Thursday, October 24, 2013

Freedom of Expression: My claim for damages

I told you how I filed what I'm calling "The Mother of All Lawsuits" and the University has responded with a Motion to Strike. Interestingly enough, they're pretty serious about moving forward with this; we appeared before the Master on Monday, and Ms. Mulholland said she would have their brief in by next Tuesday. So the ball is in motion.

I told you how it's a very long and complex claim, with separate sections dealing with defamation, breach of duty of care, and other things. Probably the most interesting portion of the claim is the very last section, which I added in after giving the matter a great deal of consideration. I'm suing them under the Charter of Rights for violating my right to freedom of expression.

How do I expect to get away with this? Everyone knows that in University, you tell the profs what they want to hear, and if you don't they give you a low mark. They shouldn't but they often do. So what? How are you going to prove that? The prof will just say that the mark was based on the quality of the work, not the opinions expressed. And the courts are not going to second-guess them on that.

Unless you can put together such an overwhelming case to prove that it had to be your opinions that they were punishing you for. But how are you ever going to get enough evidence for that?

I think I just might have enough. Here is the portion of my Statement of Claim which lays out how the U of W violated my right to Freedom of Expression. I think it's worth a read-through.

The Plaintiff’s claims with regard to Freedom of Expression
118.    On various occasions as particularized below, the Plaintiff’s instructors in the Education program, including the named defendants BELL, CANTOR and METZ and in addition a fourth instructor GEORGE BUSH (who is not a defendant in the present action) expressed displeasure with certain opinions expressed by the Plaintiff.
119.    In an assignment submitted to Professor Cantor in September of 2011, the Plaintiff was asked to write about his family background, personal beliefs, traditions and practices. Students were assured that the contents of the essay would be strictly confidential. In his essay the Plaintiff wrote comments which could be considered critical of another instructor and the President of the University. Subsequently, in a letter to the Deans of Education, Professor Cantor described the contents of the Plaintiff’s essay and expressed concern with them.
120.    On September 29th 2011, the Plaintiff was attending a class instructed by Professor Bush in which that instructor criticized the class for certain behaviors. The Plaintiff expressed the opinion that the professor ought not to be criticizing the class, whereupon the instructor launched into a heated tirade directed against the Plaintiff, characterizing him inter alia as being disrespectful.
121.    In October 2011, the plaintiff was assigned by Professor Metz to do a presentation on Conservation of Momentum. In a discussion with the professor, the Plaintiff expressed disagreement with the professor’s recommended method of teaching “Conservation of Momentum”. Subsequently, Professor Metz reported the discussion to the Deans of Education, expressing disdain for  the Plaintiff’s position. Later, the Plaintiff presented the topic in class using his own preferred method, and was subsequently given a grade of 60%, including a failing grade for the “theory” component.
122.    In October 2011, Professor Bell was speaking in class about the purpose of education. The Plaintiff made a brief statement to the class expressing disagreement with the professor, but the professor did not reply. Subsequently, in a major assignent, the Plaintiff wrote about the earlier disagreement, elaborating on his position. He also identified several difficulties he had found with the curriculum and wrote about how he would deal with them. Professor Bell gave the Plaintiff a grade of 55% on the assignment, writing: “Too much effort went into finding fault with the curriculum, me, Prof. Metz, all U of W instructors, etc.”
123.    In November 2011, the Plaintiff became involved in an in-class disagreement with Professor Bush over how one might teach the concept of “moles” in Grade Eleven Chemistry. The professor expressed disdain for the Plaintiff’s opinion in front of the class, saying “Obviously you don’t know very much about chemistry”. On a subsequent term paper, the Plaintiff wrote about how he would teach moles in Grade Eleven Chemistry. He also identified a problem with one of the lab exercises included in the curriculum and proposed a means of rectifying the problem. Professor Bush gave him a failing grade on the term paper.
124.    On the same essay, students were asked to explain how their lesson plans reflected the Constructivist philosophy of education. The Plaintiff explained in his essay why he did not subscribe to the Constructivist ideology, and was give a mark of zero for that portion of the assignment.
125.    Subsequently the Plaintiff appealed his grade to the Departemental Committee. The Departmental Committee ratified the failing grade without giving reasons. The Plaintiff appealed to the Senate. Upon being pressed for reasons, the Departmental Committee revealed that they had not read the paper prior to ratifying Professor Bush’s failing grade. When the Plaintiff subsequently tried to assert his right to argue his case before the Senate Committee, his appeal was denied and the case closed.
126.    In November of 2011 Professor Metz invited a vendor of educational software to speak to the class. In a class discussion, the Plaintiff expressed reservations about the educational value of the vendor’s merchandise. In a subsequent meeting, Professor Metz complained to his colleagues and the Deans of Education that he had invited a guest “who was criticized (by the Plaintiff) in less than five”.
127.    In the same meeting, involving the four named instructors, the Deans of Education and the defendant WOLOSHYN, the following remarks were recorded concerning the Plaintiff:
a)    “all the time disagreeing with others”
b)    “expresses his contempt for everything and everyone”
c)    “a diatribe on curriculum and the dept.”
d)    “accused other instructors by name”
e)    “disparages instructors”
128.  In the final exam of Professor Bush’s course, which was an “open-book” exam, the Plaintiff explained why he did not bring the permitted material into the exam, and in doing so expressed negative opinions about the value of said material. Professor Bush gave him a grade of 50% on the exam. When the Plaintiff appealed the grade, Professor Bush characterised the appeal as a form of harassment, going so far as to seek a protective order preventing the Plaintiff from having any further contact with him. In his written application for the court order, Professor Bush quoted excerpts from the Plaintiff’s exam paper as described above in support of his application.
129.    The Plaintiff claims that his instructors gave him grades much lower than would otherwise have been warranted by the quality of the work because they disagreed with his opinions; and that to the extent that they did so in their capacities as employees and agents of the University, that the University thereby violated his right to freedom of thought, belief, opinion and expression as guaranteed by the Charter of Rights and Freedom, and he is therefore entitled to damages.
130.    The Plaintiff claims that his instructors disparaged and criticized him in front of the other students in the program because they resented his espressing opinions different from their own; and that by ultimately creating an atmosphere where the Plaintiff was unfairly characterised as a troublemaker and feared and resented by his classmates, they laid the grounds for his removal from the program and thereby violated his right to freedom of expression etc. as expressed in para 154 above.
131     The Plaintiff claims that the University revoked his sponsorship to the Conference of Student Teachers in Calgary because they wished to prevent him from expressing his opinions, and in doing so they violated his right to freedom of expression etc. as expressed in para 154 above.
132.    The Plaintiff claims that his instructors recommended, and the University carried out, disciplinary proceedings which culminated in his removal from the program in large measure because they wished to prevent him from continuing to express opinions contrary to their own; and that to the extent that they did so, the University violated his right to freedom of thought, belief, opinion and expression as guaranteed by the Charter of Rights and Freedoms, and he is therefore entitled to damages.


