Green v University of Winnipeg, 2023 MBCA 67

Citation: Green v University of Winnipeg, 2023 MBCA 67 Date: 20230724 Docket: AI22-30-09869 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) M. Green MARTIN green ) on his own behalf ) Applicant ) J. W. T.

McKay ) for the Respondent - and - ) ) Chambers motion heard: THE university of winnipeg ) February 9, 2023 ) Respondent ) Decision pronounced: ) July 24, 2023 Cameron JA [ 1 ] This is an application for rescission of a vexatious litigant order made against the applicant (Green) by Steel JA in chambers on December 17, 2018, pursuant to The Court of Appeal Act , CCSM c C240 (the Act ) (see Green v University of Winnipeg et al , 2018 MBCA 137 ) ( Green 2018 CA ).

What followed her decision was a litany of applications and appeals by Green culminating in this proceeding. [ 2 ] For the reasons that follow, I would dismiss the application for rescission. Background [ 3 ] The facts underlying the litigation are comprehensively reviewed in Green 2018 CA at paras 6-18. [ 4 ] Green commenced studies at the University of Winnipeg (the University) in the teacher certification program in September 2011. Complaints were filed against him, which resulted in an investigation by the registrar of the University.

The registrar recommended a one-year suspension, which the University president accepted. [ 5 ] As well, due to his behaviour at his assigned high school for his student teaching practicum, which was part of his teacher certification program, he was suspended from the practicum and subsequently removed. [ 6 ] In 2012, Green was the subject of an order made pursuant to The Petty Trespasses Act , CCSM c P50 , as repealed by The Trespass Act , CCSM c T156 , barring him from the University campus.

In August 2014, he was convicted of trespass in relation to that order (see R v Green , 2014 MBPC 42 , leave to appeal to MBCA refused, 2015 MBCA 60 ). [ 7 ] The above events resulted in what Steel JA described in Green 2018 CA as “a succession of unsuccessful court actions against the University and various individuals” (at para 10).

After reviewing a number of the court proceedings initiated by Green, she concluded (at para 15): It is unnecessary to review all of the matters that have proceeded in the Court of Queen’s Bench, the Court of Appeal and the Supreme Court of Canada other than to say there has been a significant amount of litigation, all relating to the steps taken by the University to suspend Green from the University’s teacher certification program and the conduct of the University staff in communicating certain information regarding his conduct and actions while he was enrolled in and after his suspension from the program.

All have been unsuccessful, with most of them being dismissed by way of

summary judgment as a result of the Court finding that Green’s allegations do not raise a genuine issue for trial. In addition, in University 2018 QB [ Green v University of Winnipeg , 2018 MBQB 4 ], the judge found that Green “was attempting to reargue prior decisions made by the University, this court and the Manitoba Court of Appeal and to, in effect, reconsider the facts and decisions previously made regarding his suspension” (at para 77). Also see paras 37-55.

[ 8 ] She noted that, at the time of writing her decision, there remained two appeals in this Court and two leave applications to the Supreme Court of Canada. [1] [ 9 ] The vexatious litigant order made by Steel JA: 1) prohibits Green from continuing proceedings instituted in this Court without first obtaining leave of a justice of this Court; and 2) prohibits him from initiating any further appeals related to events and persons arising out of his dispute with the University and his removal from the teacher certification program without first obtaining leave of a justice of this Court (see para 71).

Proceedings Post Vexatious Litigant Order [ 10 ] Green appealed the vexatious litigant order to a panel of this Court. In Green v University of Winnipeg et al , 2020 MBCA 2 , this Court adjourned his appeal sine die on the basis that he had not first obtained leave to appeal or sought rescission of the vexatious litigant order. He then made an application for leave to appeal and rescission pursuant to

section 31.2(1) of the Act . However, at the hearing of the application, he indicated he was only seeking leave to appeal. That application was denied by MA Monnin JA (in Chambers) in Green v University of Winnipeg , 2020 MBCA 49 , leave to appeal to SCC refused, 39448 (18 March 2021) ( Green 2020 CA ). [ 11 ] Next, Green applied to continue one of the two appeals that he had filed in this Court at the time that the vexatious litigation order was made.

The purported appeal was from Green v University of Winnipeg , 2018 MBQB 4 ( Green 2018 QB ) wherein Edmond J dismissed Green’s application for judicial review of the University’s decision not to reinstate him after he was suspended from the teacher certification program. Burnett JA dismissed Green’s application to continue his appeal in Green v University of Winnipeg , 2021 MBCA 60 , leave to appeal to SCC refused, 39999 (21 April 2022). [ 12 ] Green then applied to continue the final of the two appeals that were in existence at the time of the vexatious litigant order.

