The University Puts its Best Foot Forward

I've been pre-occupied with various side-shows over the last two months. There is the Notice of Appeal where I've asked the Court to order the University to tell Professor Metz to mark my assignment from last winter; there is the grade appeal in Professor Bush's course where I finally got the University to admit they never even re-read my assingment before rubber-stamping the F that Professor Bush had given me; and of course the small matter of the University having me thrown in jail for trespassing. But the main event is still my claim against the University for Conspiracy to Injure, which has been held up since January on a Motion for Summary Judgement filed by opposing counsel.

I told you about their motion, and I even posted it online. You can see that it's a bit sketchy. Never mind; the details would ultimately be filled in by their Motions Brief, which I got in mid-February. They didn't give it to me in electronic form, so it's not so convenient for me to post it, but essentially they argue three different grounds for striking the motion: evidentiary, jurisdictional, and defective pleadings.  It's basically the triple whammy of summary judgement.

In response, I filed my own brief with the Court; if you'd like to read it, I've posted it online here. (Actually it's not quite the final draft that I filed, but it's pretty close.) I start of with a short history of Summary Judgement, which turns out to be pretty interesting. The original idea of Summary Judgement was that there was no need to go to trial if there is no real dispute over the facts. The legal phrase is "no genuine issue for trial". It means that one side or the other really has no facts to back up its case. And until fairly recently, that was the only way you argued for summary judgement. There was a definite protocol involved. First, the moving party had to show that it had evidence to contradict all of the essential points of the other side. If they did, then the onus shifted to the responding party to show that it had at least something to argue back with. The idea wasn't to argue the case on its merits at this stage. You just had to show that you had something to go to trial with. Only if you really had nothing would the court award summary judgement. Otherwise you were entitled to go to trial.

More recently the precise meaning of the phrase "no genuine issue for trial" has loosened up to include any number of reasons why you might have no reasonable prospect of winning. These include what I listed above as defective pleadings or jurisdictional issues. Counsel has argued both of these; I don't feel I have too much to worry about here, and I'm not going to deal with those issues today. You can read my brief online if you want to know what I have to say about them.

The really interesting issue is the good old-fashioned Summary Judgement on Evidence. It's interesting not because the University has a case, but because they appear to me to have made a very bad error in putting forward their argument. I already described the two-step process in a motion for summary judgement: first, the University has to show they have evidence to contradict all my essential points; then, the onus shifts to me to produce evidence to back up my points. If I have any credible evidence whatsoever, I'm entitled to go to trial.  Otherwise, they can get summary judgement in their favor.

The problem is that the University seems to have forgotten the first part of the two-stage process. They have demanded that I put forth evidence to show there was a conspiracy against me, but they haven't put forward any evidence to contradict the facts as alleged in my Statement of Claim. According to the protocols, the onus does not shift to me until they have met this initial burden; and so far as I can see from reading their brief, they make no attempt whatsoever, other than repeating the bald assertions of innocence set forth by the parties in their Statements of Defence. That's not evidence, and it doesn't shift the onus.

In a motion for Summary Judgement, the court will not weigh competing evidence. It will only award judgement if one side is unable to produce any evidence that would justify going to trial. Normally...in 99.9% of the cases...this would be the responding party. No one would be foolish enough to move for summary judgement without putting forward some evidence. The court might rule that his evidence is insufficient to shift the onus to the responding party....in that case it would dismiss the motion. But what if the moving party introduces no evidence whatsoever?

Then it is not a case of weighing competing evidence from the two parties...because there is nothing from the one side to go on the scales. This anomalous situation raises the horrifying possibility that summary judgement could be granted in favor of the responding party...which would be me! It does not appear to be something that has ever happened in any country where the Common Law of England prevails, but I have found a very interesting case where the judge recognizes it as a distinct theoretical possibility. (You can read it here.)

So why doesn't the University just bring forward some evidence? Surely they have something they can bring forward. Well, it's not so easy at this stage. There in the law a presumption that in making their arguments, both parties have "put their best foot forward". They are not supposed to be holding back anything for later on down the road. At this stage in the proceedings, the affidavits have all been filed and the University's case is on the record. The problem is that the University's lawyers went to Colin Russell, the registrar, and got him to file an affidavit with the University's evidence. Russell can't seem to get it through his head that I am suing for the way they kicked me out of the high school practicum. He wishes that I were suing for the non-academic misconduct proceedings, which he was in charge of. So all the evidence he put in his affidavit related to details of the misconduct proceedings.

I'm not suing for the misconduct proceedings. I'm suing for the ambush when they kicked me out of Gordon Bell on the 21st of November. The non-academic proceedings began on the next day, the 22nd of November, and that is where Colin Russell's evidence begins.

The university put its best foot forward and fell flat on its face.