Friday, December 7, 2012

In which I file a Brief

With all the preliminaries taken care of, we can finally look at the Brief which I filed in support of my Motion for Exclusion.

I begin with some general remarks about the nature of the case: how in a conspiracy, the defendants will naturally try to deny whatever supposedly happened behind closed doors, and one of the few ways the plaintiff can overcome this is to show discrepancies between the stories of the various co-defendants. In my case, the defendants want to show that my failings as a teacher were so obvious that they were independently identified by numerous independent witnesses. I want to compromise that assertion by showing the witnesses were not as independent as they claim to be.

Am I not, in so arguing, weakening my own case by giving the co-defendants advance notice of how I intend to attack their stories. Yes I am; in fact, it soon gets worse. In the next paragraph (para. 4) I point out a specific example of inconsistencies in the written record. Where the classroom teacher (Tram) reported that I "tapped" a student on the shoulder, the Principal (Skull) reported to the University that I "grabbed" a student by the shoulder.

I'd like to know how they'll explain that one away. In fact, I would have much rather had the chance to confront each of those two defendants independently, to see how each one explained it without knowing what the other would say. But here I've gone and put it in my brief, so they have plenty of opportunity to come up with a united story. Why did I do this?

It was a calculated sacrifice designed to improve my chances of getting the motion approved. In my review of case law, I found that there are four things a court will consider before granting the kind of motion which I am after. The factors are:

1. To what extent will the credibility of the respondents will be a major factor in deciding the action?

2. Can the applicant show that there is a reasonable apprehension that the respondents may take advantage of the opportunity to harmonize and tailor their evidence if not excluded from each others’ examinations?

3. Is there a substantial commonality of interest among the various defendants?

4. To what extent is the examination of those parties expected to cover similar or identical ground?

It is item 2 which is the sticky point here. Different courts have held applicants to different standards in terms of establishing "reasonable apprehension" of tailoring. In one especially useful case, Lambert v Longmore (Alberta Supreme Court), the majority held the applicant to the standard of providing "cogent evidence" to support the apprehension of tailoring, while the minority in dissent argued for a much more lenient threshold. I argue that I should be held to the more lenient threshold of merely asserting by affidavit that such apprehension exists, but I do not trust the courts to accept that argument: so at the same time, I attempt to meet the more stringent hurdle of "cogent evidence". That's why I submit the conflicting testimonies of Tram and Skull as evidence of the propensity of my opponents to tailor evidence to suit their needs. By sacrificing this example, I hope to open the door to identifying even more examples on discovery.

And that's where it stands. I go to court Monday morning to set a date...that is, assuming counsel for the other side intends to oppose my motion. If you're wondering where I find all the precedents that I've talked about, the website is called CANLII  and you can search by name or topic. I think you'll find my cases if you search for "exclusion of parties".

Tuesday, December 4, 2012

In which I file an Affidavit

I mentioned already that when you file a Statement of Claim, you put your whole case into one document, but when you file a Motion, there are three documents involved. The first two are the Notice of Motion and the Affidavit, which together are more or less the equivalent of the Statement of Claim, in that you are providing notice to the other side of the factual basis of your claim. Today we'll do a quick review of my Affidavit.

The basic template Form 4d from Queens Bench website. Paragraphs 1 and 2 are just the standard preamble. In paragraphs 3 through 6, I give the reasons for my motion; you can see I make a bit of an argument, even though in theory I'm supposed to be sticking strictly to facts. In any case, it's what I claim: that if allowed to attend each other's testimony, there is reasonable apprehension that they will tailor their evidence to harmonize with that of their co-defendants.

Then I have to list the documentary evidence I will be using to support my motion. In paragraphs 7, 8 and 9 I list three documents:

1. The Registrar's Report of January 20th 2012 in which I am formally suspended. In this report he basically sets out the entire narrative, from the University's point of view, of why I was expelled. You can read it here.

2. The diary of Hiep Tram, the classroom teacher who put together an extremely prejudicial dossier against me.

3. The letter from the Prinicipal of Gordon Bell to the University, requesting that I be removed from the practicum.

Most of the contents of the latter two documents can be found in my Statement of Claim, where I list the defamatory statements for which I am seeking damages. In any case, in my Affidavit I am required to list all the documents I will be using when I argue my motion, and those documents were attached to the hard copy which I filed with the Court and distributed to opposing counsel.

Which brings us to the crux of the matter: my argument. The argument is laid out in my Brief, which you can also read online. When we return, I'll tell you more about my Brief.

Friday, November 30, 2012

In which I ask for Exclusion of Parties

I told you last time how I filed a Notice of Motion asking for the exclusion of co-defendants from attending each others' Examinations for Discovery. Today I'm going to tell you a little bit about my motion. I already said it's a little mixed up because I didn't exactly know the difference between a Motion, and Affidavit, and a Brief. So some of the things that were supposed to go in one, I ended up putting in another. But I think I've got them all in there one way way or another.

You can see that I begin each section of my Motion with a phrase in capital letters. This comes straight from the Court of Queen's bench templates, specifically Form 37a. The only problem is they don't tell you exactly what everything means. I think I'm OK when I say "THE MOTION IS FOR the exclusion of co-defendants....". But then they ask me the grounds for the motion. I list three grounds here, attempting to be as succinct as possible. I actually reviewed the case law to find what judges in other jurisdictions were looking for when they granted this kind of motion, and I tried to include as much of that as possible without getting into "arguments".

