Friday, October 2, 2015

The University Stands Behind its Own Lies

I told you last week how I sent the University documentation of all the lies that their professors have told to get me in kicked out of school and worse, and how they continue to stand behind those lies even when they have been thoroughly discredited. For your information, here is the letter I sent them. You may wonder why I don't get sued for libel for posting this kind of thing. It's because they know I'm telling the truth.

And here is the letter I sent them on Monday.

Since kicking me out of school almost four years ago, the U of W has been trying to paint me as a dangerous psychopath, accusing me of death threats, home invasions, horrifying verbal assaults, email harassment and more. Theoretically, I should have had a chance to respond to those accusations when I was charged with non-academic misconduct; but the way the University’s “star chamber” is set up, you’re not allowed to call witnesses or cross-examine your accusers. Fortunately for me, the University was stupid enough to follow up by filing criminal charges against me, where I got to call witnesses. At my trial, I was able to show that all the slanders against me were false, and not only false but deliberately calculated to harm me: 

1.         The “death threat” was a perfectly innocent hand gesture I made in a private conversation with a friend, which registrar Colin Russell and Professor Don Metz seized on as an opportunity to expel me from the Teacher Certification program. The proof that they knew the gesture was innocent was that when they reported it as a “throat slashing gesture”, neither of them disclosed that they had only seen the gesture from the rear, so neither of them saw my facial expression. They each deliberately reported it in ambiguous terms so that everyone thought that the “throat-slash” was aimed at one of them.

2.         A key pillar of the Non-Academic Misconduct charges against me was a breathless report submitted by one Professor Cantor concerning a horrifying verbal assault against a classroom guest, an ASL interpreter. At my criminal trial, she admitted that she actually saw nothing wrong with my behavior in class, calling it “polite and respectful”; and that she was only reporting  how my question was “perceived” by one of the  students. This deliberate omission shows that she carefully crafted her letter (at the Associate Dean’s request, by the way!) to cause me the maximum possible harm.

3.         Professor Metz claimed that after I was expelled, I subjected him to a campaign of email harassment that lasted almost a year. He even went to court to try to get a restraining order against me. (which he didn’t get).  At my criminal trial, the Judge said simply that the emails were not harassment.

4.         Professor Bush and Professor Metz both lied when they reported to the University that I tried to break into Professor Bush’s home; and they lied again when they denied under oath having said any such thing. The second lie fell apart when emails surfaced showing that they had said exactly what I claimed they said. And the fact that they tried to deny having said it proves that it was a lie: why would they deny having said it if it actually happened? The truth is that I went to Professor Bush’s home to serve legal papers on him, and phoned ahead to tell him I was coming. When I rang the doorbell, he sent his wife to answer (so I couldn’t serve him!) and when she slammed the door on me (without warning!), I simply turned and walked away. That’s when Professor Bush called the police to report the “home invasion” and all hell broke loose. The University compounded the lie by spreading it everywhere, while omitting the crucial detail that I went to Bush’s home to serve legal papers. They deliberately left that out to make it look like I went there simply to harass Professor Bush and his wife.

In short, the accusations against me have been nothing but lies from the very beginning. If anyone reading this can name one single thing  I ever did that would have justified them kicking me out of university, I urge them to come forward disclose it, so I can defend myself…the way I was never allowed to defend my self in the University’s disciplinary proceedings, or so far in the Court of Queen’s Bench.

Wednesday, September 30, 2015

Mr. Meronek Slings A Little Mud

When we left off the other day, I told you how the judge in my grade appeal application asked me if I wasn't attempting to use this action as a way of getting my foot in the door at the University. "That is correct", I told him, "because once I have access to the University's procedures for grade appeals, I can assert the basic rights of due process which you tell me this court has no jurisdiction to grant me; including the right to confront my accusers." (The Judge had just finished telling me that the Court had no right to interfere in "academic matters.")

It seems Mr. Meronek, counsel for the University, thought he could make a little hay out of this exchange; the very next day, he had his associate, Mr. McIvor, file an affidavit with the Court stating that

"...during Mr. Green's oral presentation, (he) remarked something to the effect of his present application being a way to get his foot in the door again at the University and confront his professor."
If this isn't a clear case of fear-mongering, I don't know what is. My words with regard to "the right to confront my accusers" are taken right out of the Sixth Amendment of the U.S. Constitution and simply describe one of the basic tenets of due process. Mr. McIvor, on the other hands, puts the word "confront" in my mouth in such a way as the reader would naturally assume that my purpose in "getting my foot in the door" at the University is to cause a confrontation with my professor. (The same right to confront one's accusers is present de facto in Canadian jurisprudence but the framers of the Charter chose not to express it so explicitly as did the Founding Fathers south of the border. So, for instance, the Supreme Court allows victims of sexual abuse to testify from behind a screen.)

The University's lawyers (the firm is Darcy and Deacon, by the way) have a lot of nerve casting these kinds of innuendos, especially after accusing me of unethical behavior earlier this year when I contacted various people at the University to refute another one of their allegations against me. (They later agreed to retract the claim that my conduct was "unethical".)

So I sat down and composed a letter to the University faculty members, with the intention of providing the explanation that I have given here. I think I am entitled to assume that if the University's lawyers filed that affidavit  court, they also communicated its content to their clients. In which case I had every right to defend myself (even though the University is presently seeking a Court Order to prevent me from doing exactly that.)

But before I could get around to the question at issue, I felt I needed to put things in context by listing all the other lies the professors had been telling about me for the last four years. And by the time I finished doing that, the letter was a little long. So I never did get around to the "confrontation" issue.

But here you have it. And when I come back, I will post a copy of the letter I sent to the University on Monday, listing all the other lies they have told about me. Well, not all of them actually...just the biggest ones which I have been able to refute so far. I am confident that I will refute all the lies once I get the opportunity to call witnesses, cross-examine them, and "confront my accusers" - the very rights which the Manitoba courts have been denying me ever since I launched these actions three years ago.

Monday, September 28, 2015

More Effective Remedies

The doctrine of "effective remedy" is the legal principle whereby the Courts decline to interfere with the internal workings of the University: if a student has "effective remedy" within the University's regulations, the Courts will not allow the student to bypass that process. In my last blogpost, I told you how Justice Edmond threw out my claim for getting kicked out of my teaching practicum on the grounds that  the Non-Academic Disciplinary proceedings were my "effective remedy". Of course I'm appealing that decision: even the University admitted that the Non-Academic Misconduct proceedings had nothing to do with the practicum removal. But that didn't bother the Judge.

In the meantime, he did it again when he threw out another application of mine for the same reason: that I had no right to apply to the courts when I had "effective remedy" within the system: namely, of course, the ubiquitous Non-Academic Misconduct proceedings. And what was it I was asking for this time? I was demanding that Professor Metz assign a grade on a project handed before he kicked me out of school. And why did I want a grade? That's a long story: suffice it to say that Metz claimed I failed to complete the assignment on time, and I said in that case I'm entitled to a failing grade, which I can then appeal. The appeal process gives me rights which I apparently don't have in the Court of Queen's Bench, and I'm not about to forego one of the few available opportunities I have to exercise those rights through a grade appeal. You may remember how I exposed the corrupt practises of the Education Department on my previous grade appeal, when I showed that the Departmental Committee ratified the failing grade given me by Professor Bush on my term paper without even reading the paper!

What the University was doing in this case was preventing me from launching an official grade appeal (my "effective remedy") by the simple expedient of refusing to assign me a grade. They claimed it was their "policy" to not assign grades to students who had been kicked out of a course. So I took them to court, and Judge Edmond found in their favor, on the basis that I had an "effective remedy" through the Non-Academic Disciplinary Committee.

Maybe you're wondering what the Non-Academic Disciplinary hearing has to do with a grade appeal. The answer is: absolutely nothing. But again, that didn't bother the judge. He needed an "effective rememdy" to hang me with, and he found one.

