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Supreme Court of Canada File No

VIEWS: 125 PAGES: 7

									                                                      Supreme Court of Canada File No.

                       IN THE SUPREME COURT OF CANADA

            (ON APPEAL FROM THE COURT OF APPEAL OF ONTARIO)

B E T W E E N:

                                 LORRAINE PAQUIN

                                                                                 Applicant

                                           And

                OTTAWA-CARLETON DISTRICT SCHOOL BOARD,
                             JW AND MN
                                                                            Respondents

                         NOTICE OF MOTION TO A JUDGE
                            FOR RECONSIDERATION

                       Appeal of Aug. 8, 2007 Superior Court Trial 05-CV-
                        Appeal of Mar. 3, 2008 Ontario Court of Appeal C
                        Appeal of May 5, 2008 Superior Court Decision on Costs



All of which is submitted this 30th day of December 2008.

                                                                       Lorraine Paquin
                                                                2534 Greyscreek Road
                                                                        Greely, Ontario
                                                                               K4P lN2
                                                                         613-821-0884
                                                             Applicant Acting in Person

COPY TO:
John Summers and Roger Mills,
Bell Baker LLP Barristers and Solicitors
Suite 500, 116 Lisgar Street
Ottawa, Ontario
K2P 1C2
613-237-3444 Fax 613-237-1413
Solicitors for the Respondents in Appeal




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                                             Supreme Court of Canada File No.
                       IN THE SUPREME COURT OF CANADA

            (ON APPEAL FROM THE COURT OF APPEAL OF ONTARIO)

B E T W E E N:

                                 LORRAINE PAQUIN

                                                                                Applicant

                                          And

                OTTAWA-CARLETON DISTRICT SCHOOL BOARD,
                             JW AND MN
                                                                             Respondents

                         NOTICE OF MOTION TO A JUDGE
                             FOR RECONSIDERATION
                   Appeal of Aug. 8, 2007 Superior Court Trial CV-
                  Appeal of Mar. 3, 2008 Ontario Court of Appeal C
                Appeal of May 5, 2008 Superior Court Decision on Costs

TAKE NOTICE that Lorraine Paquin, the Applicant hereby appeals to a Judge of the
Supreme Court of Canada the judgment of dismissal dated December 4, 2008 pursuant to
the Supreme Court of Canada Rule 73. The Applicant requires an Order for
reconsideration of Application for Leave to Appeal and any further or other order that the
judge may deem appropriate.

AND FURTHER TAKE NOTICE that the motion shall be made on the following
grounds:

1. The issue of freedom of speech is of paramount concern to all citizens of Canada.
   This decision has already had adverse impact on Canadians in this country. The
   law relied on for this case is the Supreme Court Decision Hill vs. Church of
   Scientology of Toronto and the Superior Court Decision Montague vs. Page.

2. On December 4, 2008, the application for an extension of time was granted by
    the Supreme Court of Canada. The ground for the extension was the Applicant was
   not able to secure from the Superior Court of Justice the opening day transcripts of
   proceedings which were substantial and relevant to the material issues in the action.

3. The Court Reporter and her Supervisor were Court ordered by Justice Douglas B.
   James on October 1, 2008 to ensure that total transcripts of proceedings are prepared
   for the Supreme Court of Canada as directed by Lorraine Paquin for file CV-030303.
                              Page13 Court Order by Justice James



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4. On October 2, 2008, the Director of Court Operations, Ministry of the Attorney
   General informed the Applicant that the transcripts were forwarded to Toronto for
   printing and confirmed the frustration the Applicant experienced in obtaining her
   transcripts.
                             Page 16 Letter from Attorney General’s Office

5. On October 6, 2008, all materials for leave were submitted to the Supreme Court of
   Canada Judges.

6. On October 9, 2008 the Applicant attempted to submit material to the Supreme Court
   Judges. Mrs. Lucille Bertrand from the Supreme Court Registry respectfully advised
   the Applicant that the cut off date for materials for leave was October 6, 2008. The
   Supreme Court of Canada would not forward on any further paper work to the Judges
   on her behalf. The following evidence was not available for delivery to the court at this
   date.
           a) the opening day statement from the trial transcripts
           b) article by Sarah Coleman Ontario Principals’ Council of Ontario,
              representative of Principal JW
           c) Lawyer’s Edge/Education by OBA member John Summers regarding on line
              defamation

7. The opening day transcript was submitted to the Supreme Court on October 20, 2008
   by the Superior Court.

New Evidentiary Record - Opening Day Transcript

8. This opening day transcript dated December 4, 2006 was not available at the time of
   the application for leave to appeal. The issuance of a Court Order was necessary to
   secure the total transcripts of proceedings. This is a rare circumstance which was
   beyond the Applicant’s control. The opening day transcript will support a different
   conclusion.

