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.

1 comment:

  1. Marty, Metz and Bush have retired. Metz however is still listed in the education calendar as teaching an education course for UofW students in Thailand. Must be nice, retire and then get paid to teach students in Thailand. These jokers know how to use the system!