I was also supposed to included any "statutory provision" which I intended to rely on, and I had a bit of a problem here. I pored through the Queen's Bench rules, and couldn't find anything relating specifically to this situation. It seems that what lawyers do in this situation is they just cite the Queen's Bench Rules "in general", so that's probably what I ought to have done. But in fact, I am relying on the case law, not on the QB rules. Which brings us to the next item. "THE FOLLOWING DOCUMENTARY EVIDENCE will be used....".

This is where I list the cases I found. Of course that's messed up: a case isn't "documentary evidence". In fact, I'm supposed to list the cases I rely on, but I'm supposed to do that in my Brief. So they're out of place here. What I was supposed to put here is that I intend to file an AFFIDAVIT which will list the evidence I plan to bring. At least, I think that's what goes here. In fact, as we'll see, I do list several pieces of evidence in my Affidavit, and I'm quite sure I'm not supposed to list them twice...once in my Notice, and again in my Affidavit. So I think all I was expected to put here was to list my affidavit, which I ought to have then filed simultaneously with the Notice of Motion.

The other thing I included in my "list of evidence" was an undertaking to file a Brief in support of the motion. Again, I think this was unnecessary. If you file a brief, you file a don't have to tell them in advance. In any case, it's all done. And as of yesterday, I've also filed my Affidavit and my Brief. So as far as I'm concerned, my filings are all complete. When we return, we can talk about my Affidavit, which you can look at here.

Wednesday, November 28, 2012

In which I file a Motion

When we left off, I told you I had just filed a Notice of Motion to have the opposing parties excluding from attending the discoveries of their co-defendants. You can check out my Motion online and see how I've done it, but I have to caution you, if you're thinking of doing something similar yourself, that I'm not sure I've done it quite right.

I put a lot of effort into my initial Statement of Claim, and learned everything I could about what does and doesn't go into one. I can't say my Statement of Claim is perfect, but I can at least take some comfort in the fact that my opponents did not attempt to have it thrown out of court prior to going to trial, as is the fate of many claims, and not just those filed by self-represented litigants.

On the Notice of Motion, I'm actually on shakier ground. I'm learning the process as I go along, and I've had a couple of little bumps. I started off by using the template Form 37A found on the Queen's Bench website. Right at the start it tells you to state the time and place where the motion is to be heard. Not knowing any better, I put down an arbitrary date of Monday the 17th of December. I wanted to allow enough time to give notice to the other side so they could prepare their arguments, and four weeks seeemed about right. And I put down an arbitrary time of 10:00 am, because the form asks you to fill in a time. By coincidence, this happens to be the time when motions are actually heard before a judge. Perfect, right?

Not exactly. It seems I don't want to be heard by a judge, but by a "Master". I don't know what the difference is, but that's what I was supposed to ask for. And the Masters hear motions at 9:30 on Monday mornings.  Also, although I have little doubt my motion will be opposed by the other side, it seems that all motions automatically go on the "uncontested" list. If the other side shows up to contest it, the motion is automatically re-scheduled for a future date. So there was no need for me to wait four weeks before going before the Master.

After learning all this, I went back to court the next day with an Amended Notice of Motion. So I was pretty dismayed to find out that once you file a motion, you can't amend it. Actually, the clerks at the Law Courts building had a bit of a time figuring out what I needed to do. At first it looked like I would have to abandon my original motion and file a brand new one, which would cost me another $100 for the filing fee.  But then they figured out that I could just adjourn the motion, and then I  re-open it before a Master, on whatever date I wanted. They even gave me my new appointment right then and there, for 9:30 am on Monday the 10th. But they couldn't let me adjourn the original date so easily...I had to get written consent from the other parties. Not a big deal, but it means a little more running around. No harm done, and I saved $100.

Having filed the motion, I'm not done yet. With a Statement of Claim, you put everything into one document, and that's it. A motion is somehow different...there are really three documents that need to be filed. First there's your Notice of Motion. Then you need an Affidavit of Facts. And finally you submit a Brief with your supporting arguments. (And if your Brief cites previous cases, your supposed to include a separate Book with copies of the judgements from those cases.)

You can see in my Notice of Motion that I undertake to file my Brief within ten days. What about my Affidavit? I think that was actually supposed to go in together with my Notice, but no matter; I'll include one when I do my Brief. What is confusing to me is to figure out exactly what goes in the Notice, what goes in the Affidavit, and what goes in the Brief?

As near as I can tell, the combination of the Notice of Motion and the Affidavit of Facts is more or less the equivalent of the Statement of Claim. You are notifying the other party of exactly what you are asking for, and including facts which, assuming they are true, would supposedly justify the granting of the motion. The Brief is different. In the brief you are arguing your case. That's something you don't do when you make a Statement of Claim. In that case, you don't make your arguments until you go to court. But in a Motion, they want you to put down your arguments ahead of time.

I've prepared my Affidavit and my Brief, and I think they're pretty good. I'll post them online for you in the next couple of days. I'm not sure that I've put everything where it facts and arguments may be spilling over from one document to another here and there, but I think the courts will give me some slack on that. The main thing is that if I take all three filings together...the Notice, the Affidavit, and the Brief...that I think I've covered all my bases. We'll see how that works out.

