Court of Appeal for Ontario

Citation: Fernandes v. Carleton University, 2016 ONCA 719

Date: 2016-10-03

Docket: C60632

Before: Weiler, Blair and van Rensburg JJ.A.

Between:

Myles Fernandes Plaintiff (Appellant)

and

Carleton University and BCE Inc. Defendants (Respondents)

Counsel: Myles Fernandes, acting in person Jamie Macdonald, for the respondents

Heard: September 19, 2016

On appeal from the order of Justice G. Patrick Smith of the Superior Court of Justice, dated June 10, 2015.

ENDORSEMENT

Background:

[1] Mr. Fernandes was a student enrolled in Aerospace Engineering at Carleton University. In 2013 he received a failing grade in one of his courses, Electronics II. He attempted unsuccessfully to overturn this grade through Carleton’s internal appeal process. As a result, he claims that he was unable to continue and finish his degree. He holds Carleton responsible for his failure to become an aerospace engineer.

[2] Mr. Fernandes was also employed by The Source as a retail employee, selling various Bell products such as telephone and internet plans. In March 2014, his employment was terminated by The Source, a subsidiary of Bell Canada which is, in turn, a subsidiary of BCE Inc.

[3] These proceedings are a by-product of the foregoing events. Mr. Fernandes sued both Carleton and BCE Inc. As against both, he claimed damages for conspiracy to terminate his employment in reaction to an email he sent to Carleton threatening legal action. He sued BCE Inc. for wrongful termination of his employment at The Source. He sued Carleton for damages for breach of duty of care, intentional infliction of emotional distress, the tort of inducement and defamation (based on certain remarks made by his professor and the Associate Dean during the grade appeal process).

[4] The defendants moved for summary judgment dismissing the action, pursuant to r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Carleton also moved to have the statement of claim struck as against it as an abuse of process pursuant to rules 21.01(3)(d) and 25.11(c). The motion judge granted the relief claimed.

[5] He dismissed the claim against BCE Inc. on the ground that Mr. Fernandes’ claim for wrongful termination lay against The Source and not against BCE Inc. because he was employed by The Source which is a different legal entity than BCE Inc. and because, on the record before him, there was no evidence tying BCE Inc. to The Source’s employment decisions or to Mr. Fernandes’ employment. He did not consider it appropriate to “pierce the corporate veil” in the circumstances.

[6] The motion judge dismissed the conspiracy claim because the evidence satisfied him that there had been no contact between the defendants concerning Mr. Fernandes or his circumstances. He struck the statement of claim against Carleton on the basis that it constituted an abuse of process because it was in substance an indirect attempt to re-litigate the unsuccessful internal grade-appeal process which is an essentially academic matter.

[7] Mr. Fernandes appealed the decision of the motion judge.

[8] In addition, however, he brought a motion within the appeal to have the affidavits of Suzanne Blanchard and Deborah Stanbridge struck from the record. Ms. Blanchard is the Vice-President (Students and Enrolment) and University Registrar at Carleton. It was through her affidavit that Carleton placed on the record the evidence relating to the internal appeal process regarding the appeal of Mr. Fernandes’ failing grade. Ms. Stanbridge is the Director – Employee Services with BCE Inc. She provided the evidence on behalf of BCE Inc. regarding the corporate separation of BCE Inc., Bell Canada, and The Source and the lack of connection between BCE Inc. and any employment decisions of The Source.

[9] For reasons discussed below, LaForme J.A. dismissed that motion, which also sought to strike an additional affidavit filed by the respondents in reply to Mr. Fernandes’ motion to strike the Blanchard and Stanbridge affidavits. Mr. Fernandes seeks to have that order set aside by a panel. By order of Doherty J.A., that motion is before us to be heard at the same time as the main appeal.

[10] Shortly after the dismissal of his motion by LaForme J.A., Mr. Fernandes brought a second motion to strike Ms. Blanchard’s affidavit. Justice Hourigan dismissed that motion as an abuse of process. Mr. Fernandes seeks to have the order of Hourigan J.A. set aside by a panel. By order of Epstein J.A., that motion is before us to be heard at the same time as the main appeal.

Discussion

[11] For the reasons that follow, the motions to set aside the orders of LaForme J.A. and Hourigan J.A. are dismissed and the main appeal is dismissed.

The Order of LaForme J.A.

[12] Mr. Fernandes’ evidence in support of the motion to strike the Blanchard and Stanbridge affidavits is contained in an affidavit purportedly sworn by a lawyer in Regina, Saskatchewan, named Michael Scott Tochor. The problem is that, on the evidence before LaForme J.A., Michael Scott Tochor does not exist.

