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.

My Case Is Thrown Out Of Court

I told you yesterday how I concluded my case against the University for kicking me out of my high school practicum placement. When I filed the case back in 2012, I claimed against the University and the high school principal Arlene Skull for "conspiracy to injure". Because to get me kicked out, the University had to enlist Skull to invoke her special authority to remove me from the practicum on an expedited basis (the "page 28" procedure), bypassing the rights to due process I should have had under the "page 27" procedures of the Practicum Handbook.

The difficulty with that claim was that I needed to prove malice. That shouldn't have been a problem: but the courts hit me with a triple whammy when they:

1. Allowed the University and the High School to bring separate motions of Summary Judgment, and ruled that I had to defend those motions without the benefit of discovery.

2. Refused to look at the evidence of malice which I was able to bring forward even without discovery, including the fact that Principal Skull accused me of "grabbing" a student when the eyewitness testimony said only that I "tapped" him on the shoulder.

3. As a result of ignoring the aforesaid evidence, the Courts threw out my claim against the high school principal because I couldn't "prove" malice.

The actions of the Courts are all the more outrageous because on Summary Judgment, you don't have to "prove" anything...you just have to show that there is evidence which supports your claim. On top of which, all the previous case law emphasizes that summary judgment is unsuitable when the case hinges on the motives of the defendants...namely, the presence or absence of malice. According to all existing legal jurisprudence, I was entitled to a trial on this; instead, as I expressed it in a previous blogpost, the courts chose to f&$# me up the a&#*@.

So here I was trying to argue conspiracy against the U of W, and I had lost my co-conspirators. This was a real problem; but I had now gotten around it by amending my claim so it was in Breach of Contract instead of conspiracy. The beauty of this claim was that I didn't have to prove malice; I only had to show I had contractual rights (namely, the Page 27 procedures) that were violated. This was a problem for the University; and apparently it was also going to be a problem for Justice Edmond. But he was not to be deterred.

Last week Justice Edmond came out with his decision. Overturning the ruling of Master Berthaudin back in 2013, he granted Summary Judgment to the University on the grounds that...the Court did not have the jurisdiction to hear my claim!

Did Justice Edmond f&$# me up the a&#*@ too? When we come back, I'll explain the basis of his ruling, and then you can decide for yourself.

Leave to Amend...Granted

I had two amendments on the table, and the University was opposing me. The amendments would make it significantly more difficult for them to defend themselves against my claims, and they knew it. So both sets amendments were set down to be argued in June.

On June 3rd we appeared to argue my amendments in Green v Tram...the practicum expulsion. Actually, the argument on the motion had been adjourned back in December, so we were going to argue the amendments, and then, pending the result, we would conclude the argument on the Motion for Summary Judgment.

Mr. Meronek stood up to speak for the University. He told the Judge...he was not going to oppose the amendments! Briefs and affidavits had been filed, arguments prepared...but the University was folding its cards on this one. My claim would go forward...not in conspiracy to injure, but now in breach of contract.

I proceeded to state my argument: whether or not the University had the benefit of co-conspirators in the persons of Mrs. Skull and Mr. Tram from Gordon Bell, they breached their contractual obligations to me when they bypassed the due process owed me in Page 27 of the Practicum Handbook and moved to the "expedited removal" on Page 28 of the handbook.

The Judge was skeptical. Where is your evidence, he asked? That was easy. I opened up the University's own dossier, pointed to the correspondence of November 21st, where the Principal informs me that she is setting up a meeting with my facultly advisor, in accordance with the procedures set down on Page 27 of the handbook. That meeting never took place. Instead, Deb Wolyshyn, the student teacher co-ordinator and the Univeristy, emailed Skull and requested that she move to the "expedited removal" procedures on Page 28. That's what the school used is the student teacher is molesting a girl or something serious like that. There is no due process...you're just out.