Sunday, November 25, 2012

In which I serve Notice of Examination

The first part of the discovery process is relatively straightforward. Both sides have to file an Affidavit of Documents, listing all documents in their possession containing information relevant to the case. I filed mine last week, and I am still waiting for my opponents to file theirs. In the meantime, once you have filed, you are entitled to summon the opposing parties to be examined. You do this by serving them with a Notice of Examination. This I have also done.

I am not exactly ready to conduct my examinations, but I served notice anyways. I did so because according to the Court of Queen's Bench Rules, the party who serves first is the party who gets to examine first. I want to examine them before they examine me. So I served notice requiring each of the parties to report for examination "at a location...and on a date and time to be agreed upon...". This is a bit irregular. You're expected to name a specific time and place, but I wasn't ready to do that. I just wanted to establish my priority.

So you're wondering: why do I care about priority and why wouldn't I name a time and place?

The priority issue goes back to the very start of my conflict with the university. They wanted me to tell them my side of the story first, before they would tell me what other people were saying about me. I wouldn't agree to this. That's what they call a fishing expedition. When someone's trying to build a case against you, it's a tremendous advantage if they can feel you out ahead of time.

So if I want to examine them first, why won't I name a time and place?

Now it gets complicated. Normally, when there are multiple defendants, they are all entitled to be present for the examinations. So while I am examining Party A, Parties B,C,D and E are sitting there observing. I don't want that. The crux of my case is that those parties got together to do me in, and the crux of their defense is that they didn't. They acted independently, motivated by nothing more than the desire to do their jobs. If I want to find holes in their narrative, it is a great advantage for me to be able to examine them separately, so they don't have the opportunity to harmonize their stories. Likewise, it is to their advantage to attend the examinations of their co-defendants.

I am therefore asking the Court to order that the various individual defendants be excluded from attending the examinations of their co-defendants. To this end, I have filed a motion with the court requesting just that. And until that motion is decided, I have no way of knowing what date I will be able to begin my examinations.

That's why I left the time and place on my Notice of Examination "to be agreed upon". It's rather irregular and I'm not sure that it's going to fly. But as far as I'm concerned, I'm on the record as having established my claim to priority. The real issue now is going to be my Motion for Exclusion.

I've posted my motion online, so you can look it over here. When we return, I'll explain how the process works and the way I plan to argue it.

Saturday, November 24, 2012

The Legal Process moves forward

Last month I told you about how I filed a Statement of Claim, initiating legal proceedings against the U of W. I even posted my Statement of Claim online so you could see what it looks like. Well, a few things have happened since then. The Manitoba rules allow the defendants twenty days to file a response to a Statement of Claim. I named five individual respondents plus the University of Winnipeg, and in due course I received two Statements of Defence: one from the firm of D'Arcy and Deacon, representing the University and its staff members, and another from the firm of Aikins, MacAulay and Thorvaldson representing the teachers from Gordon Bell.

My opponents claim they did not act with malice towards me, and that their actions were motivated by legitimate concerns about my behavior as a student teacher. Their position is summarized most succinctly by the letter from the Principal of Gordon Bell to the Director of Student Teaching at the university, requesting my removal from the school:

"As a follow-up to the documentation and our conversation about our concerns with Mr. M. Green, we are requesting that he do his student teaching block in another location/school. The reasons for our request are stated in the meeting summary and include:
 -refusing to submit lesson plans in   any   recognised standard format

-refusing to state or accept, that a lesson plan involves more than a “topic”

-refusing to follow teacher directions related to planning of lessons, lesson content and               disciplinary issues with students

-level of agitation and confrontation with staff: pacing the room while talking very loudly   (when asked to plan lessons and stick to the curricular topics), leaving the classroom  when he did not get exactly what he wanted, stating that things will only be done “on            his terms”, and “I trust no one, I trust myself”

-aggressively confronting and touching students

-students, in Grade 11 and 12, asking the teacher to please re-teach or teach the lessons  due to the lack of clarity and the refusal to answer questions.

-apprehension stated, about his erratic behaviour by both teachers and students

If you need further clarification, please call me.
Arlene Skull"
 I have to admit that these allegations make me look pretty horrible; but of course, that's what the court case is going to be all about. I don't think they're going to be able to sustain those claims; and more importantly, I don't think they're going to convince anyone that those claims were anything but malicious slanders designed to get me kicked out of the program. But that's an argument for another day.

The point is that all parties have now completed what they call their "pleadings", and the battle lines are drawn. This is significant. There was a distinct possibility that my opponents would try to have my Statement of Claim thrown out of court even before it got to trial. In my case there would be two obvious grounds for throwing out my claim: first, by saying that I have "failed to disclose a reasonable cause of action"; and second, to argue that it is the University's internal disciplinary bodies and not the Court which ought to have jurisdiction of matters of this kind. In fact, the lawyers for the University make both of these claims in their Statement of Defense. I originally thought that they meant thereby to have my claim struck down before it was heard; but it seems this is not the case. If they wanted to have my claim struck, they would have made a motion prior to filing a Statement of Defence. Once they file a Statement of Defence, it means they are going to trial. They will certainly make those arguments before the judge in the course of the trial, but I'm not worried about that.

