Green v University of Winnipeg, 2015 MBCA 109

Citation: Green v University of Winnipeg, 2015 MBCA 109 Date: 20151130 Docket: AI15-30-08360 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN : MARTIN GREEN ) M. Green ) on his own behalf ) (Applicant) Appellant ) B. J. Meronek, Q.C. and ) I. S.

McIvor - and - ) for the Respondent ) ) Appeal heard: THE UNIVERSITY OF WINNIPEG ) September 23, 2015 ) ) Judgment delivered: (Respondent) Respondent ) November 30, 2015 On appeal from 2014 MBQB 243 , 312 ManR (2d) 201 MACINNES JA [ 1 ] The applicant, a former student at the respondent University of Winnipeg (the University), applied for a declaration that the University should grade and return an assignment (Assignment No. 5) to him. The application judge (the judge) dismissed his application with costs, from which dismissal the applicant now appeals.

Facts [ 2 ] The applicant was enrolled as a student in the Faculty of Education at the University for the 2011/2012 academic year. As part of his enrollment, he was registered in EDUC-4861-150, Curriculum, Instruction, and Assessment (Secondary Math), which was a full-year course spanning the period September 12, 2011 to March 12, 2012.

The course instructor was Professor Metz. [ 3 ] As regards Assignment No. 5, the course syllabus required that the applicant prepare and display a bulletin board and contemporaneously hand in a corresponding hard-copy outline, describing how the information displayed on the bulletin board connects to the Manitoba math curriculum and how he might use it for teaching purposes. [ 4 ] Assignment No. 5 was to count for 10 marks, that is, 10 per cent of the applicant’s final grade in the course. [ 5 ] Professor Metz advised the applicant that the hard-copy outline for Assignment No. 5 had not been turned in as required, and gave him a brief extension until January 11, 2012, to do so.

The applicant failed to do so and the assignment was thus recorded as incomplete. [ 6 ] At that time, the University was dealing with an issue concerning the applicant’s alleged non-academic misconduct. On the same date, January 11, 2012, the applicant was advised by the registrar of the University that he was barred from the University campus pending an investigation into his alleged non-academic misconduct. [ 7 ] On January 23, 2012, the applicant was advised in writing by the president of the University that, pursuant to

section II(1) of the Student Non-Academic Conduct and Discipline Policy, he was suspended immediately from the University for non-academic misconduct. His suspension was for a period of one year and he was barred from the University property.

[ 8 ] On February 8, 2012, the applicant appealed. He raised five points on his appeal, point five being in part as follows: 5. My Status in the Academic Program at the time of my expulsion. If my appeal of the non-academic misconduct finding is upheld, I will be seeking readmission to the program.

The question will then become: to what credit am I entitled for progress already made within the program? [ 9 ] The last paragraph of the applicant’s notice of appeal was as follows: Finally, I note that the University has in its possession three completed assignments which ought to have been marked, and two projects which I would like returned to me with marks and comments. These are Assignments #3 and #5 from 4861.150 and Assignemnt [sic] #1 from 4870.153. [ 10 ] The applicant’s appeal was heard by the Student Discipline Appeals Committee (SDAC).

Its decision was communicated to the applicant on March 27, 2012, the body of which is as follows: In response to your Notice of Appeal (received February 8, 2012), under the Student Non-Academic Conduct and Discipline Policy, a hearing of the Student Discipline Appeals Committee (“SDAC”) was held on March 23, 2012. As a result of this hearing, the Committee wishes to inform you of the following decisions: 1. Based on the evidence which was presented, and reports, documents and submissions provided, the SDAC upholds the finding of non-academic misconduct, on the part of Mr. Green. 2.

The SDAC determined all sanctions imposed in the letter of the President of The University of Winnipeg, January 23, 2012, to be appropriate penalties, in these circumstances. A unanimous decision was reached on both of the above-noted matters. As a result, the SDAC upholds the decision against Mr. Green, and confirms all penalties imposed.

Therefore, the SDAC has determined both your suspension, and the barring from campus, remain in full force and effect, as set out in the letter from the President, dated January 23, 2012. [ 11 ] As is apparent, the SDAC decision of March 27, 2012, was silent with respect to Assignment No. 5. [ 12 ] In due course, the applicant made his application for declaratory relief against the University.

The judge concluded that the essence of the applicant’s complaint and dispute with the University, being its refusal or failure to mark Assignment No. 5, was an academic issue in respect of which the Court had no jurisdiction to interfere. The judge thus exercised his discretion to refuse to grant the declaration sought by the applicant and dismissed the application with costs, thus giving rise to this appeal.

