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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

(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.

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.