DATE: 20060628

DOCKET: C44009

COURT OF APPEAL FOR ONTARIO

RE:

WILLIAM JONATHAN BALTRUWEIT (Plaintiff (Appellant))

– and – HEIDI RUBIN, VICKY EATRIDES, SANDRA RODGERS, JANE DOE & UNIVERSITY OF OTTAWA – UNIVERSITE D’OTTAWA (Defendants (Respondents))

BEFORE:

CRONK, BLAIR, JJ.A. and THEN J. (ad hoc)

COUNSEL:

William Jonathan Baltruweit

In Person

Debbie Orth

for the respondent

HEARD & RELEASED ORALLY:

June 26, 2006

On appeal from the judgment of Justice Roydon J. Kealey of the Superior Court of Justice, dated July 8, 2005.

E N D O R S E M E N T

[1] While a student at the Faculty of Law of the University of Ottawa, the appellant commenced an action for damages against three female classmates, the then Dean of Law and the University, alleging defamation as against his classmates and slander and negligence as against the Dean and the University. The appellant’s claims arose from concerns expressed to the Dean regarding the appellant’s social invitations to one or more of the defendant law students and the response of the Dean and the University to the concerns expressed.

[2] By the time of trial, the appellant’s action had been discontinued as against two of his classmates. The appellant alleged that his third classmate went to the Dean and accused the appellant of sexually harassing her and that she repeated this allegation to law students and others. The appellant claimed that the Dean made a finding of sexual harassment against him without investigating the matter and instructed the Vice-Dean of the Law School to confront the appellant, knowing that this would inflict harm on the appellant.

[3] By judgment dated July 8, 2005, Kealey J. of the Superior Court of Justice dismissed the appellant’s action in its entirety. The appellant appeals from that dismissal.

[4] There is one issue. As framed in his supplementary notice of appeal dated February 15, 2006, the appellant asserts that the trial judge’s reasons “demonstrate a reasonable apprehension of bias in respect of his assessment of the [appellant’s] credibility based on a perceived stereotype of the [appellant] as suffering from a mental illness/disability.”

[5] We disagree. In our view, the trial judge’s reasons do not reflect the bias alleged by the appellant and the dismissal of the appellant’s action was amply supported by the evidence. We say this for several reasons.

[6] The appellant’s case on appeal is predicated on the proposition that the trial judge made a factual finding that the appellant suffered from a mental illness associated with psychosis or delusions and that this finding was based on impermissible stereotypical reasoning that tainted the trial judge’s assessment of the appellant’s credibility. In our opinion, this argument misconstrues the trial judge’s reasons.

[7] The appellant relies principally on a passage from the reasons in which the trial judge commented upon the appellant’s response to the events in question by using language that in part referenced the appellant’s state of mind or mental condition. In our opinion, viewed in the context of the trial judge’s reasons as a whole, it is clear that these comments by the trial judge did not constitute a finding that the appellant suffered from a mental illness.

[8] It is significant in this regard that, in addition to the challenged passage, the trial judge later noted in his reasons the evidence at trial that in his interactions with the Dean and other University personnel in response to the incident, the appellant was described as “calm and contained” and “strong, aggressive and assertive” with “nothing unusual noted”. Thus, both in this part of his reasons and in the impugned passage from the reasons, the trial judge was simply providing descriptors of the appellant’s conduct in reacting to the concerns expressed to the Dean.

[9] Moreover, and importantly, to the extent that the complained of comments by the trial judge could be read as dealing with features of the appellant’s mental health, it is our view that the appellant himself put his mental health in issue because his pleading includes an assertion that is tantamount to an allegation of negligent infliction of mental harm. In addition, the appellant led evidence at trial during his own examination-in-chief concerning his mental health prior to his admission to law school and as a result of the events in question. Thus, by virtue of the causes of action that the appellant advanced and the evidence that he adduced at trial, the appellant’s metal health and the effect of the respondents’ actions on that mental health were live issues at trial.

[10] Finally, the trial judge articulated numerous reasons for disbelieving the appellant’s evidence. The trial judge’s detailed evaluation of the appellant’s credibility included the identification of specific factors grounding his rejection of the appellant’s evidence and his adverse credibility findings against him. This credibility assessment contains no suggestion that the trial judge prejudged the appellant’s case or his credibility or that his mind was closed to the appellant’s claims. To the contrary, in our opinion, the trial judge’s reasons indicate that he assessed the appellant’s allegations and his credibility on the merits, in the context of all the evidence led at trial.

[11] In the end, the trial produced an outcome unfavourable to the appellant. This does not mean that the trial judge was biased against him or that he chose to disbelieve the appellant based on prohibited stereotypical reasoning. The appellant has failed to discharge his heavy burden of establishing a reasonable apprehension of bias.

[12] The appeal is dismissed. The respondents are entitled to their costs of the appeal, if sought, on the partial indemnity scale, fixed in the total amount of $5000, inclusive of disbursements and Goods and Services Tax, to be paid by the appellant within six months from the date of this decision.

“E.A. Cronk J.A.”

“R.A. Blair J.A.”

“E.F. Then J. (ad hoc)”