[13] The respondents’ inquiries of the Law Society of Saskatchewan and a search of the online directory of lawyers practising in that province revealed that there is only one Michael Tochor practising in Saskatchewan: Michael Dennis Tochor Q.C. Michael Dennis Tochor Q.C. filed an affidavit on the motion deposing that he did not know and has never communicated with Mr. Fernandes, has never acted in any capacity as legal counsel for Mr. Fernandes, and did not swear the affidavit purportedly sworn by Michael Scott Tochor on the motion. We note as well that, when asked to do so, Mr. Fernandes admitted during the proceedings before LaForme J.A. that he could not produce Michael Scott Tochor and had no knowledge of his whereabouts, nor could he provide any contact information for him.

[14] Instead Mr. Fernandes focussed his attention on attacking the affiants of the affidavits filed by the respondents to answer his allegations about the faults in the Blanchard and Stanbridge affidavits and certain non-essential matters (a dispute about the return date of a motion and the service of certain materials). Mr. Fernandes’ challenges to these affidavits rely primarily on unfounded allegations of bias arising from the connection of the affiants with the respondents’ lawyers. There is no merit in them.

[15] The allegations respecting the Blanchard affidavit were that Ms. Blanchard’s affidavit stated that it was sworn in Toronto when she was apparently in Ottawa and that her affidavit was not sworn on February 13, as stated, but on February 3, or at some other time.

[16] The allegation with respect to the Stanbridge affidavit – contained in the “Tochor affidavit” was that the affidavit had been commissioned by an unauthorized person in Quebec. The affidavit of the articling student who commissioned Ms. Blanchard’s affidavit clarifies that it was indeed sworn before him in Ottawa (he mistakenly stated “Toronto” on Ms. Blanchard’s affidavit) and that it had been sworn on February 13. The affidavit of Joan LaRoche confirms, among other things, that the records of the Province of Quebec show that the commissioner of Ms. Stanbridge’s affidavit is an authorized commissioner for the taking of oaths in Quebec.

[17] Justice LaForme was completely justified in dismissing the motion to strike the affidavits. To put it mildly, the filing of the affidavit of a purported Michael Scott Tochor is troubling and an abuse of process providing the basis for dismissal. LaForme J.A. did not err in principle by drawing an adverse inference from the fact that Mr. Fernandes was unable to produce his purported affiant, Michael Scott Tochor, or provide any information regarding his whereabouts. His inability to do so was telling in the circumstances.

[18] In any event, the responding affidavits filed by the respondents provide ample explanation for any technical flaws that may have existed in the Blanchard and Stanbridge affidavits.

[19] The motion to set aside the order of LaForme J.A. is dismissed.

The Order of Hourigan J.A.

[20] Within two weeks of the order of LaForme J.A. dismissing his application to strike – amongst others – the Blanchard affidavit, Mr. Fernandes brought a second motion to strike the same affidavit. On that motion he did not rely on the “Tochor affidavit” but attacked the Blanchard affidavit on the technical grounds referred to above (the date and place of swearing). Justice Hourigan dismissed this motion on the basis that it was a collateral attack on the order of LaForme J.A., which was already subject to a motion to the panel to have it set aside.

[21] Mr. Fernandes contests this order on the basis that the motion did not constitute a collateral attack because LaForme J.A. had made no finding of fact in his reasons concerning the complaints about the Blanchard affidavit. In his view, that kept the matter alive and subject to a fresh attack. He submitted at length that he was not precluded by the doctrine of issue estoppel from bringing the second motion. Because of the absence of factual findings and the errors of Hourigan J.A., he argued that the Blanchard affidavit must be struck or the matter remitted to another Chambers judge for such findings to be made (and, inferentially, that the main appeal cannot be determined until that exercise has been completed).

[22] Accepting that Mr. Fernandes is a layperson and not trained in the law, he nonetheless misunderstands the basis upon which Hourigan J.A. dismissed his motion. The doctrine of issue estoppel has no application. The motion was dismissed because it constituted a collateral attack on the order of LaForme J.A. (itself under review) and was therefore an abuse of process. Whatever Mr. Fernandes’ personal views about the use (or abuse) of the abuse of process principles by lawyers and judges against self-represented litigants may be, courts are obliged to apply the law, where applicable, in the circumstances before them.

[23] Justice Hourigan did not err in dismissing the motion before him on the basis that he did. The motion to set aside his order is dismissed.

