Green v Tram et al, 2016 MBCA 99

Citation: Green v Tram et al, 2016 MBCA 99 Date: 20161013 Dockets: AI15-30-08474; AI15-30-08475 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Madam Justice Janice L. leMaistre BETWEEN : MARTIN GREEN ) ) M. Green (Plaintiff) Appellant ) on his own behalf ) - and - ) ) B. J. Meronek, Q.C. and DEB WOLOSHYN, WALLY STEWART, ) I. S.

McIvor JOHN ANCHAN and THE UNIVERSITY ) for the Respondents OF WINNIPEG ) ) (Defendants) Respondents ) Appeals heard: ) April 6, 2016 - and - ) ) HIEP TRAM and ARLENE SKULL ) Judgment delivered: ) October 13, 2016 (Defendants) ) On appeal from 2015 MBQB 128 , 320 ManR (2d) 84 MONNIN JA [ 1 ] The plaintiff appeals from a decision of a Court of Queen’s Bench motion judge allowing an appeal from a Master’s decision and granting

summary judgment dismissing his claim against the defendants Deb Woloshyn (Woloshyn), Wally Stewart (Stewart), John Anchan (Anchan) and the University of Winnipeg (the University) (collectively, the University defendants); his claim against the other two defendants, Hiep Tram (Tram) and Arlene Skull (Skull) (collectively, the high school defendants), having already been dismissed by

summary judgment. See 2014 MBQB 118 , 307 ManR (2d) 82 , aff’d 2015 MBCA 8 , 315 ManR (2d) 54 . Factual Background Events at the High School [ 2 ] In the fall of 2011, as part of his program in the Faculty of Education at the University of Winnipeg, the plaintiff was placed at a high school in the City of Winnipeg for a teaching practicum. The defendant Tram was the plaintiff’s supervising teacher. He had certain concerns about the plaintiff’s teaching methods which he expressed to the principal, Skull. She met with the plaintiff on November 21, 2011, to discuss these concerns.

He became agitated and confrontational during the meeting and, as a result, he was directed to leave the school. [ 3 ] Skull contacted Woloshyn, the Director of Student Teaching at the Faculty of Education of the University, by

telephone and in writing to advise her of what had happened. By email sent on that same day, Woloshyn asked Skull to confirm the termination of the practicum and to provide more elaborate reasons, which Skull did in a responding email. That same day, the University, through Woloshyn, advised the plaintiff that his practicum was terminated and that he was not to return to the high school. He responded by indicating that he wished to be provided with written reasons for his termination.

Events at the University [ 4 ] Independently of the events occurring at the high school, the University administration had received complaints from fellow classmates and instructors of the plaintiff concerning in-class conduct which was arguably disrespectful, intimidating and disruptive. On November 22, 2011, the day after the plaintiff was removed from the teaching practicum, Anchan, Associate Dean of the Faculty of Education, forwarded the complaints against the plaintiff to the Registrar of the University, Mr.

Russell (Russell). [ 5 ] Russell proceeded with an investigation of the complaints under the Student Non-Academic Conduct and Discipline Policy (the policy). This included a meeting with the plaintiff. Russell submitted his report to the President and Vice-President of the University, the heads of the Faculty of Education and to the plaintiff on January 20, 2012. The report included commentary on the plaintiff’s removal from his practicum. The report recommended that the plaintiff be suspended from the Faculty of Education and barred from the University campus.

On January 23, 2012, the President of the University did so. [ 6 ] The plaintiff appealed the suspension to the Student Discipline Appeals Committee (the SDAC). That appeal was heard on March 23, 2012, at which time the plaintiff made representations to the SDAC. On March 27, 2012, the SDAC dismissed the appeal and upheld the suspension banning the plaintiff from campus.

