Jacobi v. Board of Education of Aqueduct Roman Catholic Separate School District No. 374 et al., (1992) 136 A.R. 165 (QB)

• Judge: Montgomery, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 29, 1992
• Citations: (1992), 136 A.R. 165 (QB)

Jacobi v. R.C. Sep. Sch. Bd. (1992), 136 A.R. 165 (QB)

MLB headnote and full text

Ken Jacobi, Mary Jacobi and Wyatt Jacobi, Marshall Jacobi, Lindsay Jacobi, Clinton Jacobi and Lesley Jacobi, infants by their next friend, Ken Jacobi (plaintiffs) v. County of Newell No. 4, County of Newell No. 4 Board of Education, Aqueduct Roman Catholic Separate School District No. 374 and Board of Trustees of the Aqueduct Roman Catholic Separate School District No. 374 (defendants)

(No. 9201-09088)

Indexed As: Jacobi v. Board of Education of Aqueduct Roman Catholic Separate School District No. 374 et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Montgomery, J.

October 29, 1992.

Summary:

The plaintiffs sued several schoolboards and a county seeking a declaration that certain provisions of the School Act were inconsistent with ss. 2(a) and 15 of the Charter and s. 1(b) and (c) of the Bill of Rights. The defendants applied to strike out the plaintiffs' statement of claim and, in the alternative, sought to transfer the proceed­ings to another judicial district and to require the plaintiffs to provide security for costs.

The Alberta Court of Queen's Bench dis­missed the application to strike out the statement of claim, but transferred the action and ordered the plaintiffs to provide security.

Practice - Topic 216

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Persons living out of court's juris­diction - The plaintiffs sued several schoolboards and a county seeking a dec­laration that certain provisions of the School Act were inconsistent with the Charter and the Bill of Rights - The plaintiffs subsequently moved to Sas-katchewan - The defendants applied to strike out the statement of claim, arguing that the plaintiffs did not have standing because they no longer resided in Alberta - The Alberta Court of Queen's Bench held that the plaintiffs had standing under both the general rule and the public inter­est litigation rule, where the statement of claim alleged an interference with the plaintiffs' private rights and raised a seri­ous issue in which the plaintiffs had a genuine interest - See paragraphs 7 to 12.

Practice - Topic 2234

Pleadings - Striking out pleadings - Grounds - Unnecessary - The plaintiffs sued several schoolboards and a county seeking a declaration that certain provi­sions of the School Act were inconsistent with the Charter and the Bill of Rights - The plaintiffs subsequently moved to Saskatchewan - The defendants applied to strike out the plaintiffs' statement of claim, arguing that the action was moot because the plaintiffs no longer resided in Alberta - The Alberta Court of Queen's Bench dismissed the application, holding that there was a live issue, because the plain­tiffs were interested in moving back to Alberta and tuition fees charged to the plaintiffs were suspended during the litiga­tion - See paragraphs 14 to 16.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - The defendants applied to strike out the plaintiffs' statement of claim, arguing that the action was an abuse of process where one of the defendants was a member of an organization which provided funding for the plaintiffs' action - The Alberta Court of Queen's Bench dismissed the application - The court stated that "where the financ­ing comes from for the purpose of pursu­ing a lawsuit is of no concern to the court and does not create an abuse of process" - See paragraph 19.

Practice - Topic 5221

Trials - Venue or place of trial - Applica­tion for change of venue - The plaintiffs sued several schoolboards and a county seeking a declaration that certain provi­sions of the School Act were inconsistent with the Charter and the Bill of Rights - The defendants applied to transfer the proceedings to the Judicial District of Medicine Hat where the plaintiffs resided when they commenced the action and where all the defendants operated - The Alberta Court of Queen's Bench allowed the application, where the balance of con­venience favoured the continuation of the action in the Judicial District of Medicine Hat - See paragraphs 21 to 23.

Practice - Topic 8113

Costs - Security for costs - Where plain­tiff resident out of jurisdiction - The plaintiffs sued several schoolboards and a county seeking a declaration that certain provisions of the School Act were incon­sistent with the Charter and the Bill of Rights - The plaintiffs subsequently moved to Saskatchewan - The defendants sought security for costs - The plaintiffs argued that if security for costs was granted in favour of government, it would be difficult for citizens to challenge un­constitutional actions of government - The Alberta Court of Queen's Bench ordered the plaintiffs to provide security, where the plaintiffs' funding was being provided by an organization and they would not suffer hardship - See paragraphs 25 to 31.

Cases Noticed:

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338; 33 D.L.R.(4th) 321, appld. [para. 8].

Borowski v. Minister of Justice and Min­ister of Finance of Canada, [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420; [1982] 1 W.W.R. 97; 24 C.R.(3d) 352; 24 C.P.C. 62; 64 C.C.C.(2d) 97; 130 D.L.R.(3d) 588, appld. [para. 11].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 38 C.R.R. 232; 57 D.L.R.(4th) 231; 47 C.C.C.(3d) 1; 33 C.P.C.(2d) 105; [1989] 3 W.W.R. 97, appld. [para. 14].

Blue River Heavy Hauling Ltd. v. Cal-Van Auctioneering Ltd. (1987), 87 A.R. 67 (Q.B. Master), refd to. [para. 23].

Singh v. Dura (1988), 86 A.R. 268; 59 Alta. L.R.(2d) 1 (C.A.), consd. [para. 27].

DeBono v. Smith (1989), 62 Man.R.(2d) 98; 40 C.P.C.(2d) 76 (Q.B.), consd. [para. 28].

Statutes Noticed:

Alberta Bill of Rights, R.S.A. 1980, c. A-16, sect. 1(b), sect. 1(c) [para. 1].

Canadian Charter of Rights and Freedoms, 1982, sect. 2(a), sect. 15 [para. 1].

Rules of Court (Alta.), rule 12 [para. 22]; rule 218.1 [para. 26]; rule 237(b) [para. 21]; rule 594 [para. 25]; rule 596 [para. 31].

School Act, S.A. 1988, c. S-3.1, generally [para. 1].

Counsel:

T.W. Wakeling and G.D. Chipeur, for the plaintiffs;

R.J. Shaw, for the defendant County of Newell No. 4 Board of Education;

K.W. Lutes, for the defendants Aqueduct Roman Catholic School District No. 374 and Aqueduct Board of Trustees.

This application was heard before Montgomery, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following oral judgment on October 29, 1992.