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.
Monday, July 27, 2015
Tuesday, June 30, 2015
The Kangaroo Court Goes on Trial
I hope you liked the video I posted the other day of the Polish guy singing "Crazy". When we left off, I was telling you how I moved for Leave to Amend my pleadings in Conspiracy, to claim in addition that even without the conspiracy, the actions of the University amounted to a Breach of Contract.
This was back in December, and we we arguing my case against the University of Winnipeg for kicking me out of my teaching practicum. A week later we were back in court again: this time, we were arguing my claim against the University for kicking me out of the Teacher Certification program. Why two different claims? Well, because the factual circumstances (and my legal rights) with respect to those two actions were very different.
The claim for the teaching practicum was simpler because in getting me kicked out of Gordon Bell, the University had used a regulation which made no provision for any recourse on my part. I had no right of internal appeal: it was a done deal. But the other side of that coin is that there was no barrier to me taking them to court for what they did.
The expulsion from the program was different. Here they also used methods for which I had no appeal: first, the Registrar (Colin Russell) banned me from attending classes, an action from which there was no appeal. Even Russell later admitted he had no authority under the University regulations for banning me from classes. And he followed that up with a No-Trespassing order, banning me from campus altogether. When I tried to appeal that, the University simply refused to tell me the grounds for the order, adding that "there is no right of appeal under the Petty Trespassing Act."
But in the meantime they also charged me with Non-Academic Misconduct. This was a formal charge, with a formal appeal process through the University's own Star Chambers under the statutory authority of the University of Winnipeg Act. And this was the problem. Under the principles of civil law, you can't sue a body for disciplinary actions it carries out under its statutory authority. You are only allowed to seek what's called "Judicial Review". That means you can go to court to get the decision quashed.
But the courts won't review the evidence or lack thereof. They will only review the procedural fairness of the process. And if they find it wanting, they will send you back to the very same star chamber for a second go-round. You can imagine that it's pretty easy for the University to get the same result they got the first time around, because they still control the judge and jury.
So I was in a bit of a fix. I thought long and hard about my options, and then I came up with a plan. The University's policy documents theoretically guaranteed me due process. For example, it was written down that any complaints against me had to be in writing, signed, and include all relevant details. So I insisted on my right to see those written complaints. That's when the Kangaroo Court took over. No dice, they said. The policy only guarantees that the complaints must be in writing. It doesn't guarantee that the accused party gets to actually see those written complaints!
And so it went down the line. I had no right to cross-examine my accusers, or to call witnesses on my own behalf. The hearing itself was a joke. They gave me thirty minutes to tell "my side of the story" and cut me off abruptly when my time was up. The decision was a foregone conclusion.
A lot of other people have tried to sue the universities across Canada for kicking them out of school, and only one person has ever succeeded. In Young v Bella, a social work student in Newfoundland got half a million dollars when the faculty kicked her out of the program on the suspicion that she might be a potential child abuser. She was never confronted with the accusation or allowed to defend herself. The case went all the way to the Supreme Court, which found that a University has a duty of care to make sure that it gets its facts straight before taking career-ending action.
The U of W thought it was protected from a Young v Bella scenario because unlike the University of Newfoundland, they gave me the "benefit" of their quasi-judicial process. But I was going to argue that even so, they had failed to meet their "duty of care" because they did not give me the benefits of that process to which I was entitled: namely, the right to know the accusations against me, the right to cross-examine my accusers, and the right to call witnesses on my own behalf. And that in addition, they improperly bypassed those due process rights when they implemented non-judicial and non-appealable measures against me including the classroom suspension and the no-trespassing order.
This was the statement of claim I filed in September 2013, almost a year after my initial claim for Conspiracy. The University had moved to strike my claim on the grounds that it disclosed no cause of action. That motion had been granted in January of 2014 by Master Berthaudin, and here I was in December appealing the Master's decision at the Queen's Bench level. And it was not going well.
Justice Edmond was not buying my argument. Counsel for the University was arguing that whatever complaints I had with the University's appeal process, I should have filed for Judicial Review instead of suing for damages. And the judge kept nodding his head in agreement. If, as I claimed, the University had denied the rights I was entitled to under their regulations, why was I not applying for Judicial Review?
At the end of the day, the Judge announced he would be reserving his decision. I went home and thought about it long and hard. Maybe they were right. If they had violated their procedures, I should have sought judicial review.
And that's when it hit me. They hadn't violated their procedures. They had given exactly what the procedures said I was due, and not an inch more. The procedures said the complaints had to be in writing. They didn't say I was entitled to see those written complaints.
If I sued on the basis that the University had violated it's procedures, I was going to lose. Instead, I should have sued on the basis that the University created procedures which inherently made it impossible for me to effectively defend myself against false accusations. I immediately wrote up a Motion for Leave to Amend.
