Green v University of Winnipeg, 2017 MBCA 18

Citation: Green v University of Winnipeg, 2017 MBCA 18 Date: 20170124 Docket: AI16-30-08663 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : MARTIN GREEN ) M. Green ) on his own behalf (Applicant) Appellant ) ) D. T. Masi - and - ) for the Respondent ) THE UNIVERSITY OF WINNIPEG ) Appeal heard and ) Decision pronounced: (Respondent) Respondent ) January 24, 2017 CAMERON JA (for the Court): [ 1 ] This is an appeal of an interlocutory order made by the case management judge joining a motion for

summary judgment and an application for judicial review. At the hearing, the appeal was dismissed with reasons to follow. These are those reasons. [ 2 ] In 2012, the applicant (Mr. Green) was suspended for one year from the Faculty of Education of the respondent (the University) and barred from its campus (the suspension). Since then, he has filed numerous actions against the University relating to issues surrounding the suspension. All of the litigation initiated by Mr.

Green is currently being case managed by the same case management judge (the case management judge). [ 3 ] Of significance to this appeal, in Martin Green v John Anchan, Dave Bell, Lauralyn Cantor, Don Metz, Colin Russell, Jane Doe and The University of Winnipeg ( 29 Apr 2013 ), Winnipeg, File No CI13-01-83238 (Man QB) (the Anchan action), Mr. Green filed a statement of claim for damages for, among other things, the University’s handling of the proceedings that resulted in him receiving the suspension. The University has filed a motion for

summary judgment in that proceeding (the motion for

summary judgment). [ 4 ] After the suspension ended, Mr. Green applied for re-admission to the University in February 2015. When his request was denied, he filed an application for judicial review of the University’s decision (the application for judicial review).

In November 2015, the case management judge ordered that the application for judicial review also be subject to the case management process. [ 5 ] On February 9, 2016, the case management judge denied a motion made by the University to have the application for judicial review stayed pending the outcome of all of the outstanding proceedings related to the issue of the suspension (See Green v University of Winnipeg , 2016 MBQB 30 , 325 ManR (2d) 306 ).

He stated that he was satisfied that the proceedings ought to proceed “in tandem subject to case management” (at para 15). [ 6 ] In March 2016, the case management judge ordered that the motion for

summary judgment be heard at the same time as the application for judicial review. In Re-amended Case Management Conference Memorandum (No. 2), he wrote: The [University] submitted that [the Anchan action] and [the application for judicial review] deal with the same set of facts and should be heard together. Mr. Green opposed this request indicating that the

summary judgment motion in [the Anchan action] requires considerations that are different from those in Mr. Green’s motion for judicial review of the [University’s] decision to deny his

application for re-admission into the education program, which is the matter before the court in [the application for judicial review]. After considering the submissions, I am satisfied that while these actions require different considerations by the court, these two matters should be heard together in order to secure the just, most expeditious and least expensive determination of these matters on their merits. [ 7 ] It is from this interlocutory ruling that Mr. Green appeals.

He contends that the ruling was res judicata in light of the previous ruling dismissing the University’s motion to stay the application for judicial review. He claims that the decision was fundamentally unjust and in breach of his right to a prompt hearing. [ 8 ] The decision of the case management judge is a discretionary one to be reviewed on the standard of deference absent any reversible errors of fact or law. Towers Ltd v Quinton’s Cleaners Ltd et al , 2009 MBCA 81 , 245 ManR (2d) 70 .

Further, given the high level of deference and the “increasing importance of ‘a proportionate, more expeditious and less expensive means to achieve a just result’”, this Court has said that “[r]arely” will appeals dealing with “orders that are primarily concerned with management of the civil litigation process” be successful. See Loeppky et al v Taylor McCaffrey LLP , 2015 MBCA 83 at para 3 . [ 9 ] The decision to join the hearing of the two proceedings did not invoke the principle of res judicata . It did not constitute a final ruling of the application for judicial review.

See Glenko Enterprises Ltd v Keller , 2008 MBCA 24 , 225 ManR (2d) 207 . Contrary to Mr. Green’s contention, the decision did not have the effect of negating the previous ruling denying the motion for a stay of the judicial review proceedings. [ 10 ] Further, it cannot be said that the decision was fundamentally unjust or in breach of his asserted right to a prompt trial. In advancing this argument, Mr. Green filed a number of cases suggesting that judicial review applications should be heard in a timely fashion. Most of those cases are distinguishable on their facts.

Furthermore, the length of time that it took each of them to be heard cannot be considered to be determinative of the issue. Contrary to the facts in this case, in none of the cases filed by Mr. Green were the applicants involved in significant amounts of litigation, all related to the same subject. [ 11 ] In Rochelle v St Clements (Rural Municipality) et al , 2014 MBCA 102 , 310 ManR (2d) 202 , Steel JA emphasized (at para 5): The courtroom is not the private preserve of any single litigant to be used as they see fit.

The appropriate utilization of judicial resources is a public concern and one which courts should consider in reaching their decisions. [ 12 ] The case management judge possessed a comprehensive knowledge of the two proceedings in question as well as the various motions that have been filed in those proceedings. In my view, his finding that, to join them constituted the “most expeditious and least expensive determination of these matters on their merits”, is unassailable. [ 13 ] It was for these reasons that the appeal was dismissed with costs. JA JA JA