Green v University of Winnipeg, 2020 MBCA 49

Citation: Green v University of Winnipeg, 2020 MBCA 49 Date: 20200512 Docket: AI19-30-09367 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : martin green ) M. Green ) on his own behalf Applicant ) ) B. J. Meronek, Q.C. and - and - ) E. A.

Lawlor-Forsyth ) for the Respondent The UNiversity of Winnipeg ) ) Chambers motion heard: Respondent ) January 23, 2020 ) ) Decision pronounced: ) May 12, 2020 Michel A. monnin JA [ 1 ] The applicant (Green) seeks leave to appeal an order of Steel JA, in chambers, declaring him to be a vexatious litigant. [ 2 ] The order provides that Green is: 1) prohibited from continuing proceedings instituted in the Manitoba Court of Appeal without first obtaining leave of a justice of this Court; and 2) prohibited from initiating any further appeals related to events and persons arising out of his dispute with the respondent (the University), and his removal from it’s teacher certification program without first obtaining leave of a justice of this Court. [ 3 ] The order was made pursuant to provisions of The Court of Appeal Act , CCSM c C240 (the Act ) (which were subsequently amended in July of 2019). [ 4 ] The sections of the Act relevant to this order and this application are as follows: Vexatious proceedings 31.1(1) Where a judge sitting in chambers or the court is satisfied, on application, that a person, persistently and without reasonable grounds, is (

a) instituting vexatious proceedings in the court; or (

b) conducting a proceeding in a vexatious manner; the judge or the court may order that (

c) the person shall not institute a further proceeding; or (

d) a proceeding instituted by the person shall not be continued;

except with leave of a judge. Consent of Attorney General 31.1(2) An application under subsection (1) shall be made with the consent of the Attorney General, and the Attorney General is entitled to be heard on the application. Application for leave to proceed 31.2(1) Where a person governed by an order under subsection 31.1(1) seeks to institute or continue a proceeding, the person may apply for (

a) leave to institute or continue the proceeding; or (

b) rescission of the order; and for no other relief, including costs. Application to court for rescission 31.2(2) If the order under subsection 31.1(1) was made by the court, the application for rescission of the order under clause (1)(

b) shall be made to the court. Leave to proceed or rescission 31.2(3) For purposes of an application under subsection (1), where a judge sitting in chambers or the court is satisfied that a proceeding to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding, the judge or the court may, by order, (

a) grant leave to proceed; or (

b) rescind the order made under subsection 31.1(1). Attorney General to be heard 31.2(4) A person making an application under subsection (1) shall give notice of the application to the Attorney General, and the Attorney General is entitled to be heard on the application. No appeal 31.2(5) No appeal lies from a refusal to make an order under subsection (3). [ 5 ] The facts that underlie Steel JA’s order are set out in her reasons.

In order to provide context to these reasons, I set out what Steel JA wrote ( 2018 MBCA 137 at paras 37-55 ): If we apply the above factors to the particulars of Green’s recurring litigation, we see many of them duplicated. First, Green seeks to relitigate matters in which he previously was unsuccessful with the aid of material and evidence previously filed in other decided matters (see [ Green v Tram et al , 2013 MBQB 154 ] Tram 2013 QB ; [ Green v Tram et al , 2015 MBQB 128 ] Tram 2015 QB ; [ Green v Tram et al ,

2016 MBCA 99 ] Woloshyn 2016 CA ; [ Martin v The University of Winnipeg , 2017 MBQB 67 ] University 2017 QB ; [ Green v Bell et al , 2018 MBQB 2 ] Bell 2018 QB ; and [ Green v University of Winnipeg , 2018 MBQB 4 ] University 2018 QB ).

Green has unsuccessfully pursued at least three appeals (a further two are presently under consideration for leave to the Supreme Court of Canada) from a decision of the Court of Queen’s Bench and this Court, which have repeatedly affirmed that the University: • is a creature of statute that is self-regulated; • is permitted to create and uphold its policy and procedures; • has established policies and procedures existing at the time of Green’s suspension which were adhered to; and • pursuant to its ultimate authority to create its policies, has created specific balanced and fair review/appeal procedures.