That was the decision I was arguing last week in the Court of Appeal. I thought it should have been a slam dunk victory for me, but the senior judge, MacInness, didn't think so.  He found Justice Edmond's reasoning to be entirely convincing, and furthermore he insisted that the Courts had no jurisdiction to interfere in academic matters. "No", I told him, "that's not right. The Courts always have jurisdiction...they can choose to defer jurisdiction to the University only if they are satisfied that the student is being treated fairly within the University's proceedings". And it is true that the Courts will not interfere in purely academic matters, such as the grading of assignments. But this was not a dispute about a was about the refusal to assign a grade in the first place. That's not an academic matter, it's a contractual right. At least that's what I was arguing. The Judge was not convinced.

But somehow over the course of an hour I managed to argue him down on the question of effective remedy. The court took a 15-minute recess, and when they came back, there was tension in the air: Had they made a decision already, without even hearing from the other side? MacInness turned to ther senior counsel for the University, and said: "Unfortunately, Mr. Meronek, we're going to have to hear from you. There are still some questions that need to be answered." And they proceeded to grill Meronek on just what the Non-Academic proceedings had to do with the unmarked assignment. And it was clear by the end that there was no connection.

But the court had another out. An injunction of the kind I was seeking is considered a "discretionary remedy", which means even if I'm right, the court can simply decline to give me what I'm asking for. They will especially do so if the issue is moot: and this is what MacInness asked me now. "Even if we give you the order you're seeking, what difference does it make? You will then be allowed to appeal the grade, which is the "effective remedy" you claim to seek, but the only question at issue will be whether you handed the assignment in on time, and if you even if you prevail on that point, you will still not get credit for the whole course."

And that's where I really let him have it: "You have no business telling me what I am entitled to argue on my grade appeal. That is exactly the kind of academic  matter which the courts have "no business" getting involved in, as you yourself went to great lengths to explain to me at the start of my argument!" In fact, by getting access to the University's internal appeal processes, I could then argue that Professor Metz was treating me unfairly for malicious purposes; and in making that argument I could legitimately assert exactly those rights which the Court of Queen's Bench was refusing to give me, including such basic tenets of natural justice as the right to confront my accusers.

"So you're intending to use this grade appeal as a foot in the door?" asked the judge. That is correct, I told him, and this court has no right to deny me that opportunity after claiming that it has no jurisdiction to interfere in academic matters.

The court then took another recess. Would they dismiss my appeal from the bench? After fifteen minutes they returned. No, they could not reach an immediate decision. They would reserve judgment and publish a written decision. It wasn't exactly a victory, but I'm pretty sure I left the courtroom in a much better mood than Mr. Meronek.

Wednesday, July 29, 2015

Effective Remedy

Last week Justice Edmond threw out my claim against the U of W for kicking me out of my high school practicum placement. (My claim for kicking me out of the Education Faculty is still alive.) In making his decision, the judge ruled that the Courts had no jurisdiction to interfere with the internal affairs of the University.

It is true that there is a long-established tradition that the Courts will not interfere in purely academic affairs. You cannot write an essay on Hamlet and then go to Court because you are dissatisfied with your C+ grade. More seriously, you cannot go to court to complain you were unfairly denied your PhD based on the quality of your work. The Courts want no part of such disputes, and defer 100% to the University. This only makes sense.

But what about disciplinary matters? It is also true that bodies such as the University, whose internal disciplinary powers are enshrined in statute (The University of Winnipeg Act) are normally given "deference" in regard to this. But the deference is not automatic. I argued before Master Berthaudin (and he agreed) that to attract that deference, the disciplinary prodeedings must meet the three-part test set forth in Phillips:

  1. The legislation establishes a comprehensive dispute resolution scheme,
  2. That scheme addresses the essential character of the dispute, and (most importantly)
  3. That scheme provides an effective remedy.

I had won this argument the first time it was heard, back in 2013 before Master Berthaudin. At that time, the University had filed extensive evidence as to the procedural steps carried out in the Non-Academic Misconduct proceedings. But those proceedings commenced on the 22nd of November 2011. I was kicked out of the practicum on November 21st...a day before the Misconduct charges. The Master found there was no evidence that the Non-Academic proceedings addressed the issue of my removal from the practicum, and that in any event there was no effective remedy evident within that procedure. In other words, there was no way I could reverse Principal Skull's decision to bar me from the high school even if I was found not guilty of Non-Academic Misconduct. And I certainly couldn't get compensated for the year I lost from my career while the procedural battle dragged on. In short, I had "no effective remedy" within the University's disciplinary procedures.

But the University appealed, and we were arguing it all over again before Justice Edmond. I realy shouldn't have needed any evidence to re-establish this point. Even the University, in its Statement of Defence, admitted that "the Plaintiff's removal from his teaching practicum occured independently and prior to his suspension from the Faculty of Education."

If there was any doubt, it should have been removed by the transcript of my Disiplinary Appeal Hearing. Two days before that hearing, I had succeeded in obtaining the release of "all documents considered by the Associate Dean of Science in his review of the charges against me." In his report, Danny Blair had listed six letters of complaint including two from  Gordon Bell High School. But those Gordon Bell letters were not released to me prior to the hearing. At the hearing, I asked why. I was told that the Gordon Bell matters were not before the Appeal Committee...only the complaints from within the University.

I should have had that transcript in evidence, but the University had refused to cough it up. Finally I had made a motion to compel disclosure. The University responded with a motion to suspend all discovery until after the Summary Judgment hearing. How was I to defend myself against Summary Judgment without the evidence that the University was holding back? But the Judge ruled in their favor! I was denied access to the transcript.

(It was actually the same Master Berthaudin, the one who intially ruled in my favor on the first Summary Judgement hearing. That ruling had created quite a stir in judicial was very unusual for a student to move ahead in his claims against a university. Now, months later,  he was screwing me very badly on the access to evidence issue. He followed this up with two disastrous rulings with respect to the Schoolteachers and my wrongful expulsion case.   I can't help but suspect that his initial ruling in my favor was met with such disapproval, whether spoken or merely tacit, by his judicial colleagues that he was now bending over backwards to show that he was indeed "with the program".)

But I had another angle. In the meantime the University had launched criminal proceedings against me involving outrageous claims of an attempted home invasion. As a result, I had the opportunity to call witnesses at my trial. One of those witnesses was the Registrar. I took the opportunity while he was on the stand to ask him if the Gordon Bell expulsion was under the jurisdiction of the Non-Academic appeal committee. He said that it wasn't. I ordered a transcript of his testimony and filed it in evidence for my Summary Judgment hearing.

In theory the evidence was late. This was an appeal, and the only evidence allowed was supposed to be that which was already before the Master. But there are exceptions. If you can show that the evidence wasn't available, then you are allowed to bring it in after the fact. I should have been in the clear.

The University opposed the admission of the new evidence! We appeared before Justice Edmond in November to argue it. At the hearing, the University made a peculiar argument. There is actually a four-part test for the admission of late evidence. One of those was the question of due diligence...was the evidence available previously? On that question I was on solid ground. But there was another criteria: the late evidence would be admitted only if it could materially affect the outcome. Now, standing before the Judge, the University argued that my evidence should be rejected because they admitted that the practicum removal was not part of the Non-Academic Proceedings.

And on that basis, the Judge rejected my evidence. How could my evidence change the outcome if the University was admitting it was true? And so we went forward to argue the Summary Judgment on that basis. We argued the motion on June 3rd, and the judge reserved decision. Last week, he released his written decision. Justice Edmond was overturning Master Berthaudin's decision and granting the University Summary Judgment.

Can you guess what his reason was?

He found that the Courts had no jurisdiction to hear my claim because the University's Non-Academic Misconduct proceedings provided me with an effective remedy to dispute the Practicum Removal.

