Memorial University of Newfoundland Applicant And: Anton Oleynik Respondent AND: MICHAeL HARVEY, IN HIS CAPACITY AS THE INFORMATION v. PRIVACY, 2023 NLSC 126

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Memorial University of Newfoundland v. Oleynik , 2023 NLSC 126 Date : September 27, 2023 Docket : 202101G4960 Between: Memorial University of Newfoundland Applicant And: Anton Oleynik Respondent AND: MICHAeL HARVEY, IN HIS CAPACITY AS THE INFORMATION AND PRIVACY COMMISSIONER OF NEWFOUNDLAND AND LABRADOR INTERVENOR Before: Chief Justice Raymond P. Whalen Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 25, 2023 Date of Oral Judgment: September 27, 2023

Summary: Leave to cross-examine the stated affiants and legal counsel of Memorial is denied with lump sum costs to Memorial on the Interlocutory Application in the amount of $5,000.00. Appearances: Koren A. Thomson and Giles W. Ayers Appearing on behalf of the Applicant Anton Oleynik Appearing on his own behalf Andrew A. Fitzgerald, K.C. Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: Tucker v. Unknown Person , 2014 NLCA 36 ; Metal World Inc. v. Pennecon Energy Ltd. , 2015 NLCA 12 ; Oleynik v. Memorial University of Newfoundland , 2021 NLCA 56 ; Kathirgamanathan v.

Western Regional Integrated Health Authority , 2021 NLSC 89 ; Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 31 ; Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 4 ; Szeto v. Dwyer , 2010 NLCA 36 ; Vokey v. Newfoundland and Labrador , 2017 NLCA 18 STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c. A-1.2 RULES CONSIDERED: Rules of the Supreme Court , 1986 , S.N.L. 1986, s. 42, Sch.

D REASONS FOR JUDGMENT Whalen C.J. : INTRODUCTION [ 1 ] The Applicant, Memorial University of Newfoundland (“Memorial”) filed five affidavits in support of its Originating Application seeking, inter alia , a declaration that the Respondent, Anton Oleynik (“Oleynik”) is a vexatious litigant. Two of these affiants filed supplemental affidavits. [ 2 ] Oleynik filed an Interlocutory Application seeking leave to cross-examine the five affiants.

In a Supplementary Affidavit filed by Oleynik he sought to expand his request for leave to also cross-examine the solicitor of record for Memorial on an affidavit filed in support of a request for a case management meeting. issue

Should the Court grant leave to Oleynik to cross-examine the named affiants and the solicitor of record for Memorial? LAW AND ANALYSIS [3] Rule 29 of the Rules of the Supreme Court, 1986, S.N.L. 1986, s. 42, Sch. D (the “Rules”) establishes the procedures forhearing applications. Rule 29.09 deals with how evidence in an application is to be presented: 29.09.

(1) Evidence on a hearing may be given (

a) by an affidavit or statutory declaration made pursuant to Rule 48; … (

c) with leave of the Court, by any witness in person; or … [4] The presumption is that the evidence in support of an application will be presented by way of affidavit or statutory declaration,with leave of the Court required to present viva voce evidence. Further support for this proposition is in the text of Rule 48 itself: 48.10. The deponent of an affidavit to be used on a trial or hearing may be cross-examined and re-examined on … (

c) a hearing, under rule 29.09(1)(c). [5] Specifically then, the onus lies on the party seeking leave to cross-examine an affiant to overcome the presumption and showthat cross-examination is necessary and appropriate in the circumstances of a given matter. [6] Authorities from this jurisdiction have found cross-examination to be appropriate in a number of different circumstances,which were helpfully categorized by the Court of Appeal in Tucker v. Unknown Person, 2014 NLCA 36.