I was going to sue them for negligence. Negligence not for improperly carrying out the procedures, but in creating defective procedures in the first place.
This was back in December, and we we arguing my case against the University of Winnipeg for kicking me out of my teaching practicum. A week later we were back in court again: this time, we were arguing my claim against the University for kicking me out of the Teacher Certification program. Why two different claims? Well, because the factual circumstances (and my legal rights) with respect to those two actions were very different.
The claim for the teaching practicum was simpler because in getting me kicked out of Gordon Bell, the University had used a regulation which made no provision for any recourse on my part. I had no right of internal appeal: it was a done deal. But the other side of that coin is that there was no barrier to me taking them to court for what they did.
The expulsion from the program was different. Here they also used methods for which I had no appeal: first, the Registrar (Colin Russell) banned me from attending classes, an action from which there was no appeal. Even Russell later admitted he had no authority under the University regulations for banning me from classes. And he followed that up with a No-Trespassing order, banning me from campus altogether. When I tried to appeal that, the University simply refused to tell me the grounds for the order, adding that "there is no right of appeal under the Petty Trespassing Act."
But in the meantime they also charged me with Non-Academic Misconduct. This was a formal charge, with a formal appeal process through the University's own Star Chambers under the statutory authority of the University of Winnipeg Act. And this was the problem. Under the principles of civil law, you can't sue a body for disciplinary actions it carries out under its statutory authority. You are only allowed to seek what's called "Judicial Review". That means you can go to court to get the decision quashed.
But the courts won't review the evidence or lack thereof. They will only review the procedural fairness of the process. And if they find it wanting, they will send you back to the very same star chamber for a second go-round. You can imagine that it's pretty easy for the University to get the same result they got the first time around, because they still control the judge and jury.
So I was in a bit of a fix. I thought long and hard about my options, and then I came up with a plan. The University's policy documents theoretically guaranteed me due process. For example, it was written down that any complaints against me had to be in writing, signed, and include all relevant details. So I insisted on my right to see those written complaints. That's when the Kangaroo Court took over. No dice, they said. The policy only guarantees that the complaints must be in writing. It doesn't guarantee that the accused party gets to actually see those written complaints!
And so it went down the line. I had no right to cross-examine my accusers, or to call witnesses on my own behalf. The hearing itself was a joke. They gave me thirty minutes to tell "my side of the story" and cut me off abruptly when my time was up. The decision was a foregone conclusion.
A lot of other people have tried to sue the universities across Canada for kicking them out of school, and only one person has ever succeeded. In Young v Bella, a social work student in Newfoundland got half a million dollars when the faculty kicked her out of the program on the suspicion that she might be a potential child abuser. She was never confronted with the accusation or allowed to defend herself. The case went all the way to the Supreme Court, which found that a University has a duty of care to make sure that it gets its facts straight before taking career-ending action.
The U of W thought it was protected from a Young v Bella scenario because unlike the University of Newfoundland, they gave me the "benefit" of their quasi-judicial process. But I was going to argue that even so, they had failed to meet their "duty of care" because they did not give me the benefits of that process to which I was entitled: namely, the right to know the accusations against me, the right to cross-examine my accusers, and the right to call witnesses on my own behalf. And that in addition, they improperly bypassed those due process rights when they implemented non-judicial and non-appealable measures against me including the classroom suspension and the no-trespassing order.
This was the statement of claim I filed in September 2013, almost a year after my initial claim for Conspiracy. The University had moved to strike my claim on the grounds that it disclosed no cause of action. That motion had been granted in January of 2014 by Master Berthaudin, and here I was in December appealing the Master's decision at the Queen's Bench level. And it was not going well.
Justice Edmond was not buying my argument. Counsel for the University was arguing that whatever complaints I had with the University's appeal process, I should have filed for Judicial Review instead of suing for damages. And the judge kept nodding his head in agreement. If, as I claimed, the University had denied the rights I was entitled to under their regulations, why was I not applying for Judicial Review?
At the end of the day, the Judge announced he would be reserving his decision. I went home and thought about it long and hard. Maybe they were right. If they had violated their procedures, I should have sought judicial review.
And that's when it hit me. They hadn't violated their procedures. They had given exactly what the procedures said I was due, and not an inch more. The procedures said the complaints had to be in writing. They didn't say I was entitled to see those written complaints.
If I sued on the basis that the University had violated it's procedures, I was going to lose. Instead, I should have sued on the basis that the University created procedures which inherently made it impossible for me to effectively defend myself against false accusations. I immediately wrote up a Motion for Leave to Amend.
I was going to sue them for negligence. Negligence not for improperly carrying out the procedures, but in creating defective procedures in the first place.