9. Roger Mills (Mills), the Respondent's lawyer from Bell Baker LPP moved to have the
   OCDSB's claim for defamation against the Applicant withdrawn.
                               Page 21 Opening Day Transcript

10. Mills stated to the trial judge “That when we started the Action there was clear
    law that said that a school board could sue for defamation. Subsequent to the
   commencement of the Action, as Your Honour is undoubtedly aware there have been
   two decisions of the Superior Court one by Justice Pedlar in the Montague
   (Township) case and then there was a subsequent decision not too long ago in a case
   called Halton Hills which said that a local municipality could not bring an action of
   defamation”.
                                  Page 22 Opening Day transcript




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New Evidentiary Record – Article by Ontario Principals’ Council

11. In May 2008, Ms. Sarah Coleman, legal counsel for Mrs. W on behalf of the
    Ontario Principals' Council published the following article that can be found on the
    Ontario Bar Association web site http://www.oba.org/en/pdf_newsletter/edumayweb08.pdf
    entitled “Ottawa Carleton District School Board v. Scharf et al.” The following
    exerpt from the article is contained in a newsletter entitled Education law dated May
     2008, Volume 17, No. 3.

           “At the beginning of the trial, the school board withdrew from the
           claim, but continued to prosecute it on behalf of its two employees.”
           … “First, the fact that the school board commenced this litigation, and
           continued to prosecute it even after it withdrew as a plaintiff,
           demonstrated a strong support for the conduct of the principal and
           supervisory officer and its unwillingness to tolerate their abuse by a
           parent and her advocate” … It is apparent that this decision, and the
           willingness of the OCDSB to step up to defend the reputations of its
           senior employees, has had an encouraging effect on other boards as
           well. Following release of the decision, the Durham District School
           Board commenced litigation on behalf of a principal, as well as in its
           own name, against two parents” written by Ms. Sarah Coleman
                                Page 31 Sarah Coleman Article
                                Page 17 Opening Day Statement

New Evidentiary Record – John Summers educating OBA Members

12. On October 29, 2008 John Summers, lawyer at Bell Baker LLP and counsel to the
     OCDSB in OCDSB et al v. Scharf et al. trial and appeal and member of the Ontario
     Bar Association (OBA) spoke to OBA members on how school boards can sue
     parents for defamation.
                             Page 32a The Lawyers Edge

How are the above mentioned evidentiary records relevant to the decision?

13. On the opening day the OCDSB did not withdraw its claim against the Applicant. This
    is contrary to the opening day statements by Mr. Mills.

14. This new evidence i.e. the article by Sarah Coleman provides the Supreme Court of
    Canada with the evidence required to prove that it was the OCDSB that instituted the
    legal proceedings against the Applicant as a government body and that they did not
    withdraw from the action as stated at court in the opening statement by Bell Baker
    and therefore violated the Applicant’s constitutional rights under section 32, 2(b) of
    the Canadian Charter of Rights and Freedoms.




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15. This article by Sarah Coleman demonstrates how this decision has had an
       encouraging effect for other school boards to sue parents when they speak out about
      injustices that occur within their government. This article shows the national impact
      of this decision on all Canadians.

   16. With regards to #12 above this further proves the need for intervention by the
       Supreme Court of Canada.

   17. On January 24, 2005, the Applicant received a letter from the law firm of Bell Baker
       notifying us of defamation and libel of the Ottawa Carleton District School Board,
       Principal JW and Superintendent Mike N which stated “We are writing on behalf of
       the OCDSB, the Ontario Principals’ Council as the representative of Principal
       W and the Ontario Public Supervisory Officials’ Association as the representative of
       Superintendent MN”.
                     Page 33 Letter from Bell Baker dated January 24, 2005

   18. The applicant now submits the evidence that was not available at the time the initial
       appeal was filed pursuant to the Supreme Court of Canada decision Hill vs Church of
       Scientology of Toronto, the Applicant requests the Supreme Court of Canada to grant
       the reconsideration for leave to appeal on the above mentioned grounds.

                  "Even if there were sufficient government action to bring
                   this case within s. 32, the appellants failed to provide any
                   evidentiary basis upon which to adjudicate their
                   constitutional attack. This Court has stated on a number
                   of occasions that it will not determine alleged Charter
                   violations in the absence of a proper evidentiary record".
                                    Page 54 Hill vs. Church of Scientology

   19. Pursuant to the Justice Pedlar’s Superior Court decision in Montague vs. Page the
        Applicant requests the Supreme Court of Canada grant the reconsideration for leave
       to appeal on the above mentioned grounds.