The Judge frowned. This wasn't going the way he wanted it. He turned to Page 29 of the handbook and started going through the list of  steps in the expedited removal. "Did they provide you with this? Did they do that?" Yes, yes, I told him. I was provided with all the steps of the expedited removal...well, actually I wasn't. They didn't set up a Performance Committee Review, which was the only thing that could have still saved me. But that wasn't the point. I wasn't suing them because they failed to properly implement the Page 28 procedures. I was suing them because they improperly bypassed the Page 27 procedures...the Due Process which I was owed according to the Handbook.

It was an airtight argument. I sat down pretty satisfied that I had made my point. But we still had my other lawsuit to deal with...the one for kicking me out of the program at the University. That would be argued the following day.

Again, we would be starting with my Leave to Amend. This one had been argued to completion back in December, and I had realized that the Judge wasn't buying my claim in Duty of Care. I said that they breached their Duty of Care to me when they failed to safeguard my rights under the Non-Academic Misconduct proceedings: they didn't allow me to call witnesses in my own defence, they didn't allow me to cross-examine my accusers; they didn't even disclose all the accusations against me.

The problem with this claim was that the Judge was going to rule that I should have sought Judicial Review instead of suing for damages. He was wrong legally, for all kinds of reasons....but that was what he was going to do. So I figured out a way to make it harder for him. I re-wrote my claim: instead of arguing that they denied me my procedural rights, I now argued that they had given me all the rights explicitly laid down in their procedures. The procedures said that all complaints had to be signed and in writing...but they didn't say I was allowed to see those complaints! The procedures said I was entitled to a hearing with due process...but they also said the appeal committee had exclusive discretion to decide what that "due process" consisted of! In effect, their procedures made the Kangaroo Court totally legal. So what was my claim?

My claim was in negligence...not for the hearing they gave me...but for writing those defective procedures in the first place! The University was flabbergasted by this claim. They opposed my leave to amend, arguing that in any case my claim for negligence was barred by the Statute of Limitations. Those "Defective Procedures" had been enacted in 1991, over twenty years before. According to them, I would have had to bring my claim within six years of that date.

It's a funny argument, and I was looking forward to seeing the Judge demolish it. If Chrysler sells you a car with bad brakes, and you get in an accident, you can sue them for negligence within six years of the accident. Not from the time they designed the brakes! That's what the University was arguing, and they weren't going to get away with it.

So when we appeared before the Judge to argue leave to amend, I wasn't pretty surprised (given what had happened the previous day) when Mr. Meronek stood up to announce that once again, he was not going to oppose my amendments after all. But what happened next was completely unexpected.

He was now going to withdraw his original Motion to Strike, and file a Statement of Defence! The game was back on. It was all the more astonishing since he had actually won his Motion to Strike a year and a half previously before Master Berthaudin, and it was my appeal of that decision that we were now arguing before Justice Edmond.

I was in fact a little dismayed that I wasn't going to get a decision from him. "Your Honor", I objected, "I  know he can withdraw his own motion...but it's my motion we're arguing today. The motion was argued to completion; I thought I had earned a victory, and I was looking forward to a written decision."

The Judge looked at me. "You should consider yourself lucky and walk out of here with what Mr. Meronek has given you. I haven't made my decision yet, and there is no guarantee that it would go your way if I were to go ahead and issue a written decision."

And that was where we stood just seven weeks ago. Since the beginning of the year, I had prevailed on three motions for Leave to Amend (including the earlier amendments on my Defamation suit for the "home invasion) and won the reversal of Master Berthaudin's decision to strike my claim for the University expulsion. That's four victories...but notably, all of them concessions by the University and none of them courtesy of Justice Edmond. He had yet to rule in my favor on anything since having taken over case management a year previously. To be sure he had given me a "draw" on the procedural wrangling over my cross-examination of Jan Stewart. But he had tossed out my application for a court order on my grade application in Professor Metz's course (that one will be re-argued in the Court of Appeal come September.) And there was one other procedural motion where he had ruled against me...an unfair decision which I did not immediately appeal. I haven't told you about that one yet, but now it's come back in a big way.

I'll tell you all about it when we return.