Tuesday, July 28, 2015

My Case Is Thrown Out Of Court

I told you yesterday how I concluded my case against the University for kicking me out of my high school practicum placement. When I filed the case back in 2012, I claimed against the University and the high school principal Arlene Skull for "conspiracy to injure". Because to get me kicked out, the University had to enlist Skull to invoke her special authority to remove me from the practicum on an expedited basis (the "page 28" procedure), bypassing the rights to due process I should have had under the "page 27" procedures of the Practicum Handbook.

The difficulty with that claim was that I needed to prove malice. That shouldn't have been a problem: but the courts hit me with a triple whammy when they:

1. Allowed the University and the High School to bring separate motions of Summary Judgment, and ruled that I had to defend those motions without the benefit of discovery.

2. Refused to look at the evidence of malice which I was able to bring forward even without discovery, including the fact that Principal Skull accused me of "grabbing" a student when the eyewitness testimony said only that I "tapped" him on the shoulder.

3. As a result of ignoring the aforesaid evidence, the Courts threw out my claim against the high school principal because I couldn't "prove" malice.

The actions of the Courts are all the more outrageous because on Summary Judgment, you don't have to "prove" just have to show that there is evidence which supports your claim. On top of which, all the previous case law emphasizes that summary judgment is unsuitable when the case hinges on the motives of the defendants...namely, the presence or absence of malice. According to all existing legal jurisprudence, I was entitled to a trial on this; instead, as I expressed it in a previous blogpost, the courts chose to f&$# me up the a&#*@.

So here I was trying to argue conspiracy against the U of W, and I had lost my co-conspirators. This was a real problem; but I had now gotten around it by amending my claim so it was in Breach of Contract instead of conspiracy. The beauty of this claim was that I didn't have to prove malice; I only had to show I had contractual rights (namely, the Page 27 procedures) that were violated. This was a problem for the University; and apparently it was also going to be a problem for Justice Edmond. But he was not to be deterred.

Last week Justice Edmond came out with his decision. Overturning the ruling of Master Berthaudin back in 2013, he granted Summary Judgment to the University on the grounds that...the Court did not have the jurisdiction to hear my claim!

Did Justice Edmond f&$# me up the a&#*@ too? When we come back, I'll explain the basis of his ruling, and then you can decide for yourself.

Monday, July 27, 2015

Leave to Amend...Granted

I had two amendments on the table, and the University was opposing me. The amendments would make it significantly more difficult for them to defend themselves against my claims, and they knew it. So both sets amendments were set down to be argued in June.

On June 3rd we appeared to argue my amendments in Green v Tram...the practicum expulsion. Actually, the argument on the motion had been adjourned back in December, so we were going to argue the amendments, and then, pending the result, we would conclude the argument on the Motion for Summary Judgment.

Mr. Meronek stood up to speak for the University. He told the Judge...he was not going to oppose the amendments! Briefs and affidavits had been filed, arguments prepared...but the University was folding its cards on this one. My claim would go forward...not in conspiracy to injure, but now in breach of contract.

I proceeded to state my argument: whether or not the University had the benefit of co-conspirators in the persons of Mrs. Skull and Mr. Tram from Gordon Bell, they breached their contractual obligations to me when they bypassed the due process owed me in Page 27 of the Practicum Handbook and moved to the "expedited removal" on Page 28 of the handbook.

The Judge was skeptical. Where is your evidence, he asked? That was easy. I opened up the University's own dossier, pointed to the correspondence of November 21st, where the Principal informs me that she is setting up a meeting with my facultly advisor, in accordance with the procedures set down on Page 27 of the handbook. That meeting never took place. Instead, Deb Wolyshyn, the student teacher co-ordinator and the Univeristy, emailed Skull and requested that she move to the "expedited removal" procedures on Page 28. That's what the school used is the student teacher is molesting a girl or something serious like that. There is no due're just out.

The Judge frowned. This wasn't going the way he wanted it. He turned to Page 29 of the handbook and started going through the list of  steps in the expedited removal. "Did they provide you with this? Did they do that?" Yes, yes, I told him. I was provided with all the steps of the expedited removal...well, actually I wasn't. They didn't set up a Performance Committee Review, which was the only thing that could have still saved me. But that wasn't the point. I wasn't suing them because they failed to properly implement the Page 28 procedures. I was suing them because they improperly bypassed the Page 27 procedures...the Due Process which I was owed according to the Handbook.

It was an airtight argument. I sat down pretty satisfied that I had made my point. But we still had my other lawsuit to deal with...the one for kicking me out of the program at the University. That would be argued the following day.

Again, we would be starting with my Leave to Amend. This one had been argued to completion back in December, and I had realized that the Judge wasn't buying my claim in Duty of Care. I said that they breached their Duty of Care to me when they failed to safeguard my rights under the Non-Academic Misconduct proceedings: they didn't allow me to call witnesses in my own defence, they didn't allow me to cross-examine my accusers; they didn't even disclose all the accusations against me.

The problem with this claim was that the Judge was going to rule that I should have sought Judicial Review instead of suing for damages. He was wrong legally, for all kinds of reasons....but that was what he was going to do. So I figured out a way to make it harder for him. I re-wrote my claim: instead of arguing that they denied me my procedural rights, I now argued that they had given me all the rights explicitly laid down in their procedures. The procedures said that all complaints had to be signed and in writing...but they didn't say I was allowed to see those complaints! The procedures said I was entitled to a hearing with due process...but they also said the appeal committee had exclusive discretion to decide what that "due process" consisted of! In effect, their procedures made the Kangaroo Court totally legal. So what was my claim?

My claim was in negligence...not for the hearing they gave me...but for writing those defective procedures in the first place! The University was flabbergasted by this claim. They opposed my leave to amend, arguing that in any case my claim for negligence was barred by the Statute of Limitations. Those "Defective Procedures" had been enacted in 1991, over twenty years before. According to them, I would have had to bring my claim within six years of that date.

It's a funny argument, and I was looking forward to seeing the Judge demolish it. If Chrysler sells you a car with bad brakes, and you get in an accident, you can sue them for negligence within six years of the accident. Not from the time they designed the brakes! That's what the University was arguing, and they weren't going to get away with it.

So when we appeared before the Judge to argue leave to amend, I wasn't pretty surprised (given what had happened the previous day) when Mr. Meronek stood up to announce that once again, he was not going to oppose my amendments after all. But what happened next was completely unexpected.

He was now going to withdraw his original Motion to Strike, and file a Statement of Defence! The game was back on. It was all the more astonishing since he had actually won his Motion to Strike a year and a half previously before Master Berthaudin, and it was my appeal of that decision that we were now arguing before Justice Edmond.

I was in fact a little dismayed that I wasn't going to get a decision from him. "Your Honor", I objected, "I  know he can withdraw his own motion...but it's my motion we're arguing today. The motion was argued to completion; I thought I had earned a victory, and I was looking forward to a written decision."

The Judge looked at me. "You should consider yourself lucky and walk out of here with what Mr. Meronek has given you. I haven't made my decision yet, and there is no guarantee that it would go your way if I were to go ahead and issue a written decision."

And that was where we stood just seven weeks ago. Since the beginning of the year, I had prevailed on three motions for Leave to Amend (including the earlier amendments on my Defamation suit for the "home invasion) and won the reversal of Master Berthaudin's decision to strike my claim for the University expulsion. That's four victories...but notably, all of them concessions by the University and none of them courtesy of Justice Edmond. He had yet to rule in my favor on anything since having taken over case management a year previously. To be sure he had given me a "draw" on the procedural wrangling over my cross-examination of Jan Stewart. But he had tossed out my application for a court order on my grade application in Professor Metz's course (that one will be re-argued in the Court of Appeal come September.) And there was one other procedural motion where he had ruled against unfair decision which I did not immediately appeal. I haven't told you about that one yet, but now it's come back in a big way.