The Court wrote at para. 27: [27] In determining whether to allow cross-examination, there is some judicial guidance as to what a court should consider: a. Whether the facts in the affidavit are in issue (see Royal Bank v. Jones, 2000 BCSC 520(B.C. S.C.) at para. 42; Brown v.Garrison (1967), (BC CA), 63 W.W.R. 248 (B.C. C.A.) at p. 250); b. Whether cross-examination is necessary to challenge the facts deposed to in the affidavit (see Beanland v. Beanland (1997), (NL CA), 151 Nfld. & P.E.I.R. 51 (Nfld. C.A.) at para. 35; John Doe v. Roman Catholic Episcopal Corp. of St.

John's,2004 NLCA 27, 237 Nfld. & P.E.I.R. 56 (N.L. C.A.) at para. 19; and /or c. Whether the affidavit is contentious or the statements deposed to are in dispute (R. v. Dean [1996 CarswellBC 1969 (B.C. C.A.)], at para. 9; Cadboro Investments Ltd. v. Canada West Insurance Co. (1987), (BC CA), 19 B.C.L.R. (2d)352 (B.C. C.A.) at para. 22; General Electric Company v. United States, 1980 ABCA 316(Alta.

C.A.) at para. 6. [emphasis in original] [7] Tucker is an effective consolidation of the law respecting leave for cross-examination, and its reasons have proven influentialin the subsequent jurisprudence, including Metal World Inc. v. Pennecon Energy Ltd., 2015 NLCA 12, Oleynik v. Memorial University ofNewfoundland, 2021 NLCA 56, and Kathirgamanathan v. Western Regional Integrated Health Authority, 2021 NLSC 89, which arelater decisions from the Court of Appeal. [8] When deciding whether leave to cross-examine should be granted, the Court must first identify the issues in dispute in theunderlying application.

This is an integral step in identifying the potential relevance of any evidence that the proposed cross-examinationwould hope to elicit. The purpose of cross-examination must be to assist the Court in deciding the merits of the underlying application,Tucker at para. 32: [32] Accordingly, I can see no basis for how cross-examination on the affidavit could have benefitted the Court in deciding the merits

of the applications to reinstate. The affidavit covers only a bona fide intention to proceed, as was conceded by the parties, and a reasonable excuse, that the delay rests with counsel. [ 9 ] Further the purpose of cross-examination is not to be a fishing expedition for facts not disposed to. See Kathirgamanathan at para. 23 which reads in part: [23] If leave is granted, the scope of cross-examination on a striking application is much more limited than it would be in a discovery or at trial. In Kapelus v. University of British Columbia, 2002 BCSC 741 Justice Tysoe noted at paragraph 27: 27. ...

The purpose of the cross-examination is to test the truthfulness of the statements contained in the affidavit and it is not intended as a forum for investigating matters which have not been deposed to by the affiant. [ 10 ] The Originating Application before the Court gives rise to four substantive issues. In order for Oleynik’s request for cross- examination to be granted, it is incumbent on him to demonstrate that cross-examination will tend to elicit evidence that satisfies the threshold requirements of relevance and necessity, see Oleynik v.

Memorial University of Newfoundland and Labrador , 2021 NLSC 31 , para. 8 . The Tucker factors are useful tools for assessing whether a party has achieved this. [ 11 ] The issues to which the Originating Application gives rise are as follows: • Identifying the legal test for making a vexatious litigant order; • Determining whether Oleynik is a vexatious litigant; • Determining whether this Court has the capacity to make an order to prevent “abuse” of the Access to Information and Protection of Privacy Act, 2015 , S.N.L. 2015, c.

A-1.2 (“ ATIPPA ”); and if so, • Whether Oleynik’s use of ATIPPA constitutes an abuse of process warranting Court intervention. POSITION OF THE PARTIES [ 12 ] In his Interlocutory Application and accompanying Brief, Oleynik argues that the Court should allow him to cross-examine the affiants regarding the credibility and reliability of their statements, alleging: • The evidence provided is derived from perceived bias; • That he has the right to know the case to be met; and, • There are omissions and inconsistencies in the affidavits. [ 13 ] Memorial opposes Oleynik’s request.