And that pretty much brings to a close the first stage of the process, the so-called "pleadings". The next stage is called "discovery", and it is basically a matter of "you-show-me-yours-and-I'll-show you mine". (Just like sex, this "discovery" stage is often preceeded by extensive "pleadings".) Both sides are required to file a list of all documents in their possession, which they will subsequently be required to produce for the inspection of the opposing side. That's the first part of the discovery process. The next part is called examination. The litigants of both sides are required to make themselves available for detailed examination by the other party's lawyer. It's a little hard for me to believe that this is how it works, but apparently both sides are expected to divulge all relevant facts prior to the case going to trial. Whether or not this works in practise remains to be seen. I don't know how you force someone to answer a question if they claim to have no knowledge of the matter, even if you know they're lying. But in theory each side is entitled to full disclosure from the other side. We'll see how that works.

Wednesday, October 31, 2012

What's Wrong with High School Math

I am an occasional contributor to the local weekly "The Jewish Post", and last year Bernie (the editor) published an article I wrote about high school math. Usually he reposts my articles on his website, but I noticed that this one doesn't appear. So I thought I'd put it up on my blog. I think it's a pretty good article.

What's Wrong with High School Math

I used to be the math guy on Channel 11. It was twenty years ago, and community access TV was a platform for kooks of all stripes to do their thing in front of a TV audience, and my “thing” was math. I started my show because I didn’t like the way math was taught in university, and I thought I could show by example that there was a better way to do things. Instead of teaching math as a set of rules to be followed in order to get correct answers, I wanted to show math as a way of looking at the world so that things made sense. In its three years on the air, my show had at least some success in that my presentations seemed to resonate with quite a few viewers, and not only for their quirkiness; on the other hand, I’m quite sure I had zero impact on the way math was taught in university.

Last year I went back to university to certify as a high school teacher. I didn’t last long: after repeatedly arguing with my professors, I was unceremoniously drummed out of the program after only ten weeks. But in that short time, I was appalled by what I saw going on in the schools. I know there has been a lot of public debate recently over “back to the basics” and the lack of basic literacy in math, but my issues with the system are a little different. This is article is about what I saw.

I am not so much interested in the nuts-and-bolts problem of instilling skills of manipulation in very young children. I am more concerned about what I might call the spiritual consequences of the way math is taught in the senior years.  To understand what I mean, let’s look at the reasons why math is supposedly important:

1. It teaches you how to think.
2. It provides important skills needed in everyday life.
3. “In today’s high-tech global economy”…well, you know the rest.

I’m going to go way out on a limb here and say these are bad reasons to teach math in high school. Let’s put aside for the moment the 5% of graduates who will go on to careers in the technical fields: not because I am willing to concede that they are well-served by the present system, but because the problem of high-tech education is too vast to deal with in this short article. I want to talk now about the 95% of students who won’t  become engineers or scientists. Why do they need to learn how to factor polynomials? Is it worth the cost in human suffering? Because surely only the scourge of acne can rival math as a cause of suffering among teenagers. How do we justify it?

We routinely justify it by reciting the three reasons listed above, but I find them very hard to take seriously. Does anyone seriously believe that mathematical reasoning is of any use in working out solutions to the ordinary problems of daily life: relationships, jobs, happiness or whatever? Even such iconic problems as rent-vs-buy, or how fast to pay down your mortgage…those are lifestyle choices that people will inevitably make for reasons that have very little to do with the the textbook “present-value” calculations that they may be taught in school. No, there is a fourth reason why we teach math, an unspoken reason:

4. We teach math because when we were young, we suffered through it: then, as we grew older, we validated that suffering by convincing ourselves in retrospect that it was “good for us”. And if it was good for us, it will be good for our children.

The pervasiveness of this attitude explains everything that is wrong with math teaching in high school. It explains why you’re not supposed to enjoy math, and it explains why it is alright to forget everything you learned the day after the final exam.

Mostly, it explains why you need to memorize algorithms to get the right answer even if you don’t know what you’re doing. Because the big, soul-crushing lesson students learn from high school math is that you will only succede if you follow directions. If you try to think for yourself, to ask why you need to do what you’ve been told, you will surely fail. 

Yes, high school math does teach you how to think. That’s what scares the s*** out of me.

Saturday, October 27, 2012

I want my project back

Back in January, when I was being kicked out of school and barred from the property, one of the lesser consequences of the overall drama was the matter of a few items of personal property, including three assignments and two projects, that remained stranded at the University. One of the projects was a "bulletin board" that I had put quite a lot of work into and had some fun with. Unable to return to the campus to retrieve it, I wrote the Vice President listing all the outstanding items and asking for his assistance in having them returned. The VP replied, indicating a willingness to return my personal property, but all subsequent attempts on my part to make arrangments to identify the projects in question were ignored.

Last month I initiated civil procedings against the University over my removal from the program, and it occured to me that they still hadn't returned the items they were holding. So I wrote them an email, copying it to the VP, the Registrar, the President (Lloyd Axworthy), the Dean of Education, etc. Someone must have lit a fire under the Registrar's hind quarters, because this time he responded only a week later. He had two of the five assignments, but had consulted with Professor Metz over the other three items and reported back that while acknowledging the Bulletin Board, the Professor had no recollection of assigning us any projects.

