Thursday, July 3, 2014

The Schoolteachers Win A Round

Life got a little more complicated last month when Justice Chris Martin announced his decision in the Schoolteacher's Motion for Summary Judgment which we argued back in May. You can read the full text of his decision online here. It's not very encouraging.

Justice Martin said my Statement of Claim "falls within that category referred to....as 'the product of wishful, fanciful or imaginative thinking on behalf of the plaintiff'.  There is no substance to it.  There is no air of reality to it."

I think that's a little unfair, and that's what I'm going to have to try and convince the Court of Appeal. The question at issue was whether I could prove malice on the part of the Schoolteachers (Tram and Skull, the Gordon Bell defendants, brought the motion separately from the University of Winnipeg defendants, ("the Professors".) If you've been following this blog, you'll know I told you last month the main arguments I was relying on. They included:

1. The undisputed fact that Tram and Skull concealed their accusations against me from other staff members who might have supported me; and,

2. The undisputed fact that Skull and the University bypassed my Due Process rights under the Practicum Manual and moved for immediate expulsion under the emergency procedures. 

3. The fact that when Tram recorded that I had "tapped" a student on the shoulder, Skull went on to report to the University that I had "grabbed" him by the shoulder.

How does Justice Martin answer these arguments? He answers them by ignoring them. He simply says that whatever discrepancies I found in the Defendants arguments were at once "minor and understandable". 

When we appeared before Justice Martin last month for oral arguments, I told you how he went to great lengths to make sure I felt that my arguments were being heard. And I told you that I when I left the courtroom, I did feel that whatever opinions the Judge had formed prior to the hearing, at least he had listened to my arguments.

I don't feel that way anymore after reading his written decision.



Monday, June 9, 2014

The Criminal Trial Concludes

My criminal trial on charges of Trespassing, Mischief, and Forcible Entry concluded last week, after four days of testimony and argument which began last September. Judge Krahn has reserved her decision until July 7th, so we'll have to wait until then to hear what she has to say. But no matter what the outcome, the trial has been an unmitigated disaster for the University of Winnipeg.

The University thought that they could convict me of trespassing without having to say why I was barred from the campus in the first place. A naive reading of the Petty Trespassing Act might seem to support this notion; after all, if I trespass in your back yard, you don't need to have a reason to tell me to get out. And the Petty Trespassing Act does not explicitly distinguish between private individuals and other "private" property owners such as shopping malls and universities, where the public is generally admitted without restriction. But if the statutory law does not make this distinction, then the common law most certainly does, as I argued in my summation before Judge Krahn. No one has ever been convicted for trespassing on "quasi-public" property without the court inquiring as to whether the manager of that property had a legitimate reason for wanting the person banned.

The ironic thing about this case was that the University had a perfectly legitimate reason to ban me - namely, that I was a psychotic sociopath who had just attempted to force his way into the home of one of his professors. I'd say that's a pretty good reason to ban me from the campus.

But when I asked the Crown Attorney to provide me with a list of the witnesses he intended to call, I saw that there was no one on his list who could testify as to the facts of the home invasion. Well, if he wasn't going to call those witnesses, then I was. And that's when things started to go south for the U of W.

The problem was that the home invasion story was a crock, and everybody knew it. I had called on Professor Bush at his home to serve legal papers on him; Professor Bush had sent his wife to the door, and she refused to accept the papers, slamming the door on me. Then the Bushes got the bright idea of accusing me of attempting to force my way in, and started a round of phone calls that ended up with the U of W issuing a no-trespassing order against me.

So on the first day of the trial, I called the Bushes and various other people who had been involved in those phone conversations, including Professor Metz, Academic VP Neil Besner, Security Chief Martin Grainger, and union rep Lisa McGifford. I knew about all those phone calls because I had sued Professor Bush and his wife for defamation, and in response they had filed affidavits describing all the discussions they had had that evening, and basically denying that they had accused me of trying to force my way in.

And that was their problem. There are two ways of defending youself against a defamation charge: either you say, "I never said that", or you say, "I said it, and it's true". For purposes of the civil case, the Bushes had chosen Option A. But it would turn out that to make the criminal charges stick, they needed to argue Option B. And that's where I had them.

As I told the Judge, the lies they needed to tell to beat me on the criminal case were different from the lies they needed to tell to beat me on the civil case.

Friday, June 6, 2014

Who reads this blog anyways?

I'm no waiting for two court decisions which will have a big impact on the way my fight with the U of W proceeds: in Civil Court, the decision pending on the Schoolteacher's Motion for Summary Judgment on the conspiracy/defamation claim, and in Criminal Court, Judge Krahn's pending decision on the criminal trespassing charges against me. We'll see how those come down.

