Court of Appeal for Ontario

Citation: Aba-Alkhail v. University of Ottawa, 2013 ONCA 633

Date: 2013-10-18

Docket: C56995

Before: Feldman, MacPherson and Epstein JJ.A.

Between

Khalid Aba-Alkhail, Manal Alsaigh and Waleed AlGhaithy

Appellants

and

University of Ottawa, Jacques Bradwejn, Paul Bragg, James Worthington, John Sinclair, Richard Moulton, Fraser Rubens, Eve Tsai, Eric Poulin, Thierry Mesana and Lloyd Duchesne

Respondents

Counsel:

Barbara Kulaszka, for the appellants

Sally Gomery and Karen Jensen, for the respondents

Heard: October 3, 2013

On appeal from the order of Justice Timothy Minnema of the Superior Court of Justice, dated April 11, 2013, with reasons reported at 2013 ONSC 2127.

By the Court:

[1] The appellants appeal from the decision of the motion judge to strike their statement of claim as an abuse of process.

[2] The motion judge found that the facts relied on in the action “are the same facts relied on by each of the plaintiffs in the steps they took through the Appeal Mechanism,” referring to the academic appeal process of the University. He articulated the issue as whether it is “an abuse of process for the plaintiffs to sue in contract and tort for the damages on the same facts relied on in the university’s internal appeal process”. He concluded that it is.

[3] The motion judge relied on para. 28 of this court’s decision in Jaffer v. York University, 2010 ONCA 654, 326 D.L.R. (4th) 148, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 402, in which Karakatsanis J.A. stated:

[28] Thus, although the court has jurisdiction to hear such claims, Rouleau J.A. noted at para. 50 that the court may strike a claim under r. 21.01(1), or in exceptional circumstances r. 25.11, when it appears that the cause of action is untenable or unlikely to succeed. This will occur if, for example, an action is simply an indirect attempt to appeal an academic decision and the appropriate remedy would be judicial review, or if the pleadings do not disclose details necessary to establish that the university’s actions go beyond the broad discretion that it enjoys. [Emphasis added.]

[4] He also referred to a subsequent decision of this court in Ontario v. Lipsitz, 2011 ONCA 466, 334 D.L.R. (4th) 606, at paras. 88 and 89, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 407, in which O’Connor A.C.J.O. stated:

[88] Moreover, I do not consider the fact that the HSARB does not have jurisdiction to award damages to be dispositive of whether the regulatory proceedings can operate as a bar to the civil claim or parts of it. It may be open to a court to bar the re-litigation of factual issues if it concludes that those issues were finally determined or could have been determined in the regulatory proceedings in which Dr. Lipsitz participated.

[89] As part of the abuse of process argument, the appellants argue that the regulatory process under the IHFA was the exclusive forum for resolving the issues raised in the civil action. They also argue that Dr. Lipsitz’s civil action is a collateral attack on the decisions of the Directors and the orders of the HSARB dismissing his appeal from those decisions.

[5] In the context of the case law, the motion judge then applied the law to the facts of the case and held, at paras. 43-45:

[43] Turning now to this case. I accept the defendants’ position that the multiple claims in this case are window dressing. The underlying complaint of each plaintiff is that they were not promoted in their programs or were dismissed in their programs. To be successful on the claims would require different findings of fact from what was determined in the internal review process on the very same evidence. It would be re-litigation in a different forum. I find this to be an abuse of process.

[44] The allegations and claims made by the three plaintiffs are markedly similar – similar enough to all be included in the same statement of claim. In two of these the full academic appeal process has been exhausted. As I have already noted, in the internal appeal processes the plaintiffs had the right to present evidence and the Senate Appeals Committee made findings of fact. The Divisional Court has twice found the decisions of the SAC were within its powers, procedurally fair, and reasonable. The claims raised in this case of racism were raised and rejected by the SAC. The reliance on the Charter was raised before and rejected by the Divisional Court. For Dr. Aba-Alkhail to be successful would require a finding from this court that the findings and decision of the Senate Appeals Committee were wrong. For Drs. Alsaigh and AlGhaithy to be successful would require a finding by this court that the Divisional Court was wrong, in that it has confirmed that the decisions made by the defendants were reasonable and that there was no breach of natural justice. I find that it would be an abuse of process for this court to indirectly revisit those decisions. It would create inconsistency and undermine the credibility of the entire review process, specifically diminishing the credibility of the SAC and the finality of its and the Divisional Court’s decisions.

