Walia v. University of Date:, 2013 MBCA 61

Citation: Walia v. University of Date: 20130625 Manitoba et al., 2013 MBCA 61 Docket: AI 12-30-07829 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard BETWEEN : HARMINDER WALIA ) J. C. Prober ) for the Appellant (Plaintiff) Appellant ) ) R. P. Sokalski and - and - ) H. R. Mackie ) for the Respondents UNIVERSITY OF MANITOBA, ) DR. J.R. DAVIE, DR. B. TRIGGS-RAINE, ) Appeal heard: DR. R. BIRD and DR. P.C. CHOY ) June 12, 2013 ) (Defendants) Respondents ) Judgment delivered: ) June 25, 2013 MONNIN J.A. [ 1 ] This is an appeal from an order granting the respondents

summary judgment dismissing the appellant’s action against them, as well as denying the appellant’s motion seeking the right to cross-examine an affiant whose affidavit was filed in support of the

summary judgment motion prior to the hearing of that motion. [ 2 ] Without going into the details of the dispute between the appellant and the respondents, suffice it to say that it generally revolves around the appellant being refused transition from a masters program of study into a doctorate program (Ph.D.). [ 3 ] A more detailed history of the conduct of this case to date is set out in the reasons of the motion judge as follows (at paras. 2-4): There is a long and somewhat torturous history of proceedings in this matter.

By oral decision dated November 17, 2005 with written reasons provided December 8, 2005, Master Ring dealt with Walia ’ s earlier motion to compel the respondents to attend for examination for discovery pursuant to Queen’s Bench Rule 34.04(1). In dismissing that motion, he concluded that a

summary judgment motion should have priority over any discovery rights as it was an expeditious way to deal with a matter on its merits. That decision was never appealed by Walia. Notwithstanding that determination, the

summary judgment motion was not set down to be heard until 2007. Walia then applied to Master Sharp to compel the respondents to submit to examinations pursuant to Queen’s Bench Rules 39.02 and 39.03 before the

summary judgment motion was to have been heard. That motion was only filed one week before the

summary judgment motion was set to be heard. Both matters were heard before Master Sharp and she rendered judgment July 20, 2007. She noted that counsel for Walia had changed and that the discoveries then sought by Walia were of a somewhat different nature than those

before Master Ring. However, as she found at p. 2 of the decision: … Arguably, however, the practical considerations in balancing the

summary judgment motion and the right of the defendants to have their issues resolved expeditiously and by the least expensive means against the plaintiff’s right to discovery and to have evidence available to counter the

summary judgment motion, remain the same as at the time of Master Ring’s decision. She also referred to the additional need to exercise the right to discover by acting with reasonable diligence, which had not occurred, and thus this motion was not allowed. She then proceeded to hear the motion for

summary judgment and granted it, finding that the essential character of Walia’s claim was academic in nature. Although the decision was delivered July 20, 2007, inexplicably the order was not signed until June 9, 2009. It has now taken several more years to come on appeal to this court. [ 4 ] In denying the appellant’s appeal from the master’s order, the motion judge stated the following with respect to the request to cross-examine an affiant prior to the hearing of the

summary judgment motion (at paras. 12-13): Again, it is instructive to return to earlier motions in this proceeding. The motion for

summary judgment was filed in 2005, as was the earlier motion to examine. Master Ring dealt specifically with priorities in his decision in 2005 MBQB 278 , [2005] M.J. No. 485 at para. 15 : I agree with the defendants’ position.

Summary judgment dismissing (or granting judgment) is only granted in clear and compelling instances. The bar or threshold is very high for the moving party. But it is an expeditious and inexpensive way of obtaining a determination on the merits and should have priority over the discovery process. This decision was never appealed and the

summary judgment motion should have proceeded expeditiously. Instead, two years later a complementary proceeding to examine came before Master Sharp who found that motion was not timely, particularly since it was brought one week before the hearing set to argue the

summary judgment motion. As well, I agree that the same considerations of expediency and expense on which the decision of Master Ring was founded are equally at play when dealing with the examination of the respondents pursuant to Queen’s Bench Rules 39.02 and 39.03. [ 5 ] And she continued (at para. 15): It is true that the personal respondents did not file affidavits setting out their personal knowledge of Walia’s complaint, however Walia was provided with an affidavit from Donald Smyth sworn May 11, 2005. Smyth was Acting Dean of the Faculty of Graduate Studies at the University of Manitoba.