The decision in issue was Green v Bell et al , 2018 MBQB 2 , wherein Edmond J granted

summary judgment to the defendants dismissing Green’s statement of claim against them. I dismissed Green’s application to continue his appeal of that decision in Green v Bell et al , 2021 MBCA 81 , leave to appeal to SCC refused, 40001 (21 April 2022). [ 13 ] Green has now come full circle with this most recent application for rescission of the vexatious litigant order.

The Legislation [ 14 ] The relevant sections of the Act relating to these proceedings state: Order restraining vexatious litigant 31.1(1) If a judge sitting in chambers or the court is satisfied that a person has persistently instituted vexatious proceedings or conducted proceedings in a vexatious manner, the judge or the court may order that (

a) the person must not institute a further proceeding; and (

b) any proceeding already instituted by the person must not be continued; except with leave of a judge. 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. 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). No appeal 31.2(5) No appeal lies from a refusal to make an order under subsection (3). The Positions of the Parties Green [ 15 ] Relying on YB v Canada Employment Insurance Commission , 2014 SSTAD 402 , a decision from the Social Security Tribunal involving the Employment Insurance Act , SC 1996, c 23 , Green argues that this Court may rescind the vexatious litigant order based on a mistake as to some material fact. The quote he relies on states (at para 10):

Section 66 of the [ Employment Insurance Act ] provides that ‟The Tribunal may rescind or amend a decision given by it in respect of any particular application if (

a) in the case of a decision relating to the Employment Insurance Act , new facts are presented to the Tribunal or the Tribunal is satisfied that the decision was made without knowledge of, or was based on a mistake as to, some material fact.” [ 16 ] Next, he submits that a rescission order made pursuant to the Act is akin to an order of rescission made pursuant to the law of contract.

Relying on Swetnam v Schlenker Auction Service Ltd , 2004 ABPC 245 , he argues that, in contract law, silence as to a material fact may be a ground for rescission and that in an action for setting aside a contract, a plaintiff may succeed even though the misrepresentation was innocent. [ 17 ] In his attempt to argue that the vexatious litigant order was based on a mistake as to some material fact, he contends that several errors and omissions were made in the cases which have been previously litigated by him, including: • Green v Tram et al , 2014 MBQB 118 , aff’d 2015 MBCA 8 , leave to appeal to SCC refused, 36339 (18 June 2015); • Green v Tram et al , 2015 MBQB 128 , aff’d 2016 MBCA 99 , leave to appeal to SCC refused, 37407 (6 April 2017); • Green v Bush et al , 2017 MBQB 83 , aff’d 2018 MBCA 12 , leave to appeal to SCC refused, 38100 (10 January 2019); and • Green 2018 QB , aff’d 2021 MBCA 60 , leave to appeal to SCC refused, 39999 (21 April 2022). [ 18 ] In brief, he maintains that the evidence did not support the findings made by the respective motion judges in those cases and that he was improperly barred from calling certain evidence.

He argues that the erroneous findings and lack of evidence in the earlier cases demonstrate that Steel JA based her findings on a misrepresentation of the facts. The University [ 19 ] The University argues that the term “rescission” is not defined in the Act , nor does the Act refer to the test to be applied in determining whether to grant such an order.

Relying on Riad v Aziz , 2014 ONSC 5223 at para 16 ; Duterville v Glen , 2016 FC 455 at paras 7-8 ; and Wilson v Canada (Revenue Agency) , 2017 FC 817 at para 37 , it argues that rescission is grounded on facts arising subsequent in time to the vexatious litigant order and that no such new facts have been alleged. [ 20 ] In addition, the University argues that one of the purposes of the vexatious litigant provisions in the Act is to protect scarce judicial resources and that Green’s request for rescission pursuant to

section 31.2(1) (

b) of the Act constitutes a wasteful duplication of MA Monnin JA’s ruling denying him leave to appeal the same decision pursuant to

section 31.2(1) (

a) of the Act in Green 2020 CA . [ 21 ] The University submits that Green continues to be a vexatious litigant and that, at the time of the hearing of this matter, had three pending motions in the Court of King’s Bench seeking to file new claims against the University based on the same factual scenario. It argues that he has continued in his vexatious behaviour.

[22] It asks for costs on a solicitor-and-client basis. Rescission of a Vexatious Litigant Order [23] This is the first time that this Court has had the opportunity to consider rescission of a vexatious litigant order pursuantto

section 31.2(3) of the Act and the factors to be considered in reaching a decision. [24] I start by noting that

section 31.2(3) of the Act states that the court may make such an order where it is satisfied that the“proceeding to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding”. [25] Rescission, in the context of vexatious litigant orders, is distinct from rescission orders in other areas of law. It isdependent on the unique circumstances in which it arises.