                 “A democracy cannot exist without freedom of expression,
                within the law, permeating all of its institutions. If
                governments were entitled to sue citizens who are critical,
                only those with the means to defend civil actions would be
                able to criticize government entities. As noted above,
                governments also have other means of protecting their
                reputations through the political process to respond to
                criticisms”…

                “It is imperative that the individual have the freedom to
                speak out about the government without threat of legal
                reprisal and the constitution protects these rights under
                section 2(b).
                               Page 45 paragraph 29 Montague


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20. The OCDSB is a government entity to which the Canadian Charter of Rights
    and Freedoms, and in particular, the charter’s section 2b guarantee of freedom
    of expression apply. The Supreme Court of Canada case of Chamberlain vs.
    Surrey school district #36, (2002) for .SCE710, Justice Labelle made the
    following finding “A school board is a branch of government and thus subject to
    charter by operation of section 32”.
                             Page 52 Chamberlain vs. Surrey

DEFENCE OF GOOD FAITH

21. The Applicant states that the press release was issued in good faith and believed the
    statements although made by Jane Scharf to be true. The news release contained
    four statements in particular that the trial judge, Justice Morin alleged to be
    defamatory which were as follows:

    a. That the Respondents sought an order for incarceration for a
        period of 45 days for contempt of Court if the Respondents
       didn't comply with the order.

    b.   By October, 2004 the placement in the school had become
         unsafe for Nicole.

    c.   W was under investigation for criminal conduct by the
         Ottawa Police.

    d. The Ottawa Carleton District School Board had agreed to
       resume supports and services for Nicole.

22. With respect to the first statement, the Applicant who is not a lawyer believed that
    the ruling dated August 30, 2001, by Justice C. McKinnon was a court order and
    that the Respondents were in contempt of court order. The court order however,
    was not a court order it was an endorsement of an agreement by the OCDSB.
    Justice McKinnon: Ruling McKinnon, J (Orally): "…The decision of the board to
    make an Alternate school available at Sawmill Creek Elementary School, which
    offers the French Immersion which Ms. Paquin so passionately espouses for her
    children, would appear to be wise and sound"
          Page 61 Justice McKinnon's Ruling of August 30, 2001 Exhibit 9

23. With respect to the statement that the school placement had become unsafe, the
    Applicant believed that Principal W used excessive force on Nicole based on her
    daughter's testimony to the CAS which she audio recorded. During the trial the
    CAS worker testified that Nicole's testimony transcript was accurate and that the
    child’s testimony was credible. The trial judge accepted the testimonial transcript as
    the child’s testimony at trial. The actual restraint report by Principal W was
    disclosed to the Court and the Applicant during the middle of the trial only. The
    Principal’s own restraint report is consistent with that of the child’s testimonial
    evidence and it describes in detail the physical restraint for non compliance during


                                                                                        5
     which the Applicant's child Nicole was harmed. During the trial, after listening to
     excerpts of Nicole's testimony, Mr. N, the Superintendent stated with regards to the
     restraint:

            "If I were to conjure up an image of staff members dragging a
            pupil physically across a piece of property, ground, floor,
            whatever, and there were no apparent reasonable
            circumstances for doing so, i.e. to protect someone from safety,
            it would strike me as fairly severe".

     Based on the above, it would have been reasonable for anyone to
     believe that this was an unsafe school placement.
                        Page 64 Principal W's Incident Report Exhibit 5
                        Page 67 Nicole's Testimony Exhibit 9
                        Page 76 Superintendent N's Testimony

 24. As per protocol, the Children's Aid Society notified the Ottawa Police of the
     incident involving the physical restraint of Nicole by the Principal. As far as the
     Applicant was concerned she believed the Ottawa Police were looking into the
     matter and she thought that meant they were investigating the incident. By
     believing the act was criminal, one could reasonably believe that W was under
     investigation for criminal conduct by the Ottawa Police.

 25. In a letter dated January 13, 2005 the OCDSB agreed to reinstate the supports and
    services for Nicole after the contempt motion was filed. Without notice and/or
    grounds Nicole's supports and services were removed entirely by the Respondents
    and therefore the Applicant believed that they were in breach of an agreement that
    was endorsed by Justice McKinnon in August 2001 and not the Education Act.
                      Page 78 Letter dated January 13, 2005 Exhibit 9

 Appeal Court of Ontario

 26. On March 3, 2008, the Court of Appeal for Ontario erred in determining that the
      appeal would be judged by finding it necessary to call on the Respondents with
     respect to only one ground when there were other various grounds of appeal namely
     that the Plaintiffs violated the Applicant's rights under section 2(b) of the Canadian
     Charter of Rights and Freedoms in pursuing the legal proceedings using
     government funds for the entire action.

 27. Due to time constraints lawyer C.R. advised the Applicant to file on her
     own. Arrangements will be made by the Applicant to have Mr. R. represent the
     Applicant at the Supreme Court of Canada.

 28. The Applicant requests that this appeal for reconsideration be heard at the Supreme
      Court of Canada, 101 Wellington Street, Ottawa, Ontario.
All of which is submitted this 30th day of December 2008.
                                                                         Lorraine Paquin


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