the consequences of
her actions were foreseeable. She ought to have
known that this type of complaint would have the
impact on the defendants which it did.
The plaintiffs actions caused great distress to
the parents. I find therefore, that the
reporting to the Childrens Aid was not a
reasonable action and created such an air of
hostility and lack of good faith, that it
constitutes a fundamental breach of contract by
the plaintiff. It cannot possibly be expected
under the circumstances to expect the defendants
to keep Ziven at the plaintiffs daycare.
I find therefore, that the defendants were
justified in removing Ziven without notice, not
on the grounds of smoking but on the grounds of
the report to the Childrens Aid Society. The
plaintiffs claim is therefore dismissed.
For the same reasons I allow the defendants
claim and now deal with the assessment of
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damages.
The defendants are a young couple in their early
30s who now have their second child.
Christopher is a business analyst. Iris is a
manager of operations for a financial firm. I
believe that Christopher was deeply hurt and
crushed from the investigation.
At the trial, he was so choked with emotion that
he could barely express himself. He was very
frank and honest when he stated that his pain did
not remotely compare to that of his wife who was
totally overwhelmed.
Iris described her shock at receiving a voice
mail from the Childrens Aid Society without
prior notice that they were investigating a claim
of parental negligence, a claim that their child
did not receive proper care and was
underdeveloped. A social worker attended at
their home a few days later with a registered
nurse. The conclusion was that Ziven looked
healthy and chubby and they were totally
satisfied that the parents were properly
following the doctors orders with respect to
feeding patterns.
It is well known, however, that these complaints
and investigations remain on record permanently.
Iris felt inadequate as a mother. At the time
she was pregnant with her second child. She was
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totally shocked and taken by surprise. She felt
guilty, tense and stressed. She was a most
credible witness, speaking about very sensitive
and painful issues.
She stated that the plaintiff told her to have
Ziven eat the plaintiffs food. Iris told her
repeatedly that there was too much salt content
and she was following doctors orders. The
plaintiff often provided Kraft Dinner which was
high in sodium.
Iris had in the past suffered from depression.
She saw a psychiatrist as a result of this
episode. She was put on anti-depressants, 25
milligrams of Zoloff. It was later doubled to 50
milligrams. She is still on medication and is
affected by the incident.
I find the defendants to be competent, caring and
capable parents who properly looked after the
best interests of their son. I find that there
was no basis whatsoever to report them to the
Childrens Aid.
I find that the plaintiff acted selfishly and to
protect her own interest, not for the benefit of
the child. I find that the defendants who are
fine young parents went through an ordeal that
they ought not to have endured and suffered
emotionally as a result.
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Counsel for the defendants, suggest damages in
the amount of $10,000 would be appropriate, 2,000
for the husband and 8,000 for the wife. I agree
totally. I find this request to be totally
reasonable in the circumstances and I so order.
I wish to hear submissions as to costs unless you
need a couple of minutes recess, Ill give you
that.
MR. BROWN: Im ready.
MR. JACQUESSON: Im ready.
THE COURT: Mr. Brown.
MR. BROWN: Thank you very much, Your Honour.
THE COURT: Any offers that were made, of course,
Id like to be...
MR. BROWN: Yes, there were...
THE COURT: ...made aware of that.
MR. BROWN: All right, what I will do, Your
Honour, submit all the offers that was...
THE COURT: How about the last one?
MR. BROWN: Could I have His Honours indulgence?
THE COURT: All right.
MR. BROWN: Ill submit one in relation to the
plaintiffs claim and...
THE COURT: I want to see if theres an offer,
Id like to see it.
MR. BROWN: Thank you, Your Honour.
THE COURT: Is there an offer from the plaintiff?
MR. BROWN: Yes, Your Honour.
MR. JACQUESSON: There was an offer.
THE COURT: Do I have them both here, wait a
minute...
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MR. BROWN: Yeah, I think you have it both, Your
Honour.
THE COURT: The plaintiffs offer was Im
sorry, Mr. Brown, the offer was 3,000 of
damages...
MR. BROWN: Yes, Your Honour.
THE COURT: ...and costs of 2,000?
MR. BROWN: Yes, that was yes, that was the
offer at the time.
THE COURT: And $1,500 costs of the plaintiffs
claim?
MR. BROWN: Yes, Your Honour, it was never
accepted.