[45] There is no foundation for an argument that the defendants in this case went beyond the scope of their discretionary powers in dealing with the issues in the internal university performance review and appeals processes. In the cases of Drs. AlGhaithy and Alsaigh the Divisional Court has already determined that issue, and in the case of Dr. Aba-Alkhail judicial review is the appropriate remedy to determine that issue. I find that this lawsuit is an indirect attempt to appeal an internal academic decision by all three plaintiffs. The matters being dealt with here are – to use the words of the court in Dawson – in pith and substance academic matters, and the claims are part and parcel of the academic disputes.

[6] In oral argument, counsel relied on the recent decision of the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, 356 D.L.R. (4th) 595, which was not before the motion judge. In Penner, the Supreme Court considered the circumstances in which a civil action should be barred based on the doctrine of issue estoppel following an administrative hearing dealing with the same matter.

[7] The Supreme Court held that the court must look not only at the fairness of the prior proceedings themselves, but also assess the fairness of using the results of the administrative hearing to preclude the subsequent proceedings (at para. 42). Fairness here depends on whether there are significant differences between the purposes, the processes and the stakes involved in the two proceedings. In particular, the court considers what was at stake for the plaintiff in the administrative proceeding and the incentive to “participate in it with full vigour” (at para. 45).

[8] In our view, the Penner case does not assist the appellants for two reasons. First, the appellants’ claim was struck out based on abuse of process rather than issue estoppel. In Behn v. Moulton Contracting Ltd., 2013 SCC 26, 357 D.L.R. (4th) 236, a decision of the Supreme Court released in May 2013, one month after Penner was decided, LeBel J. emphasized the difference between abuse of process and issue estoppel, at para. 40, as follows:

[40] The doctrine of abuse of process is characterized by its flexibility. Unlike the concepts of res judicata and issue estoppel, abuse of process is unencumbered by specific requirements. In Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (Ont. C.A.), Goudge J.A., who was dissenting, but whose reasons this Court subsequently approved (2002 SCC 63, [2002] 3 S.C.R. 307 (S.C.C.)), stated at paras. 55-56 that the doctrine of abuse of process

engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific require-ments of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 [C.A.], at p. 358.

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined. See Solomon v. Smith, supra. It is on that basis that Nordheimer J. found that this third party claim ought to be terminated as an abuse of process. [Emphasis added by LeBel J.]

[9] Second, unlike the police discipline hearing in Penner, which had no direct consequence for Mr. Penner, the whole purpose of the University academic discipline procedure in which the appellants engaged was to determine the academic consequences for the appellants and the ramifications for their careers as specialist physicians. The process and the remedies it provides directly affected the appellants. In our view, there is no basis upon which one could say in these circumstances that it would be unfair to use the results of the discipline proceedings to preclude a civil suit in which the same conduct is in issue, even though a different remedy is now being sought.

[10] The appellants also argued that if the abuse of process doctrine applies to discipline proceedings and can preclude a subsequent civil suit, then students will have the incentive not to fully participate in such discipline proceedings. We do not agree.

[11] The incentive to participate is to be able to carry on with one’s studies and to obtain academic standing, in this case, as specialist physicians. That is the primary goal of a student in an academic program, especially a professional program leading to a professional degree and ultimately to a professional certification. Seeking damages from the University to obtain redress for complaints about alleged inappropriate treatment would be only a secondary, fall-back goal.

[12] In any event, the abuse of process doctrine can apply not only to bar re-litigation of issues that were actually determined in the administrative process, but also to issues that could have been determined (Lipsitz at para. 88). This gives further incentive to raise all issues at the administrative proceeding and to participate “with full vigour”.

[13] Finally, the appellants argued that the trial judge erred in finding that they are relying on the same facts as in the discipline proceedings. They pointed to certain emails that they say were either not before the tribunals or not taken into account by them because there was nothing the tribunals could use them for. This position was disputed by the respondent.

[14] We see no basis to interfere with the factual finding of the motion judge on this issue. It is the province of the motion judge to make factual findings. Subject to a palpable and overriding error or a misapprehension of the evidence, an appellate court accepts those findings.

Conclusion

[15] We agree with the findings and conclusions reached by the motion judge. The appeal is therefore dismissed with costs fixed at $15,000 inclusive of disbursements and HST.

Released: “JCM” October 18, 2013

“K.N Feldman J.A.”

“J.C. MacPherson J.A.”

“G.J. Epstein J.A.”