HARDI SHAHADU Plaintiff (Respondent) - v. -, 2022 SKKB 248

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 248 Date: 2022 11 17 Docket: QBG-SA-00696-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: HARDI SHAHADU Plaintiff (Respondent) - and - UNIVERSITY OF SASKATCHEWAN, COLLEGE OF GRADUATE AND POSTDOCTORAL STUDIES (CGPS), SCHOOL OF ENVIRONMENT AND SUSTAINABILITY (SENS), MAUREEN REED, TODDI STEELMAN, MARKUS HECKER, MARTHA SMITH-NORRIS, SHARLA DAVIDUIK, HEATHER LUKEY, ALI HONORAMOOZ, ANTHONY KUSALIK, VIVIAN RAMSDEN, RYAN WALKER, TREVER CROWE & ADAM BAXTER-JONES Defendants (Applicants) Counsel: Hardi Shahadu on his own behalf Robert J.

Affleck for the defendants (applicants) ___________________________________________________________________________ JUDGMENT R.S. SMITH J.

November 17, 2022 ___________________________________________________________________________ Introduction [ 1 ] In July 2022, the plaintiff commenced a claim against the University of Saskatchewan [University] and various other named defendants associated with the University [Other Defendants], seeking a cafeteria of relief including, inter alia , reinstatement in the Ph.D. program, damages, an apology and sundry other relief. [ 2 ] The University and the Other Defendants apply for an order striking the statement of claim on a number of grounds, not the least of which are that the claim is statute-barred by reason of s. 5 of The Limitations Act , SS 2004, c L-16.1 , and that it is an abuse of process as the plaintiff did not take advantage of all the appeal procedures available to him under the rules of the University. [ 3 ] The plaintiff replies that he has been treated egregiously by the University and petitions the Court for the right to pursue his claim.

Background [ 4 ] The plaintiff was a graduate student seeking a Ph.D. from the University from 2013 to 2018. [ 5 ] It is usual for a graduate student to have supervisors. The plaintiff’s supervisors were two of the Other Defendants, namely, Maureen Reed and Toddi Steelman. [ 6 ] Starting in 2016, the plaintiff’s supervisors were requiring regular meetings to review his academic progress.

Over time, the plaintiff took umbrage at that protocol and began to suspect that his supervisors had ulterior motives. [ 7 ] Between January 17, 2017, and January 25, 2017, the plaintiff wrote to the then University secretary and others about his academic program and his objection to the actions of his academic supervisors. [ 8 ] At that time, and now, the University has established policies and procedures for students challenging decisions which affect them. There is a procedure that addresses student appeals respecting evaluation, grading and academic standing.

There are two levels of appeal, namely, at the college level and, if a student is still aggrieved, at the university level.

[ 9 ] The plaintiff did take advantage of the college level appeal. A hearing took place on February 23, 2017, where the plaintiff’s list of grievances was reviewed. [ 10 ] A decision was delivered by the College Level Appeal Board [CL Appeal Board] on or about March 21, 2017. [ 11 ] The CL Appeal Board’s decision addressed the five grounds of complaint advanced by the plaintiff.

The primary ground, namely, the challenging of the supervisory meetings, was dismissed, and the CL Appeal Board did not find any violation of the University’s procedure respecting the supervisors requiring same. [ 12 ] In the letter sent to the plaintiff from the CL Appeal Board, it specifically outlined that there are appeal procedures from the CL Appeal Board, namely, an appeal at the university level. [ 13 ] Following the decision at the CL Appeal Board, the plaintiff never took advantage of the university level appeal.

However, he did engage, over some period of time, a letter-writing campaign to the University president and others, attacking the decision of the CL Appeal Board, as well as University procedures generally. However, no appeal was taken. [ 14 ] On February 2, 2018, the College of Graduate and Postdoctoral Studies advised the plaintiff it was terminating his Ph.D. program in the School of Environment and Sustainability for failing to register for three consecutive terms. The letter also pointed out that that decision by the College of Graduate and Postdoctoral Studies is subject to appeal if he wished to do so.

The plaintiff took no steps to appeal. [ 15 ] Thereafter, no procedural steps were taken, although the plaintiff did continue to engage in a letter-writing campaign to University officials for some time. [ 16 ] The plaintiff issued his statement of claim in July 2022. There are no allegations in the statement of claim which are alleged to have occurred after 2018. Statute-barred? [ 17 ]

Section 5 of The Limitations Act established a two-year limitation period on claims. In a recent decision of the Court of Appeal, Walker v Mitchell , 2020 SKCA 127 , [2021] 4 WWR 555 , the Court affirmed that where pleadings confirm that a timeline in a claim is statute-barred, such claim should be struck as an abuse of process. The University submits this is exactly the case in this action. [ 18 ] From the statement of claim, the following is clear: (

a) four years have passed since the plaintiff was required to discontinue from his academic program; (

b) five years have passed since the CL Appeal Board hearing; (

c) all events described in the statement of claim took place in 2018 or earlier; (

d) there is no suggestion of a discoverability of argument. The plaintiff knew what was happening while it was happening. [ 19 ] When I asked the plaintiff about the delay in bringing his claim, he replied that he had been treated so poorly by the University that he did not feel mentally well enough to deal with his legal claim. Respectfully, that is not an answer. [ 20 ] The pleadings disclose a timeline that is statute-barred. It would be an abuse of process to allow the claim to proceed, and I strike it on that basis. [ 21 ] The University advanced a number of grounds to strike the claim.