In the meantime this blogsite had small milestone last month when it surpassed my other blogsite, "Why I Hate Physics", to become my all-time leader in hit counts. The Physics blog has been a big thing for me; I started it in May 2010, and had no idea if anyone was reading it until almost a year and a half later, when I noticed Google Blogger tracks your hit counts. I was pretty excited to see that I had been getting about 200 clicks a month, and that somehow motivated me to post more frequently. And that in turn led to a steady rise in my hit counts, which are now averaging about a hundred clicks per day. Here is the chart of my cumulative hits, which have now reached just over 70,000 (there is a glitch in the Google software which misprints the years on the time axis, doubling the scale; I really started in May of 2010:)


Meanwhile, I started blogging about my fight with the U of W in January of 2012. Of course, that got hits right away, with some notable peaks which you can see in the graph below:


The first little peak was when I started telling the story; then, when the Appeals Committee threw out my appeal in March, I took the blog down temporarily because I didn't want to compromise my legal options. Over the summer, I figured out my options and when I filed in September 2012, it was noted by the newspapers; that's the second big peak in the graph. The third big peak was when I got arrested and sent to jail. The next three peaks correspond to various extended discussions where classmates joined the fray, bringing us up to the present time. And as I said, last month my cumulative total went over 70,000 for the first time passing the mark held by my Physics blog.

Stay tuned for more exciting developments....

Wednesday, June 4, 2014

Bald Assertions and Self-Serving Affidavits

I've been telling you about my recent appearance before Justice Martin to appeal the schoolteacher's Summary Judgment decision in my conspiracy claim. All present...that is, the judge, counsel for the schoolteachers, and myself...agreed that the issue was evidence of malice. And I was arguing hard to show that the only reasonable explanation for the way they kicked me out of the practicum was that they were out to get me. Why else the secrecy in putting together the complaints, and the application of the expedited removal procedures so I wouldn't have the chance to answer the charges against me? But the Judge seemed to be most interested in my closing argument...that the serious charges leveled against me on the Monday morning when I was expelled were completely different from the nonsensical accusations made against me only two days earlier in a Friday phone conversation between the Vice Principal and the Director of Student teaching. Didn't that suggest they just pulling these complaints out of their ass?

But in the end, it may not even come to that. Summary Judgement is a legal procedure invoked when the moving party can demonstrate that there is "no genuine issue for trial". What does this mean? It is easiest to understand it if we compare it to a Motion to Strike, which is the other way of getting a case thrown out of court. In a Motion to Strike, the Court will assume that everything in the statement of claim is provable; the Defense must show that even so, there is no legal cause for action. In other words, I say: "You did so-and so...."; and they say, "Even if we did...then so what?" That's a Motion to Strike.

A motion for Summary Judgement is different. In Summary Judgment, I say: "You did so-and-so..."; and they say, "No we didn't...and here is our evidence." If they have evidence which calls into question my Statement of Claim, I have to respond with counter-evidence of my own. This is sometimes called the "shift of onus." But it's not really a shift of onus. The ultimate onus always remains on the moving party to show that there is no genuine issue for trial.

I think in the end, the Judge might find that it doesn't matter about my evidence, because the Schoolteachers didn't meet their "first-stage onus" to show that there was no genuine issue for trial. My argument here was based on the details in my Statement of Claim. In my claim, I laid out seven factual circumstances to support my allegation of malice. The Schoolteachers responded by a blanket pleading bona fides, arguing that they were motivated by protecting the welfare of their students. But they didn't respond to my seven points item by item. In particular, they didn't even attempt to deny that the accusations were collected in secret, and that no opportunity was given for me to respond.

Does this meet their first-stage burden on summary judgement? I told the Judge I didn't think it did. I told him it shouldn't be enough for them to baldly assert lack of malice and then throw it back at me to prove the opposite. Maybe that's enough if my original pleadings contained no more than a bald assertion of malice; but once I itemized the circumstances, as I did in my Statement of Claim, they should not be allowed to displace without responding to each of my particulars.

Oddly enough, I could find little support for this position in the jurisprudence. I found dozens if not hundreds of cases where the Judge admonishes the responding party for failing to adduce hard evidence, and attempting to rely on "bald assertions and self-serving affidavits". But not a single case where the Judge castigated the moving party for the same thing. I told the Judge that this wasn't right; the evidentiary burden on the responding party should not be greater than that on the moving party.

So I urged him to find that the Schoolteachers, in relying on nothing more than "bald assertions and self-serving affidavits", had failed to meet their first-stage burden. Like I said, there are countless cases where judges have used exactly that phrase in ruling that the responding party had failed to meet its second-stage burden. I'm just saying what's fair for the goose...

