Aylward v. Dalhousie University, 2011 NSCA 20

NOVA SCOTIA COURT OF APPEAL Citation: Aylward v. Dalhousie University , 2011 NSCA 20 Date: 20110216 Docket: CA 330594 Registry: Halifax Between: Carol Aylward Appellant v. Dalhousie University Respondent Judge: The Honourable Mr. Justice Jamie W.S. Saunders Appeal Heard: February 9, 2011 Subject:

Summary Judgment. CPR 13.04. Evidence. Breach of Contract. Discrimination.

Summary: Dalhousie sued one of its law professors for breach of contract following publication of the terms of an earlier settlement of a complaint made to the Nova Scotia Human Rights Commission. Dalhousie sought a permanent injunction prohibiting the professor from revealing the terms of the settlement on her web page or in any other manner. The professor filed a defence and counterclaim, saying she was justified in disclosing certain parts of the settlement agreement because of Dalhousie’s own actions and conduct in its dealings with her. She sought general, aggravated and punitive damages. Dalhousie applied for

summary judgment on the basis that there were no facts to support the professor’s defence or counterclaim and that neither had any chance of success. The Chambers judge allowed Dalhousie’s motion for

summary judgment, granted an injunction, ordered the professor to remove the terms of the settlement agreement from her web site, and prohibited her from disclosing such terms in the future. Held: Appeal dismissed. The professor’s allegations are nothing more than bald assertions cast in the form of pleadings. They are not evidence. CPR 13.04 requires that evidence be provided to contest a motion for

summary judgment. Here, the professor took no steps to challenge the credibility of Dalhousie’s representatives or produce such evidence attacking their credibility, at the hearing. In granting

summary judgment, the Chambers judge properly applied the law and his decision did not lead to an injustice.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 6 pages. NOVA SCOTIA COURT OF APPEAL Citation: Aylward v. Dalhousie University , 2011 NSCA 20 Date: 20110216 Docket: CA 330594 Registry: Halifax Between: Carol Aylward Appellant v. Dalhousie University Respondent Judges: Saunders, Oland and Fichaud, JJ.A. Appeal Heard: February 9, 2011, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Saunders, J.A.; Oland and Fichaud, JJ.A. concurring. Counsel: Craig M.

Garson, Q.C., for the appellant Brian G. Johnston, Q.C. and Rebecca Saturley, for the respondent Reasons for judgment : [ 1 ] Carol Aylward is a law professor who has been employed at Dalhousie University, Faculty of Law since 1991. She is

African Nova Scotian. In March, 2004 she filed a complaint with the Nova Scotia Human Rights Commission alleging that her employer, Dalhousie, discriminated against her on the basis of “race, and/or colour and/or sex”. That complaint was resolved prior to a hearing by a settlement agreement entered into between the parties in July, 2005. The settlement agreement contained a confidentiality clause which prevented the parties from publishing or communicating any of the terms of the agreement.

Professor Aylward also signed a release collateral to the agreement. [ 2 ] In August, 2007, Professor Aylward filed a second complaint with the Nova Scotia Human Rights Commission against Dalhousie and others, including its President and the Dean of the Law School. Again she alleged discrimination in her employment on the basis of “race and/or colour/ and/or sex”. [ 3 ] Dalhousie filed a response to the second complaint on behalf of all of the named respondents. Law Dean Phillip M. Saunders also filed a response on his own behalf.

Professor Aylward then filed her rebuttals to Dalhousie University’s response and to Dean Saunders’ response. [ 4 ] In February, 2008, Dalhousie became aware that Professor Aylward had published the rebuttals on her web page. The rebuttals disclosed certain terms of the July, 2005 settlement agreement. Dalhousie asked Professor Aylward to remove the rebuttals and associated exhibits from her web site. She refused. [ 5 ] Dalhousie commenced an action against her claiming breach of contract, specifically a violation of the confidentiality term of the settlement agreement.