I'll tell you all about it when we return.

Tuesday, June 30, 2015

The Kangaroo Court Goes on Trial

I hope you liked the video I posted the other day of the Polish guy singing "Crazy". When we left off, I was telling you how I moved for Leave to Amend my pleadings in Conspiracy, to claim in addition that even without the conspiracy, the actions of the University amounted to a Breach of Contract.

This was back in December, and we we arguing my case against the University of Winnipeg for kicking me out of my teaching practicum. A week later we were back in court again: this time, we were arguing my claim against the University for kicking me out of the Teacher Certification program. Why two different claims? Well, because the factual circumstances (and my legal rights) with respect to those two actions were very different.

The claim for the teaching practicum was simpler because in getting me kicked out of Gordon Bell, the University had used a regulation which made no provision for any recourse on my part. I had no right of internal appeal: it was a done deal. But the other side of that coin is that there was no barrier to me taking them to court for what they did.

The expulsion from the program was different. Here they also used methods for which I had no appeal: first, the Registrar (Colin Russell) banned me from attending classes, an action from which there was no appeal.  Even Russell later admitted he had no authority under the University regulations for banning me from classes. And he followed that up with a No-Trespassing order, banning me from campus altogether. When I tried to appeal that, the University simply refused to tell me the grounds for the order, adding that "there is no right of appeal under the Petty Trespassing Act."

But in the meantime they also charged me with Non-Academic Misconduct. This was a formal charge, with a formal appeal process through the University's own Star Chambers under the statutory authority of the University of Winnipeg Act. And this was the problem. Under the principles of civil law, you can't sue a body for disciplinary actions it carries out under its statutory authority. You are only allowed to seek what's called "Judicial Review". That means you can go to court to get the decision quashed.

But the courts won't review the evidence or lack thereof. They will only review the procedural fairness of the process. And if they find it wanting, they will send you back to the very same star chamber for a second go-round. You can imagine that it's pretty easy for the University to get the same result they got the first time around, because they still control the judge and jury.

So I was in a bit of a fix. I thought long and hard about my options, and then I came up with a plan. The University's policy documents theoretically guaranteed me due process. For example, it was written down that any complaints against me had to be in writing, signed, and include all relevant details. So I insisted on my right to see those written complaints. That's when the Kangaroo Court took over. No dice, they said. The policy only guarantees that the complaints must be in writing. It doesn't guarantee that the accused party gets to actually see those written complaints!

And so it went down the line. I had no right to cross-examine my accusers, or to call witnesses on my own behalf. The hearing itself was a joke. They gave me thirty minutes to tell "my side of the story" and cut me off abruptly when my time was up. The decision was a foregone conclusion.

A lot of other people have tried to sue the universities across Canada for kicking them out of school, and only one person has ever succeeded. In Young v Bella, a social work student in Newfoundland got half a million dollars when the faculty kicked her out of the program on the suspicion that she might be a potential child abuser. She was never confronted with the accusation or allowed to defend herself. The case went all the way to the Supreme Court, which found that a University has a duty of care to make sure that it gets its facts straight before taking career-ending action.

The U of W thought it was protected from a Young v Bella scenario because unlike the University of Newfoundland, they gave me the "benefit" of their quasi-judicial process. But I was going to argue that even so, they had failed to meet their "duty of care" because they did not give me the benefits of that process to which I was entitled: namely, the right to know the accusations against me, the right to cross-examine my accusers, and the right to call witnesses on my own behalf. And that in addition, they improperly bypassed those due process rights when they implemented non-judicial and non-appealable measures against me including the classroom suspension and the no-trespassing order.

This was the statement of claim I filed in September 2013, almost a year after my initial claim for Conspiracy. The University had moved to strike my claim on the grounds that it disclosed no cause of action. That motion had been granted in January of 2014 by Master Berthaudin, and here I was in December appealing the Master's decision at the Queen's Bench level. And it was not going well.

Justice Edmond was not buying my argument. Counsel for the University was arguing that whatever complaints I had with the University's appeal process, I should have filed for Judicial Review instead of suing for damages. And the judge kept nodding his head in agreement. If, as I claimed, the University had denied the rights I was entitled to under their regulations, why was I not applying for Judicial Review?

At the end of the day, the Judge announced he would be reserving his decision. I went home and thought about it long and hard. Maybe they were right. If they had violated their procedures, I should have sought judicial review.

And that's when it hit me. They hadn't violated their procedures. They had given exactly what the procedures said I was due, and not an inch more. The procedures said the complaints had to be in writing. They didn't say I was entitled to see those written complaints.

If I sued on the basis that the University had violated it's procedures, I was going to lose. Instead, I should have sued on the basis that the University created procedures which inherently made it impossible for me to effectively defend myself against false accusations. I immediately wrote up a Motion for Leave to Amend.

I was going to sue them for negligence. Negligence not for improperly carrying out the procedures, but in creating defective procedures in the first place.

Thursday, June 25, 2015

Crazy Again...No, Not Me This Time

We interrupt our regular programming to bring you a special bulletin.

Jacek (that's YAH-tsek, but you can call him Jack) is a friend of mine who takes part in a Thursday evening rehearsal session downtown that I lead at a program called ArtBeat. I think this is a phenomenal version of Crazy, the Patsy Cline signature song. (Not everyone knows that Willie Nelson wrote it.) I helped a little with the arrangement on this, but despite our best efforts the two patch changes on the instrumental solo were kind of surprising to us (as you might be able to tell from Jacek's facial expression.)

If you like this video, pass it on to your friends.

Wednesday, June 24, 2015

The Practicum Handbook: A Contractual Document

I had sued the University for getting me kicked out of my teaching practicum on the basis that they had conspired with the high school principal, Arlene Skull, to remove me without cause. It was a perfect case of conspiracy because the essence of conspiracy is that the parties to the conspiracy do something which is otherwise legal, but they do it in a way which is intended to harm the third party. And that is exactly what they did. The University asked Mrs. Skull to use her special authority (from Page 28 of the Practicum Handbook) to demand the immediate removal of a student teacher (namely me.) And by doing so they bypassed the Due Process rights which I would have otherwise been entitled to (according to the terms set out on Page 27 of the handbook.)

But my problem was this: the courts had now let Principal Skull off the hook, ignoring my evidence that she lied about my refusal to hand in lesson plans and my "aggressive and confrontational" behavior towards students, and refusing to admit the evidence that she had insisted on the University making the request in writing before she agreed to bypass Page 27 and move to the Page 28 "expedited removal". If  that's not evidence of a conspiracy, I don't know what is.

And remember, on Summary Judgment you don't have to prove the conspiracy, you only need to show evidence "from which a conspiracy might be inferred". Justice Martin of the Queen's Bench therefore cheated me three times: first, when he held me to the standard of proving conspiracy rather than the lesser standard of adducing evidence of one: second, when he found that I had "no evidence whatsoever" to support the claim in conspiracy; and third, when he wrote his judgment, he made no mention of the evidence which I had clearly argued before him, therefore making it all but impossible for me to get his decision overturned on appeal.

The University and the School Division had done a number on me, splitting the defence and forcing me to argue the conspiracy separately before two different judges: first Justice Martin, who refused to listen to anything I had to say about the University's role in initiating the conspiracy, insisting that only the schoolteacher defendants were on trial before him: and now Justice Edmond, who refused to hear anything about the schoolteacher's part in the conspiracy because Justice Martin had already let them off the hook.

So I was left arguing a conspiracy without the co-conspirators. And I could see that Justice Edmond wasn't buying it. So after Mr. Meronek had spent a whole day arguing as to why my case should be thrown out, I stood up on the second day and asked for an adjournment. I wanted to amend my pleadings.

I had filed my claim against the University on the basis of conspiracy, because that's what it was. They couldn't bypass my Due Process rights (Page 27 of the handbook) unless they convinced Mrs. Skull to use her Page 28 powers. And that's exactly what they did. But the Courts were refusing to listen.