But we'll have to wait for Justice Martin's decision to see what he says. In the meantime, I argued another case yesterday in court: it was the fifth and final day of my trial for Criminal Trespassing, which had been on hold since just before Christmas. My biggest worry had been that the Crown would wise up and drop the charges to spare the University a humiliating defeat, but to my surprise we made it through to the end of the day, both sides making their closing arguments, and the Judge Krahn expressing an expectation that she would be providing a written decision, possibly when we return on July 7th. When we return, I'll tell you how it went in court.


Monday, June 2, 2014

Tim Cox Reports Me To the U of W

It was getting close to 4:30 and Justice Martin had already extended our hearing almost an extra half hour. I was desperately trying to convince him that I had enough evidence of malice to go to trial against Principal Skull and Mr. Tram. So far, the judge seemed to be giving credibility to their story that in acting to kick me out of the practicum, they had been motivated solely by legitimate concern for the welfare of their students. In their affidavits, they had listed three serious concerns on which the Principal had found it necessary to take immediate action:

1. My refusal to provide lesson plans, resulting in no progress made in the curriculum.

2. My aggresive and confrontational demeanor towards staff and students.

3. My defiant attitude and refusal to follow instructions.

I told the Judge that he shouldn't believe these accusations, and I thought had some pretty good evidence which tended to show that they were cooked up to provide an excuse to get rid of me. I'll tell you about that evidence another time; but in any event, the Judge was a hard sell. My main was that no matter what they claimed about having serious concerns, they still couldn't answer two questions:

1. Why had they kept these concerns secret from me for two weeks before suddenly springing them on me they day they kicked me out? That they had done so was unchallenged.

2. Why had they moved for an immediate expedited removal (as permitted by Page 28 of the Handbook) instead of going through the normal Due Process procedures as listed on Page 27, thereby depriving me of the opportunity to even respond to the accusations against me? That they had done so was also unchallenged by any evidence.

On the basis of these circumstances, I argued that "a finder of fact could reasonably infer the existence of malice." But now my time was almost up, and I knew there was one more thing I needed to say, if only I could flip through my notes and find it....

Ah, yes. The Cox transcripts! I was kicked out on a Monday morning, but it seems the previous Friday the vice principal had spoken to the Director of Student Teaching, Deb Woloshyn, and Deb had taken notes of their conversation. The judge appeared interested: just what was in those notes? Here is how Deb recalled their discussion:

  • The practicum is not going smoothly for Marty
  • Marty says he has 3 professors who have brought up non-Academic disobedience charges
  • This week Marty asked the VP if a homeless guy can come watch him teach -wanted him to have an opportunity to see what he could be. Tim said no. Marty interrupted Tim's conversation with someone else to make this request.
  • The Cooperating Teacher (CT) in Calculus has said that Marty's teaching is not to standard. Students are upset. Students are not getting it. Marty is all over the board.
  • Gordon Bell encourages its student teachers to observe in many classrooms, which Marty has done. The CT's have said that Marty is asking uncomfortable questions. The CT's have asked if they can have Marty work in the library until the Faculty Supervisor arrives (Nov. 22).
  • CT's have been documenting
  • Tim questions whether Marty has been coming and going from the building on his practicum day as he saw him coming in at 9:30 one morning
  • Tim has concerns of mental health. If Marty were a regular staff member, the3 Admin would be concerned
  • Our Faculty Supervisor will be at the school early next week to assist with concerns.

This is what they were saying about me on a Friday, and on the next Monday they kicked me out of school. But you should notice something a little peculiar about all this. On Friday, there was not a word about lesson plans, or aggressive confrontational behavior, or refusal to follow orders. According to Mr. Cox, I was leaving the building to go for coffee, and asking uncomfortable questions. And there was something about a homeless man. Those were his complaints.

But on Monday morning they had a completely different set of complaints. Were they not, I asked the judge, simply pulling things out of thin air wherever they thought they could find something to make me look bad?

The Judge appeared to be thinking long and hard about that as I sat down.

Friday, May 30, 2014

The Judge Turns Up The Heat

I've been telling you about my appearance last week before Justice Martin, attempting to overturn the Summary Judgment awarded to the Schoolteachers in chambers before Master Berthaudin in the winter. Mr. Mackwood had just finished his presentation, and just as I was getting started, the judge interrupted me. Basically, he wanted me to "cut to the chase": he had some real concerns as to how I intended to prove malice on the part of Tram and Skull. Weren't they ultimately just doing their job?

This was unexpected. In my Brief, I had argued that Tram's diary, which which I posted earlier this month online, was virtually dripping with malice at every line. Even the worst of my online haters, like Mr. Confused, virtually admitted it was so. And yet the Judge claimed not to see it. Well, this was going to be tougher than expected. My whole future was on the line.