Thursday, June 25, 2015
Crazy Again...No, Not Me This Time
We interrupt our regular programming to bring you a special bulletin.
Jacek (that's YAH-tsek, but you can call him Jack) is a friend of mine who takes part in a Thursday evening rehearsal session downtown that I lead at a program called ArtBeat. I think this is a phenomenal version of Crazy, the Patsy Cline signature song. (Not everyone knows that Willie Nelson wrote it.) I helped a little with the arrangement on this, but despite our best efforts the two patch changes on the instrumental solo were kind of surprising to us (as you might be able to tell from Jacek's facial expression.)
If you like this video, pass it on to your friends.
Jacek (that's YAH-tsek, but you can call him Jack) is a friend of mine who takes part in a Thursday evening rehearsal session downtown that I lead at a program called ArtBeat. I think this is a phenomenal version of Crazy, the Patsy Cline signature song. (Not everyone knows that Willie Nelson wrote it.) I helped a little with the arrangement on this, but despite our best efforts the two patch changes on the instrumental solo were kind of surprising to us (as you might be able to tell from Jacek's facial expression.)
If you like this video, pass it on to your friends.
Wednesday, June 24, 2015
The Practicum Handbook: A Contractual Document
I had sued the University for getting me kicked out of my teaching practicum on the basis that they had conspired with the high school principal, Arlene Skull, to remove me without cause. It was a perfect case of conspiracy because the essence of conspiracy is that the parties to the conspiracy do something which is otherwise legal, but they do it in a way which is intended to harm the third party. And that is exactly what they did. The University asked Mrs. Skull to use her special authority (from Page 28 of the Practicum Handbook) to demand the immediate removal of a student teacher (namely me.) And by doing so they bypassed the Due Process rights which I would have otherwise been entitled to (according to the terms set out on Page 27 of the handbook.)
But my problem was this: the courts had now let Principal Skull off the hook, ignoring my evidence that she lied about my refusal to hand in lesson plans and my "aggressive and confrontational" behavior towards students, and refusing to admit the evidence that she had insisted on the University making the request in writing before she agreed to bypass Page 27 and move to the Page 28 "expedited removal". If that's not evidence of a conspiracy, I don't know what is.
And remember, on Summary Judgment you don't have to prove the conspiracy, you only need to show evidence "from which a conspiracy might be inferred". Justice Martin of the Queen's Bench therefore cheated me three times: first, when he held me to the standard of proving conspiracy rather than the lesser standard of adducing evidence of one: second, when he found that I had "no evidence whatsoever" to support the claim in conspiracy; and third, when he wrote his judgment, he made no mention of the evidence which I had clearly argued before him, therefore making it all but impossible for me to get his decision overturned on appeal.
The University and the School Division had done a number on me, splitting the defence and forcing me to argue the conspiracy separately before two different judges: first Justice Martin, who refused to listen to anything I had to say about the University's role in initiating the conspiracy, insisting that only the schoolteacher defendants were on trial before him: and now Justice Edmond, who refused to hear anything about the schoolteacher's part in the conspiracy because Justice Martin had already let them off the hook.
So I was left arguing a conspiracy without the co-conspirators. And I could see that Justice Edmond wasn't buying it. So after Mr. Meronek had spent a whole day arguing as to why my case should be thrown out, I stood up on the second day and asked for an adjournment. I wanted to amend my pleadings.
I had filed my claim against the University on the basis of conspiracy, because that's what it was. They couldn't bypass my Due Process rights (Page 27 of the handbook) unless they convinced Mrs. Skull to use her Page 28 powers. And that's exactly what they did. But the Courts were refusing to listen.
But when they bypassed my Page 27 rights, they were doing something else: they were breaching a contract. Because the relationship between a university and its students is, in addition to everything else, also a contractual one. And the terms of that contract are set out in a myriad of documents comprising the University's Policies and procedures...including the Student Teacher Practicum Handbook.
There is one critical difference between a claim in conspiracy and a claim in breach of contract: in conspiracy, the onus is on me to prove intent: I have to prove the state of mind of the conspirators was with intent to harm me. The Schoolteacher's got around this by swearing affidavits as to their purity of intentions. Those affidavits shouldn't have been worth the paper they were written on, especially with all the circumstantial evidence I had in black and white. But going against a hundred years of legal precedent, the Courts found those "bald assertions and self-serving affidavits" to be decisive when applied against Marty Green. So I was screwed.
But in breach of contract I face no such hurdle. I don't have to show ill intentions. I just have to show that I had certain rights under the contract, and the University denied me those rights.
Justice Edmond granted me an adjournment. The University's lawyers announced that they would be opposing my Motion for Leave to Amend.