But when they bypassed my Page 27 rights, they were doing something else: they were breaching a contract. Because the relationship between a university and its students is, in addition to everything else, also a contractual one. And the terms of that contract are set out in a myriad of documents comprising the University's Policies and procedures...including the Student Teacher Practicum Handbook.

There is one critical difference between a claim in conspiracy and a claim in breach of contract: in conspiracy, the onus is on me to prove intent: I have to prove the state of mind of the conspirators was with intent to harm me. The Schoolteacher's got around this by swearing affidavits as to their purity of intentions. Those affidavits shouldn't have been worth the paper they were written on, especially with all the circumstantial evidence I had in black and white. But going against a hundred years of legal precedent, the Courts found those "bald assertions and self-serving affidavits" to be decisive when applied against Marty Green. So I was screwed.

But in breach of contract I face no such hurdle. I don't have to show ill intentions. I just have to show that I had certain rights under the contract, and the University denied me those rights.

Justice Edmond granted me an adjournment. The University's lawyers announced that they would be opposing my Motion for Leave to Amend.

Sunday, June 21, 2015

The Judge Slams the Door On Me and Opens a Window

As I was telling you, we were at an impasse: I knew the University had been making phone calls about me, but Acting Dean Jan Stewart was denying any recollection of having done so.

Now I was in a fix, because according to the rules, you aren't allowed to swear any new evidence after you've cross-examined. Unless it's rebuttal evidence. And even then, the courts will ask you: if you had evidence of the phone calls before you examined, why didn't you file it?

I didn't file it because there should have been no controversy about it. I didn't want to examine Jan Stewart to prove she made the calls: I wanted to ask her what she said, and under what authority. And that's what I told the judge when we argued the University's Motion to Quash. And in the meantime I did file an affidavit swearing as to what Mrs. Cantor had told me about the phone calls (at my criminal trial.) I also sent the University a letter, with a copy to Jan Stewart, including a link to the official transcripts of my criminal trial, showing them where Mrs. Cantor had disclosed the phone calls, and asking them if they could investigate and possibly help refresh Ms. Stewarts's memory on that point.

The University was still taking the position that I had no right to further examination of Ms. Stewart, and they were now also demanding that the Judge throw  out my evidence of the phone calls, and disallow any further examination of witnesses whom I had not yet cross-examined.

When we appeared before the judge, he read back Jan Stewart's testimony to me, where she denies any recollection of the phone calls. "Why do you still want to examine her? She's obviously  told you everything she knows?" he demanded.

Because she's obviously lying, I tried to explain. But the judge wasn't buying it. He threw out my subpoena. Jan Stewart was off the hook.

Or was she? In a move that surprised me, the Judge decided that I would be allowed to submit written interrogatories, which the University would have to answer, dealing with any issues left unanswered as a result of my initial examination of Jan Stewart. And he rejected the University's demand that I not be allowed to examine Security Chief Martin Grainger, or VP Neil Besner, who had both filed affidavits on the Motion for Summary Judgment. The examinations would proceed, but they must be completed by June 30th  or "there would be consequences.". He also declined to strike my affidavit, saying that he would admit it but give it limited credence on account of its hearsay nature. (Yes, hearsay is allowed on Motions for Summary Judgment.)

And here we are now, heading into the last week of June. The University is still maintaining the position that Jan Stewart does not recall making any phone calls; and at the same time they refuse to undetake an independent inquiry to determine who if anyone did make the alleged phone calls. As of this moment, there is no agreement between the parties as to if or when any cross-examinations of Grainger or Besner will take place. A notice of examination has been served on both Grainger and Besner, but the University is claiming that they are unavailable on the date which has been set down.

They have not as yet offered any alternate dates.

Wednesday, June 17, 2015

Liars, liars, liars.

When we left off, I was telling you how I sued the University for defamation because of how they spread the word about my alleged "home invasion" against Professor Bush and his wife. And how as part of their defence of "qualified privilege", they were claiming that any communications they issued on that subject were strictly confined to people who had a legitimate responsibility to be informed.

I happened to know differently. At my criminal trial Mrs. Cantor, one of my former instructors, had told how the University had phoned her up out of the blue to warn her that Marty Green was going around calling on professors at their homes. And from her recollection, it seemed pretty clear that then-Acting Dean Jan Stewart was the one making the calls. 

So I subpoenaed Jan Stewart, citing Queen's Bench Rule 39, which allows me to examine any outside party who had relevant knowledge.  The University's lawyers immediately moved to quash my subpoena, claiming Jan Stewart wasn't a party to the action and I had no reason to examine her. In support of their motion to quash, they filed an Jan Stewart, claiming that she basically knew nothing. 

But I have the right to cross-examine on affidavits. So now they had to produce Stewart. But they put strict conditions on the examination: I could only question her on her affidavit, not on the wider events of the case. This was fine with me: I would just ask her if she made those phone calls. If she did, then I would have the evidence I needed to defeat the motion to quash. And then I could examine her again, and ask her the real question: who authorized the phone calls, and just what was she telling people?

And then under examination, she denied making any such calls...or at least, denied any recollection thereof.
Well this was a problem for me. If Jan Stewart couldn't remember making any phone calls, what was I going to question her on when I got her in for my Rule 39 examination? I wanted to find out just what she said, and on what authority? But here she was, claiming she simply didn't remember making any such phone calls.

I don't think I'm letting you in on any big secret when I tell you I believe she was lying. First of all, if she were interested in telling the truth, why would she have led me on such a wild goose chase over the simply question of who was acting dean (see yesterday's blogpost)? And secondly, why would Mrs. Cantor have told me that she was phoned by someone from the Education faculty, a woman, who was calling to inform her that Marty Green had "visited" the house of another professor...if it wasn't Jan Stewart, acting Dean (or acting associate dean as she insists.)? So the next day I emailed the Education Faculty, with copies to Stewart, the Dean, and the President of the U of W, asking them to look into this and see if they could get to the bottom of just who was making phone calls to people about Marty Green. The University never responded to that letter. 

By the way, this evasiveness under examination is typical of the way the University's witnesses have conducted themselves every single time I have had them on the stand. It's what Neil Besner did when he pretended he had nothing to do with issuing the trespassing order against me in 2013; what Besner and Professor Metz both did when I asked them why I was banned from the property in 2013, and they pretended they thought I had asked them why I was banned the previous year in 2012. Of course the worst offender is Professor Metz, who when I repeatedly asked him what complaints he had made about me that led to my expulsion from the education program, kept insisting that he had made only "one formal complaint"...until I reached for my pile of documents, when he interjected: "well, if you're talking about the email I sent on January 11th, well yes I certainly did....". And let's not forget Professor Bush, who sent his wife to the door to get rid of me, and then tried to pretend that he never even heard the doorbell ring. Liars, liars liars. 

If Mrs. Stewart wasn't lying when she denied knowing about the phone calls, then the U of W was doing much worse than lying when they refused to disclose what was behind Mrs. Cantor's testimony at my criminal trial. If Mrs. Stewart didn't make those phone calls, then the U of W certainly knows by know just who did. And they're not telling.

Sunday, June 14, 2015

In Which Jan Stewart Just Can't Remember

When we left off, I told you how the University filed affidavit material in my defamation suit, claiming that whatever they reported about the alleged "home invasion" was confidential, based on their best knowledge at the time, and therefore fell under the umbrella of "qualified privilege". On that basis, they were seeking summary judgement (dismissal) of my claim.