See [ Green v The University of Winnipeg , 2014 MBQB 243 ] University 2014 QB at para 20; Bell 2018 QB at paras 59, 65, 78-81; and University 2018 QB at paras 57-59. Green seeks relief or remedies that are not available or are without basis.

The courts have held in many pieces of his litigation that, aside from judicial review, the matter is within the University’s jurisdiction and that he must adhere to the University’s procedure when appealing his expulsion ( see Tram 2015 QB at para 67; University 2017 QB ; [ Green v University of Winnipeg , 2017 MBCA 18 ] University 2017 CA ; Bell 2018 QB at paras 78-79; and University 2018 QB ). Many of Green’s proceedings advance the same arguments relating to tortious and procedural claims relying on previously filed pleadings and supporting affidavits which were unsuccessful in previous litigation.

He has recycled claims of defamation against the University administration and the professors who taught Green during his first semester. For each claim, he relied on the same legal authorities to underpin his argument, and in each instance, this Court has affirmed the lower court’s rejection of Green’s construct of the tort of defamation (see [ Green v Tram et al , 2014 MBQB 118 ] Tram 2014 QB at para 22; [ Green v Bush et al , 2017 MBQB 83 ] Bush 2017 QB at paras 2, 43; [ Green v Bush et al; Green v Metz et al , 2018 MBCA 12 ] Bush/Metz 2018 CA at para 3; and University 2018 QB ).

In four separate actions, Green has argued that any statement issued by the University staff which supports the decision to suspend him is malicious, or “dripping” with malice. Green continues to rely on these affidavit statements in his appeals even though they have already been considered by the court which failed to find them to be malicious ( see Tram 2014 QB at para 22; Bush 2017 QB at paras 2, 43; Bush/Metz 2018 CA at para 3; and University 2018 QB ). This Court in Woloshyn 2016 CA at para 40; and Bush/Metz 2018 CA , upheld the lower court’s decision to grant

summary judgment and affirmed that the complained of remarks were not defamatory, nor was the inference of malice sufficient to defeat the defendants’ prima facie defence of qualified privilege. An example of Edmond J’s repeated review on his prior determination on this point of law are found in Bush 2017 QB ; [ Green v Metz et al , 2017 MBQB 84 ] Metz 2017 QB ; and Bell 2018 QB .

He stated in Bell 2018 QB (at para 22): It is important to emphasize as I did in the previous defamation decisions ([ Bush 2017 QB ] and [ Metz 2017 QB ]) that, in examining the defence of truth or justification, it is not the literal truth of each and every act in the publication but only that the whole of the defamatory matter is substantially correct. . . . In my view, in examining all of the evidence and particularly the evidence set forth in Mr. Green’s Affidavit #1, the defence of truth or justification applies.

The sheer number of defamation suits advanced by Green, and the fact that none of them have shown a genuine issue for trial, support the University and the remaining defendants’ position that Green’s most recent grounds for appeal are merely a means to circumvent the rejection issued by the University ( see Tram 2013 QB ; University 2014 QB ; Bush 2017 QB ; University 2018 QB ; and Bush/Metz 2018 CA ). Besides his multiple claims of defamation, Green has repeatedly called into question the University’s decision to revoke his practicum as a teaching student at the University.

He argues that his procedural rights were disregarded when his application to be reinstated as a teaching student at the University was rejected. Green claims his case merits an oral hearing; the reasons given for refusing his readmission were insufficient; and the decision-makers were biased against him sufficiently to justify overturning the University’s decisions ( University 2018 QB at paras 64-66, 75).

With respect to that argument, Edmond J held in Bell 2018 QB (at paras 73-74): In my view, the evidence establishes that he was suspended for non-academic misconduct which involved conduct that was outlined in the complaints that were reviewed pursuant to the Policy. The University, in applying the Policy and taking the steps to suspend Mr. Green, did not act in an arbitrary or capricious manner. The University followed the Policy. Mr.