But my problem was this: the courts had now let Principal Skull off the hook, ignoring my evidence that she lied about my refusal to hand in lesson plans and my "aggressive and confrontational" behavior towards students, and refusing to admit the evidence that she had insisted on the University making the request in writing before she agreed to bypass Page 27 and move to the Page 28 "expedited removal". If that's not evidence of a conspiracy, I don't know what is.
And remember, on Summary Judgment you don't have to prove the conspiracy, you only need to show evidence "from which a conspiracy might be inferred". Justice Martin of the Queen's Bench therefore cheated me three times: first, when he held me to the standard of proving conspiracy rather than the lesser standard of adducing evidence of one: second, when he found that I had "no evidence whatsoever" to support the claim in conspiracy; and third, when he wrote his judgment, he made no mention of the evidence which I had clearly argued before him, therefore making it all but impossible for me to get his decision overturned on appeal.
The University and the School Division had done a number on me, splitting the defence and forcing me to argue the conspiracy separately before two different judges: first Justice Martin, who refused to listen to anything I had to say about the University's role in initiating the conspiracy, insisting that only the schoolteacher defendants were on trial before him: and now Justice Edmond, who refused to hear anything about the schoolteacher's part in the conspiracy because Justice Martin had already let them off the hook.
So I was left arguing a conspiracy without the co-conspirators. And I could see that Justice Edmond wasn't buying it. So after Mr. Meronek had spent a whole day arguing as to why my case should be thrown out, I stood up on the second day and asked for an adjournment. I wanted to amend my pleadings.
I had filed my claim against the University on the basis of conspiracy, because that's what it was. They couldn't bypass my Due Process rights (Page 27 of the handbook) unless they convinced Mrs. Skull to use her Page 28 powers. And that's exactly what they did. But the Courts were refusing to listen.
But when they bypassed my Page 27 rights, they were doing something else: they were breaching a contract. Because the relationship between a university and its students is, in addition to everything else, also a contractual one. And the terms of that contract are set out in a myriad of documents comprising the University's Policies and procedures...including the Student Teacher Practicum Handbook.
There is one critical difference between a claim in conspiracy and a claim in breach of contract: in conspiracy, the onus is on me to prove intent: I have to prove the state of mind of the conspirators was with intent to harm me. The Schoolteacher's got around this by swearing affidavits as to their purity of intentions. Those affidavits shouldn't have been worth the paper they were written on, especially with all the circumstantial evidence I had in black and white. But going against a hundred years of legal precedent, the Courts found those "bald assertions and self-serving affidavits" to be decisive when applied against Marty Green. So I was screwed.
But in breach of contract I face no such hurdle. I don't have to show ill intentions. I just have to show that I had certain rights under the contract, and the University denied me those rights.
Justice Edmond granted me an adjournment. The University's lawyers announced that they would be opposing my Motion for Leave to Amend.
Sunday, June 21, 2015
The Judge Slams the Door On Me and Opens a Window
As I was telling you, we were at an impasse: I knew the University had been making phone calls about me, but Acting Dean Jan Stewart was denying any recollection of having done so.
Now I was in a fix, because according to the rules, you aren't allowed to swear any new evidence after you've cross-examined. Unless it's rebuttal evidence. And even then, the courts will ask you: if you had evidence of the phone calls before you examined, why didn't you file it?
I didn't file it because there should have been no controversy about it. I didn't want to examine Jan Stewart to prove she made the calls: I wanted to ask her what she said, and under what authority. And that's what I told the judge when we argued the University's Motion to Quash. And in the meantime I did file an affidavit swearing as to what Mrs. Cantor had told me about the phone calls (at my criminal trial.) I also sent the University a letter, with a copy to Jan Stewart, including a link to the official transcripts of my criminal trial, showing them where Mrs. Cantor had disclosed the phone calls, and asking them if they could investigate and possibly help refresh Ms. Stewarts's memory on that point.
The University was still taking the position that I had no right to further examination of Ms. Stewart, and they were now also demanding that the Judge throw out my evidence of the phone calls, and disallow any further examination of witnesses whom I had not yet cross-examined.
When we appeared before the judge, he read back Jan Stewart's testimony to me, where she denies any recollection of the phone calls. "Why do you still want to examine her? She's obviously told you everything she knows?" he demanded.
Because she's obviously lying, I tried to explain. But the judge wasn't buying it. He threw out my subpoena. Jan Stewart was off the hook.
Or was she? In a move that surprised me, the Judge decided that I would be allowed to submit written interrogatories, which the University would have to answer, dealing with any issues left unanswered as a result of my initial examination of Jan Stewart. And he rejected the University's demand that I not be allowed to examine Security Chief Martin Grainger, or VP Neil Besner, who had both filed affidavits on the Motion for Summary Judgment. The examinations would proceed, but they must be completed by June 30th or "there would be consequences.". He also declined to strike my affidavit, saying that he would admit it but give it limited credence on account of its hearsay nature. (Yes, hearsay is allowed on Motions for Summary Judgment.)
