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 threats...so 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.

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. 23^rd. I was kicked out of the practicum on Nov. 21^st.

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.

Master Berthaudin Screws Me Over

When the Schoolteachers first moved for summary judgment, I wasn’t worried at all. They had no evidence! – none, that is, except their own testimony that they acted without malice, and that the things they said about me were true. That’s just the kind of thing the courts call “bald assertions and self-serving affidavits”. It doesn’t meet their first-stage onus.

In the meantime, I had served them with interrogatories (as was my right under the Queen’s Bench Rules), demanding that they provide particulars of things like which students allegedly complained about my erratic behavior, and which questions I supposedly refused to answer in a Physics class…things the Principal had accused me of. The Schoolteachers refused to answer, citing “confidentiality and irrelevance”! So I filed a motion with the Court, demanding better answers to interrogatories. The University filed a counter-motion, demanding that my discovery rights be suspended pending the outcome of the Summary Judgment motions.

The Court refused to heat my motion, and granted the University’s motion insteade! This was just a month before I was scheduled to argue the Schoolteacher’s Summary Judgment Motion before Master Berthaudin (the same master who had just rejected my attempts to obtain discovery).

I hadn’t planned on needing much evidence going into that hearing. Most of what I was relying on was contained in the University’s own evidence, where they disclosed the series of phone conversations and emails which led to the Principal using her special powers to demand my expedited removal from the program, thereby bypassing the Due Process rights which I was otherwise entitled to under the Student Teacher Handbook. That was my evidence of malice and conspiracy, and it should have been enough. Actually, I shouldn’t have needed even that, because the Schoolteacher’s hadn’t introduced any evidence to contradict the paragraph in my Statement of Claim where I alleged that they did exactly that…that’s what they should have needed to meet their “first-stage onus”. Until they do that (which they didn’t) there should be no need for me to cough up my own supporting evidence…the so-called “second-stage onus”. If the Schoolteachers fail to meet their first-stage onus, or if they do and I then  meet my second-stage onus, the case goes to trial.

But when the Master shut down my discovery rights, just weeks before the hearing, I got worried. I had one ace in the hole…my own notes about what happenned in the classroom in Gordon Bell. And they clearly showed that Mr. Tram, the classroom teacher, was lying when he portrayed me as an abominable teacher. Or if he wasn’t lying, at the very least the conflict between the two narratives created the “genuine issue for trial” which should have defeated the motion for summary judgment. 

For strategic reasons, I hadn't wanted to disclose my notes before I had a chance to examine the other parties on discovery, but now I thought…just in case. So I filed them as evidence.

But at the Summary Judgment hearing, the same Master who shut down my discovery rights just weeks before the hearing, went on to find that the Schoolteachers had met their first-stage onus with nothing more than their bald assertions of bona fides. Where was my evidence of malice, he demanded? I proceded to go through my classroom notes, showing how Mr. Tram consistently took perfectly innocent circumstances and twisted them to make me look terrible. I showed him the correspondence between the University and the Principal which led to the Principal bypassing my due process rights. And I showed him Mr. Tram’s classroom notes, where he reported that I “tapped” a student on the shoulder, and compared them with Principal Arlene Skull’s fax to the University, where she reported I “grabbed” the student by the shoulder. I showed her the letter from Wally Stewart, my faculty supervisor, stating that no lesson plans were due before November 23^rd, and asked how the Schoolteacher’s could square that with the claim that they kicked me out on Nov 21^st for “refusing to submit lesson plans”?

The Master ruled that I had provided “no evidence whatsoever.”

That’s how I knew the fix was in. He didn’t list my evidence and say it was unconvincing. Or say that it didn’t prove malice. The same Master who had weeks previously ruled that I wasn’t entitled to replies on interrogatories. He said that I had provided “no evidence whatsoever.”

There was no way this outrageous decision was going to stand up on appeal. Or so I thought.

The Schoolteachers Get Summary Judgment

Yesterday I was telling you about my legal strategy: how it was almost impossible to sue the University for kicking me out of the Education program, because the courts give deference to the University's own internal disciplinary procedures...but they were vulnerable for the way they kicked me out of the Teaching Practicum, because they bypassed their standard practises by convincing the Principal of Gordon Bell to use her emergency powers, which gave me no right of appeal.