The legal tradition of Summary Judgment has always been fairly clear that when it comes to questions of the motives/good faith of the parties, a summary process is not the right place to make those calls. A judge needs to see the live, or viva voce testimony to be able to weight the credibility of competing claims. But in recent years, the courts have been increasingly proactive in tossing out cases at the summary level. They are encouraged in this trend by the disturbing recent Supreme Court Decision in Hnatiuk Hryniak where the higher court congratulates the lower courts for using whatever means necessary to clear up their backlogs. I have already been a victim of Hnatiuk Hryniak once, when the Manitoba Court of Appeal tossed my defamation case against Principal Skull of Gordon Bell, claiming that the trial judge was fully justified in believing her story against mine, relying only on her uncorroborated affidavit evidence, even though her lawyers had successfully resisted my attempts to get contradictory testimony from other teachers who had seen my work. I pointed out to the Court of Appeal that in Hnatiuk (or Hryniak or whatever his name was) there had been full and extensive discovery of evidence by both sides (the evidence filled 18 boxes!), on top of which the summary judgment hearing lasted for days. (Justice Martin gave me less than an hour and a half to argue my case at the Queen's Bench.)

The bottom line is that I was determined not to let the courts screw me again by first denying my rights to discovery, and then at the hearing saying: "Where's your evidence?" Now, the University had claimed that the news of my misdeeds had only been distributed to a small and necessary group of individuals. I knew they were holding back, because at my criminal trial Professor Cantor testified that the Dean of Education had phoned her at home to warn her that I was going around calling on my former instructors. Or something to that effect. Just what Mrs. Stewart was telling people, I needed to find out. So I did what's called a Rule 39 subpoena on her.

Counsel for the University cried foul! You can't subpoena Jan Stewart. She has nothing to do with the case against you. You can only cross-examine the people whose affidavits we have filed...that would be security chief Martin Grainger and U of W VP Neil Besner.

Now it gets complicated. They filed a motion to quash my subpoena, and in support of that motion, they filed an affidavit by...Jan Stewart, saying essentially (in the words of Sargent Schultz): I know nuss...sink. Nuss...SINK.

I immediately filed Notice of Examination to cross-examine Jan Stewart...on her affidavit! Mr. Meronek actually seemed taken aback when he realized the door he had opened. He immediately responded that I could cross-examine her only on the material in her affidavit, and not on the overall case. Which meant that if I attempted to broaden the scope of question, he would advise her not to answer.

Okay, I could live with that. I only needed enough evidence on cross to defeat their motion to quash my subpoena, not to defeat their motion for Summary Judgment. I only needed to ask Jan Stewart if she made those phone calls. If she did, then I would have clear justification to proceed with my Rule 39 exam.

So on the appointed day, I showed up with a Court Reporter to take down her testimony. Things did not start off well. I asked her if she had been the Acting Dean of Education. She said she was not.I asked her if she knew who the dean was at the time of the events in question. She told me she didn't know what date I was talking about.

Okay, so that's how it was going to be. We clarified that we were talking about the time of the alleged home invasion, and her attendance at a meeting to discuss those events. I asked again, who was the Dean of Education?

She answered that it was Ken McCluskey. "He's always the dean, but there was an acting dean".

Then who was the acting dean? "Dr. John Anchan", she answered.

This was not what I had heard. "Was there an associate dean", I asked?

"Well, he's always the associate dean. I was acting associate dean."

 Okay, apparently I was mistaken. She wasn't the dean, she was just acting associate dean. John Anchan was the acting dean.

Or was he? About ten minutes later, we were getting into the roles of the various parties, and she testified that she had been called to the meeting because they needed an administrator "and John (wasn't) here...".

Wait a minute....where was John? Why wasn't he available?

"I don't know where he was, but he wasn't in town".

Okay, let's get this straight. If he was the acting dean, and she was the acting associate dean, and he was out of town, wouldn't that mean that she was acting dean?

Mr. Meronek was getting pretty irritated with my questions and he blurted out: "Don't, don't don't (answer that question)..."

I think if Mrs. Stewart were interested in telling the truth, she would have simply stated at the very start of the examination, when I asked her if she was acting dean, that yes she was acting dean. I don't think it speaks very well to her credibility the extent to which I had to virtually pull teeth to get her to admit that she was indeed the senior administrator of the department at the time of that meeting, whether she called herself the dean, the acting dean, or the acting associate dean. But that's the kind of semantic maneuvering and evasiveness that I've had to put up with every single witness of the University I ever examined.

But at last we were getting to the nitty gritty. What about the phone calls? Did you make any phone calls to people to inform them as to what had happened?

No she did not.

"You didn't phone Professor Cantor?"


"Well, she says you did."

Mrs. Stewart said she simply couldn't remember. She thought if she had made such a phone call, she would have remembered. And when I tried to jog her memory, Mr. Meronek interjected: "She's given her answer. Just move on." The cross-examination ended shortly after that.

* * * * * *

Friday, June 12, 2015

In Which I Subpoena Jan Stewart

Two and a half years ago, as part of my conflict with the university, I called at the home of Professor Bush to serve him legal papers. I first phoned ahead, but he slammed down the phone on me without letting me tell him the purpose of my call. When I rang the doorbell seconds later, he sent his wife to the door and disappeared down the basement. I told Mrs. Bush I wanted to see her husband, and extended the legal papers towards her by way of showing her the purpose of my visit. She refused to accept the papers or call her husband, and then, without warning, shut the door on my outstretched arm.

After I left, Professor Bush called the police. He also called his colleague Professor Metz, and a flurry of communications ensued in which it was widely reported within the University of Winnipeg that "Marty Green had just tried to force his way/break into Professor Bush's home." The University immediately issued a "No-Trespassing" order banning me for life from their campus. I demanded to know what I was accused of. (No one told me that I was accused of what they were now calling an attempted "home invasion.")  When they refused to provide particulars, I told them I would defy the trespassing ban unless they would inform me of exactly what the Bushes said I did. And that's what happened. As a result they had me charged with trespassing, criminal mischief and forced entry.

At my subsequent criminal trial, I subpoenaed the Bushes, Professor Metz, and U of W VP Neil Besner (who ordered the trespassing ban). As a result I got disclosure of all kinds of correspondence in which I was accused of the attempted break-in. The criminal charges were dropped, but the judge convicted me on the trespassing count. That is presently under appeal.

In the meantime I had sued for defamation: first the Bushes, and later, as a result of the disclosures at my criminal trial, Metz, Besner, and the University of Winnipeg.

The first ones to file their statement of defences were the Bushes. They had a problem: they were up first, and had to file their defence before my criminal trial. There were  basically two defences available to them:

1. They could deny my claim, saying: "We never said nothin about no home invasion".

2. They could plead justification, saying: "Yes, we accused him of trying to invade our home, because he did try to invade our home."

The Bushes chose Option 1. They denied accusing me of a home invasion.

But they had a problem, because meanwhile the University was going ahead with the criminal charges. And I was defending the trespassing charges on the grounds that they had no valid reason to ban me from the campus. Well, the University said they did have a valid reason: namely, the alleged home invasion.

In a nutshell, here was their problem. The lies they needed to tell to beat me in the civil case (the defamation action) were different from the lies they needed to tell to beat me in the criminal case (the trespassing charge.)

The criminal trial was a disaster for the university. My claim in defamation suffered from one serious flaw: I knew what the Bushes had accused me of, but I didn't have the actual words spoken. It turns out it's very hard to win in defamation unless you can pin the exact words down. But to my astonishment, there was all kinds of documentation that came to light in the civil trial, including repetition of the slanders by Metz and Besner. So I filed an additional lawsuit naming those other parties as well. In that claim, I also state that the University, in issuing the trespassing order, was by implication accusing me of outrageous behavior which would justify my being banned from their property. In other words, the issuing of the trespassing order was in itself an act of defamation.

As you can see the Bushes were by now pretty deep in the toilet. But in addition the University was now also on the hook. How would they defend themselves?

In their Statement of Defence, the university denies that the trespassing order, by implication or otherwise, suggests that I was guilty of some form of misconduct. And to the extent that it does, they say they are entitled to make such implications under the doctrine of Qualified Privilege.