And here we are now, heading into the last week of June. The University is still maintaining the position that Jan Stewart does not recall making any phone calls; and at the same time they refuse to undetake an independent inquiry to determine who if anyone did make the alleged phone calls. As of this moment, there is no agreement between the parties as to if or when any cross-examinations of Grainger or Besner will take place. A notice of examination has been served on both Grainger and Besner, but the University is claiming that they are unavailable on the date which has been set down.
They have not as yet offered any alternate dates.
Now I was in a fix, because according to the rules, you aren't allowed to swear any new evidence after you've cross-examined. Unless it's rebuttal evidence. And even then, the courts will ask you: if you had evidence of the phone calls before you examined, why didn't you file it?
I didn't file it because there should have been no controversy about it. I didn't want to examine Jan Stewart to prove she made the calls: I wanted to ask her what she said, and under what authority. And that's what I told the judge when we argued the University's Motion to Quash. And in the meantime I did file an affidavit swearing as to what Mrs. Cantor had told me about the phone calls (at my criminal trial.) I also sent the University a letter, with a copy to Jan Stewart, including a link to the official transcripts of my criminal trial, showing them where Mrs. Cantor had disclosed the phone calls, and asking them if they could investigate and possibly help refresh Ms. Stewarts's memory on that point.
The University was still taking the position that I had no right to further examination of Ms. Stewart, and they were now also demanding that the Judge throw out my evidence of the phone calls, and disallow any further examination of witnesses whom I had not yet cross-examined.
When we appeared before the judge, he read back Jan Stewart's testimony to me, where she denies any recollection of the phone calls. "Why do you still want to examine her? She's obviously told you everything she knows?" he demanded.
Because she's obviously lying, I tried to explain. But the judge wasn't buying it. He threw out my subpoena. Jan Stewart was off the hook.
Or was she? In a move that surprised me, the Judge decided that I would be allowed to submit written interrogatories, which the University would have to answer, dealing with any issues left unanswered as a result of my initial examination of Jan Stewart. And he rejected the University's demand that I not be allowed to examine Security Chief Martin Grainger, or VP Neil Besner, who had both filed affidavits on the Motion for Summary Judgment. The examinations would proceed, but they must be completed by June 30th or "there would be consequences.". He also declined to strike my affidavit, saying that he would admit it but give it limited credence on account of its hearsay nature. (Yes, hearsay is allowed on Motions for Summary Judgment.)
And here we are now, heading into the last week of June. The University is still maintaining the position that Jan Stewart does not recall making any phone calls; and at the same time they refuse to undetake an independent inquiry to determine who if anyone did make the alleged phone calls. As of this moment, there is no agreement between the parties as to if or when any cross-examinations of Grainger or Besner will take place. A notice of examination has been served on both Grainger and Besner, but the University is claiming that they are unavailable on the date which has been set down.
They have not as yet offered any alternate dates.
Wednesday, June 17, 2015
Liars, liars, liars.
When we left off, I was telling you how I sued the University for defamation because of how they spread the word about my alleged "home invasion" against Professor Bush and his wife. And how as part of their defence of "qualified privilege", they were claiming that any communications they issued on that subject were strictly confined to people who had a legitimate responsibility to be informed.
I happened to know differently. At my criminal trial Mrs. Cantor, one of my former instructors, had told how the University had phoned her up out of the blue to warn her that Marty Green was going around calling on professors at their homes. And from her recollection, it seemed pretty clear that then-Acting Dean Jan Stewart was the one making the calls.
So I subpoenaed Jan Stewart, citing Queen's Bench Rule 39, which allows me to examine any outside party who had relevant knowledge. The University's lawyers immediately moved to quash my subpoena, claiming Jan Stewart wasn't a party to the action and I had no reason to examine her. In support of their motion to quash, they filed an affidavit...by Jan Stewart, claiming that she basically knew nothing.
But I have the right to cross-examine on affidavits. So now they had to produce Stewart. But they put strict conditions on the examination: I could only question her on her affidavit, not on the wider events of the case. This was fine with me: I would just ask her if she made those phone calls. If she did, then I would have the evidence I needed to defeat the motion to quash. And then I could examine her again, and ask her the real question: who authorized the phone calls, and just what was she telling people?
And then under examination, she denied making any such calls...or at least, denied any recollection thereof.
Well this was a problem for me. If Jan Stewart couldn't remember making any phone calls, what was I going to question her on when I got her in for my Rule 39 examination? I wanted to find out just what she said, and on what authority? But here she was, claiming she simply didn't remember making any such phone calls.