The plaintiff took no further steps with respect to that decision either at the University or through the courts. [ 7 ] However, he chose to commence legal proceedings against the high school defendants and the University defendants seeking general damages, special damages and aggravated damages. [ 8 ] As against all defendants, he claimed that they were involved in a conspiracy to injure him by depriving him of his opportunity to become certified as a teacher. As against the high school defendants, he added a claim of defamation. [ 9 ] The high school defendants moved for

summary judgment dismissing the claim against them. That motion was heard by Martin J, who granted it in June 2014 (see 2014 MBQB 118 ). He held that there was “no coherent or sound evidence to support a reasonable inference that [the high school defendants] acted with malice or in a conspiracy” (at para 25). He dismissed the claim for defamation on the reasoning that there was a defence of qualified privilege and no evidence of malice had been put forward by the plaintiff to rebut that defence. As noted, that decision was upheld by this Court. Decision of the Master and Motion Judge [ 10 ] The University defendants brought a motion for

summary judgment before the Master ( see 2013 MBQB 154 , 293 ManR (2d) 192 ). The evidence before the Master consisted of the affidavit of Russell and the plaintiff’s own affidavit. The Master was not convinced that the plaintiff’s action must necessarily fail. He noted that the evidence before him was primarily with respect to the suspension from the University and not the practicum issue and he dismissed the motion.

The University defendants appealed. [ 11 ] The plaintiff amended his statement of claim to add claims for breach of contract and breach of duty of care against the University defendants. [ 12 ] At the hearing before the motion judge on November 21, 2014, the plaintiff sought leave to admit new evidence under Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88, r 62.01(13), which provides: Adducing further evidence at appeal hearing 62.01(13) The hearing of the appeal shall be a fresh hearing and (

a) if the appeal is from an order, decision or certificate of a registrar or assessment officer, the parties may adduce further evidence; and (

b) if the appeal is from an order, decision or certificate of a master, the parties may not adduce further evidence, except with leave of the judge hearing the appeal.

The new evidence consisted of a transcript of the evidence given by Russell at a criminal trial involving the plaintiff’s presence on campus. [ 13 ] After noting that another judge had dealt with an application by the University defendants to adduce further evidence from Woloshyn, Stewart and Anchan, which had been denied on the basis of failure to meet the requirement for due diligence, the motion judge decided that the plaintiff could have obtained the answers that he was seeking by cross-examining Russell.

As well, he noted that the University defendants had acknowledged the essence of what was stated in the transcript, namely that “the practicum matter was removed from the consideration in the non-academic misconduct discussion that was before the senate appeal committee”.

As such, the evidence was not required. [14] He therefore concluded that the new evidence did not meet the criteria for it to be admitted, and denied the motion. [15] On the main motion for

summary judgment, the motion judge considered the position of the University defendants tobe twofold, namely:

a) that the Court should not exercise its jurisdiction to hear the matter given that it was essentially an academic dispute withinthe jurisdiction of the University to determine and that there was a dispute resolution scheme which provided an effective remedy; and

b) that the plaintiff’s claim failed under the consideration of

summary judgment principles. [16] On the first ground, jurisdiction, he was of the view that, in fact, the essential character of the dispute, while related tothe plaintiff’s non-academic conduct, dealt with the discipline imposed by the University in an academic context and the plaintiff wasafforded an effective remedy, namely, an appeal to a panel of the SDAC. As such, his further remedy would be judicial review of thatdecision and not a statement of claim for damages. [17] As to the

summary judgment aspect of the motion, he noted that, if his finding regarding jurisdiction was incorrect, hewas obliged to review the evidence that had been filed and assess whether the plaintiff’s claim established a genuine issue for trial. Heconcluded, after his review of the evidence, that the steps taken by the University and its personnel were in compliance with therequirements set forth in the University handbook and policy, and could not be seen as part of a conspiracy to injure, a breach of contractor a breach of a duty of care.

As a result, he was not satisfied that the plaintiff had established a genuine issue for trial and that thesummary judgment should be granted. Issues [18] The issues before the Court on this appeal are as follows:

a) Did the motion judge err in refusing to admit the additional evidence?

b) Did the motion judge err in finding that the plaintiff’s claim was essentially an academic dispute which could not bechallenged by a statement of claim?

c) If a claim did lie, was

summary judgment in favour of the University defendants properly given? Standard of Review [19] The University defendants submit that the applicable standard of review with respect to the motion to adduce furtherevidence is one of palpable and overriding error. As to the second and third issues, they argue that the decision to grant

summaryjudgment under r 20 of The Court of Queen’s Bench Rules is an exercise of discretion and therefore falls under the standard set out bythis Court in Towers Ltd v Quinton’s Cleaners Ltd et al, 2009 MBCA 81, 245 ManR (2d) 70, namely, that this Court is not entitled tointervene unless the judge has misdirected himself or if his decision is so clearly wrong as to amount to an injustice.