As neatly described in Durham District School Board v ETFO, 2004CarswellOnt 4540 (Arbitrator: Bendel) (at para 60): The word “rescission”, and the various related forms of the word, can mean different things in different circumstances. It is used in thelaw of contracts to describe one of the remedies available to a party that has been induced to enter into a contract by misrepresentation,and one of the remedies available to a party after the other has violated a condition, as well as the process whereby a contract isterminated by mutual agreement.

It is also often used in legislation to describe the judicial or quasi-judicial power to repeal orders: see,e.g., section 17(1) of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.) (cf. Bickerton v. Bickerton, [(1975), (ON SC), 60DLR (3d) 389)], supra),

section 18 of the Canada Labour Code, R.S.C. 1985, c. L-2, section 64 (3) of the Labour Relations Act, 1995,[SO 1995, c 1,

Schedule A] or section 114(4) of the Employment Standards Act, S.O. 2000, c. 41. Given the diversity of potentialmeanings, it is impossible to interpret the word, as used in paragraph 8 of the Memorandum, by reference solely to the way it is used inother contexts. [26] Here, the rescission provision must be considered in the context of the vexatious litigant order itself. In consideringsimilar legislation in Ontario[2], Nordheimer J in Chavali v Law Society of Upper Canada, 2006 CarswellOnt 3122 (SCJ) described theneed for relief of vexatious litigant orders (at paras 16-17): The provision in

section 140 of the Courts of Justice Act, [RSO 1990, c C43], and the predecessor provision that was found in theVexatious Proceedings Act, that permits this court to find a person to be a vexatious litigant recognizes that some persons may abuse thecourt’s process either by instituting multiple proceedings or by conducting litigation in a manner that amounts to harassment. . . . … At the same time, it is recognized that the ability of the court to grant relief respecting a person [who] is found to be a vexatious litigantmust not include an absolute bar in all circumstances preventing that person from having resort to the courts.

Therefore, any such orderagainst a person must contain a provision that the person may institute or continue a proceeding if leave to do so is obtained from ajudge. . . . [27] Like an order allowing for the initiation or continuation of proceedings, rescission constitutes relief from a vexatiouslitigant order, albeit a much broader form of relief. [28] The case law relied on by the University does indicate that rescission could apply if an applicant could establish thatthe vexatious litigant order had been obtained by fraud or based on facts discovered after the order was made (see Riad at para 16;Duterville at para 8; and Wilson at para 37). [29] However, recent case law developing in Ontario suggests a broader approach emphasizing the finality of the order andthe purpose of a motion to set aside such an order.

For example, in Peoples Trust Company v Atas, 2020 ONSC 3471, Corbett Jexplained (at paras 4-5): Ms Atas apparently misconceives the purpose of a motion to rescind a vexatious litigants order under s. 140 of the [Courts of Justice Act]. Such a motion is not for the purposes of reviewing the correctness of the original order – both in its central finding and in its details. Amotion under s. 140 may be brought properly where a vexatious litigant can establish that she should once again be granted unfetteredaccess to the courts.

The range of circumstances in which such an order might be appropriate are not finite, but generally they couldinclude: (

a) Evidence that the vexatious litigant has changed and can be expected to conduct future litigation in a manner that is not vexatious. (

b) Evidence that the vexatious litigant has taken responsibility for her past misconduct, including payment of outstanding costs awards,or payments of such amounts towards those costs as she might reasonably be able to pay.

(

c) Evidence that there are potentially meritorious claims that the vexatious litigant wishes to pursue to achieve justice for herself. (

d) Evidence that the vexatious litigant has moved on from the disputes and controversies that led her to engage in vexatious litigation.

What a motion to rescind a s. 140 order is not is a chance to re-litigate the s. 140 judgment itself. . . . . . . [ 30 ] Corbett J continued to explain that the principle of finality is a principle of justice integral to the civil justice system (see para 5). [ 31 ] In Falardeau v Owen Sound Police Service Board , 2021 ONSC 6180 , Chown J explained the scope of a judge’s authority to rescind a vexatious litigant order, stating (at para 50): The [ Courts of Justice Act ] indicates that an application judge has authority to rescind a vexatious litigant order, but in my view that authority does not extend to rescinding the order because the motions judge thinks the judge who granted the order was incorrect.

