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.

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