Grounds of Appeal [ 13 ] The applicant asserts that the learned judge erred when he: 1. misapprehended the nature of the relief sought when he found that the applicant was seeking to overturn a failing grade, when in fact the applicant was seeking a declaration that the University had a contractual obligation to assign a grade in the first place; 2. (

a) found that the University’s refusal to assign the grade was a matter which fell under the jurisdiction of the University’s Departmental Review Committee; or in the alternative,

(

b) found that the University had indeed assigned a grade when it marked the disputed assignment as “Incomplete”; 3. found that the applicant had failed to exhaust his internal remedies within the University’s procedures prior to applying to the courts for relief; 4. found that the matter was in “pith and substance” an academic dispute and therefore outside the jurisdiction of the courts. [ 14 ] The University asserts that the various grounds of appeal raised by the applicant can be conveniently reduced to a single issue; namely, did the judge err in finding that the University had a dispute-resolution scheme which accorded the applicant an effective remedy?

Standard of Review [ 15 ] The applicant accurately recites the standard of review in respect of discretionary decisions and in respect of a question of law. However, he does not expressly stipulate which is the applicable standard of review in respect of the issues on this appeal.

He does, however, appear to accept the standard of review applicable to discretionary decisions in asserting that the judge erred as to the principles applicable to the exercise of his discretion, misapprehended the evidence as to the merits of the case and, in any event, came to a decision that was clearly wrong and unjust. [ 16 ] The University argues that the applicant sought relief under Manitoba, Court of Queen’s Bench Rules , ManReg 553/88, r 14.05, that is, the granting of declaratory relief which it says calls for the exercise of discretion on the part of the judge. [ 17 ] In my view, the question whether to grant declaratory relief is a question for the exercise of discretion for the judge.

As a result, the decision reached by the judge is one to which a high degree of deference is owed by an appellate tribunal. This was well described in Towers Ltd v Quinton’s Cleaners Ltd et al , 2009 MBCA 81 , 245 ManR (2d) 70 , where Freedman JA wrote (at paras 25, 28): . . . “[A]n appellate court will be justified in intervening in a trial judge’s exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice. . . .” The standard for intervention in a discretionary decision is very high.

It is not enough that the appellate judges think the trial (or motions) judge simply reached a wrong result; there rarely is, in truly discretionary matters, a “right” or “wrong” result. It is not enough that the appellate judges would have decided differently; they are to respect, and not replicate, the unique role of trial judges. Assuming there have been no reversible errors on fact or law, the appellate judges are not to usurp the trial judge’s role in discretionary matters, barring a decision so “clearly wrong” as to yield a truly unjust result.

Arguments [ 18 ] The applicant correctly asserts that there was a contractual relationship between him, as a student, and the University. He argues that he is entitled to declaratory relief in respect of his contractual rights. He says that under the terms of the contractual relationship between him and the University, he is entitled to a mark on Assignment No. 5.

He asks the Court to find that the University’s obligation to mark assignments was part of its implied contractual duties reciprocal to the student’s implicit contractual duties to submit those assignments. [ 19 ] He argues that the judge made a palpable and egregious error in finding that the University’s policies on non-academic misconduct were relevant to the case when in fact, as he asserts, those policies and the applicant’s suspension under the Student Non- Academic Conduct and Discipline Policy had nothing whatsoever to do with his application before the judge. [ 20 ] He says that the judge erred in finding that the applicant’s grade appeal was specifically included in the notice of appeal of his non-academic misconduct suspension, and in finding that it was unclear whether the issue of his grade appeal was addressed as part of that appeal hearing.

He submits that in fact it was perfectly clear that the grade appeal had nothing to do with the non-academic procedures or his suspension for non-academic misconduct. [ 21 ] The applicant argues that the non-academic appeal was concluded on March 23, 2012, but it was not until six months later that the University responded for the very first time to his request for a mark on the assignment. [ 22 ] He acknowledges that the judge found that if the disputed mark issue was not considered and determined on his appeal with respect to non-academic misconduct, then the regulations and policies applicable to disputes pertaining to marks might be applicable. [ 23 ] The applicant, however, asserts that those regulations and policies are not applicable in that they do not apply until a grade is communicated to the student.

He says that if the evaluation was not completed and a mark not assigned, then there was no right to access that appeal process. He submits that a student is entitled to appeal a grade, but Professor Metz made a decision to not assign a grade and did not do so. As well, he disputes the motion judge’s finding that the applicable regulations and policies pertaining to mark appeals constituted a dispute resolution scheme that provides an effective remedy.

[24] Finally, the applicant argues that regardless of whether he had the right to seek judicial review, he instead chose analternate avenue; namely, to seek a declaration of his contractual rights and that the judge erred in refusing to grant the remedy which hesought. [25] The University argues that by reason of

section 24 of The University of Winnipeg Act, CCSM c U70 (the Act), thelegislature of Manitoba expressly granted the University exclusive jurisdiction to deal with academic matters. It asserts the relevantportions of

section 24 are as follows: Senate responsible for academic policy 24(1) The senate is responsible for the academic policy of the university. Powers of the senate 24(2) Without limiting subsection (1), the senate may . . . (

h) hear and determine any appeals by students concerning their academic standing that the senate considers appropriate; . . . (

k) deal with any other matters of an academic nature.