Memorial states the proposed justifications do not engage the Tucker factors or otherwise justify cross-examination. Its position is that the majority of Oleynik’s concerns relate to information he alleges should have been included in the affidavits but was not. It states that cross-examination serves a different purpose than discovery or production and that, regardless, for each complaint of missing information Oleynik is best placed to supply it.

Memorial argues that the other concerns raised by Oleynik are irrelevant to these proceedings and that in seeking to cross-examine Memorial’s solicitor of record, whom he has previously attempted to compel answering written interrogatories, and which request was denied in Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 4 , he is acting in a “grossly inappropriate” manner. [ 14 ] The Intervenor takes no position on the Interlocutory Application. [ 15 ] These reasons address Oleynik’s justifications for cross-examination in the order and manner which he has presented them.

Perceived Bias [ 16 ] Oleynik states that the affiants upon which Memorial relies have all, during periods material to this application, occupied management positions, in the Department of Sociology or otherwise. He argues, citing authorities discussing requisites of impartiality applicable to judicial or administrative decision makers, that being managers, the affiants have been making decisions affecting his situation, and that their impartiality is therefore in issue. [ 17 ] This submission cannot be successful.

The cases on which Oleynik relies are all distinguishable from the present matter, and the tests cited therein are not applicable to the present issue: whether or not Oleynik has behaved in a vexatious matter or abused ATIPPA . The authorities instead emphasize the principle of natural justice that when parties are involved in a dispute before a judicial or quasi-judicial decision maker, that decision maker must be free from bias in relation to the issues or parties. [ 18 ] There is no requirement that an adverse party to litigation be absent of bias.

Few, if any, matters before the Court would be able to meet such a standard. Our judicial system is adversarial by design, and the affiants provided evidence in support of Memorial’s application to have Oleynik declared vexatious. It would be surprising if they were indifferent to the outcome of these proceedings. [ 19 ] More importantly, however, is that bias in an affiant does not justify a request for leave to cross-examine them. If bias would be sufficient to justify cross-examination, the leave requirement in Rule 29.09(1)(

c) would be deprived of its meaning. Testing credibility is an appropriate goal of cross-examination, but the point remains that merely directing or participating in litigation does not prima facie put the party’s credibility into issue such to automatically justify cross-examine.

[ 20 ] Allow me to address the other parts of Oleynik’s arguments on perceived bias. Oleynik suggests that there are credibility issues in need of testing related to the Craig and Smith Affidavits that arose during a previous cross-examination in an earlier statutory appeal filed in docket #201701G6218.

It is unclear how being cross-examined in an unrelated statutory appeal gives rise to credibility concerns in the present vexatious litigant application, and Oleynik has provided no authority for this position. [ 21 ] He alleges that the affiants provided inconsistencies and contradictions during their cross-examination, or answered that they did not know in response to various questions but it is unclear what the alleged inconsistencies are and how they impact the issues in the Originating Application. [ 22 ] Oleynik has not described how facts presented in the affidavits which relate to the issues in that proceeding are in issue before me, whether it is necessary to challenge the stated facts, or how the affidavits are contentious or in dispute.

The arguments do not engage the Tucker factors and on this basis the onus to demonstrate the necessity of cross-examination has not been discharged. [ 23 ] Oleynik goes on to argue that the affiants Swiss, Williams, and Worsfold are acting in a conflict of interest because they have participated in his professional discipline.

It is unclear what Oleynik alleges constitutes a conflict of interest, and the Court accepts Memorial’s submissions on this point that having merely participated in discipline of Oleynik in the past is insufficient to impugn the affiants’ credibility and justify cross-examination. [ 24 ] The other justifications provided by Oleynik under this heading are irrelevant to these proceedings.

He cites allegations concerning conflicts of interest in graduate supervision, a refusal to confirm his association with Memorial so as to qualify for federal funding, and refers to affidavits not filed in relation to the present matter. These concerns do not relate to the issues in dispute, and they do not suggest that the Court would benefit from having statements made in the affidavits challenged by way of cross-examination.