The plaintiff arguesthat the motion judge erred as to what principles were applicable to the exercise of his discretion (an error in law) and misapprehendedthe evidence as to the merits of the case resulting in a decision that was clearly wrong. [20] I am unable to agree with either submission. The decision whether to admit additional evidence is not a decision on theadmissibility of evidence. It is whether a discretion should be exercised to allow it to be tendered at that stage of the proceedings.

That,in my view, is discretionary and a review falls under the Towers test. [21] The decision as to whether the Court of Queen’s Bench should exercise a jurisdiction to entertain the issue requires theapplication of current jurisprudence to the factual situation, including a determination of what is the essential nature of the dispute. It is aquestion of mixed fact and law. As such, it requires a review on a palpable and overriding approach, unless there is an extricablequestion of law (see Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235). [22] Finally, the decision to grant or deny a motion for

summary judgment is, as this Court has said on numerous occasions,a discretionary decision and therefore is entitled to the same level of deference as discussed in Towers. Analysis Motion for New Evidence [23] In the course of a separate criminal proceeding, the plaintiff had an opportunity to examine Russell. In the course ofthat examination, Russell advised that the complaints from Skull, which led to the termination of the plaintiff’s practicum, were notincluded in the appeal proceedings conducted by the SDAC. The plaintiff wished to have the transcript of Russell’s testimony tenderedas evidence at the hearing of the

summary judgment application.

His position before the motion judge and on this appeal was that it wasrelevant for the purposes of determining the jurisdiction question, namely, whether he had an effective remedy to question thetermination of his practicum. [24] The University defendants’ counsel admitted that the practicum termination was not a matter that was before the SDACand, therefore, the admission of the evidence of the transcript was not necessary for the fact to be considered by the Court. [25] The request to admit new evidence is pursuant to r 62.01(13) of The Court of Queen’s Bench Rules, which requiresleave of the judge hearing the appeal from the Master.

Jurisprudence has established that the criteria to exercise that discretion followsthe test set out by the Supreme Court of Canada in Palmer et al v The Queen, (SCC), [1980] 1 SCR 759, a test with whichthis Court is very familiar, as it applies to the admission of new evidence on an appeal. The criteria includes:

a) that the applicant show due diligence;

b) that the evidence must be relevant and bears upon the decision or is potentially determinative of the issue at trial;

c) that the evidence must be credible; and

d) that the evidence could reasonably, when taken with the other evidence, be expected to have affected the result. [ 26 ] The motion judge concluded that the evidence did not meet the first criterion because it could have been obtained by the cross-examination of Russell. As well, he was of the view that since the University defendants have acknowledged the essence of what was stated at the trial, the admission of the evidence was not relevant and necessary for the purposes of the motion.

That last point also meant, according to the motion judge, that the evidence was not capable of being determinative of an issue at trial. [ 27 ] On this appeal, the plaintiff argues that we should overturn that ruling. There is no merit to this ground of appeal. The motion judge exercised his discretion in a manner consistent with the Palmer criteria. The bottom line is that the factual point, namely, that the termination of the practicum was not before the SDAC, was before the motion judge.

Nothing further was needed in order to advance the argument which the plaintiff wished to do, namely, that the SDAC proceedings were not an effective remedy. [ 28 ] I would dismiss this ground of appeal. Jurisdiction of the Court of Queen’s Bench [ 29 ] The issue of when a superior court can and should adjudicate a dispute arising from an academic setting has been a particularly thorny and well-litigated issue before the Manitoba Courts. It was one of the reasons why the motion judge concluded that