THE COURT: So all in, $6,500?
MR. BROWN: Yes, but it was never accepted.
THE COURT: Pardon?
MR. BROWN: It was never accepted.
THE COURT: No, I know that but...
MR. BROWN: Yes, yes...
THE COURT: ...obviously...
MR. BROWN: ...yes, Your Honour.
THE COURT: All right. And the Ms. Larabies
offer was that she receive 735 and 2,000 of
costs, correct?
MR. JACQUESSON: Thats correct.
THE COURT: All right. What do you say is
appropriate, Mr. Brown?
MR. BROWN: Your Honour, I would say 5,000 is
appropriate, Your Honour, and...
THE COURT: How did we come to that, sir?
MR. BROWN: They they offer number one, Your
Honour, the offers were reasonable, they were not
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accepted to...
THE COURT: What tell me what the cost rules
are in Small Claim Court?
MR. BROWN: All right, they they in terms of
the let me just deal with the more obvious
costs, Your Honour, the cost of filing 75...
THE COURT: Forget the disbursements. The
disbursements, I think are $175
MR. BROWN: All right. This was a two day trial,
Your Honour...
THE COURT: Yeah, I was there.
MR. BROWN: ...and comparatively robust costs a
robust cost order is needed to compensate the
plaintiffs for the costs. I am relying on the
case of (Indecipherable), Your Honour.
THE COURT: Is that a Small Claims Court
decision?
MR. BROWN: Yes, it is, Your Honour.
THE COURT: What happened there?
MR. BROWN: In this case, Your Honour, Deputy
Judge Sebastiono[ph], when he noted that there
are well, in this case it dealt with punitive
costs and he spoke about the four elements that
should exist. It isnt to say - they dont exist
here, Your Honour, because there is no fraud that
was alleged. So, I wont...
THE COURT: Give me youre asking for $5,000?
MR. BROWN: Yes, Your Honour.
THE COURT: Plus 175 disbursements?
MR. BROWN: Yes, Your Honour.
THE COURT: Mr. Jacquesson?
MR. JACQUESSON: I think that the amount that my
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friend is asking for is quite excessive.
THE COURT: What do you think it should be?
MR. JACQUESSON: I think it should be at the
minimum, what the rules suggest which is 15
percent of the...
THE COURT: What about the fact that he made an
offer and that my judgment exceeded his offer?
MR. JACQUESSON: I mean, I I leave it in your
hands, Your Honour.
THE COURT: All right. For purposes of
simplicity, Im going to make Im going to make
the cost order just on the defendants claim
rather than have two different orders.
So, in the claim of Tammy Larabie versus the
plaintiff Im going to order the plaintiffs
claim is dismissed without costs. Im just going
to put costs are dealt with in the defendants
claim.
And the claim of in the defendants claim I am
going to put there shall be judgment for
Christopher Cui against Tammy Larabie in the
amount of $2,000. There shall be judgment for
Iris Lee against Tammy Larabie in the amount of
$8,000.
There shall be pre-judgment interest from August
1, 2013 youll get copies of this, and post-
judgment interest pursuant to the Courts of
Justice Act. The plaintiffs submitted an offer
which was more favourable to Ms. Larabie and my
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judgment. This is a case to exercise my
discretion to award double costs so I am going
to, instead of 15 percent I am going to make it
30 percent of the $10,000 claim. The defendant,
Ms. Larabie, shall pay the plaintiff costs fixed
at $3,175.
Mr. Registrar, the first endorsement is one page
and the second endorsement goes on the second
page. Did you give the parties a copy?
COURTROOM REGISTRAR: (Indecipherable).
THE COURT: Heres the file.
...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED
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FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Nancy Gabrielse, ACT 6272854394, certify that this document
is a true and accurate transcription to the best of my skill
and ability (and the quality of the copy of the recording and
annotations therein) of the recording of Larabie v. Cui in
the Superior Court of Justice held at, Toronto, Ontario, taken
from Recording(s) No. 4816-303-20150203-091955 which has been
certified in Form 1, by Michael Chan.
Mar. 23, 2015 ____________________________ Date Signature of an Authorized Person
Nancy Gabrielse
ACT 6272854394
For Videoplus Transcription
* This certification does not apply to the Reasons for
Judgment as they were judicially edit.