Court File and Parties

COURT FILE NO.: CV-21-85456 DATE: 2022/02/14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SHAWN SCHUITEBOER Plaintiff – and – CARLETON UNIVERSITY Defendant

Counsel: Self-represented for the Plaintiff Jamie Macdonald, for the Defendant

HEARD: February 1, 2022

Decision

Parfett J.

[1] The Defendant in this action, Carleton University, brings this motion for an order dismissing the action as an abuse of process pursuant to Rule 21.01(3)(d) and 25.11(c) of the Rules of Civil Procedure.

[2] Alternatively, the Defendant seeks an order pursuant to R. 21.01(1)(b) striking the amended statement of claim for failing to disclose a reasonable cause of action.

[3] The issue on this motion is whether a student can bring a civil action if he is unhappy with the investigation and ruling made by the university in relation to a sexual abuse complaint.

Background

[4] Complaints of sexual misconduct were brought against the Plaintiff in December 2018. Initially, the matter was handled informally, and the Plaintiff was advised to respect boundaries and that the university was not an appropriate place to seek female companionship.

[5] Subsequently, more complaints surfaced and pursuant to its policy for addressing such complaints, the university requested that an investigator look into the complaints and determine whether any complaint fell within the policy’s definition of sexual misconduct. The incidents in question involved inappropriate comments and behaviour.

[6] The investigator advised the Plaintiff of the specifics of each complaint and he was given an opportunity to respond. The Plaintiff’s responses supported the facts as related by the complainants and corroborated their belief that the actions were sexually motivated. Ultimately, the investigator determined that there were three incidents that constituted sexual violence as defined in the policy. After the report was prepared, the Plaintiff was given a further opportunity to indicate whether his evidence had been accurately recorded.

[7] The investigator’s report was sent to a committee (Sexual Violence Review Committee) for review.

[8] In June 2019, the Sexual Violence Review Committee released its decision accepting the findings of the investigator. The committee imposed a five month ban on the Plaintiff precluding him from attending the campus or contacting any professors, teaching assistants or other university staff. The ban was subsequently made permanent when the Plaintiff breached some of the terms of the committee’s order.

[9] The Plaintiff appealed the committee’s decision to the University Secretary, who convened an Appeal Board. The primary basis for the appeal was the Plaintiff’s contention that the investigator was biased and failed to conduct a proper investigation. The Plaintiff also took issue with the university’s sexual violence policy and reiterated his view that his actions did not constitute sexual harassment. The appeal was rejected.

[10] The Plaintiff sent a demand letter to the university asking for $150,000 to address the injuries he said he has suffered as a consequence of the committee’s decision. That demand was rejected. The Plaintiff sent a second demand letter asked for $175,000. That demand was also rejected.

[11] The Plaintiff filed this action on January 13, 2021 and amended his statement of claim on January 11, 2022.

[12] The Plaintiff alleged the university acted negligently in failing to properly assess the biases of their employees and failing to put in place policies to protect against unfounded claims of sexual misconduct. He also alleged that the process of handling the sexual misconduct complaints was flawed and specifically that he was not provided with adequate information in relation to the complaints. Additionally, he stated that the university’s sexual misconduct policy is itself flawed, poorly named and denied him due process. His last complaint is that he was induced to breach the terms of his trespass notice by being invited to a lecture being held on the university campus.

[13] The Plaintiff indicated in his submissions that he is not challenging the decision of the university. Instead he is focused on events that occurred after the complaints process was concluded. He stated that the university’s subsequent actions were negligent and inflicted emotional distress.

Issues

[14] As noted earlier, the Defendant argues that the action is an abuse of process and/or there is no reasonable cause of action.

Legal Principles

[15] The doctrine of abuse of process addresses the integrity of the adjudicative process. As noted in Toronto (City) v C.U.P.E., Local 79, 2003 SCC 63:

Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[16] It has been noted in the case law that motions pursuant to R. 21.01 and 25.11 are designed to permit an expeditious determination of claims that cannot succeed. However, ‘as the exercise of the power…denies a litigant a full trial of the merits of the claim, it must be exercised only in the clearest of cases. Claims that are doubtful in law or factually weak should not be foreclosed.’ Wernikowski v. Kirkland, Murphy & Ain.

[17] In the academic sphere, the case law is clear that courts are reluctant to interfere in a university’s internal disputes except through judicial review. As stated in Dawson v. University of Toronto, aff’d 2007 ONCA 875, case law has established that

apart from a judicial review function about procedural fairness and natural justice, the court does not have jurisdiction over matters of an academic nature. Where the essential character of the dispute is of an academic nature, the dispute remains exclusively a matter to be dealt with by the school's own procedures provided that the school does not breach the principles of natural justice.

[18] Academic institutions have broad discretion to deal with academic matters. That said, the courts retain jurisdiction in relation to disputes between students and the institution as part of its inherent jurisdiction.