Green appealed the decision and there is simply no evidence to establish that the University breached or violated the Charter ( Canadian Charter of Rights and Freedoms ), as alleged by Mr. Green. Yet, Green continues to litigate the same fact pattern. In the current matters before this Court, Green raises, among other claims, defamation and failure to afford procedural fairness. He reargues that his removal from his teaching practicum should give rise to a claim for actionable damages because his final appeal was denied. Therefore, he did not receive an adequate remedy.

Damages will only be awarded where it can be shown that a person was damaged as a result of the claimed tort. Green presupposes that had it not been for his suspension, he would be successfully employed as a teacher.

From the materials Green reproduced in support of his current claims, the following recurrent themes become evident; that the professors he interacted with during that first semester collectively, had professional concerns with his suitability with his choice of future occupation; he demonstrated in both social and academic settings mannerisms that were indicative of an underlying behavioural condition; he was a high-risk student and unlikely to satisfy the final conditions needed for him to graduate from the program successfully; and in the event he did graduate from the program, he was professionally unfit to practice and therefore, on a balance of probabilities, unlikely to find employment within the Winnipeg teaching system.

Based on the above, it is possible to conclude Green’s core aspiration to be reinstated into the Faculty of Education program is unfortunately remote and moreover, that any claim for damages that could be associated with loss of future employment is even more remote. This Court has repeatedly affirmed that there is no genuine issue for trial with regard to Green’s tortious or contractual claims arising out of these facts.

In 2016, this Court upheld the 2015 Queen’s Bench decision, finding that Green had no claim for damages for breach of contract as the University correctly exercised its legislated authority (see Woloshyn 2016 CA at para 39, aff’g Tram 2015 QB ). See also Bush/Metz 2018 CA , where Burnett JA, in affirming two dismissals on

summary judgment, indicated that the record disclosed “no ‘realistic chance’” of success and that “there is no triable issue which realistically could result in a judgment” (at para 5). This Court has recognised and repeatedly affirmed that there was no purpose in allowing Green’s proceedings to continue as any damages flowing from the alleged breach of contract would be overtaken by the subsequent suspension proceedings (see Woloshyn 2016 CA ; and University 2017 CA ).

Green’s actions consist of commencing separate claims against either the original decision-maker, the reviewing party at first instance or the general institution on the grounds of defamation; breach of contract or violation of the Canadian Charter of Rights and Freedoms ; conspiracy; and breach of duty in establishing fair rules, among other claims (see [ Green v University of Winnipeg , 2015 MBCA 109 ] University 2015 CA at para 24).

The weakness of his claims and their repetitiveness suggest that these claims were an attempt to reopen the issue of his suspension while circumventing the proper avenues for review. This Court comments on this attempt in its most recent

decision relating to these matters (see University 2017 CA at para 2). [6] Green argues, notwithstanding the fact that he has been found to be a vexatious litigant, that he has a fundamentalright to bring an appeal of that decision to a full panel of this Court.

He argues, contrary to the clear and explicit findings of Steel JA,that his proceedings were not an abuse of process and that Steel JA was wrong in coming to the conclusions that she did. [7] He further alleges that Steel JA, in her decision, made findings about his personal character, actions, mental state andemployment prospects, which make a mockery of him and prove to be an insurmountable obstacle to any attempt on his part to seek leaveto proceed with his remaining cases for wrongful expulsion from the University of Winnipeg or his possible re-instatement. [8] In his initial materials, Green indicated that he was seeking leave to appeal Steel JA’s order as well as the recession ofher order.

When it was pointed out to Green that

section 31.2(1) of the Act provides that a person can seek leave or recession, heindicated that he would only be seeking leave to appeal. [9] In matters where leave is required to bring an appeal to a panel of this Court, the first requirement that an applicantmust usually meet is that the proposed appeal is not frivolous or that the appeal has a reasonable chance of success or that the applicant isadvancing an arguable case. In this case,

section 31.2(3) of the Act provides that in order to obtain leave to appeal a vexatious litigantfinding, the applicant must satisfy the court or one of its justices that the appeal is not an abuse of process and that there are reasonablegrounds on which to proceed. [10] In the recent decision of 5976511 Manitoba Ltd et al v Taylor McCaffrey LLP et al, 2020 MBQB 7, Grammond J dealtwith the principles of the doctrine of abuse of process in these terms (at paras 9-11): In Nygård International Partnership v.