  1. Definitely worth the read, as you said, Marty. It's presented quite clearly and logically, so it'll be interesting to see how it is received through this whole process.

    There is one thing that, coming from an outside opinion, I'm a bit confused about, however, and perhaps you can clarify. In the claims above, you have:

    "On the same essay, students were asked to explain how their lesson plans reflected the Constructivist philosophy of education. The Plaintiff explained in his essay why he did not subscribe to the Constructivist ideology, and was give a mark of zero for that portion of the assignment."

    Though I would heartily agree that you have every right to disagree with constructivist philosophy (or any school of thought, really), if the assignment was simply asking the question "how do your lesson plans reflect constructivist philosophy?" and you did not actually answer that question (going, instead, with statements about how you disagree with that philosophy), aren't you, in effect, NOT doing what the assignment asked? While the opinion may be valid, if you aren't addressing the assigned task, itself, how can you get credit for it in the form of marks, even if the opinion is clearly expressed?

    Aside from that, I think this is all put together clearly, as I said. Thank you for sharing it.

    1. Or was it more that you wrote that the lessons did NOT reflect constructivist philosophy, and then proceeded to explain why you created plans that did not?

      (If that's the case, then it seems, to me, like you would have, in fact, satisfied the question posed in the assignment, just not in the way your instructor had predicted).

      Sorry for the double-post! This thought just occurred to me after the fact.

  2. Good question. Suppose you were taking economics and the assignment asked you to design an economic plan to help the Greece recover from the financial crisis. And then it said, How does your economic plan reflect socialist philosophy? Let's say you designed a capitalist plan to save Greece. Do you get a mark of zero?