[19] Where the plaintiff effectively seeks to overturn an internal decision of the university, the court can dismiss the action where it is an attempt to appeal the academic decision or where the statement of claim fails to provide sufficient details to demonstrate the university or its employees have exceeded their broad discretion. Gauthier v. St. Germain & University of Ottawa, 2010 ONCA 309 at para. 50. However, where the foundation for the action lies in breach of contract or tort, the court retains jurisdiction to hear the matter. Gauthier at para.49.

[20] As noted in Lam v. University of Western Ontario Board of Governors, 2019 ONCA 82 at para. 24, “this court has jurisdiction to entertain a claim by a student against a university where the facts alleged constitute a cause of action based on tort or breach of contract even if the dispute stems from an academic or educational activity of the university.”

[21] Under Rule 21.01(1)(b) of the Rules of Civil Procedure, the court is empowered to strike a pleading, without leave to amend, where it is plain and obvious that the pleading does not disclose a reasonable cause of action.

[22] In Deep v Ontario at para. 34, the Court stated that to survive a rule 21.01(1)(b) motion, a plaintiff must:

[A]t a minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. The absence of a necessary element of the cause of action will constitute a radical defect on the basis of which it is plain and obvious that the plaintiff cannot succeed. Accordingly, such a claim should be struck out.

[23] The allegations set out in the statement of claim must be accepted as true and the ‘approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial’. R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 21.

Analysis

[24] The Defendant claims that the substance of the Plaintiff’s claims are that he was not treated fairly during the complaints process, that he has suffered damages as a result of participating in the process and as a result of the impact of the decision. Consequently, according to the Defendant, the action is a collateral attack on the decision made by the Sexual Violence Review Committee and the Appeal Board.

[25] Alternatively, the Defendant argues that the statement of claim should be struck for failing to disclose any reasonable cause of action. Specifically, the Defendant alleges that the Plaintiff has not pleaded any conduct on the part of the university that was flagrant or outrageous, that was calculated to harm him or caused him to suffer a visible or provable illness. See Blunt v Dr. Vaidyanathan, 2018 ONSC 3243 at paras. 35, 41 and 47; Prinzo v Baycrest Centre for Geriatric Care at paras. 43 & 45; see also Frame v Smith.

[26] In my view, this matter is more disciplinary than academic in its substance. However, its genesis is still within the academic sphere. The university has an obligation to ensure that both students and professors can go about their academic pursuits without encountering unwanted sexual advances. The fact the province requires all universities to have a policy for dealing with sexual misconduct underlines that obligation.

[27] I cannot agree with the Plaintiff that his statement of claim deals solely with matters that occurred after the complaints process was concluded and that, therefore, the action is not an attempt to relitigate matters already decided.

[28] The amended statement of claim filed by the Plaintiff contains complaints in relation to the initial, informal complaint process and the later, formal complaint process. It also contains complaints concerning the policy itself.

[29] Consequently, it is difficult to separate out the issues that have already been decided by the university – in effect an appeal of that decision – from allegations that could be genuine claims of negligence. For instance, the claims that the university induced him to breach the conditions of his trespass notice, unreasonable limitation on access to the campus, loss of income or loss of ability to graduate within his original timeframe may all be legitimate claims.

[30] To the extent that the statement of claim is effectively an attempt to challenge the process followed by the university in dealing with the claims of sexual misconduct, a judicial review and not an action for damages is the appropriate route to take. Khan v. Queen’s University, 2019 ONSC 720. A party cannot avoid judicial review by ‘dressing up as a contract or tort claim what is, in pith and substance, a dispute concerning an academic decision.’ Khan at para. 1.

[31] I find that the greater part of the statement of claim is effectively an attempt to appeal the decision of the university without taking the matter to judicial review. To that extent, therefore, the claim is an abuse of process. However, it is not exclusively a collateral attack on the university’s decision. The statement of claim also contains allegations that might – if properly pleaded – constitute an action in negligence. I note that the Plaintiff is self-represented. Even if he were not, when a claim is made to strike pleadings as disclosing no reasonable cause of action, the court is required to read the claim as generously as possible. R. v. Imperial Tobacco Canada Ltd. at para. 25.

[32] I appreciate that as it is presently drafted, the Plaintiff’s claims of negligence do not meet the necessary criteria for intentional infliction of mental distress nor is it clear how the university’s actions have led to loss of income or loss of the ability to graduate when he originally planned. That said, it is my view that the Plaintiff should be provided a last chance to file a proper statement of claim.

[33] The statement of claim as presently drafted will be struck. The Plaintiff will be given 30 days to draft an amended statement of claim that focusses on the post-decision actions of the university that the Plaintiff states constitute negligence.

Costs

[34] If the parties cannot agree on the issue of costs, brief submissions as to costs may be made to me in writing within 30 days of today’s date.

The Honourable Madam Justice Julianne Parfett

Released: February 14, 2022