There was still one assignment unaccounted for: the bulletin board. It seems Prof. Metz was claiming that he had not marked it because it was incomplete. It seems there was also a one-page write-up to go along with the project that I had neglected to submit. In any case, He said I would have retrieved it in the Fall term, before the Christmas Break.

Actually, the Bulletin Board was submitted the first week of January. I looked in my Sent Items mailbox from last January and there was the write-up. If Prof. Metz never got it, it's not because I didn't send it. So I wrote the Registrar back, telling him that I had indeed completed the assingment, that I was re-copying the written portion to Prof. Metz, and that I still wanted it marked.

Then I looked over the Registrar's letter one more time, and I realized that Prof. Metz was in fact a fountain of misinformation. He had made three mistakes in one short paragraph. So I wrote the Registrar again, copying it of course to the President, the Dean, etc. and of course to Prof. Metz as well:

I have noted the following two errors in the information you received from Prof. Metz:
1. Contrary to his assertion, the written portion of Ass't 5. was emailed to him on January 11th.
2. Contrary to his assertion, there were various projects assigned us through the term, including the two which I would like returned.
I now note a third error on the part of Prof. Metz:
3. Contrary to his assertion, the Bulletin Board project was submitted in the first week of the winter term, not in the fall term.
In view of the number of errors made by Professor Metz in such a short space, I wonder if you would want to reconsider the reliability of the information you used in deciding to expel me from the Education program, in light of the fact that much of that information came from this same Prof. Metz.
That was over a week ago, and I haven't heard from them since.

Monday, October 22, 2012

Conspiracy to Injure

When I last wrote about my legal case, I told you that I was seeking damages under the tort of Conspiracy to Injure. (You can read my complete Statement of Claim online here.) Today I'm going to explain just a little bit about what is involved in an action for conspiracy.

I believe I am not far off the mark in suggesting that the civil tort of conspiracy (as opposed to the charge of conspiracy under criminal law) came into its own in the modern era in the formative years of the labor movement. A strike, to put it simply, is an attempt by the workers to put pressure on the company by making it difficult for the company to carry on its business. The beauty of the strike as a weapon is that every individual worker is free to choose whether or not he wishes to work on any given day. The only recourse the company has against a worker who chooses not to show up (beyond simply not paying his wages) is to refuse to allow that worker to return to his job should he eventually change his mind. If the worker does not possess some exceptional skill that is very difficult to replace, the threat or act of refusing to work is not an effective bargaining tool.

Unless, of course, all the workers decide to exercise that choice at the same time. Then the employer has a problem. He can try to hire replacement workers, but that can be difficult and time consuming. One option explored by employers in the early days of the union movement was to bring civil action against the workers for conspiracy. The claim was that the decision to not work, while not actionable if exercised by individual workers, became actionable if it was done en masse as part of an organized attempt to damage the company.

Is it really fair that you can be held accountable for actions that are perfectly legal, simply because you are acting in concert with a number of other people who are also behaving legally? That's what the law of conspiracy says. It may seem wrong, but the fact is that the group can exercise power far beyond what individuals acting on their own can do. The law simply recognizes that here and there are instances where the abuse of that power becomes so unfair as to demand legal remedy.

And so it was that initially, judges would find in favor of the company and awarded damages against the union. But that situation did not last long. With the passage of time, the courts found that the use of conspiracy laws against the workers was even more unfair than the alternative; and they formulated a new legal doctrine: that what is legal for the individual does not automatically become illegal when done en masse, unless it could be shown that the purpose of the action was specifically to cause damage to the struck party. The unions argued that their primary motivation was not to hurt the company, but to better the lot of the workers, and this argument was accepted by the courts. It essentially stands to this day as the guiding principle of the Tort of Conspiracy.

But that does not provide an excuse if the primary purpose of the conspiracy was not to promote its own legitimate interests, but to damage the interests of the other party. In  Cement Lafarge v BC Lightweight Aggregate (1983), Justice Estey of the Supreme Court of Canada summarized the law as follows:

Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim against them in combination as the tort of conspiracy if:
(1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or,
(2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstance
that injury to the plaintiff is likely to and does result.
It is under subsection (1) that I am claiming damages. It is not that the actions of those who injured me were of themselves illegal. It is that the predominant purpose of their actions was to injure me...or more precisely, that the predominant purpose of the conspiracy was to injure me.

Because it is not enough for me to show that each of the defendants individually wished to do me in. That in itself does not establish my cause of action. I must show not only that they acted to damage my interests, but that they did so with common purpose and agreement. It is not necessary for me to show that every individual defendant knew of or agreed with all of the actions against me. If a co-conspirator was linked only to one other co-conspirator, he is still a part of the conspiracy, even though his actions were limited. He doesn't need to know the full extent of the conspiracy.

There are several defences against the tort of conspiracy, and my opponents will most likely argue each one. They will probably argue that their individual actions were taken independently without knowledge of the intentions of the various other parties. They will undoubtedly argue that their actions were motivated primarily by a desire to protect the best interests of the students of Gordon Bell, and not to damage me personally.

I think they're going to have a hard time making those arguments stick.

Friday, October 19, 2012

About my chemistry project...

Last winter I told you how Professor Bush gave me an F on a major project, and the Registrar declined to process my request for an appeal. Over the next few months, I kept on asking the University to review the grade, and finally just this September the Registrar, while rejecting my request to argue the appeal in person with Prof. Bush in attendance,  agreed to send my written appeal on to the Department Committee.