What happened next was that as I started going through my argument, the Judge was continually engaging me and questioning me. I've never quite been in that position before; usually, both sides present their arugments with little interruption, and then the judge retires to make his decision. But this was a continuous back-and-forth that lasted nearly an hour. It was pretty gruelling.

And yet he seemed to have an  open mind. He assured me that no matter what the outcome, he wanted me to go away feeling that at least my argument had been heard. And I think he was being straight about that. But he still had difficulty seeing explicit malice in Tram's diary.

Finally, with just half and hour left in our two-hour hearing, he asked me if maybe I didn't want to take a break and return to my prepared arguments, which he would listen to without interruption. I took him up on his offer, and left the chambers to gather my wits. At twenty to four, we resumed.

First I reminded the Court of the ground rules for summary judgment: it's not a mini-trial, and I don't have to prove my case. I just have to show that I have some reasonable evidence from which the ultimate finder of fact (the trial judge or jury) could "reasonably infer" the existence of malice. And if the glaring inconsistency between Tram's account of my practicum and my own contemporaneous notes (which were also entered into evidence) wasn't enough, then there were two very compelling circumstances which were almost impossible to explain without the presence of malice:

1. The case against me was made in secret, and not revealed to me until the day I was expelled. This violates all the rules of fair play, whether the common sense rules or the explicit rules set out in the Practicum Student Teacher Handbook.

2.  The evidence showed that after Principal Skull notified the University that I had been excorted off the property, the University immediately wrote back and requested that Skull formally ask that I not be allowed to return! This step was necessary to meet the strict conditions for expedited removal as laid out in the Handbook, thereby depriving me of my right to appeal or have my story heard. This, I told the Judge, more than anything else showed both the elements of malice and conspiracy which were necessarcy for me to prove at trial.

These two elements, which were well-documented in the evidence before the court, should have been (and perhaps they will be) enough for me to prevail at the Summary Judgment level. But there was one more piece of the puzzle which I almost forgot to bring up, and only got in at the last minute. It was almost 4:20 already, and the Judge had already permitted me to go 20 minutes over. I was trying to wrap up, but there was one more thing I wanted to say. I drew the Judges attention to the affidavit of Colin Russell, the University Registrar who had filed a stack of documents almost a year and a half ago in support of the University's unsuccessful attempt at Summary Judgment on the same motion. (The Professors and the Schoolteachers, as I have called them, retained separate counsel and were pursuing separate defence strategies, which is why I had to defeat two different summary judgment motions.)

It seems the day before they kicked me out, the Vice Principal of Gordon Bell had engaged in a phone conversation with Deb Woloshyn, the Director of Student Teaching at the U of W. And Deb had made notes of the conversation, which were then included in the package submitted to the court by Colin Russell. As the Judge read over those notes, I thought I saw an expression of interest that might have boded well for my prospects. When we return, I'll tell you what Mr. Cox told Deb Woloshyn, and why it might have been problematic for Mrs. Skull and Mr. Tram...

Wednesday, May 28, 2014

A Genuine Issue for Trial

We were arguing my appeal of the Schoolteacher's summary judgment, and Mr. Mackwood was up first. He spoke for maybe 25 minutes, sticking close to the Schoolteachers' main argument: that I had no evidence of malice to defeat their defence of Qualified Privilege. This was the argument that Master Berthaudin had found convincing at the original hearing last December. At that time I had argued that I was not obligated to provide evidence at this stage of the proceedings, because the Schoolteachers had not met their "first-stage onus" on summary judgment: to make a prima facie case that my pleadings could not stand.

Mr. Mackwood argued that the Schoolteachers had the best possible evidence of bona fides (lack of malice): namely, their own sworn testimony that they had acted at all times in good faith. Who, after all, is more qualified to testify as to their state of mind than the owner of the "mind" in question?

I found that argument to be disingenous at best: of course they are going to deny malice. That an impregnable defence. Furthermore, my position was backed up by significant case law, where judges have held that at the summary judgment stage, the courts should not make findings on the state of mind based on the uncorroborated assertions of the claimant. I was prepared to argue before Justice Martin that the protestations of innocence on by Mr. Tram and Mrs. Skull did not rise above the level of what is known as "bald assertions and self-serving affidavits".

But Master Berthaudin hadn't bought that argument in December, and that was why I was back in court. So this time I was also prepared to argue that even assuming the Schoolteachers had met their "first-stage onus", that I had sufficient evidence to meet my "second-stage onus" on Summary Judgment: namely, to show that there was still a genuine issue for trial that could not be settled at the summary stage.

And that was where we stood when Mr. Mackwood concluded his arguments and I rose to make my response...