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.

No comments:

Post a Comment