What is meant by "qualified privilege"? In its simplest case, it means if you apply for a job somewhere, and your previous employer gives you a bad reference, you can't sue him for defamation. He's entitled to give his honest opinion about you, even if it's damaging, and even if it's not long as it's his honest opinion. If he slams you maliciously, then he has exceeded the privilege. That's why it's called "qualified privilege".

There is a legal definition of when someone is allowed to claim the protection of qualified privilege, and the Courts have been pretty liberal in extending those circumstances. So its an arguable proposition, which I'm not going to delve too deeply into right now. But the bottom line is to meet the test, they have to show first that the circumstances of the communication brought it under the umbrella of the claimed privilege, and secondly that that privilege was exercised without malice.

Which brings us up to the events of last December when I subpoenaed Jan Stewart, acting Dean of Education at the time of the "home invasion". In their Statement of Defence, and their supporting affidavit material, the University admits to sending an email to all members of the Education Faculty stating that I was banned from the property, and they should notify security if I were seen on campus. They claim that this communication falls under the umbrella of qualified privilege.

I will be disputing that claim when we argue it in court. But I will also be challenging their implied assertion that the communications issued with regard to this matter were limited to those which they admit to sending in their affidavit material. And once again, my source of information is the evidence from my criminal trial.

At my criminal trial, Security Chief Martin Grainger told the court about a horrifying verbal assault which had been reported to him by one of my classmates. Apparently this girl had invited an ASL translator to participate in a presentation, and I had launched into a screaming tirade against this innocent woman. I protested to the judge that this was hearsay, and I wanted to cross-examine the student who had made these accusations. The judge refused, citing irrelevance and safety concerns for the student.

I told the Judge that the law didn't work that way. If they had a witness who was afraid to face me in court, they can't get around it by having someone else report what she said. As my authority, I cited the scene in Godfather III where they have to let Michael Corleone off the hook when their star witness gets "cold feet". But the Judge held firm.

So instead I subpoenaed Mrs. Cantor, the instructor in whose class the alleged verbal assault took place. Mrs. Cantor quickly put those accusations to rest. No, she said, there was no verbal assault: in fact, I was quite polite and respectful to the ASL translator.

But in fact, Mrs. Cantor had herself written me up for the same incident, and reported it in very disturbing terms to the Dean. Why had she done that, I asked? Because the Dean asked her to, she replied. She squirmed around a little and said that her letter only reported the concerns of the student, not her own feelings about the incident. Shouldn't she have made that clear in her letter, I asked her? Mrs. Cantor had no answer. (Except to ask that I please refer to her as Doctor, not "Misses" Cantor.

But that aside, there was one more interesting fact that came out of Mrs. Cantor's testimony. I asked h er if she knew that I had been kicked out of school. No, she didn't she first claimed; but then, she recalled she had indeed been contacted by the University about the incident at the Bush home.

Who called her, I asked, and what did they say? She wasn't sure, but she said it was a woman. (Jan Stewart was acting dean at the time.) And as for what she had been told, it was very minimal; only that I had visited the home of another professor.

Really now? The Dean of Education phones you up to tell you that a former student of hers had called on the home of another professor? Nothing more?

Well, Mrs. Cantor then admitted that she understood there had been something inappropriate of my having made that "visit". But then here memory went blank and she couldn't remember any more details.

And that brings us up to last December. The University was claiming that any communications they made regarding the Bush incident fell under the protection of qualified privilege. I was going to find out just how the Stewart phone call fell under that privilege. And so I subpoenaed Jan Stewart.

Wednesday, June 10, 2015

Things Get Interesting

It's been quite a while since I posted. There has been a lot going on, but some of it involved delicate negotiations between myself and opposing counsel (none of which came to fruition) and I didn't want to queer the deal(s) by blogging about them. On top of which, there wasn't much good to report (from the Marty Green point of view.)

Until now.

Things got interesting last week. But to understand how it all came together, we have to go back to last December.

I have three lawsuits on the go against the University of Winnipeg. One for kicking me out of my teaching practicum at Gordon Bell (that was in 2011), another for kicking me out of the Education Faculty at the university (which happened in 2012), and another for defamation. (That's the one where they accused me of trying to break into Professor Bush's home in 2013.)

The University has been trying to get all three cases thrown out of court. They first moved for summary judgment in the practicum case. They lost their motion in the Master's Chambers, and appealed to the Queen's Bench. That appeal was argued last December, but the argument got adjourned halfway through when I told the Judge I would be seeking leave to appeal my statement of claim.

The problem with that case was that I had sued for Conspiracy to Injure. I claimed that the University had got together with the principal of Gordon Bell, Mrs. Skull, and concocted a scheme to get me kicked out of the program using her special authority as school principal. The nice thing about that was it denied me any avenue of appeal. I was ambushed one morning on my way to class, escorted off the property, and that was that. It was a done deal.

I told you that the University moved for summary judgment, and they lost. But the complication was that after they lost, the schoolteachers moved separately for summary judgment. And they won. I appealed to Queen's Bench, and then to the Court of Appeal, and lost each time. You can read about those appeals here and here. Technically, I still have one more level of appeal, to the Supreme Court of Canada. I've filed leave for appeal, but that's a pretty faint hope. In practical terms, Mrs. Skull seems to be off the hook.

But that screws up my claim against the university. Without the co-conspirators, where is the conspiracy. I could see the argument wasn't going well for me last December before Justice Edmond, and that's when I asked for an adjournment. We'll come back to that later.

The other case against the University was for kicking me out of school. This one was a little different. They didn't ask for Summary Judgment: they made a Motion to Strike. That means they don't have to file a Statement of Defence. They simply argue that the Statement of Claim, even if accepted in its entirety, fails to disclose a reasonable Cause of Action. We argued that in December of 2013 before Master Berthaudin, and the University won. My claim was struck, and I appealed to have it re-instated. After a lot of procedural wrangling, we finally appeared before Justice Edmond in December of 2014 to argue the case.

This one was argued to completion, but I got the distinct impression that whatever I was selling, Justice Edmond wasn't buying. So after we left the courtroom, I drafted up a new set of amendments to my claim, and filed for leave to amend.  The University announced they would be opposing my amendments in both cases, so I set to work preparing my arguments.

If that wasn't enough, I filed some rather routine amendments in my defamation case. What happened is that when I filed my original claim, I didn't have the exact words used when they accused me of the home invasion. I only got disclosure of these thanks to the criminal trial, which I won. My original claim said something to the effect of "exact words to be provided pending discovery". Which I now effectively had. So these amendments should have been straightforward, but perhaps out of reflex, the University again opposed the amendments. And of course, in the meantime they had filed a motion for Summary Judgement, denying that they had defamed me, and claiming that even if they had, whatever they had said was protected by the doctrine of Qualified Privilege. We'll come back to that later.

So where did we stand? As of January this year, there were three motions to throw me out: one of them argued to completion (the University expulsion), one of them adjourned halfway (the Practicum Removal), and one of them pending (the Home Invasion defamations). And I had three motions to amend my pleadings, all of which the University was opposing.

And that's where it gets interesting.

Friday, January 30, 2015

The Court of Appeal F%$s Me Up The A$%

The Court of Appeal was my last chance. It's not a friendly venue at the best of times, and it doesn't get friendlier when it's hearing a self-represented renegade arguing against the pillars of society. But the law is the law, and I had a solid case.

That's what I thought until the judges walked in to the courtroom. It was a panel of three...McInnes, Manilla, and Marc Monnin (there are two Monnins on the bench). McInness opened the show, telling me they had reviewed the written submissions and it came down to the question of malice: the Schoolteachers were protected by qualified privilege unless I could prove malice.

I couldn't believe my ears. "That's not the law", I told the judges. This is a motion for summary judgement. If it was a trial, I would have to prove malice. But at the summary stage I only have to show that there is evidence from which malice might be inferred."

