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.

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