Green v University of Winnipeg, 2021 MBCA 60

Citation: Green v University of Winnipeg, 2021 MBCA 60 Date: 20210610 Docket: AI18-30-09055 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: ) M. Green ) on his own behalfmartin green ) (via teleconference) ) (Applicant) Appellant ) E. A.

Lawlor-Forsyth ) for the Respondent- and - ) (via teleconference) ) THE university of winnipeg ) Chambers motion heard: ) June 3, 2021 (Respondent) Respondent ) ) Decision pronounced: ) June 10, 2021 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules, MR555/88R, this motion was heard remotely by teleconference. burnett JA [1] The applicant was previously prohibited from continuing proceedings in this Court without first obtaining leave froma justice of this Court (see 2018 MBCA 137, leave to appeal to the Man CA refused, 2020 MBCA 49 (Green 2020)). [2] In this motion, the applicant seeks leave to continue his appeal of the decision of Edmond J (the application judge)pronounced January 15, 2018, dismissing his application for judicial review with costs (the judicial review decision) (see Green v Bell etal, 2018 MBQB 2). [3] The applicant relies on Unrau v National Dental Examining Board, 2019 ABQB 283, for the proposition that thethreshold, to be established on a balance of probabilities, is not a high one; the vexatious litigant is expected to put his or her “best footforward” to establish the basis to initiate or continue an action (at para 768; see also paras 769-75). [4] The respondent opposes the applicant’s motion for leave on the basis that he has not met the requirements set out insection 31.2(3) of The Court of Appeal Act, CCSM c C240.

That

section provides that, where a judge sitting in chambers is satisfied thata proceeding to be continued is not an abuse of process and that there are “reasonable grounds for the proceeding”, the judge may grantleave to proceed. [5] The applicant agrees that the application judge applied the correct standard of review (i.e., reasonableness) in hisanalysis, but disagrees with the application judge’s conclusions, and repeats many of the arguments he has made in the past.

Inparticular, the applicant says that the process used by the respondent was unfair, that he should have been afforded an oral hearing andthe opportunity to cross-examine witnesses, that the application judge erred when he found that the respondent owed him a minimaldegree of procedural fairness, and that the application judge did not properly apply the test for reasonableness. [6] The applicant argues that the respondent’s decision not to reinstate him was unreasonable because the respondentdisclosed that its decision was influenced by the fact that professors were afraid of him, but refused to say why.

The applicant raised analternative ground in support of the motion for leave, but I agree with the respondent that it is unclear and confusing, and that it lacks anylegal support or rationale. [7] With respect to the applicant’s complaints that he was not afforded procedural fairness, I also agree with therespondent’s submission that the application judge gave proper consideration to the facts and to the Supreme Court of Canada decision inBaker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, and that he carefully applied thefacts to the law in determining the level of procedural fairness owed to the applicant.

Based on that analysis, the application judgeconcluded that the level of procedural fairness owed to the applicant was minimal, that procedural fairness did not require a hearing, andthat the process followed was reasonable.

[8] In my view, the applicant has failed to identify any error by the application judge. As Browne J said in KE v CSM,2016 ABQB 342 (at para 44): Bald allegations are not enough, the vexatious litigant must show a basis upon which their application could succeed (Wong v Leung,2012 ABCA 290 at para 3, 536 AR 253) and demonstrate the proposed action or application “... is not an abuse of process and there arereasonable grounds for it to proceed.”: para 10. . . . [9] Ultimately, if this matter went to a panel of the Court, the mere allegation that the process was unfair would not beenough to warrant intervention.

In order for the Court to reverse the decision of the application judge, some error in his application ofthe Baker factors or some other error in the judicial review decision would have to be identified.

The applicant has not identified anysuch error. [10] Similarly, while the applicant asserts that the application judge’s decision is unreasonable, he does not identify how theapplication judge erred (in his consideration and balancing of the Baker factors or otherwise), nor does he explain how the applicationjudge failed to properly apply the reasonableness standard. [11] In Hart v Fullarton, 2021 ONSC 2559, O’Brien J, in considering an application for leave to appeal, stated (at paras 16-18): Third, the issue before the trial judge was highly fact driven. . . .

The Applicant has not pointed to any basis on which an appellate courtmight interfere with the trial judge’s findings of fact nor application of those facts to the relevant test. Overall, the appeal is fundamentally the Applicant’s attempt to re-try her Application. . . . I appreciate that as a self-represented litigant, the distinction between these processes may not be entirely clear to the Applicant. Nonetheless, on review of her motion material, it is clear that she is attempting to re-argue the trial. She has not met the onus to showreasonable grounds for her proposed appeal.

In my view, that describes the present situation. [12] To summarize, I have carefully considered the applicant’s written and oral submissions.

Notwithstanding the lowthreshold, I am not persuaded that he has established any reasonable grounds for the appeal, nor do I believe that any of the proposedgrounds reveal an arguable case or have a realistic possibility of success (see Belway v Lalande-Weber, 2017 ABCA 108 at paras 4, 6;ET v Calgary Catholic School District No 1, 2017 ABCA 349 at para 10; Makis v College of Physicians and Surgeons of Alberta(Complaint Review Committee), 2019 ABCA 341 at para 15; Bossé v Law Society of New Brunswick, at paras 13-14(NBCA); and Green 2020 at paras 11-14). [13] Moreover, I am satisfied that “[t]o permit the appeal to proceed would advance claims that have no hope of succeeding”(Wong v Leung, 2012 ABCA 290 at para 16) and would simply be a continuation of the applicant’s abuse of the Court process.

AsO’Ferrall JA observed in Jordan v De Wet, 2016 ABCA 366, “Fundamental to both tests (the abuse of process or the reasonable groundstest) is that if the court is convinced the appeal has no chance of success, permission should not be granted” (at para 21). [14] For the foregoing reasons, the motion is dismissed. JA