I could almost swear that McInness snorted in disapproval. He knew I was right, but he wasn't going to let that get in the way of the decision he had already made. And the other judges on the panel clearly fell in line behind McInness. No one was going to give any credence to anything I said.

They wanted malice? Then let's go through the evidence. I started going through Mr. Tram's diary, showing how he twisted the facts to make me look bad. When I got to the part where he reported me for "tapping" a student on the shoulder, and then Principal Skull told the university I had "grabbed" the student, Manilla said "That doesn't prove malice. That could just be carelessness, or even incompetence." (Because "incompetence" doesn't equate to malice!)

But that's not the law, I told them. On summary judgment, if the facts (which were undisputed) support two possible inferences, then the responding party (that's me) is entitled to the most favorable inference. It doesn't matter that the judge hearing the motion might prefer a different inference. The facts have to be incapable of supporting an inference of malice. That's the law.

The judges just snorted at me.

Then I turned to the question of whether Justice Martin (whose ruling I was appealing) had improperly considered evidence of my problems at the University of Winnipeg in making his decision. I showed the panel how Justice Martin had considered it significant to consider that the complaints against me by my professors occured "prior to and independent of" the complaints by the schoolteachers. "So what?", I asked. "Even if everything the Professors said about me was true...the disruptions, the home invasions, even the death what?" I was suing the Schoolteachers because they said I had refused to hand in lesson plans.

It happens to be a well-established principle of criminal law that the prior convictions of an accused cannot be used against him. If I am charged with robbery, the prosecution cannot tell the jury that five years ago I was convicted of assault. It's called a "propensity" argument (that I have a propensity to break the law) and it's illegal. There is an exception...if my credibility as a witness is at issue, then the prior history might be evidence of a propensity to lie...but even there it's not a blanket presumption. Does someone who commits an assault necessarily have a tendency to lie?

In any case, no one at any stage of the proceedings had ever questioned my credibility. But the judges didn't care. "This isn't a criminal trial", Manilla told me. (I looked it up when I got home...the same principles apply to civil cases.) "And you were clearly out of control (at the university). Justice Martin had every right to take that into account."

No he didn't. Not according to the law. But it seems the only law that counted in that courtroom was the law that Marty Green was going to lose his case.

Thursday, January 29, 2015

Justice Martin Screws Me On Appeal

When I began my legal actions against the University of Winnipeg, there were three stages in a Summary Judgment motion. First you argued it before a Master in chambers, as they call it. The losing party can then appeal to the Court of Queen’s Bench, where it is heard by a Justice. There is one more level of appeal, to the Manitoba Court of Appeal, where it is heard by a panel of three Justices. (Technically, if you lose in the Court of Appeal, you can apply for leave to argue your case before the Supreme Court of Canada, but leave is rarely granted.) 

Since then, they’ve changed the rules so that the Master’s level is bypassed: now there are only two levels in Manitoba. But I was still operating under the old rules. I’d lost before the Master, so I appealed to the Queen’s Bench. My case was heard by Justice Martin in April of 2014.

I knew I was in trouble when the judge opened up the hearing by telling me that he had read my material, and he could still find no evidence of malice…which was the critical element in my claims. Could he not see malice dripping from every line of Mr. Tram’s diary, I asked? The Judge would later ridicule me for this line in his written decision …as though that was all the evidence I had. But at the time, I still believed I could convince him by walking him through the details. I was wrong.

I started by comparing Mr. Tram’s diary with my own account of what happened in class. Mr. Tram lambastes me for starting the class talking about the Law of Pythagoras, when I was supposed to be teaching static electricity. He then complains that I went on to talk about things that aren’t part of the course, like magnetism, and things that should be covered three weeks later. I showed the judge my own notes of the first class…how it was a 9:00 am class for which Mr. Tram’s student weren’t expected to show up half an hour late. There were two students who had actually showed up on time. Mr. Tram told me I should wait for more people to arrive. I though there was no reason to waste the time of the students who had bothered to come, so I drew a 3-4-5 triangle on the board and asked them if they knew what this was.

When the students started showing up, I got started on static electricity. I asked the class if anyone could tell us what static electricity was. Someone said “a light bulb?”. I drew a light bulb on the board and said “this is called current electricity and we’ll be talking about this three weeks from now”. That’s what Mr. Tram reported me for in his diary..that I was talkiing about math and things that belong three weeks down the road. I said his reports were “dripping with malice”. The Judge pooh-poohed my claim.

But  you won’t find any of these details in Judge Martin’s written decision. The Schoolteachers files a number of affidavits to support their position, none of which included any documentation or independent corroboration. If you want to know what they said about me, you can just read Martin’s written decision. Because every single allegation or slur against me which they raised in those affidavits is included in his findings.

But he does not see fit to mention one single point which I raised as evidence to support my allegations of malice. Not one. Other than my claim that Tram’s diary was “dripping with malice”…a point the Judge quotes me on only to ridicule me.

Did I have no evidence? You’re damn right I had evidence, and it didn’t depend on my own testimony. It was taken from the Schoolteacher’s affidavits, from the affidavits of their co-defendants (the professors), and from the written record:

1.         Principal Skull accused me of grabbing a student by the shoulder. I showed that in Mr. Tram’s notes, he reported merely that I “tapped” a student on the shoulder.

2.         Principal Skull accused me of refusing to submit lesson plans. The Schoolteachers had no documentation to prove they had ever even asked me for lesson plans. I showed instructions from my Faculty Supervisor stating that no lesson plans were due before Nov. 23rd. I was kicked out of the practicum on Nov. 21st.

3.         On the Friday before the Monday when I was kicked out, the Vice Principal had a phone conversation with Deb Woloshyn, the University’s director of student teaching. Woloshyn made notes of the conversation. She recorded that the Vice Principal had concerns about my mental health and erratic behavior. There was supposedly a bizaree incident with a homeless man, and a time when I left the building to go for coffee. But there was nothing about lesson plans or assaulting students. If these were off the radar on Friday, how did they become critical on Monday? Because none of the incidents cited by Vice Principal Cox on Friday were included in the reasons for my expulsion given by Principal Skull on Monday.

4.         An “at-risk student teacher” is guaranteed “due process” including meetings, written contracts, feedback, etc….all of which I was denied when Deb Woloshyn phoned emailed Principal Skull on Monday afternoon and formally requested the Principal to use her special authority to bypass the Due Process and use here emergency powers to demand my expedited removal. Neither the Schoolteachers nor the Professors denied these events (they email correspondence was included in the Professor’s own affidavits) nor did they offer any reasons why my due process rights should be bypassed. 

I told the judge that all of the above constituted ample evidence of both malice and conspiracy. That was my case, and I made it damn clearly, both in my written submission and in my oral presentation. What did the Judge have to say about that?

Absolutely nothing! There is nothing in his written decision to suggest that I had any evidence whatsoever, beyond my incoherent protestations that Tram’s diary was “dripping with malice”. The Judge alludes only indirectly to my evidence, saying that “whatever discrepancies may be inherent to Mr. Tram’s or Ms. Skull’s evidence, or between their evidence and that of Mr. Green or others, “such discrepancies are at once minor and understandable”.

That’s it. "Minor and understandable".

At the start of the hearing, the Judge had told me he was skeptical of my claims of malice. He even offered to adjourn the hearing so I could confer with Mr. Mackwood, and possibly agree to drop my claim before it got too late. I turned him down. I said I wanted to present my evidence. The judge said OK; he was going to listen, and he wanted me to leave at the end of the day at least knowing that I had been heard. Fair enough.

The Judge cheated me. Yes, he heard me all right. But by omitting every word of my argument from his written decision, and including every claim made by the Schoolteachers, no matter how trivial…he did his best to make sure that even if he heard my arguments, no one else would.