The grounds on which Memorial has alleged Oleynik to be vexatious are largely a matter of public record (the nature in which Oleynik has used ATIPPA and sought statutory appeals of decisions Memorial made under it). These are not facts that rely on the credibility of the affiants. [ 25 ] Oleynik’s argument of perceived bias by the affiants does not engage any of the Tucker factors and the onus to demonstrate that cross-examination is necessary and appropriate has not been discharged by this branch of his argument.

Right to know the case to be met and alleged omissions and inconsistencies [ 26 ] The two remaining grounds raised by Oleynik as justifying cross-examination are similar in alleging that the affiants ought to have put forward more information than they did. Oleynik cites instances in the affidavits, particularly the Craig and Swiss Affidavits, where he has not been provided with sufficient information to respond to the case against him. This simply misstates the obligation placed on the party bearing the burden of proof in a civil action. Parties are entitled to present their case as they wish.

Memorial has applied for an order declaring Oleynik vexatious. If it does not provide sufficient evidence to meet its burden of proof then the order will not be granted.

Further, Oleynik misstates the purpose of cross-examination; it is not to permit a party an opportunity to obtain information that should more properly be left to discovery or other forms of disclosure or production. (See Kathirgamanathan at para. 27 .) [ 27 ] I also note that the audi alteram partem principle as cited by Oleynik has no bearing on this matter, nor does the disclosure obligation of the Crown to an accused person in criminal law. [ 28 ] Although not raised directly by Oleynik, there are some statements in the Swiss and Craig Affidavits which reflect subjective impressions concerning their feelings as respecting Memorial’s various proceedings with Oleynik, and their speculations as to his potential motivations.

Were the statements made in a vacuum, in the technical sense of factors expressed in Tucker an argument could be made that these statements are in issue, the first factor.

I am of the view however that even if these subjective comments were accepted, they would not be determinative of the central issues in this matter: the nature of the Court’s authority; whether Oleynik has behaved vexatiously in the totality of the circumstances; and whether he has abused ATIPPA . [ 29 ] Oleynik also alleges that there are sufficient omissions and inconsistencies in the affidavits to impugn their reliability and warrant cross-examination. The concerns he raises are largely irrelevant to the issues in dispute. It warrants repeating that parties are free to present their case as they wish.

Oleynik has filed three affidavits, and his submissions contain frequent citations to materials he alleges ought to be present. If Memorial truly omitted material they ought to have included to make out its claim, this would only be to its overall detriment. [ 30 ] Oleynik’s materials provide an orderly list of alleged deficiencies in each of the affidavits.

In the Worsfold Affidavit he alleges that the material presents an incomplete view of Memorial’s access to information polices, impugns omitted connections between the organization of the university and its staff, and contests officially recorded findings, among other claims. These alleged deficiencies are irrelevant to the issues in dispute in this proceeding, and cross-examination on them would not be of assistance. [ 31 ] With respect to the Swiss Affidavit, Oleynik states that the attachments to emails referenced as exhibits are selectively provided, in addition to other general omissions.

Again, there is no general requirement for parties to provide sufficient evidence satisfactory to the other party in exhibits to an affidavit. They are free to make their case as they wish. This is not a ground justifying cross-examination. [ 32 ] With regards to the Williams Affidavit, Oleynik alleges that the Respectful Workplace Policy attached as an affidavit was not in place at all material time to this Application. He alleges that the definition of harassment under the Policy was changed without stating the nature of that change.

This is immaterial to the issues in dispute in this proceeding. [ 33 ] Memorial is correct in its submissions respecting the Craig Affidavit in that the concerns Oleynik raised with it are unnecessary for determination of the issues between the parties, and do not engage the Tucker factors. The complaints raised in his submissions do not appear to refute the statements made in the affidavit; the issue appears rather that there was no documentary evidence provided to corroborate certain statements made.

