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 circles...it 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.





2 comments:

  1. This case seems rather complicated. On the one hand, this appears to be a student upset about his grade who has been left without recourse, but on the other hand, the student being removed from the practicum, combined with the university's refusal to provide his transcript, add a deeper level to the proceedings. I will be intrigued to see how this proceeds from a legal perspective.

    Modesto Culbertson @ D & Z Law Group

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  2. Thank you for your interest in my case. I was a student in the Teacher Certification program for exactly nine weeks. The professors didn't like me because I was a bit of a know-it-all, and started a whispering campaign behind my back. When the moment came for them to act against me, they first pulled me out of my practicum placement, then launched Non-Academic Misconduct proceedings against me, then suspended me from classroom attendance, and then banned me from the property under the Petty Trespass Act. The strength of my case is that while they have some degree of immunity for their official proceedings under the Misconduct proceedings, all the other acts (including the practicum removal) were purely extra-judicial; since there was no "effective remedy" available to me under the university policies, I was therefore entitled to sue for damages.

    To defeat this argument, Justice Edmond had to find that my "effective remedy" for the practicum removal somehow lay within the Non-Academic Misconduct proceedings. And so that's what he did. You can read his "Reasons for Decision" at this link:

    http://canlii.ca/t/gkf2g

    I have filed an appeal in the Court of Appeal, and you can read my argument at this link:

    http://www.onforeignsoil.com/pdf/Edmond%20Appeal%20-%20Factum.pdf

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