I don't think I'm letting you in on any big secret when I tell you I believe she was lying. First of all, if she were interested in telling the truth, why would she have led me on such a wild goose chase over the simply question of who was acting dean (see yesterday's blogpost)? And secondly, why would Mrs. Cantor have told me that she was phoned by someone from the Education faculty, a woman, who was calling to inform her that Marty Green had "visited" the house of another professor...if it wasn't Jan Stewart, acting Dean (or acting associate dean as she insists.)? So the next day I emailed the Education Faculty, with copies to Stewart, the Dean, and the President of the U of W, asking them to look into this and see if they could get to the bottom of just who was making phone calls to people about Marty Green. The University never responded to that letter.
By the way, this evasiveness under examination is typical of the way the University's witnesses have conducted themselves every single time I have had them on the stand. It's what Neil Besner did when he pretended he had nothing to do with issuing the trespassing order against me in 2013; what Besner and Professor Metz both did when I asked them why I was banned from the property in 2013, and they pretended they thought I had asked them why I was banned the previous year in 2012. Of course the worst offender is Professor Metz, who when I repeatedly asked him what complaints he had made about me that led to my expulsion from the education program, kept insisting that he had made only "one formal complaint"...until I reached for my pile of documents, when he interjected: "well, if you're talking about the email I sent on January 11th, well yes I certainly did....". And let's not forget Professor Bush, who sent his wife to the door to get rid of me, and then tried to pretend that he never even heard the doorbell ring. Liars, liars liars.
If Mrs. Stewart wasn't lying when she denied knowing about the phone calls, then the U of W was doing much worse than lying when they refused to disclose what was behind Mrs. Cantor's testimony at my criminal trial. If Mrs. Stewart didn't make those phone calls, then the U of W certainly knows by know just who did. And they're not telling.
I happened to know differently. At my criminal trial Mrs. Cantor, one of my former instructors, had told how the University had phoned her up out of the blue to warn her that Marty Green was going around calling on professors at their homes. And from her recollection, it seemed pretty clear that then-Acting Dean Jan Stewart was the one making the calls.
So I subpoenaed Jan Stewart, citing Queen's Bench Rule 39, which allows me to examine any outside party who had relevant knowledge. The University's lawyers immediately moved to quash my subpoena, claiming Jan Stewart wasn't a party to the action and I had no reason to examine her. In support of their motion to quash, they filed an affidavit...by Jan Stewart, claiming that she basically knew nothing.
But I have the right to cross-examine on affidavits. So now they had to produce Stewart. But they put strict conditions on the examination: I could only question her on her affidavit, not on the wider events of the case. This was fine with me: I would just ask her if she made those phone calls. If she did, then I would have the evidence I needed to defeat the motion to quash. And then I could examine her again, and ask her the real question: who authorized the phone calls, and just what was she telling people?
And then under examination, she denied making any such calls...or at least, denied any recollection thereof.
Well this was a problem for me. If Jan Stewart couldn't remember making any phone calls, what was I going to question her on when I got her in for my Rule 39 examination? I wanted to find out just what she said, and on what authority? But here she was, claiming she simply didn't remember making any such phone calls.
I don't think I'm letting you in on any big secret when I tell you I believe she was lying. First of all, if she were interested in telling the truth, why would she have led me on such a wild goose chase over the simply question of who was acting dean (see yesterday's blogpost)? And secondly, why would Mrs. Cantor have told me that she was phoned by someone from the Education faculty, a woman, who was calling to inform her that Marty Green had "visited" the house of another professor...if it wasn't Jan Stewart, acting Dean (or acting associate dean as she insists.)? So the next day I emailed the Education Faculty, with copies to Stewart, the Dean, and the President of the U of W, asking them to look into this and see if they could get to the bottom of just who was making phone calls to people about Marty Green. The University never responded to that letter.
By the way, this evasiveness under examination is typical of the way the University's witnesses have conducted themselves every single time I have had them on the stand. It's what Neil Besner did when he pretended he had nothing to do with issuing the trespassing order against me in 2013; what Besner and Professor Metz both did when I asked them why I was banned from the property in 2013, and they pretended they thought I had asked them why I was banned the previous year in 2012. Of course the worst offender is Professor Metz, who when I repeatedly asked him what complaints he had made about me that led to my expulsion from the education program, kept insisting that he had made only "one formal complaint"...until I reached for my pile of documents, when he interjected: "well, if you're talking about the email I sent on January 11th, well yes I certainly did....". And let's not forget Professor Bush, who sent his wife to the door to get rid of me, and then tried to pretend that he never even heard the doorbell ring. Liars, liars liars.
If Mrs. Stewart wasn't lying when she denied knowing about the phone calls, then the U of W was doing much worse than lying when they refused to disclose what was behind Mrs. Cantor's testimony at my criminal trial. If Mrs. Stewart didn't make those phone calls, then the U of W certainly knows by know just who did. And they're not telling.