The Main Appeal

[24] Mr. Fernandes submitted that the motion judge went too far in exercising his discretion to determine the issues by way of summary judgment under r. 20. He argued that there were a number of serious issues of fact and credibility that had to be determined on the motion and that these constituted a genuine issue requiring a trial. Included in the “serious issues of credibility” that Mr. Fernandes raised were the following:

– Who was the appellant answerable to?

– Did the appellant work for Bell Canada and, if so, was he an employee of Bell Canada?

– Did an employer-employee relationship exist between the appellant and Bell Canada?

– If no employment contract was signed, would common law notice of 24 months prevail?

– If the appellant was identified as a Bell Canada employee, without ever having signed an employment contract with Bell Canada, could there exist an employer-employee relationship between the appellant and BCE Inc. as described in their Annual Reports?

– What did BCE mean by Our Employees at the Source?

– Was the tortfeasor accused of battery a BCE employee by the same standards?

– Did BCE Inc. owe the appellant a duty of care at the time of the incidents?

– Did BCE breach their duty of care toward the appellant?

[25] Mr. Fernandes contends that because he did not file evidence directly relating to these questions – because he did not understand that he was required to file evidence – the motion judge was not in a position to resolve those issues of credibility and therefore was not able to reach a fair and just determination of the action on its merits, as required by the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.

[26] There are two difficulties with these submissions.

[27] First, in making his arguments about the motion judge’s inability to reach a fair and just determination, Mr. Fernandes ascribed a narrower role for the summary judgment motion judge than that now called for in Hryniak. Mr. Fernandes argued that the purpose of a summary judgment motion was to weed out claims that have no chance of success, relying in this respect on a statement at para. 38 of Hryniak which was simply a summary of what the pre-Hryniak jurisprudence had narrowed the purpose to, and on a similar statement in an earlier decision of the Nova Scotia Supreme Court in Spring Garden Holdings Ltd. v. Ryan Duffy’s Restaurants Ltd., 2010 NSSC 71, 297 N.S.R. (2d) 201, at para. 31.

[28] It is clear from Hryniak and the jurisprudence following it, however, that the Supreme Court of Canada has broadened and liberalized the availability of summary judgment and has encouraged the judiciary to resolve disputes in that fashion when judges can justly do so. There will be no genuine issue requiring a trial where the judge is able to reach a fair and just determination on the merits and where the material filed on the motion: (i) allows the judge to make the necessary findings of fact; (ii) allows the judge to apply the law to the facts; and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak, at paras. 32, 49-51. Under r. 20.04(2.1), the summary judgment motion judge is provided with a number of powers enabling him or her to weigh evidence, evaluate credibility, and draw reasonable inferences.

[29] Here, the motion judge properly followed that approach.

[30] The second difficulty is that, while Mr. Fernandes may not have put forward evidence directly on the issues outlined above, the respondents did. That evidence – in the form of the Blanchard and Stanbridge affidavits – clearly provided the motion judge with the evidence necessary to resolve the issues before him.

[31] While it may be Mr. Fernandes was somewhat confused, as a lay person, about the need to file evidence – a confusion enhanced, perhaps, by the companion claim for relief on the motion to strike – he is nonetheless required to prepare himself and present his case, like any other litigant, and he has shown himself capable of navigating the rules of procedure in other ways.

The Claim Against BCE Inc.

[32] There was ample evidence to support the motion judge’s finding that Mr. Fernandes was not an employee of BCE Inc. and had no contractual relationship with it. His findings are entitled to deference.

[33] Mr. Fernandes was employed by The Source. The fact that Mr. Fernandes sold “Bell products” at the store is insufficient to establish the necessary employment or contractual nexus. The Source is a wholly-owned subsidiary of Bell Canada which, in turn, is a wholly-owned subsidiary of BCE Inc. The evidence was that BCE Inc. played no role in the implementation of The Source’s internal policies and operating decisions.

[34] The motion judge addressed Mr. Fernandes’ submission that he should pierce the corporate veil and find BCE Inc. liable for the actions of The Source. He properly applied the law on piercing the corporate veil and concluded that, on the facts before him, it was not appropriate in the circumstances to do so. These findings were also open to him on the evidence and are entitled to deference.

The Conspiracy Claim

[35] Although the motion judge did not say specifically in his reasons why he was dismissing the conspiracy claim, his reasons as a whole make it clear why he did so. On the basis of the evidence filed, there was no agreement between two or more persons. No one from Carleton had contacted, or directed anyone to contact, or had any knowledge of anyone contacting BCE Inc. or anyone else outside of Carleton regarding Mr. Fernandes; and that no one at BCE Inc. had any knowledge of Mr. Fernandes or the events referred to in the statement of claim prior to the commencement of the action, nor had anyone from BCE Inc. contacted or communicated with anyone at Carleton with respect to Mr. Fernandes or those events.