In terms of relief, Dalhousie sought a permanent injunction prohibiting the appellant from referring to any of the terms of the settlement agreement on any web page operated by her, or from communicating or publishing the terms of the settlement agreement in any way. Dalhousie also sought nominal damages. [ 6 ] Professor Aylward filed a defence and counterclaim. She did not deny disclosing certain parts of the settlement agreement in her rebuttals and on her web site, but she claimed, for various reasons, to have been justified in doing so.

In her counterclaim she alleged that Dalhousie, by suing her, committed the tort of abuse of process in that its actions were motivated by an ulterior or improper purpose. She claimed general, aggravated and punitive damages. [ 7 ] In October, 2009, Dalhousie brought a motion for

summary judgment pursuant to Nova Scotia Civil Procedure Rule 13.04. [ 8 ] The matter was heard by Nova Scotia Supreme Court Chief Justice Joseph P. Kennedy. In a reported decision 2010 NSSC 65 , Kennedy, C.J.S.C. granted Dalhousie’s motion for

summary judgment. He concluded that there were no genuine issues for trial with respect to either Dalhousie’s claim for breach of contract, or Professor Aylward’s counterclaim for abuse of process. He found that the appellant had failed to establish facts to support her defence or her counterclaim and that neither had any real chance of success. [ 9 ] In an Order dated May 28, 2010, Kennedy, C.J.S.C. granted a declaration that Professor Aylward had breached the terms of the settlement agreement which remained a valid and binding agreement between the parties.

He ordered her to remove the terms of the settlement agreement/release from her web site, and he prohibited her from referring to such terms on any web page operated by her, or from communicating or publishing such terms in any way. Chief Justice Kennedy also dismissed the appellant’s counterclaim and awarded Dalhousie nominal damages in the amount of $1.00 as well as costs and disbursements totalling $9,952.60, payable forthwith. Professor Aylward filed an appeal from the decision and order of Chief Justice Kennedy on June 11, 2010. [ 10 ] On appeal to this Court, Mr.

Garson argued that the outcome of this litigation will turn largely on credibility. He said the appellant ought not to be deprived of the opportunity to have the “truthfulness” of Dalhousie’s position, as expressed through the words of its representatives, tested in the crucible of cross-examination, leaving it to the jury to decide whether Dalhousie’s claim, or Professor Aylward’s counterclaim ought to prevail. In Mr.

Garson’s submission, the Chambers judge failed to appreciate that a credibility contest lay at the heart of this dispute, and that the judge was wrong to conclude that this case was a proper target for

summary judgment. [ 11 ] I respectfully disagree. Dalhousie’s motion for

summary judgment was based “on evidence”, thus triggering Civil Procedure Rule 13.04 which states: 13.04

(1) A judge who is satisfied that evidence, or the lack of evidence, shows that a statement of claim or defence fails to raise a genuine issue for trial must grant

summary judgment.

...

(3) On the motion for

summary judgment on evidence, the pleadings serve only to indicate the laws and facts in issue, and the question of a genuine issue for trial depends on the evidence presented.

(4) A party who wishes to contest the motion must provide evidence in favour of the party’s claim or defence by affidavit filed by the contesting party, affidavit filed by another party, cross-examination, or other means permitted by a judge. ... As noted by Chief Justice Kennedy in his reasons, each side must put its “best-foot forward” with respect to the existence or non- existence of material issues to be tried. [ 12 ] Anyone reading the pleadings would know that each of these protagonists holds a very different view concerning the legitimacy of their respective positions.

Professor Aylward’s counterclaim accuses Dalhousie of committing the tort of abuse of process such that its law suit was prompted by ulterior, improper motives. Her response to Dalhousie’s demand for particulars expands her assertions by alleging that Dalhousie used threats, coercion, retaliation, intimidation, and misrepresentation in its dealings with her, and for which she should be awarded general, aggravated and punitive damages. [ 13 ] But Professor Aylward’s statements are nothing more than bald assertions cast in the form of pleadings. They are not evidence. As Mr.