    By the way, the professor didn't say you had to use the socialist philosophy to save Greece. The assignment was in two parts: first, design a plan to save Greece; second, to show how your plan uses the Socialist philosophy. I think you have every right to design a non-socialist plan, and then to show how your plan departs from socialism. Your "part (b)' should show some understanding of socialism if you want to get a good mark, but that's OK. It's OK for the prof to require you to demonstrate that you understand socialism. It's not OK for him to give you a low mark for advocating a capitalist system.

    At least that's how I see it.

    1. That frames it much more clearly. Thank you!

  3. This comment has been removed by the author.

  4. whatever happened to freedom of speech?

  5. Have you been tested for oppositional disorder? Seems you enjoy disagreeing with people just to disagree for sport.

    1. I just took an online test for ODD at and this is what it told me:

      It sounds like your child (the test is supposed to be taken by parents for their children!) might be experiencing oppositional defiant disorder (ODD). Only a professional can make a diagnosis, so be sure to discuss the results of this quiz and your child's symptoms of ODD with your pediatrician.

    2. As a former classmate, I can say that without a doubt, your insatiable desire to disagree was your downfall. I was keen to hear your comments and challenges, but sometimes I felt as though you really were just doing it for sport and therefore, disrupting my learning.

    3. Why don't you tell us about an incident where I disrupted your learning?"

    4. You disrupted my learning every time you wagged your finger in the air to pointlessly argue with the people that I PAID to guide me in my academic journey. Obviously, you had no desire to teach, otherwise you would have accepted the lectures for what they were and formed your own teaching strategies and opinions once you had secured a teaching position!!! Which, I might point out, is completely impossible for you to do now. Good job!

      As for listing any specific incident... Pick any day from the second week of September all the way to the second last week in November of 2011. Comprehend??? Daily occurrences buddy....

    5. This is a different Anonymous poster in response to the previous Anonymous comment.

      Throughout all of my education degree, every professor consistently told us that good teacher maximise "student voice and student choice". According to you, Marty had no desire to teach otherwise he "would have accepted the lectures for what they were".

      This leads us to a few conclusions:
      1. That good teachers are people who don't challenge, struggle with, or otherwise engage in a dialogue with ideas.
      2. Since we pay professors, we ought not to publicly disagree with them.
      3. The whole line about "student voice and student choice" was a farce because the professors wouldn't practice what they preached.

    6. "...accepted the lectures for what they were".
      This refers to the idea that our profs taught with experience being a large part of their credentials. Their experiences were unique to them and as such should be taken with a grain of salt, not dissected and argued as part of a daily routine.

      "That good teachers are people who don't challenge, struggle with, or otherwise engage in a dialogue with ideas." What a creative interpretation of what I said. But not what I said.

      University classrooms are not forums. We are adults and do not need to attack every philosophy or strategy that is put before us simply because we don't agree.

      All of our instructors (by all, I am talking about the profs that Marty would have encountered) encouraged dialogue. I don't recall ONE that didn't appreciate varied opinions and fresh ideas. Not sure why you suggest "good teachers are people who don't challenge, struggle with, or otherwise engage in a dialogue..."

      "The whole line about "student voice and student choice" was a farce because the professors wouldn't practice what they preached." The profs I had didn't ram this down our throats... perhaps you had a very different experience in education. One which has clearly left you rather bitter...

    7. you know, you still haven't told us about an actual argument i had with a prof, any what did he say, and what did I say that was so objectionable. Since they happened "every single day", I'd think you ought to remember at least one of them.

  6. Every day when you were waving your finger around trying to get the profs attention then just went on a rant for upwards of 10 minutes on plenty of occasions.

    1. Yes, that's what we need. Tell us about one of my rants.

  7. Why waste the time? I have to study to pass the courses so I can get a teaching degree so I can feed myself and my family. Sorry, just too busy to waste the time. Good luck.

  8. I dont remember specifics, Im doing report cards right now since I graduated and found myself a job. I do remember leaving class on multiple occasions when you started up on a rant and made it back in after several minutes and you were still spewing your nonsense. You should have maybe looked around once in a while and gauged your audience, something a teacher should often do. You would have seen the looks of disgust, confusion and disagreement on 99% of the faces.

  9. Standing up and leaving the class is a pretty definitive statement, not something you'd forget easily. Surely you must remember something I said or did that motivated you to make such a drastic gesture of disapproval. Especially since you did it on multiple occasions.