I would be remiss if I did not address the other major topics. Academic dispute [ 22 ] The University makes the case that as the dispute raised by the plaintiff solely relates to academic issues between him and his supervisors, the University decisions on those disputes should not be questioned by the Court. In short, the University asserts that as this involves a purely academic dispute, it is ground that the Court should not plow. [ 23 ] The Court of Appeal has provided guidance on this esoteric topic.

The instruction is that the Court should stay well above the academic forest. [ 24 ] In Hebron v University of Saskatchewan , 2015 SKCA 91 , 388 DLR (4th) 437 , the Court instructs, starting at paragraph 63: [63] … As a matter of law and common sense (the two not always walking hand-in-hand), I conclude the chambers judge was correct in his determination that the academic assessment of a student’s performance in his or her studies at the University must be invulnerable to review by anyone outside the University.

Let me explain why. [64] As to the legal basis for this, I need only look to the exclusive powers of the University conferred by s. 6(1) of the Act [ The University of Saskatchewan Act, 1995 , SS 1995, c U-6.1]: (

a) formulate and implement its academic and research programs, policies and standards; (

b) formulate and implement its standards for admission and graduation; and

(

c) select, appoint, suspend and remove its officers and employees. and the responsibility and powers of the University Council, particularly those set forth under ss. 60, 61(1)(c), 61(1)(f), 61(1)(g), 61(1)(h), 61(1)(

i) and 61(1)(j). [65] As to common sense, in the context of this matter, I am hard pressed to conclude that anyone other than faculty clinicians at theCollege could have the disciplinary erudition, experience, wisdom and know-how or the first-hand knowledge of Mr. Hebron and hiswork necessary to properly assess – or review an assessment of – Mr.

Hebron’s academic performance in his surgical rotations. [66] Taken to a broader context, I would be troubled if anyone or any body outside of the University itself could override theUniversity’s assessment of a student’s academic performance and confer a passing grade – let alone a degree – where none had beenmerited in the University’s assessment. To allow this would be to wholly undercut the integrity of the University as a degree-conferringinstitution.

Even under judicial review, an applicant could not hope to obtain more than an order quashing a University decision andreturning a matter to the University for reconsideration or a new hearing. The assessment of academic performance of its students islegally and logically the exclusive domain of the University.

In that it suggests otherwise, the Chief Commissioner’s decision isunreasonable. [Emphasis in original] [25] Similarly, a more recent decision, Taheri v Buhr, 2021 SKCA 9, 456 DLR (4th) 306, the Court of Appealopines, at paragraph 26: [26] There is a significant body of case law dealing with the question of when, aside from proceedings taken by way of judicialreview, a court should entertain a claim against a university that concerns the internal academic affairs of the university. In generalterms, it is well-settled that there is a realm of academic issues into which the courts should not reach.

See, for example: Williams vSimon Fraser University, 2019 BCCA 41; Green v University of Winnipeg, 2015 MBCA 109, 323 Man R (2d) 157 [Green]; Albu v TheUniversity of British Columbia, 2019 BCCA 222 [Albu]; Tapics v Dalhousie University, 2015 NSCA 72, 363 NSR (2d) 202 [Tapics];and Gauthier v Saint-Germain, 2010 ONCA 309, 325 DLR (4th) 558 [Gauthier] (leave to appeal to SCC refused, ). [26] Later at paragraph 30, the Court helpfully adds: [30] For my part, it seems most helpful to begin with the point, confirmed by the Supreme Court of Canada in Young v Bella, 2006SCC 3 at para 51, [2006] 1 SCR 108, that the relationship between a student and a university has a contractual footing.