[ 34 ] The Court knows of no principle requiring statements made in affidavits to be supported by exhibit evidence. Whether corroboration would be helpful for the Court is a question of evidential weight, but it does not supplant the overall evidential requirement of both relevance and necessity. The issues that Oleynik takes with these statements are not relevant to the issues in dispute in this proceeding. [ 35 ] The issues raised concerning the Smith/Thorne Affidavit are likewise irrelevant. Oleynik points to various alleged inconsistencies between this affidavit and various other affidavits filed by Memorial.

The Court accepts Memorial’s explanation for these alleged inconsistencies, and, in any event, it is not necessary to decide nor relevant to resolve the main issues in dispute; the purposes of cross-examination as articulated in Tucker are not engaged. [ 36 ] Further, any exercise of the Court’s discretion, including discretion to allow cross-examination, must be grounded in the principle of proportionality, see Szeto v. Dwyer , 2010 NLCA 36 . As Justice Welsh wrote in Vokey v.

Newfoundland and Labrador , 2017 NLCA 18 at para. 3 : The Court has a responsibility and inherent jurisdiction to provide a process that is appropriate to the particular circumstances brought before it, with consideration being given to a process that is proportionate to the nature of the matter and designed to result in an expeditious and just resolution. To this end, the Court seeks to employ an efficient and orderly process that will facilitate access to justice. [ 37 ] Discretionary decisions of the Court are not made in isolation.

Rather, they are made in accordance with the spirit and purpose of the Rules as a whole, which is to ensure the expeditious and cost-effective determination of disputes. The Rules are not a menu to allow parties to carte blanche choose whatever procedural options they want, regardless of the impact on the proceedings as a whole.

The Rules need to be applied in a sensible and reasonable manner in the particular circumstance of a given case and leading to a process that would support a cost effective determination of the merits while being fair to all sides. conclusion [ 38 ] Accordingly, Oleynik has not shown any cogent legal basis that cross-examination is necessary and appropriate in the circumstances of this matter.

Interrogatories [ 39 ] Though not extensively pursued in his submissions, Oleynik’s April 27, 2023, Interlocutory Application indicates, apparently either in the alternative or in addition to permission to cross-examine the Affiants, leave to issue interrogatories. In his August 28, 2023, Brief, Oleynik clarifies that he is seeking leave to issue interrogatories in the event the Affiants were unavailable for cross-examination. The request for cross-examination has been denied, and there are no grounds to issue interrogatories in the alternative. This request is denied.

The request to cross examine Memorial’s solicitor of record [ 40 ] In his Supplemental Affidavit filed July 11, 2023, and Brief filed August 28, 2023, Oleynik argues an entitlement to cross- examine Memorial’s solicitor of record on an Affidavit filed in support of a request for case management. He provides no legal justification for granting this extraordinary request but argued irrelevant points and expressed conspiracy theories. [ 41 ] This is not the first time Oleynik has made a request to the Court that would have the effect of treating counsel as a witness.

The Court of Appeal has previously upheld a ruling of this Court denying a request from Oleynik to compel counsel for Memorial and the Privacy Commissioner to respond to written interrogatories. Costs were taxed at Column V and the Court of Appeal found that the applications judge had the discretion to make this order and made no error in doing so in the circumstances. [ 42 ] Oleynik, while self-represented, has demonstrated himself to be an intelligent, articulate, organized and a capable litigator.

He is aware of the seriousness of attempting to compel evidence from counsel, and he has previously been subject to an increased costs award for having attempted to do so. There are no grounds justifying this request, and having made it in these circumstances merits consideration when awarding costs. costs [ 43 ] The Interlocutory Application has been denied. No legal basis was advanced by Oleynik to support cross-examination of the affiants.

The Interlocutory Application has required full and serious response from Memorial with a day required to hear arguments and the Court was asked that it allow cross-examination of the solicitor of record. On the Interlocutory Application I therefore award lump sum costs to Memorial in the amount of $5,000.00 disposition [ 44 ] The Interlocutory Application is dismissed. Leave to cross-examine the stated affiants and legal counsel of Memorial is denied with lump sum costs to Memorial on the Interlocutory Application in the amount of $5,000.00. _____________________________ Raymond P. Whalen Chief Justice