Garson conceded at the hearing, a party responding to a

summary judgment motion under our Rules must “lead trump” or “put the best foot forward”. Here, Professor Aylward opted not to do that. [ 14 ] Dalhousie chose a different tack. It conducted a lengthy discovery examination of the appellant. That transcript was introduced at the hearing. So, too, was the affidavit of Dalhousie’s President, Dr. Tom Traves. At para. 30 of his affidavit, Dr. Traves swears: 30.

At no time did Dalhousie University request that Professor Aylward withdraw Complaint #2, nor is Dalhousie University seeking, through this or any other legal action, that Professor Aylward withdraw Complaint #2; Dalhousie has requested only: (1) that the impugned materials not be published and (2) that the impugned materials be removed from the Rebuttals to Dalhousie’s response to the Defendant in Complaint #1; Dalhousie University is not undertaking this action for any improper or collateral purpose, that includes any alleged “retaliation”. [ 15 ] Thus, Dalhousie’s position was plainly stated, and put in evidence before Chief Justice Kennedy.

Dr. Traves’ affidavit was sworn April 28, 2009. The

summary judgment hearing took place on October 22, 2009. Had the appellant sought to challenge the credibility of Dr. Traves, or any other Dalhousie representative, she had ample time to do so. It does not behoove the appellant to now complain that she should be given the chance to go to trial in the hope that some evidence of wrongdoing might reveal itself there. Neither can the appellant seriously argue that the Chambers judge missed, or chose to ignore, credibility as an issue. On the contrary, counsel for the appellant made credibility a central feature of his final arguments in the court below.

Chief Justice Kennedy explicitly quoted from the appellant’s response to the demand for particulars, and referred to her submission that the allegations contained in her counterclaim should be left: [104] ... open to the jury to find that having regard to the manner in which she was treated by Dalhousie, that this lawsuit was initiated for a collateral or illicit purpose and, as a result, she has suffered some measure of special damages. [ 16 ] It is clear from Chief Justice Kennedy’s reasons that he was well aware of the involvement of Dr.

Traves, and Law Dean Phillip Saunders as establishing Dalhousie’s position and providing the evidentiary basis for not only its law suit against the appellant, but its defence against her counterclaim. [ 17 ] After carefully analyzing the evidence and the law, Kennedy, C.J.S.C. found that on the basis of the record before him, there was no evidence to support the appellant’s attack on the credibility of Dalhousie’s spokespersons. Accordingly, credibility could not be said to be a material issue in dispute. The judge said:

[106 I conclude that Professor Aylward has, through the demand for particulars, simply made bald statements alleging coercion andintimidation. [107] There are no facts before me which support the claim by Professor Aylward that this action is an abuse of process. This actionwas brought to address a specific concern. This process was justified by what is flagrant disregard for the confidentiality clauseaccomplished when Professor Aylward disclosed terms of that agreement in her Rebuttals and then published them online. There is noevidence before me to suggest that this action was brought to prevent Complaint #2.

The counterclaim in this instances (sic) cannotsurvive. It is dismissed. [18] That is not to say that Professor Aylward’s allegations will never be heard. Her second complaint is still before the NovaScotia Human Rights Commission. As Mr. Johnston said in his submissions for the respondent, one can anticipate that the appellant’scomplaint will receive a robust examination by the Commission. One expects that there will be an opportunity for both ProfessorAylward, and Dalhousie’s representatives, to have their positions heard and considered.

But that will take place in another forum, onanother day. [19] In conclusion I find that this case is tailor-made for

summary judgment. Guarantee Co. of North America v. Gordon CapitalCorp., (SCC), [1999] 3 S.C.R. 423; Eikelenboom v. Holstein Canada, 2004 NSCA 103; Gilbert v. Giffin, 2010NSCA 95. Chief Justice Kennedy applied the correct legal test in such matters. His decision reflects a clear understanding of the issues,a thorough analysis of the evidence and a proper application of the law. His decision did not lead to an injustice. [20] I would dismiss the appeal with costs of $3000.00 to the respondent inclusive of disbursements which is the amount agreed toby counsel at the hearing. Saunders, J.A. Concurred in: Oland, J.A. Fichaud, J.A.