By virtue of thatrelationship, a student impliedly agrees, by enrolling in a university, to accept the university’s determinations with respect to a range ofacademic matters, including, most obviously, the assessment of the student’s work and the organization and presentation of academicprograming. This notion is statutorily reinforced, at least with respect to the University of Saskatchewan, by the terms of The Universityof Saskatchewan Act, 1995, SS 1995, c U-6.1 [Act]. Section 61(1) of that Act authorizes the University council to: (

c) grant academic degrees, diplomas and certificates of proficiency; (

d) grant scholarships, prizes, fellowships, bursaries and exhibitions; … (

f) prescribe curricula, programs of instruction and courses of study in colleges, schools or departments; (

g) prescribe methods and rules for evaluating student performance, including prescribing examination timetables and the conduct ofexaminations; (

h) discipline students for academic dishonesty, including admonishing, dismissing, suspending or expelling students or imposingfines; (

i) prescribe academic and other qualifications required for admission as a student; (

j) hear appeals by students or former students concerning academic decisions affecting them; (

k) prescribe dates for beginning and ending lectures; (

l) prescribe and limit the number of students who may be admitted to a college or a program of study; … [27] The University’s brief sums up the argument starting at paragraph 22: 22. It is trite law that striking a claim as having no reasonable chance of success requires a Court to evaluate the pleadings in order todetermine if it is “plain and obvious” the claim cannot succeed. Further, Rule 7-9(3) does not permit this Honourable Court to consideraffidavit evidence with respect to this aspect of an application to strike. 23.

The Statement of Claim may be distilled to the following concerns: • the frequency and scheduling of meetings with the Plaintiff’s academic supervisors; • academic and attendance expectations of the program; • evaluations of the Plaintiff’s academic activity in relation to academic funding; • the establishment of specified academic conditions; and

• decisions regarding his academic standing. 24. Even if this Honourable Court accepts the pleadings as true for the purpose of this aspect of the application, the issues between the Plaintiff and the University are inextricably linked to the academic matters of academic programming, delivery, and assessment. These matters comfortably fit within the University’s legislative authority and are a natural extension of its educating and credentialling role. [ 28 ] The University’s argument is correct. It is preordained that the claim must fail. I dismiss it on that count as well.

Plaintiff did not exhaust remedies [ 29 ] The University’s brief states the case succinctly under this topic starting at paragraph 38: 38. In British Columbia (Worker’s Compensation Board) v Figliola , 2011 SCC 52 the Supreme Court of Canada examined the finality doctrines as well as abuse of process. Therein, the Supreme Court of Canada discussed the importance of engaging available appeal processes, including judicial review: Those are the mechanisms parties should use.

The decision to pursue a court action instead of judicial review resulted in “an impermissible collateral attack on the Superintendent’s decision” 39. The Court goes on to clarify that where an “appellate or judicial review route” has been designated a party should be prevented from using an “institutional detour” to evade the validity of past decisions and find different results. This will work to protect the integrity of the justice system. 40. In short, where there is an established path for appeal or review, parties are expected to make use of them.

To do otherwise constitutes an abuse of process . [Emphasis added] See: Canada (Border Services Agency) v C.B.

Powell Limited , 2010 FCA 61 at para 30 , [2011] 2 FCR 332 ; Nadler v College of Medicine, University of Saskatchewan , 2017 SKCA 89 , 33 Admin LR (6th) 124 ; Carrier v University of Saskatchewan , 2021 SKQB 59 at para 33 . [ 30 ] The plaintiff’s claim makes it clear that although he took advantage of the college level appeal, he did not take the next step to the university level appeal. [ 31 ] It is equally clear that the University authorities made the plaintiff aware that a second level of appeal was available to him.

Instead, he chose to do nothing until, at some point, he decided to the take the “institutional detour” and commence a claim in 2022. [ 32 ] By refusing to take advantage of the appeal within the University network but, rather, commencing a claim, the plaintiff committed an abuse of process. His action may be struck on that basis. Improper parties and immunity provisions [ 33 ] The plaintiff is self-represented, and it is, therefore, not a surprise that his claim has some technical difficulties.

For example, he has named the College of Graduate and Postdoctoral Studies and the School of Environment and Sustainability as defendants.

Those bodies do not exist as independent legal entities and should not have been named as defendants. [ 34 ] Similarly, there are a number of personal defendants named as part of the Other Defendants, who are only mentioned in passing in the statement of claim and cannot be sustained as defendants. [ 35 ] However, given the nature of my analysis under the previous headings, I see no reason to make a formal order respecting the Other Defendants. [ 36 ] The University would assert that it also made a nuanced argument invoking s. 80 of The University of Saskatchewan Act, 1995 , SS 1995, c U-6.1 , which provides: Immunity 80 No action lies or shall be instituted against the board, any member of the board, the senate, any member of the senate or officer or employee of the university where the board, member of the board, member of the senate, officer or employee is acting pursuant to the authority of this Act or the bylaws, for any loss or damage suffered by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done, by any of them, pursuant to or in the exercise or supposed exercise of any power conferred by this Act or the bylaws or in the carrying out or supposed carrying out of any duty imposed by this Act or the bylaws. [ 37 ] Again, in light of my analysis under the other headings, I see no need to address s. 80 of The University of Saskatchewan Act, 1995 .

Costs [ 38 ] The University is successful in its application to strike the claim. It shall have its costs under Column 1. “R.S. Smith” J. R.S. SMITH