Two weeks ago I got the response to my appeal. Not surprisingly, it was rejected in whole. I still think it was a pretty good project and I've posted it online so you can judge for yourself. You know it's really hard to get an F in Education: they generally mark on a curve, going from a high of A+ to a low of B. A grade of C would be a rarity, and an F is unheard of.

So how bad was my project? Well, you can see it was nineteen pages, so I don't think I skimped on length. The assignment to was produce a lesson cycle of three Science classes, and I chose Grade Eleven Chemistry. I included four lessons because I wanted one of them to be a lab (the prof asked for an "activity" to be included) and I found I needed four classes to set up sufficient background for the lab I wanted to do.

It's hard to see how I could get an F on this project. I did an awful lot of work; you'll  see that my project starts with an analysis of the whole curriculum for both Grade 10 and 11, so I could make sure that my lessons were on target with what the students already knew and what they were expected to learn over the course of the year. And yet the department's Review Committee makes no comment about the quality of my work. They say only that:

"...we believe that the expectations and evaluations of this course were well explained and transparent.  The final assignment...(was) marked accordingly, and this approach is consistent with Faculty practises. We therefore find no basis to uphold this challenge."

If you read between the lines, I think you will see that the Committee is saying that I got a failing grade because I failed to follow instructions. I don't know about that. I invite Professor Bush to post some examples of other projects where the students did follow instructions and see if their work was clearly different from mine. What I find a little disturbing is that while the Committee denied my request to argue the mark in person, they do not seem to have denied that privilege to Professor Bush. It is hard to see how they would have arrived at their written judgement independently unless those words were virtually put in their mouths by the professor. They certainly seem to have accepted someone's argument that the quality of the work was not a relevant factor to consider in assigning the mark.

I still think it was a pretty good assignment. The fact is, I agree that I'm a little bit sketchy when it comes to following instructions, because I don't like to be micro-managed. For that, I accept the fact that I may get lower grades than other people: where they are getting A's I expect B's or C's at the worst. I don't mind that. But an F is going pretty far, especially in Education where they mark on a "curve".

One other factor that nobody would agree to count in my favor: all the other students worked in groups, but I did my project alone. So I actually did three times as much work as everyone else. Why didn't I just join a group? Well, it's a little hard to find people willing to work with you when the professor has single you out as a troublemaker, the way Professor Bush did on several occasions. I didn't complain about the extra work, but I think it should have been recognized in the grade appeal.

Andby the way, to quote Professor Appel,  I wonder if it's "consistent with Faculty practises" to make a guy wait ten months to appeal a grade on a term paper?

Tuesday, October 16, 2012

To quash or not to quash?

I started telling you about a week ago about the complex legal issues involved in filing a Statement of Claim. Let's have a look now at my own Statement of Claim and see how I've attempted to navigate around these problems.

I told you about the biggest problem with taking on the University. First, the courts expect you to follow the internal appeal process to the very end: you must "exhaust your internal remedies" before the court will even consider your claim. That can take months. And then, what you're supposed to do is ask for a Judicial Review of the findings: you can argue that the findings were made improperly, without due process, etc; and at the end of it all, if you are very, very lucky, the judge might possibly quash the findings of the University and...send you back for a brand new hearing! You'd be back in the same kangaroo court where you were screwed the first time, except this time they'd know enough to cross all the t's and dot all the i's. Because the judge quashed the verdict on procedural grounds, not issues of fact. All they have to do is go through the motions again with proper procedures.

The prospect of going through all the time, effort and expense of a court case just to be sent back to the star chamber...well, it was unbearable. So I came up with a different tack. The University made much of the charges of Non-Academic Misconduct. If you read through the entire sixteen pages of my Statement of Claim, you will see that I do not even mention the charges of misconduct! My entire claim is based on my removal from the practicum.

The University was well prepared to defend itself against legal action based on the misconduct proceedings. They did their best to follow all the steps laid out in their policy manual, so they would be able to defeat any "motion to quash" on strictly procedural grounds. But the Misconduct Proceedings were not officially launched until a day after I was removed from the Practicum. That was an ambush, pure and simple, and throughout the five months of follow-up proceedings, they never once even responded to my attempts to appeal the removal of my practicum privileges.

Now, you can't graduate from Education without a practicum. So in effect, I was kicked out of the program from that moment on. But the University continued to maintain the legal fiction that they were according me all of my due process rights, up until the moment my expulsion was ratified by the Board of Regents.

To be sure, they will attempt to make a legal argument that my removal from the Practicum was done in accordance with procedures. They have even cited a passage from the Certification Practicum Student Handbook which appears to grant them the power to do what they did. I indicate this in Paragraph 28 of my Statement of Claim. On paper, the School Prinicipal does indeed have that power.

The problem is that in practical terms, in order to exercise that power, there would have to be a general consensus by a number of people including the Dean of Education, the Principal, the supervising teacher, the Faculty Advisor, that such a removal was clearly warranted by the circumstances. It is inconceivable that the Principal could simply write a letter one day demanding removal of a student teacher, and no one would raise the slightest question as to why. And yet this is essentially what they did. How could it have happened?

The answer is that it could never have happened unless all those parties had gotten together in advance and agreed that it should be done. And that is what I am claiming: that there was a "conspiracy to injure" organized against me.

