SC-13-26951-0000

SUPERIOR COURT OF JUSTICE

5

TAMMY LARABIE
Plaintiff
10

v.

CHRISTOPHER CUI
IRIS LEE
Defendants

15

R E A S O N S

F O R

J U D G M E N T

20

BEFORE THE HONOURABLE DEPUTY JUDGE LEWIS J. RICHARDSON

on the 3rd day of February, 2015, at TORONTO, Ontario

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APPEARANCES:
M. Jacquesson
R. Brown

Paralegal for the Plaintiff

For the Defendant Christopher
Cui

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R. Brown

For the Defendant Irish Lee

(i)
Table of Contents
SUPERIOR COURT OF JUSTICE
T A B L E
5

O F

C O N T E N T S

W I T N E S S E S
WITNESS:

Examination
In-Chief

CrossExamination

ReExamination

10

E X H I B I T S
EXHIBIT NUMBER

ENTERED ON PAGE

15

20

LEGEND
[sic] - Indicates preceding word has been reproduced
verbatim and is not a transcription error.

25

(ph) - indicates preceding word has been spelled

phonetically.

Transcript Ordered: ....................March 17, 2015

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Transcript Completed: ..................March 23, 2015

Ordering Party Notified: ...............March 23, 2015

AG 0087 (rev.07-01)

1.
Larabie v. Cui
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.

10

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

15

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

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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.

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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

30

$35 per day thereafter.

The terms of the

contract required the defendants, Christopher and

AG 0087 (rev.07-01)

2.
Larabie v. Cui
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.

10

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

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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.

20

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

25

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

30

notice, their position is that they were

justified in doing so on two grounds.
AG 0087 (rev.07-01)

One, the

3.
Larabie v. Cui
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.

10

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

15

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

20

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.

25

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.

30

She candidly admits

that her function is more of that of a

babysitter.
AG 0087 (rev.07-01)

I have no evidence to suggest that

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Larabie v. Cui
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.
10

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

15

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

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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.

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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

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plaintiff with the smoking issue as they wanted

to keep harmony between them.
AG 0087 (rev.07-01)

5.
Larabie v. Cui
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

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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.

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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

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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

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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

30

reasonable suspicions, must report to the Society

forthwith.
AG 0087 (rev.07-01)

6.
Larabie v. Cui
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

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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

15

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

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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

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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.

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I have very carefully reviewed the many and

constant texts between the plaintiff and Iris.
AG 0087 (rev.07-01)

7.
Larabie v. Cui
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

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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

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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.

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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

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doctor.
I find nothing in Zivens health history, either
individually or in totality to suggest that he
was in any physical danger.

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I find no evidence

relating to the parental care which would suggest

that they were not totally and properly attentive
AG 0087 (rev.07-01)

8.
Larabie v. Cui
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

10

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

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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

20

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.
25

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.

30

It

is to be noted that Ziven was eight months

younger than the next oldest child and obviously
AG 0087 (rev.07-01)

9.
Larabie v. Cui
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

10

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

15

recommendations advising that doctors can make

mistakes.
In matters of credibility, I much prefer the
evidence of the defendants in matters where the

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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.

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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

30

defendant to the Childrens Aid Society, she was

trying to protect herself and also trying to
AG 0087 (rev.07-01)

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Larabie v. Cui
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

10

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.
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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

20

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.
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A report from the Childrens Aid Society dated

August 8th concluded after an investigation that
the plaintiffs claims were not substantiated.

letter from the childs pediatrician dated August

15th, confirmed that the child was always in good

30

health and received excellent care from his

parents.
AG 0087 (rev.07-01)

11.
Larabie v. Cui
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

10

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

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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

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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

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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.

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For the same reasons I allow the defendants

claim and now deal with the assessment of
AG 0087 (rev.07-01)

12.
Larabie v. Cui
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.

believe that Christopher was deeply hurt and

crushed from the investigation.
At the trial, he was so choked with emotion that

10

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.
15

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

20

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

25

following the doctors orders with respect to

feeding patterns.
It is well known, however, that these complaints
and investigations remain on record permanently.

30

Iris felt inadequate as a mother.

At the time

she was pregnant with her second child.

AG 0087 (rev.07-01)

She was

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Larabie v. Cui
totally shocked and taken by surprise.
guilty, tense and stressed.

She felt

She was a most

credible witness, speaking about very sensitive

and painful issues.
5

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

10

high in sodium.
Iris had in the past suffered from depression.
She saw a psychiatrist as a result of this
episode.

15

She was put on anti-depressants, 25

milligrams of Zoloff.
milligrams.

It was later doubled to 50

She is still on medication and is

affected by the incident.

I find the defendants to be competent, caring and

20

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.
25

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

30

emotionally as a result.

AG 0087 (rev.07-01)

14.
Larabie v. Cui
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.
totally.

I agree

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:

10

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...

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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...

20

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:

25

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:

30

THE COURT:
minute...
AG 0087 (rev.07-01)

There was an offer.

Do I have them both here, wait a

15.
Larabie v. Cui
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:

10

And $1,500 costs of the plaintiffs

claim?
MR. BROWN:

Yes, Your Honour, it was never

accepted.

15

20

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:

25

THE COURT:

Thats correct.

All right.

What do you say is

appropriate, Mr. Brown?

MR. BROWN:

Your Honour, I would say 5,000 is

appropriate, Your Honour, and...

30

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

AG 0087 (rev.07-01)

16.
Larabie v. Cui
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...

10

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.

15

THE COURT:

Is that a Small Claims Court

decision?

20

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

25

was alleged.

30

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:
AG 0087 (rev.07-01)

I think that the amount that my

17.
Larabie v. Cui
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:

10

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

15

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.
20

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

25

$8,000.
There shall be pre-judgment interest from August
1, 2013 youll get copies of this, and postjudgment interest pursuant to the Courts of

30

Justice Act.

The plaintiffs submitted an offer

which was more favourable to Ms. Larabie and my

AG 0087 (rev.07-01)

18.
Larabie v. Cui
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.

10

Did you give the parties a copy?

COURTROOM REGISTRAR:
THE COURT:

(Indecipherable).

Heres the file.

...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED

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AG 0087 (rev.07-01)

19.
Larabie v. Cui
Certification
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
10

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.

15

20

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.

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AG 0087 (rev.07-01)