Delegation 24(3) The senate may delegate any of its powers or duties to any committee of the senate or any person. [26] The University argues that the only error alleged by the applicant which was actually material or determinative in respectof the judge’s decision is whether the judge erred in determining that the University’s internal dispute resolution procedures provided theapplicant with an effective remedy. [27] It submits that there is ample judicial authority from this Court and other courts that where the essential character of adispute is one relating to academic matters, such matters fall within the jurisdiction of the university to decide, not the courts, providedthat the university’s procedures are fair and effective. [28] The University asserts that its procedures are indeed fair and effective, and that there can be no basis for concluding otherthan that this dispute was an academic dispute as it pertained to the marking of Assignment No. 5. [29] Thus, says the University, the applicant’s recourse was to follow and complete the procedures providing for the right ofappeal with respect to disputes over marking and, thereafter, to seek judicial review if appropriate.

In the circumstances of this case,argues the University, the judge made no error in refusing to exercise his discretion to grant the declaratory relief sought by theapplicant. Analysis and Decision [30] There can be no dispute in this appeal that pursuant to

section 24 of the Act (and in particular, subsections 24(2)(

h) and(k)), the University is vested with the jurisdiction and authority to deal with matters concerning the academic standing of students andwith any other matters of an academic nature. [31] As well, there is considerable jurisprudence from this Court and other courts establishing that, where the essentialcharacter of the dispute is one of an academic nature, the courts have no jurisdiction to interfere and the matter is left exclusively to theuniversity and its process, provided that the university’s process is fair, comprehensive and effective and that in its implementation, theuniversity does not breach the principles of natural justice.

See Warraich v University of Manitoba, 2003 MBCA 58 at para 14, 173ManR (2d) 202; Hozaima v Perry et al, 2010 MBCA 21 at para 32, 251 ManR (2d) 148; Walia v University of Manitoba et al, 2013MBCA 61 at para 9; Cruickshank v University of Lethbridge, 2010 ABQB 186; [2010] AJ No 543 (QL); Dawson v University ofToronto, (ON SC), [2007] OJ No 591 (QL) (Sup Ct J); and Fufa v University of Alberta, 2012 ABQB 594, 543 AR119. [32] This application was encumbered somewhat by the necessary inclusion of evidence pertaining to the applicant’ssuspension from the University for non-academic misconduct and the resulting notice of appeal, which he filed in respect of thatsuspension.

In that notice of appeal, he raised five issues, namely:

1. The ruling of non-academic misconduct. 2. My removal from the practicum. 3. The two suspension orders barring me from attending classes. 4. The trespassing order barring me from the campus. 5. My status in the academic program at the time of my expulsion. [ 33 ] As earlier stated, under the fifth point, he wrote, in part: If my appeal of the non-academic misconduct finding is upheld, I will be seeking readmission to the program.

The question will then become: to what credit am I entitled for progress already made within the program? [ 34 ] As well, the last paragraph of his notice of appeal was as follows: Finally, I note that the University has in its possession three completed assignments which ought to have been marked, and two projects which I would like returned to me with marks and comments. These are Assignments #3 and #5 from 4861.150 and Assignemnt [sic] #1 from 4870.153. I would also like the return of the two projects in Prof.

Metz’s classroom, which the Vice-President has already indicated a willingness to arrange. [ 35 ] It is clear from the SDAC decision that that committee did not deal expressly with the issue of the assignments. Nor can one say that it dealt with that issue at all. [ 36 ] In oral argument before this Court, the applicant argued that his notice of appeal did not raise, for appeal purposes before the SDAC, the question of the status of the assignments.

Rather, he said the last paragraph of the notice of appeal raised that issue only as something outstanding as between him and the University, but not something which he was asking the SDAC to address. That is as may be. [ 37 ] Ultimately, however, it is clear that the application for declaratory relief pertained to the marking of Assignment No. 5 and to the applicant’s request for a declaration that the University should grade and return Assignment No. 5 including therewith such reasons and comments as are customarily given in grading assignments of this kind.

The judge concluded that the essence of the dispute in question was a matter of an academic nature. [ 38 ] Here, the University published a course calendar which contained regulations and policies. The course calendar was provided to every student.

Section 10 of the regulations and policies contained therein, entitled Grade Appeals, a process whereby a student has the ability to initiate an appeal in respect of the marking of an individual assignment. The applicant argues that that process was available to him only in respect of a grade and that a refusal to provide a grade or mark, or the provision of a grade of incomplete would not give him a basis for appeal.

The University in its material asserts otherwise. [ 39 ] It is clear from the judge’s reasons that he found that the regulations and policies entitled the applicant to appeal the decision of Professor Metz and that the regime for appeal set forth in the applicable regulations and policies provided an effective dispute resolution remedy. Consistent with the jurisprudence, the judge found that the dispute was within the jurisdiction of the University for determination. [ 40 ] The judge’s decision to reject the applicant’s claim for declaratory relief, being a discretionary decision, is owed considerable deference.

I am satisfied that the judge did not misdirect himself in respect of the law or the facts. In my view, his decision was not wrong, let alone so wrong as to amount to an injustice. Indeed, in my view, his decision was correct. [ 41 ] I would therefore dismiss the applicant’s appeal with costs. JA

I agree: JA I agree: JA