His affidavit was based on information and belief that served to set out the academic record and all proceedings involving Walia and the University of Manitoba, which documentary evidence is not disputed. Nothing would come out of further examination of Smyth. The record is the record. In addition, Walia has not identified what information he expects to get out of the examination of the personal respondents. Thus, this request would seem to be nothing more than a fishing expedition. It is not even necessary to deal with whether or not Walia acted with reasonable diligence. [ 6 ] In confirming the order for

summary judgment dismissing the appellant’s claim, the motion judge stated (at paras. 23- 24): Here, all of the complaints of Walia relate to academic matters and it is clear that when some of his issues were acknowledged to be legitimate and a new hearing ordered, that he, for whatever reason, did not avail himself of that new hearing. He instead embarked on a new level of appeal to the Senate, which was unsuccessful, and further failed to finish his Master’s thesis in time which would have allowed him to naturally transition to the PhD program.

Having failed to exhaust the academic remedies available to him, he cannot now come to this court for judicial review. Therefore, the respondents have satisfied me that the claim is one that, on the face of it, has no merit and, thus, that Master Sharp properly exercised her discretion in dismissing the statement of claim when she did. That appeal is, therefore, also dismissed. [ 7 ] The appellant alleged that the motion judge erred in law and on the evidence when she found that the request to cross-

examine “would seem to be nothing more than a fishing expedition” and, further, that she erred in fact and law and improperly exercised her discretion in confirming the

summary judgment. [ 8 ] Counsel for the appellant confirmed that both orders being appealed were discretionary orders and that such orders are only to be set aside where a palpable and overriding error can be identified or if a judge misdirects herself or himself or if his or her decision is so clearly wrong as to amount to an injustice. See Towers Ltd. v. Quinton’s Cleaners Ltd. et al. , 2009 MBCA 81 , 245 Man.R. (2d) 70 . [ 9 ] Clearly and unquestionably, in my view, the pith and substance of the appellant’s action against the respondents is an academic matter.

As stated by this court, as well as other courts across the country, such matters are to be dealt with in the world of academia and not in the civil courts. In her reasons, the motion judge referred to Warraich v. University of Manitoba , 2003 MBCA 58 , 173 Man.R. (2d) 202 , as follows (at para. 20): Instructive is the case of Warraich v. University of Manitoba , 2003 MBCA 58 , [2003] M.J. No. 138 , where the Manitoba Court of Appeal indicated at paras. 14 and 16, that: 14 ...

Generally speaking, universities “have absolute discretion as to the management of their own affairs, and there is accordingly no legal right that can be enforced against them by mandamus” ( Halsbury’s Laws of England , 3rd ed., vol. 11, at p. 104). It may well be as a matter of law that Dr.

Warraich has certain enforceable contractual rights, but if the pith and substance of the dispute concerns academic requirements and processes, then any difficulties are to be resolved through the mechanism specifically provided for such matters by the University. . . . 16 As to whether the University’s appeal process provides an effective remedy, it is my conclusion that indeed it does; in fact, it seems to me that it provides far more effective and useful remedies than could be achieved through litigation. While the courts’ ability to provide the relief requested by Dr.

Warraich may well be constrained (can the courts, for example, compel the Faculty of Medicine of the University to change its residency requirements for Dr. Warraich, or “declare” what Dr. Warraich’s course obligations should be?), the senate is fully empowered to provide the appropriate resolution of the dispute in light of its all-encompassing authority under sec. 34(1) of the Act [ The University of Manitoba Act , C.C.S.M., c.

U60]. [ 10 ] The appellant has failed to persuade me that the motion judge either misdirected herself or that the decision she arrived at was wrong, let alone so clearly wrong as to amount to an injustice. I find myself in substantial agreement with her reasons and would accordingly dismiss both grounds of appeal with costs. J.A. I agree: J.A. I agree: J.A.