summary judgment should be granted. His decision was considered by the next decision on this issue by the Court of Queen’s Bench in Al-Bakkal v University of Manitoba et al , 2016 MBQB 45 , 327 ManR (2d) 118 , a decision of Joyal CJQB. After the hearing of this appeal, the University defendants were granted permission to file that decision as well as a supplementary factum to argue its relevance. The plaintiff was allowed the opportunity to respond. [ 30 ] In my view, while relevant, the case before us need not be decided on this issue, but rather on the principles of

summary judgment, which I will deal with further. For that reason, I will not comment on the motion judge’s discussion of the issue of whether the plaintiff had an effective remedy under the policy nor will I comment on the Al-Bakkal decision. This should not be taken as endorsing nor criticizing either decision. I am of the view that this Court’s discussion and review of this complicated issue should await a case where it needs to be resolved with a full hearing on both sides. [ 31 ] Instead I turn to the

summary judgment issue.

Summary Judgment [ 32 ] In the last part of his decision the motion judge concluded that, even if his finding that the Court should not exercise its jurisdiction to entertain the matters raised in the statement of claim was incorrect, he was nevertheless of the view that, on the basis of the evidence tendered, the plaintiff failed to satisfy the second part of the

summary judgment test, which required that he establish a genuine issue for trial. [ 33 ] After noting that it would have been preferable for the University defendants, other than Russell, to have filed individual sworn affidavits, he was satisfied that the evidence provided by the plaintiff, the high school defendants and Russell gave sufficient factual background to make a decision on the case. [ 34 ] Following upon the comments of Martin J in the

summary judgment application involving the conspiracy claim against the high school defendants, the motion judge concluded (at para 87): There is no basis to support a reasonable inference that because Ms. Woloshyn requested Ms. Skull to write a letter to the University requesting that the plaintiff be removed from [the high school] and provide the main reasons for doing so, this amounts to a conspiracy to injure the plaintiff. [ 35 ] As well, he noted that the relationship between the plaintiff and the University was contractual and gave rise to a relationship in both contract and tort.

He concluded, however, on the basis of a review of the evidence, that the steps taken by the University defendants were in compliance with the requirements set out in the student handbook and the policy. [ 36 ] The plaintiff’s main argument before us on this issue was that the student handbook provides for a process to work with marginal students who are having difficulty with their practicum. That process involves meeting with the student and giving him an opportunity to remedy the situation.

He acknowledges that the student handbook does allow for the immediate removal by a high school if deemed necessary by the school administration, but relies upon the fact that the University did not take steps to remedy his practicum experience as a breach of its contractual obligation towards him.

In his submission, he was denied “due process” with respect to his practicum termination and is therefore entitled to sue the University defendants for damages flowing from that termination, which was “career-ending”. [ 37 ] I agree with the determination by the motion judge that there is no evidence that the University defendants, by their conduct or otherwise, took steps that could be seen as part of a conspiracy to injure the plaintiff, and the plaintiff has not established a genuine issue for trial with respect to that cause of action.

[ 38 ] With respect to his contractual or tortious claim against the University defendants for their failure to follow the procedure set out in the student handbook with respect to the termination of his practicum, I am also of the view that the plaintiff has failed to establish a genuine issue for trial. The events surrounding the termination of his high school practicum cannot be viewed in isolation. Had the plaintiff’s tribulations with the University consisted only of that incident, and had he been suspended for that, other considerations would apply.

However, what transpired is that the University dealt with him according to the provisions in the handbook and policy with respect to other complaints which had arisen aside from the practicum termination. It is on the basis of those other complaints that he was suspended. The issue of the practicum became moot. It was not the suspension of the practicum which brought an end to his University career at the Faculty of Education.

It was his non-academic conduct with respect to students and instructors which brought about his suspension. [ 39 ] In short, the plaintiff is unable to point to any evidence of a breach of contract by the University defendants other than possibly their failure to seek to remediate his difficulties with the practicum. Such steps would have been overtaken by the suspension proceedings, which would have left him unable to continue, in any event. As a result, no damages flow from that event and there is no actionable breach which would allow the plaintiff to successfully advance a claim.

Conclusion [ 40 ] For these reasons, I am of the view that

summary judgment is available against the plaintiff and the appeal should be dismissed with costs in favour of the University defendants. JA I agree: JA I agree: JA