The principle of finality precludes that approach. . . . [ 32 ] In Tonner v Real Estate Council of Ontario, et al , 2023 ONSC 942 , the Court applied the factors laid out in Atas and the statement in Falardeau regarding the scope of the authority of the court to deny an application for rescission on the basis that the applicant was simply attempting to review the correctness or reasonableness of the vexatious litigant order (see paras 87-88). [ 33 ] Other decisions from the Ontario Superior Court of Justice, in determining whether to allow an application for leave to proceed or to grant rescission have applied similar factors, emphasizing the necessity of a change in conduct from the applicant, acceptance of prior decisions, and not attempting to relitigate previously decided issues (see , for example, Mohammed v Goodship , 2013 ONSC 4942 at paras 31-32 ; and Ibrahim v Ontario , 2022 ONSC 6339 at paras 50-51 ). [ 34 ] Finally, in Wood v Yukon (Public Service Commission) , 2023 YKCA 6 , the Yukon Court of Appeal (in Chambers) in considering

section 12.1(3) of the Yukon Court of Appeal Act [3] , RSY 2002, c 47 , applied factors similar to those in Atas noting that the applicant in that case was in many respects seeking to relitigate matters already determined (see para 11) and concluding (at para 12): Accordingly, in my respectful view, it would not be in the interests of justice to rescind the vexatious litigant order, particularly considering that Ms.

Wood has not provided evidence of a proceeding she intends to initiate or continue or evidence that she has changed the behaviour that resulted in the order in the first place. [ 35 ] Without restricting any future analysis and in light of the scope of authority stated in Falardeau , I am of the view that the factors considered in Atas are applicable to a determination made pursuant to

section 31.2(3) of the Act . Analysis and Decision [ 36 ] An application of the factors in Atas leads me to conclude that Green is once again attempting to relitigate his claims against the University and others. There is no evidence to suggest that he has changed. In fact, he continues to file proceedings regarding the same subject matter in the Court of King’s Bench. There is no merit to his claims. [ 37 ] Furthermore, Green has not taken responsibility for his past misconduct by making payment toward his outstanding costs awards.

As noted by Steel JA in Green 2018 CA , Green has failed to pay numerous costs orders made against him in proceedings related to his litigation with the University (see para 17). I have not been provided any evidence to suggest a change in circumstances in that regard. [ 38 ] In conclusion, Green’s behaviour has continued to be that of a vexatious litigant. I would deny his application to rescind the order made by Steel JA. Final Comment and Costs [ 39 ] Before concluding, I would mention a further remedy that Ontario courts have implemented in declarations of vexatious litigants pursuant to

section 140 of the Courts of Justice Act , RSO 1990, c C43 (the CJA ) which is similar to

section 31.1(1) of the Act . It first arose in Chavali . [ 40 ] In that case, the applicants (the Chavalis), had been declared vexatious litigants. Nonetheless, they repeatedly sought to continue the proceedings that were the subject of the vexatious litigant order and request rescission of it. Relying on section 140(3) of the CJA and the common law, the Court concluded that it had the power to add further restrictions on the Chavalis’ right to access the court system. It did this through instituting a screening process.

[ 41 ] In the result, the Court ordered that the Chavalis be prohibited from commencing any application under section 140(3) of the CJA until they had (

a) paid in full all costs awards in all proceedings related to the application and the companion application; or, (

b) obtained permission to bring an application under section 140(3). The Court determined that an order granting permission had to be obtained through a motion in writing on an ex parte basis. If the court was satisfied that the section 140(3) motion was of sufficient merit, it would direct that a full application for leave to proceed be prepared, served on the responding parties and a date for hearing set (see para 25). [ 42 ] In crafting the above remedy, the Court acknowledged (at para 22): . . . While this remedy does add an additional burden to the court, it seems to me that that responsibility is inherent in the process established by

section 140 . Further, the screening process can be set up to minimize that burden by requiring that only a restricted amount of material may be filed in support of such relief. . . . [ 43 ] In the present case, no such order was sought and the matter was not argued. Nor has jurisprudence granting or denying such an order been considered. I simply mention Chavali to highlight the direction that other courts have taken in situations where a party declared to be a vexatious litigant makes repeated applications to continue proceedings or seek rescission.

Certainly, I would leave open the option for the granting of such an order where a motion has been made. [ 44 ] The University requests costs on a solicitor-client basis, arguing that Green’s attempts to relitigate these proceedings continue unabated in the Court of King’s Bench and that the vexatious litigant orders in that Court and in this one have not deterred him in his attempts to relitigate the matter. [ 45 ] I agree with what Steel JA stated in Green 2018 CA , “Enough is enough” (at para 81).

Given Green’s unrelenting and continued pursuit of this litigation that has repeatedly been found to be without merit, I agree that the time has come to make an order of solicitor-client costs. [ 46 ] In the result, I would dismiss the application with costs on a solicitor-client basis. JA 12.1

(3) On receiving an application under subsection (2), the Court of Appeal may