[36] On the basis of that evidence, the conspiracy claim could not stand.

The Claim Against Carleton University

[37] The claim against Carleton was struck on the basis of a different analysis. Rule 25.11(c) provides that a court may strike out a pleading where the pleading constitutes an abuse of process of the court. The motion judge relied on this provision in dismissing the claim against Carleton.

[38] Mr. Fernandes resists the application of the doctrine, particularly in the case of a self-represented litigant. However, the jurisprudence establishes that courts may resort to abuse of process or other rules, in appropriate circumstances, to strike claims against universities where those claims are, at their heart, attempts to re-litigate the factual underpinnings of previously unsuccessful challenges to academic decisions that have already been subject to the university’s internal appeal processes: Jaffer v. York University, 2010 ONCA 654, 326 D.L.R. (4th) 148, leave to appeal refused, [2010] S.C.C.A. No. 402; Gauthier c. Saint-Germain, 2010 ONCA 309, 325 D.L.R. (4th) 558, leave to appeal refused, [2010] S.C.C.A. No. 257; Dawson v. University of Toronto, 2007 CanLII 4311 (ON SC), [2007] O.J. No. 591 (S.C.), aff’d in part 2007 ONCA 875. This is so even where, as here, the plaintiff attempts to dress up the previous academic dispute by adding claims for relief – such as a monetary claim for wrongful conduct – that are unavailable through the internal academic review process: Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, 363 D.L.R. (4th) 470, leave to appeal refused, [2013] S.C.C.A. No. 491. See also Ontario v. Lipsitz, 2011 ONCA 466, 334 D.L.R. (4th) 606, leave to appeal refused, [2011] S.C.C.A. No. 407 which, albeit in a different regulatory context, applies the same principle.

[39] Mr. Fernandes correctly points out that there are decisions from other jurisdictions that have allowed some aspects of a complainant student’s action (that did not form part of the academic process) to proceed even though other aspects were struck as attempts to circumvent that process: see Tapics v. Dalhousie University, 2015 NSCA 72, 363 N.S.R. (2d) 202; Mohl v. The University of British Columbia, 2006 BCCA 70, 52 B.C.L.R. (4th) 89. Those decisions do not assist, however, because they do not conflict with the general application of the abuse of process doctrine in such circumstances. They simply reflect instances in which the courts were satisfied that the civil claim involved matters that had not been dealt with in the substance of the academic proceedings. It is noteworthy that in Tapics the majority of the plaintiff’s claims were struck, following this Court’s decisions in Gauthier, Jaffer, and Aba-Alkhail.

[40] Here, the added dimensions to Mr. Fernandes’ civil claim are essentially the claims for damages for conspiracy, breach of confidence, invasion of privacy, and defamation. His claims in negligence, intimidation, and his other tort claims as against Carleton all arise out of the same factual nexus that formed the basis for his complaints in the academic process.

[41] The breach of confidence and invasion of privacy claims are related to the conspiracy claim because they stem from the allegation that Carleton accessed Mr. Fernandes’ email after he threatened legal proceedings and then sent them to his employer. The conspiracy and these associated claims are properly dismissed on r. 20 principles, as explained above. Absent that claim, Mr. Fernandes relies on certain statements apparently made by one of his professors and by the Associate Dean during the course of the academic appeal proceedings. His professor is said to have stated that he (the professor) “[knew] how easy it is for a student to get a medical note” and that he “was so tired of students using a medical note to get away with writing midterms.” The Associate Dean is said to have stated that Mr. Fernandes had a “tendency to see that the world is against [him]”. These comments were reviewed and addressed during the internal appeal process. No judicial review proceedings were taken.

[42] In our view, the motion judge made no error in principle or in fact in determining that – on the case presented to him – Mr. Fernandes’ complaints in the civil action were in substance an attempt to challenge and re-visit the manner in which the university dealt with the complaints about his treatment in his Electronics II class and the unsuccessful outcome of the internal academic appeals process. It was open to him to conclude on this record that Mr. Fernandes’ claim against Carleton constituted an abuse of process, and we see no basis for interfering with that determination.

Disposition

[43] For the foregoing reasons, the motions to set aside the orders of LaForme J.A. and Hourigan J.A. are dismissed, and the main appeal is dismissed.

[44] The respondents are entitled to their costs of the appeal, fixed in the amount of $15,000.00 all inclusive.

“Robert A. Blair J.A.”

“K.M. Weiler J.A.”

“K. van Rensburg J.A.”