When we return, I'll talk a little bit about the Tort of Conspiracy.

Friday, October 12, 2012

Why I'm going to win this fight

Yesterday I posted a link to my Statement of Claim, and soon I'm going to talk about it in some more detail. But today I'd like to digress. I've been taking a lot of flak from some people about my attitude. One thing that people often throw in my face is the fact that I declined to attend an informal meeting called by the Dean to discuss the complaints against me.  I still think that was one of the smartest moves I made in this whole campaign.

People think I could have solved my problems amicably if I had just agreed to compromise early in the game. After all, what was the harm in going to a meeting?

What these people don't understand is that by this time, I was already dealing with vicious, unscrupulous enemies who were determined to do me in. At that time, I didn't know this either. I only had my instincts to guide me, and there was something in the tone of the Dean's correspondence that told me I should keep my guard up. So I simply requested that whatever proceedings were being contemplated against me, they ought to proceed by the book, according to the University policies. Since the meeting with the Dean was not part of the formal proceedings, I told the Dean it was not in my best interests to attend. 

I didn't tell him why it wasn't in my best interests, because it wasn't his business. But now I'm going to tell him. When powerful people get together to make malicious accusations against you, they are taking a bit of a risk. Their problem is that depending on how reckless they are, they might accuse you of something that you happen to be in a position to refute with solid evidence. That would be embarrassing to them. So what they try to do is fling a lot of mud at you and hope that some of it will stick. But they absolutely will not commit themselves.

That's why they don't want to put their case on paper. Once they've put it on paper, they're committed. Instead, they want to corner you in a meeting and probe you with this and that, watching your responses to see if they detect vulnerability. They get a sense of where you are confident and where you are on shaky ground. And understand, when I say you are on shaky ground, it doesn't necessarily mean that you have done something's just that you don't have any ready means of disproving the allegation, even though it may be false.

So the secret is to not respond to \anything until they've put it all on paper...and that means, their entire case. That was my strategy all along, and it frustrated the hell out of them, because it undermined their whole strategy of bait-and-switch. You don't think they would stoop to such dirty tactics? Check out the following excerpt from  the letter sent to the Dean by Professor David Bell, where, after accusing me of numerous unspecified instances of rude behavior, he states:

"I have more examples of inappropriate behavior if needed" (italics mine).

That's how these people work. Try flinging some mud, and if it doesn't stick, fling some more. That's why they got so frustrated when I refused to respond until I saw the complaints in writing.

Now they're about to go to court, and they still don't know what I know. They're committed to their side of the story, and they still don't know how I'm going to respond to their lies. The irony is that they had every opportunity to learn my side of the story, and they squandered it. Two days before my final appeal hearing before the Committee of the Board of Regents, I finally got them to release the written complaints. By any standards of due process and fair play, this was an outrage. How could I prepare an adequate response with so little time, especially since it had been five months since action against me was initiated? But despite this, I went to the meeting and attempted to tell my story.

The committee refused to listen! They had already decided that I would be given thirty minutes to speak, and despite my vehement protests, they cut me off long before I had finished. It was a flagrant abuse of power and it was completely unnecessary, because even if I spoke for three hours, they still intended to throw me out as soon as I was done. They cut me off simply because they couldn't pass up the chance to humiliate me face to face.

And so they still don't know what I'm going to say when we go to court. But I do. I know my side of the story and their side of the story. They'd like to go back to Professor Bell and get "more examples of inappropriate behavior" to shore up their case, but it's really too late for that. They threw me out on the basis of the case they put together way back when, and now they have to live or die by that case.

They made their bed, and now they have to lie in it.

Thursday, October 11, 2012

How to Write a Statement of Claim

I said yesterday that I would post my Statement of Claim, and here it is. The Statement of Claim is a critical element in any legal proceeding, and a lot of effort went into putting this together. I talked yesterday about how some of the more obvious approaches wouldn't work. Either I would end up with a long and pointeless process that would only bring me back to Sqaure One in the best case scenario, or the University would have the claim dismissed with cost before it even got to court. I believe the approach I am taking is sound, and I think the University is going to have a problem with it.

The Statement of Claim is sixteen pages long, so I think I'll let you look it over and then we can talk about it when I return.

Wednesday, October 10, 2012

Presence of Malice

After I was kicked out of school, I consulted several lawyers as to what my options were. They were pretty discouraging. The courts are very reluctant to get involved in the internal disciplinary processes of universities. The best hope that was offered me was that after "exhausting all my internal remedies", I might be allowed to petition the court to quash the university's verdict on procedural grounds. And all that would do would be to throw me right back into their clutches, where they could repeat the lynching a second time, making sure they dotted all the i's and crossed all the t's.

I thought I had come up with a different angle of attack when I proposed to one lawyer that I could sue for defamation those professors who went behind my back and wrote damning reports about me. There is a natural sort of "qualified immunity" that attaches to complaints of this type. The law recognizes that for business and organizations to function in terms of managing personnel, officers of those corporations must be allowed to write frank and critical evaluations which may be damaging to the subjects of those assessments. To successfully sue for defamation, a plaintiff must show that such judgements were not only false (because a person is entitled to make an honest mistake) but that they were malicious. And malice, being a state of mind, is notoriously difficult to prove.