Canadian Broadcasting Corporation et al., 2011 MBQB 124, the court stated: [16] Abuse of process has been succinctly described in the oft-quoted passage by Arbour J. in Toronto (City) v. C.U.P.E., Local79, 2003 SCC 63, [2003] 3 S.C.R. 77: 35 Judges have an inherent and residual discretion to prevent an abuse of the court’s process. This concept of abuse of process wasdescribed at common law as proceedings ‘unfair to the point that they are contrary to the interest of justice’. . ., and as ‘oppressivetreatment’ . . . (citations omitted) In Behn v.

Moulton Contracting Ltd., 2013 SCC 26, the court stated: [40] The doctrine of abuse of process is characterized by its flexibility. . . . abuse of process is unencumbered by specific requirements. . . . the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to thelitigation before it . . . (emphasis in original) In Vitacea Company Ltd. et al. v. The Winning Combination Inc. et al., 2016 MBQB 180, the court stated: [87] . . .

An abuse of process may arise when a legal process is used for an ulterior motive, other than that for which it was intended. When properly invoked, an allegation of abuse of process is meant to provide protection against harassment or the perversion of the legalprocess for the purposes of accomplishing an improper result. See Re Moss (1999), (MB QB), 137 Man.R. (2d)199 at para. 35 (C.A.). . . . A particular or unique emphasis and focus of an abuse of process claim is on the court’s integrity and itsinterest in maintaining confidence in the administration of justice. She went on to state (at paras 43-44):

Abuse of process is a flexible concept, unencumbered by specific requirements, so it can apply in many different contexts. I am not satisfied that this case involves every example of an abuse of process referenced in the cases above, such as an ulterior motive, or an attempt to act oppressively, but it is not necessary that a party’s conduct fall within every recognized aspect of the doctrine to be found to be an abuse. I have an inherent and residual discretion to prevent an abuse of the court’s process and to maintain its integrity.

Given my conclusion that the plaintiffs’ election is binding and irrevocable, to permit the Settlement Motion to proceed, when it is certain to fail, would be unfair to the point that it would be contrary to the interests of justice. For those reasons, it is plain and obvious that the Settlement Motion is an abuse of process. [ 11 ] Green has failed to convince me that his proposed appeal of Steel JA’s decision meets the test set out in

section 31.2(3) of the Act . Not only has Green not satisfied me that he has arguable grounds on which to appeal the decision, in my view, he has no realistic possibility of success. Save for his argument respecting his fundamental right to appeal, he has failed to identify any specific error in law made in the disposition he wishes to appeal, nor has he identified any errors in Steel JA’s findings of fact. Lastly, he fails to deal with the standard of review that would apply to such an appeal.

It is an appeal from a discretionary decision of a judge, which decision is owed deference, unless there is an error in principle, being an error of law or a palpable and overriding error of fact or the decision is clearly wrong to amount to an injustice. That is simply not the case here. [ 12 ] The sections in the Act that deal with vexatious litigants were added to deal with a case exactly like this one.

Green has continuously failed to accept what numerous courts, at all levels, have stated and that what he is seeking in all of the prior proceedings simply has no merit. [ 13 ] The vexatious litigant provisions are in the legislation to permit a court or a judge of the court to basically say, “Enough is enough” ( 2018 MBCA 137 at para 81 ). [ 14 ] I am satisfied that Green, through his myriad of proceedings, has been abusing the court process as defined in 5976511 Manitoba Ltd , and to permit him to appeal Steel JA’s decision would simply be a continuation of that abuse.

I, as Steel JA has done by her order, am not prepared to allow this abuse to continue any further. [ 15 ] Accordingly, the application for leave is denied, with costs. JA