Even though I had no right to defend myself, the University still needed the Principal to write a list of reasons why she was having me removed. This was a last-minute thing: actually, she didn't want to put it in writing, but the University insisted. So this what she wrote:

As a follow-up to the documentation and our conversations about our concerns with Mr. M. Green, we are requesting that he do his student teaching block in another location/school. The reasons for our request are stated in the meeting summary and include:

• refusing to submit lesson plans in any recognised standard format
• refusing to state or accept that a lesson plan involved more than a "topic"
• refusing to follow teacher directions related to planning of lessons, lesson content and disciplinary issues with students
• level of agitation and confrontation with staff: pacing the room while talking very loudly (when asked to plan lessons and stick to the curricular topics), leaving the classroom when he did not get exactly what he wanted, stating that things will only be done "on his terms" and "I trust no one, I trust myself"
• aggressively confronting and touching students
• students, in Grade 11 and 12,, asking the teacher to please re-teach or teach the lessons due to the lack of clarity and refusal to answer question
• apprehension stated about his erratic behavior by both teachers and students

As I explained yesterday, I never got to see this list until six months later, when I got it via the Freedom of Information Act. So I sued the University and the Principal for conspiracy to injure; and, based on the list above and the notes put together by the classroom teacher, I also sued the Principal and the teacher for defamation.


Defamation?

It's true that I never handed in lesson plans. But no one ever asked me for lesson plans. So I don't think it was fair for the principal to say I "refused" to hand in lesson plans. I even file a letter with the Court from my Faculty Advisor, where it stated that no lesson plans were due until November 23rd. I was kicked out on the 21st. But none of this helped me.


And "refusing to follow teacher directions with respect to disciplinary issues"...aggressively confronting and touching students"? This was based on a single incident where a kid was playing loud music on his Ipod and I asked him to turn it off. The classroom teacher reported that when the kid turned away, I tapped him on the shoulder. (In a separate fax to the University, the Principal reported that I actually "grabbed" the student!) This is the sole basis for "aggressive and confrontational". And there was no documentation or evidence of any kind that I was ever given any instruction about how to handle this kind of situation, let alone that I "refused to follow" such instruction.

I think that's defamation.

But there is a way out of defamation: it's called "qualified privilege". It applies to situations where an employer or supervisor is required, as part of his duties, to evaluate and comment on an employee's performance. And it clearly applies in this situation. But as opposed to "absolute privilege" (which kicks in when the complaint is made as part of a statutorily-sanctioned disciplinary process"), qualified privilege is lost if the statements were made maliciously. And that would be the basis of the schoolteachers defence.

The schoolteachers moved for Summary Judgment, dismissing my claim. They relied on two grounds:

1. That the statements were made under qualified privilege, and I had no proof of malice.
2. That the alleged conspiracy was done for legitimate purposes, and I had no proof that it was carried out for the purpose of causing me harm.

The rules of Summary Judgement are simple in theory. My Statement of Claim alleges certain actions on their part. They issue a Statement of Defence, denying those claim. In a Summary Judgment motion, they get to say: "We didn't do it...and here is our evidence". (That's called the "first-stage onus".) If they meet that requirement, then the onus shifts to me...and I have to say, "yes you did, and here is my evidence".

On Summary Judgment, the Judge isn't supposed to decide whose evidence he believes. He is only supposed to look at the evidence and see if there is any case at all to be argued. If I have no evidence, he can throw me out. (That's assuming the Schoolteachers had enough evidence to meet their first-stage onus.)

The Schoolteachers had nothing! They swore affidavits stating that whatever statements they made were without malice, and that they had not conspired with anyone to do me harm! No court in Canada has ever granted summary judgment on the basis of what they call "bald assertions and self-serving affidavits".

Until now.

It's Over

It took them three years but they finally got me. The University has won in court.

Technically it’s not over yet. There are still a dozen more motions to be argued and appeals to be heard, and another hundred thousand dollars in legal fees to be billed by the University’s lawyers, but in reality it’s over. The University has won.

The death blow fell in the Court of Appeal last week, and it wasn’t even the University’s lawyers who argued the motion. This was a motion for Summary Judgment by the Schoolteachers, the University’s co-defendants on the conspiracy charges, who were represented by separate counsel.