Sunday, June 14, 2015
In Which Jan Stewart Just Can't Remember
When we left off, I told you how the University filed affidavit material in my defamation suit, claiming that whatever they reported about the alleged "home invasion" was confidential, based on their best knowledge at the time, and therefore fell under the umbrella of "qualified privilege". On that basis, they were seeking summary judgement (dismissal) of my claim.
The legal tradition of Summary Judgment has always been fairly clear that when it comes to questions of the motives/good faith of the parties, a summary process is not the right place to make those calls. A judge needs to see the live, or viva voce testimony to be able to weight the credibility of competing claims. But in recent years, the courts have been increasingly proactive in tossing out cases at the summary level. They are encouraged in this trend by the disturbing recent Supreme Court Decision inHnatiuk Hryniak where the higher court congratulates the lower courts for using whatever means necessary to clear up their backlogs. I have already been a victim of Hnatiuk Hryniak once, when the Manitoba Court of Appeal tossed my defamation case against Principal Skull of Gordon Bell, claiming that the trial judge was fully justified in believing her story against mine, relying only on her uncorroborated affidavit evidence, even though her lawyers had successfully resisted my attempts to get contradictory testimony from other teachers who had seen my work. I pointed out to the Court of Appeal that in Hnatiuk (or Hryniak or whatever his name was) there had been full and extensive discovery of evidence by both sides (the evidence filled 18 boxes!), on top of which the summary judgment hearing lasted for days. (Justice Martin gave me less than an hour and a half to argue my case at the Queen's Bench.)
The bottom line is that I was determined not to let the courts screw me again by first denying my rights to discovery, and then at the hearing saying: "Where's your evidence?" Now, the University had claimed that the news of my misdeeds had only been distributed to a small and necessary group of individuals. I knew they were holding back, because at my criminal trial Professor Cantor testified that the Dean of Education had phoned her at home to warn her that I was going around calling on my former instructors. Or something to that effect. Just what Mrs. Stewart was telling people, I needed to find out. So I did what's called a Rule 39 subpoena on her.
Counsel for the University cried foul! You can't subpoena Jan Stewart. She has nothing to do with the case against you. You can only cross-examine the people whose affidavits we have filed...that would be security chief Martin Grainger and U of W VP Neil Besner.
Now it gets complicated. They filed a motion to quash my subpoena, and in support of that motion, they filed an affidavit by...Jan Stewart, saying essentially (in the words of Sargent Schultz): I know nuss...sink. Nuss...SINK.
I immediately filed Notice of Examination to cross-examine Jan Stewart...on her affidavit! Mr. Meronek actually seemed taken aback when he realized the door he had opened. He immediately responded that I could cross-examine her only on the material in her affidavit, and not on the overall case. Which meant that if I attempted to broaden the scope of question, he would advise her not to answer.
Okay, I could live with that. I only needed enough evidence on cross to defeat their motion to quash my subpoena, not to defeat their motion for Summary Judgment. I only needed to ask Jan Stewart if she made those phone calls. If she did, then I would have clear justification to proceed with my Rule 39 exam.
So on the appointed day, I showed up with a Court Reporter to take down her testimony. Things did not start off well. I asked her if she had been the Acting Dean of Education. She said she was not.I asked her if she knew who the dean was at the time of the events in question. She told me she didn't know what date I was talking about.
Okay, so that's how it was going to be. We clarified that we were talking about the time of the alleged home invasion, and her attendance at a meeting to discuss those events. I asked again, who was the Dean of Education?
She answered that it was Ken McCluskey. "He's always the dean, but there was an acting dean".
Then who was the acting dean? "Dr. John Anchan", she answered.
This was not what I had heard. "Was there an associate dean", I asked?
"Well, he's always the associate dean. I was acting associate dean."
Okay, apparently I was mistaken. She wasn't the dean, she was just acting associate dean. John Anchan was the acting dean.
Or was he? About ten minutes later, we were getting into the roles of the various parties, and she testified that she had been called to the meeting because they needed an administrator "and John (wasn't) here...".
Wait a minute....where was John? Why wasn't he available?
"I don't know where he was, but he wasn't in town".
Okay, let's get this straight. If he was the acting dean, and she was the acting associate dean, and he was out of town, wouldn't that mean that she was acting dean?
Mr. Meronek was getting pretty irritated with my questions and he blurted out: "Don't, don't don't (answer that question)..."
I think if Mrs. Stewart were interested in telling the truth, she would have simply stated at the very start of the examination, when I asked her if she was acting dean, that yes she was acting dean. I don't think it speaks very well to her credibility the extent to which I had to virtually pull teeth to get her to admit that she was indeed the senior administrator of the department at the time of that meeting, whether she called herself the dean, the acting dean, or the acting associate dean. But that's the kind of semantic maneuvering and evasiveness that I've had to put up with every single witness of the University I ever examined.