This difficulty did not deter me. Having at last gotten access to the complaints against me, I could see the malice in every line, and I was confident that I could prove it in court, once I was allowed to tell my side of the story. I proceeded to work on a defamation claim. But in the course of my research, I learned something very disturbing. I was aware of the "qualified immunity" which attaches to complaints of this kind. And I knew that there was a stricter level of immunity associated with court procedings. You cannot sue someone for defamation if they say something about you in open court, as part of a judicial process. It's called "absolute immunity" and it applies even if you can show the accusations to be false and malicious. The theory is that your remedy should be in your right to challenge those allegations in cross examination or otherwise withing the court proceedings. It's considered a very strict principle of law, and it is even entrenched in the Canadian Charter of Rights and Freedoms.

What I didn't realize at first was that Professors Metz, Bell, and Cantor would be able to invoke this "abolute privilege" in defence of their accusations against me, no matter how false and malicious those accusations were. But how could that be, since there were never any court proceedings? The loophole is something very disturbing that has become entrenched in the common law over the last forty years or so, and it is the concept of a "quasi-judicial process". Presumably because of the huge backlog of the court system, judges have over a number of years shown themselves willing to delegate a quasi judicial status to all kinds of bodies that operate independently: the Labor Board, the Law Society and other professional bodies empowered to discipline their own members, the Medical Boards of hospitals which are empowered to discipline doctors and nurses etc. But no "quasi-judicial bodies" are given more deference by the courts than the disciplinary committees of universities.

Not only are the courts extermely reluctant to second-guess the universities on disciplinary matters, but they recognize the internal disciplinary process as having "quasi-judicial" status. And because of this, they extend "absolute privilege" to any testimony that submitted as part of such a process. What is most disturbing about this privileged status is that I have been unable to find any examples in the legal literature where the courts have held those disciplinary bodies up to any kind of standards to make sure that the rights of the accused are respected, as they are in the real courts. In the real court, if someone slanders you, you can cross-examine him and you can call your own witnesses to support your own story. There is no such right in the University of Winnipeg's star chamber.

But the most fundamental right of all, which you are guaranteed in the courts but not in the "quasi-judicial" world, is the right to know the accusations against you. This is the right I demanded repeatedly, and which the University scoffed at. And despite their denial of my right to even know what I was specifically accused of, let alone to respond to or cross examine my accusers....despite all this, the courts would almost undoubtedly (based on my extensive readings of case law) accord "absolute privilege" to my accusers, thereby denying me the opportunity to sue them for slander.

And yet here I am taking them to court, and defamation is a part of my claim. Why do I think I can get away with this? When we return I'm going to post my Statement of Claim and I'll explain to you how it all works.

Sunday, October 7, 2012

Danny Blair Conducts an Impartial Investigation

For the last few days, I've been going over the letter of complaint submitted by Prof. Laurelyn Cantor. I think it should be clear to anyone that she had no business complaining to the Dean about an essay I wrote. Even if the contents of the essay raised legitimate concerns about my suitability to be a teacher, they were still entirely confidential. And even if she felt it was necessary to breach the trust of confidentiality for the sake of some higher purpose, she ought to have done so objectively, in a nuanced way, instead of by taking snatches of discussion out of context and playing them back to the Dean in such a way as to cast me in the worst possible light. As I have already said, she ought to be ashamed of herself.

What I haven't told you is how Professor Cantor's letter fell into my hands. It's an interesting story, because the University did everything in its power to hide the complaints from me. Although the complaints were written in October and November, and I was formally barred from the campus on January 11th, it wasn't until the 20th of March that I got to see the complaints. That was just two and a half days before I was to have my final chance to appeal the expulsion before the Student Disciplinary Appeals Committee.

The Chair of the committee, Grace O'Farrell, did not want me to see those reports. She wanted to convict me based on thirdhand hearsay consisting mainly of the findings of the Registrar, who had never heard my side of the story. This was the information she provided to the committee members as to the case against me. But without thinking it through, it seems she also included a copy of the Third Party Report which the Registrar had ordered prior to initiating official proceedings against me, as called for in the university's Disciplinary Procedures. The Registrar called on Associate Dean of Science Danny Blair to prepare this report, and it makes me look very bad indeed. I have posted a copy so you can see what he said about me.

It's quite appalling really...remember, this is supposed to be an "impartial" report. He conducted his "investigation", as he calls it, be reading through the charges against me. He didn't find it necessary to ask me for my side of the story. From his investigation he concluded that there was ample evidence in the five letters of complaint to find me guilty of Non-Academic misconduct. He found the evidence so compelling that he was moved to strongly urge the University to take whatever measures necessary to make sure that I would never be allowed to teach children. And all this without ever hearing my side of the story.

It seem Professor O'Farrell thought Blair's comments would be helpful in convincing the Comittee to ratify my expulsion, but she failed to notice that she had given me an opening. She had circulated a letter quoting Blair as saying there was "an abundance of evidence within the written complaints" showing that my behavior constituted non-Academic misconduct. But she had not circulated those letters themselves. I wrote the Board of Regents pointing out this discrepancy, and I observed that if the Chair of the Commitee was allowed to introduce Blair's letter into evidence, then it would be manifestly unreasonable to not also include as evidence those very letters which Blair had already identified as containing the gist of the case against me.

The letters of complaint were disclosed to me the next day.