A quick recap of events is in order. The University kicked me out of the Teacher Certification program in January 2012. I had entered the program in September, and had just begun the my first Teaching Block at Gordon Bell High School when I was called into the Principal’s office on the morning of Nov. 21^st 2011 and told ordered to leave the building. Principal Arlene Skull told me that a meeting had been set up with my Faculty Advisor and I would be contacted.

That meeting never happened. The next day, the Associate Dean of Education filed a complaint of Non-Academic Misconduct with the Registrar and “transferred my file” to the Registrar’s office. From that day on they refused to discuss my status within the program. The general idea was that I would “get the picture” and just disappear. When I showed up for classes in January, it was a big problem for the University...a problem which the Registrar “solved” a week later by barring me from the campus under the Petty Trespassing Act. Ten days after that, he issued his decision under the Non-Academic Misconduct policy, suspending me from the program for one year. Of course the Education Faculty had no intention of letting me back in when the year was over.

What did I do to get myself kicked out of Gordon Bell? The University never told me. I didn’t find out what the Principal said about me until six months later, after having applied for disclosure under the Freedom of Information Act. What did I do to justify getting barred from the University of Winnipeg campus? Naturally, I had demanded to know immediately, but again the University refused to tell me. It would later come out that I had been accused of making a death threat against some unspecified third person, who never personally came forward to identify himself. But that didn’t matter, because as the University would subsequently inform me, “there is no right of appeal under the Petty Trespassing Act.”   

And what did I do to get myself convicted of Non-Academic Misconduct? That’s a question for another day, but it was considered by Provincial Court Judge Anne Krahn, who cited two instances where I used a written assignment as a platform to express my disagreement with things my professors had said in class, saying that this “demonstrated a single minded determinedness to demonstrate that (my) point of view is the superior one.” She went on to say that “Mr. Green becomes agitated, he raises his voice, he uses large dramatic body language and dramatic verbal language. His explanations are lengthy and rambling. He contributed in a way that, even by his own admission, no other student contributed. But this style and approach gave rise, on a reasonable basis to the conclusion that the faculty and students experienced his behavior as disruptive to teaching and learning.”

“Long and rambling” explanations? “Dramatic body language”? I didn’t think you could literally get kicked out of university for any of that. But so-called disruptive behavior and the death threats are a question for another day. Except that if I was really running around making death threats, why would the Judge need to find fault with things that I wrote in essays (no, there were no “threats” in the essays….just me trying to “prove my point of view is the superior one”) in order to come up with reasons for the University to kick me off the campus?

But I digress. Let’s get back to my legal actions against the U of W.  The first thing I learned after I was kicked out of the program is that it’s almost impossible to sue the University. They are protected by the fact that statutes authorize them to create their own disciplinary processes, which the Courts are extremely reluctant to interfere with. I keep appearing before judges (I’m stuck with one right now) who say that the Courts have no jurisdiction in University affairs, but that extreme point of view is unsupported by case law. All the significant authorities speak of “deference” or “reluctance” to intervene except when the University’s conduct offends the principles of natural justice.

Either way, I found I had a very hard time putting together a viable case against my expulsion. Until, that is, I realized that the University didn’t use their statutory powers to expel me…they used the Petty Trespassing Act! And they don’t get a free pass for that…except, that subsequently they put together a Star Chamber which issued an official finding of non-academic misconduct. I’ll be arguing that was too little to late. But as I’ve said, I’m going to lose that argument. And the reason has nothing to do with who’s right or wrong.

Eventually I did sue the University for kicking me out of the program. But that wasn’t the case I argued last week in the Court of Appeal. See, before they kicked me out of the program, they kicked me out of the practicum. And they did it using a procedure which gave me no right of appeal, no hearing, or no chance to tell my side of the story. Yes, normally those are all part of the standard process for dealing with student teachers…and as I said, the Principal of Gordon Bell had already told me that a meeting had been set up to begin that process. 

But that meeting never took place. Because before it did, the University got in touch with the principal and convinced her that instead of going through the Due Process which was set down in the Student Teacher Handbook, the Principal should use here emergency override powers to simply demand that I be removed. After some consideration, the Principal agreed. And that’s how they kicked me out of the practicum. I was never told the reasons or allowed to tell my side of the story.

So I sued the University and the Principal for Conspiracy to Injure. This was a real problem for them, because since they had used a process whereby I wasn’t allowed to defend myself, they were unable to argue that the Courts had no jurisdiction. It was a real problem.

We’ll see how the Court of Appeal solved that problem for them.