But at last we were getting to the nitty gritty. What about the phone calls? Did you make any phone calls to people to inform them as to what had happened?
No she did not.
"You didn't phone Professor Cantor?"
No.
"Well, she says you did."
Mrs. Stewart said she simply couldn't remember. She thought if she had made such a phone call, she would have remembered. And when I tried to jog her memory, Mr. Meronek interjected: "She's given her answer. Just move on." The cross-examination ended shortly after that.
* * * * * *
The legal tradition of Summary Judgment has always been fairly clear that when it comes to questions of the motives/good faith of the parties, a summary process is not the right place to make those calls. A judge needs to see the live, or viva voce testimony to be able to weight the credibility of competing claims. But in recent years, the courts have been increasingly proactive in tossing out cases at the summary level. They are encouraged in this trend by the disturbing recent Supreme Court Decision in
The bottom line is that I was determined not to let the courts screw me again by first denying my rights to discovery, and then at the hearing saying: "Where's your evidence?" Now, the University had claimed that the news of my misdeeds had only been distributed to a small and necessary group of individuals. I knew they were holding back, because at my criminal trial Professor Cantor testified that the Dean of Education had phoned her at home to warn her that I was going around calling on my former instructors. Or something to that effect. Just what Mrs. Stewart was telling people, I needed to find out. So I did what's called a Rule 39 subpoena on her.
Counsel for the University cried foul! You can't subpoena Jan Stewart. She has nothing to do with the case against you. You can only cross-examine the people whose affidavits we have filed...that would be security chief Martin Grainger and U of W VP Neil Besner.
Now it gets complicated. They filed a motion to quash my subpoena, and in support of that motion, they filed an affidavit by...Jan Stewart, saying essentially (in the words of Sargent Schultz): I know nuss...sink. Nuss...SINK.
I immediately filed Notice of Examination to cross-examine Jan Stewart...on her affidavit! Mr. Meronek actually seemed taken aback when he realized the door he had opened. He immediately responded that I could cross-examine her only on the material in her affidavit, and not on the overall case. Which meant that if I attempted to broaden the scope of question, he would advise her not to answer.
Okay, I could live with that. I only needed enough evidence on cross to defeat their motion to quash my subpoena, not to defeat their motion for Summary Judgment. I only needed to ask Jan Stewart if she made those phone calls. If she did, then I would have clear justification to proceed with my Rule 39 exam.
So on the appointed day, I showed up with a Court Reporter to take down her testimony. Things did not start off well. I asked her if she had been the Acting Dean of Education. She said she was not.I asked her if she knew who the dean was at the time of the events in question. She told me she didn't know what date I was talking about.
Okay, so that's how it was going to be. We clarified that we were talking about the time of the alleged home invasion, and her attendance at a meeting to discuss those events. I asked again, who was the Dean of Education?
She answered that it was Ken McCluskey. "He's always the dean, but there was an acting dean".
Then who was the acting dean? "Dr. John Anchan", she answered.
This was not what I had heard. "Was there an associate dean", I asked?
"Well, he's always the associate dean. I was acting associate dean."
Okay, apparently I was mistaken. She wasn't the dean, she was just acting associate dean. John Anchan was the acting dean.
Or was he? About ten minutes later, we were getting into the roles of the various parties, and she testified that she had been called to the meeting because they needed an administrator "and John (wasn't) here...".
Wait a minute....where was John? Why wasn't he available?
"I don't know where he was, but he wasn't in town".
Okay, let's get this straight. If he was the acting dean, and she was the acting associate dean, and he was out of town, wouldn't that mean that she was acting dean?
Mr. Meronek was getting pretty irritated with my questions and he blurted out: "Don't, don't don't (answer that question)..."
I think if Mrs. Stewart were interested in telling the truth, she would have simply stated at the very start of the examination, when I asked her if she was acting dean, that yes she was acting dean. I don't think it speaks very well to her credibility the extent to which I had to virtually pull teeth to get her to admit that she was indeed the senior administrator of the department at the time of that meeting, whether she called herself the dean, the acting dean, or the acting associate dean. But that's the kind of semantic maneuvering and evasiveness that I've had to put up with every single witness of the University I ever examined.
But at last we were getting to the nitty gritty. What about the phone calls? Did you make any phone calls to people to inform them as to what had happened?
No she did not.
"You didn't phone Professor Cantor?"
No.
"Well, she says you did."
Mrs. Stewart said she simply couldn't remember. She thought if she had made such a phone call, she would have remembered. And when I tried to jog her memory, Mr. Meronek interjected: "She's given her answer. Just move on." The cross-examination ended shortly after that.
* * * * * *
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