Court File and Parties

Court of Appeal for Ontario Date: 20200521 Docket: C67362

Doherty, Juriansz and Paciocco JJ.A.

Between:

Lakshmikanth Kishor Rabi Applicant (Appellant)

and

The University of Toronto Respondent (Respondent)

Counsel: M. Olanyi Parsons and Christopher Breton, for the appellant Robert A. Centa and Emily Home, for the respondent

Heard: In writing

On appeal from the order of Justice Shaun O’Brien of the Superior Court of Justice, dated July 17, 2019.

Reasons for Decision

Overview

[1] The appellant, Lakshmikanth Kishor Rabi, seeks to set aside the decision to deny his application for an interlocutory injunction to prevent enforcement by the respondent, The University of Toronto (the “University”), of a Trespass Notice that is impeding the completion of Mr. Rabi’s studies and putting his student visa status at risk. He sought the interlocutory injunction pending a proceeding before the Human Rights Tribunal of Ontario (the “Tribunal”). The appellant contends that the application judge committed palpable and overriding errors in her assessment of the evidence, misapplied the test for interlocutory injunctions, and arrived at an unreasonable decision in finding that the balance of convenience favoured the respondent. For reasons that follow, we would dismiss Mr. Rabi’s appeal.

Background Facts

[2] On May 5, 2017, Mr. Rabi, a student enrolled at the University, attended at the university Health and Wellness Centre. As the result of events that transpired during his visit, the on-call psychiatrist, Dr. Soraya Mumtaz, formed the opinion that Mr. Rabi posed a threat to himself and others. As a result, Mr. Rabi was immediately involuntary committed for psychiatric review in the Centre for Addiction and Mental Health (“CAMH”). Four days later, on May 9, 2017, the respondent issued a Trespass Notice to Mr. Rabi, which is the subject of this appeal.

[3] Mr. Rabi, who was released from CAMH 18 days later after voluntarily extending his stay, denies that he posed a danger to anyone, then or now. He contends that confusion over the contents of a note he wrote as well as cultural misunderstanding led to his benign expressions of frustration being interpreted as threats, and that comments he made about past ruminations of suicide and the suicide of another were misconstrued and mistakenly treated as current suicidal ideation. He also claims that the accounts of events offered by the attending registered nurse, Dr. Mumtaz, and campus police who attended on May 5, 2017, are inaccurate and exaggerated. He notes, as well, that the comments he did make to Dr. Mumtaz were made while he was emotional, exhausted, and being “pressingly interrogated”.

[4] The letter containing the Trespass Notice invited Mr. Rabi to furnish, for consideration, any information that he wished to have considered. It affirmed that the Trespass Notice would not be rescinded until the University is satisfied that he “do[es] not pose a threat to the health and safety of others” and sought Mr. Rabi’s “consent to undergo a psychiatric risk assessment by a qualified expert who will report to the University”.

[5] Mr. Rabi furnished the university with a letter from his treating physician at CAMH, Dr. Ofer Agid, dated June 13, 2017, which said in relevant part:

During the state in the in-patient unit (May 5th to May 23rd) the patient was not offered any type of medical treatment and was fully cooperative with the psychiatric observation.

At this point he does not require psychopharmacological treatment. The assessment conducted today, reveals that he is not at any risk to self or others.

[6] The University did not find Dr. Agid’s letter to be adequate to allay its concerns. Mr. Rabi contends that this position is unreasonable and insists that the Trespass Notice should be rescinded on the strength of the letter. Accordingly, he has not consented to a psychiatric risk assessment. Extensive correspondence between the parties did not resolve the impasse.

[7] On February 28, 2018, Mr. Rabi initiated a court application alleging that the University breached its contractual and fiduciary duties in its dealings with him. On May 4, 2018, he filed a complaint with the Tribunal. On May 23, 2019, he amended his application, adding a request for an interlocutory injunction restraining the University from enforcing the Trespass Notice.

[8] On July 17, 2019, the application judge dismissed the application in its entirety.

Issues

[9] Mr. Rabi appeals only the denial of the interlocutory injunction. No issue was taken with the decision of the application judge to exercise her jurisdiction and hear an application for an interlocutory injunction relating to a complaint before the Tribunal, notwithstanding that the Tribunal also has jurisdiction to order the interim relief requested and would arguably have been in a better position to determine its suitability: see e.g., Nelson et al. v. Her Majesty the Queen in Right of Ontario et al., 2019 ONSC 5415, at para. 21; Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (2019-Rel. 28), (Toronto: Thomson-Reuters, 2019) at para. 3.990. The issues he raises can be organized as follows:

A. Did the application judge commit palpable and overriding errors? B. Did the application judge err in the application of the legal test for an interlocutory injunction? C. Did the application judge unreasonably conclude that the “balance of convenience” favoured denying the interlocutory injunction?

Analysis

A. Did the application judge commit palpable and overriding errors?

[10] Mr. Rabi argues that the application judge made unreasonable factual determinations relating to the cogency of the medical notes relied upon by the University, and that she unreasonably relied upon her finding that the threats implicated University staff, when this was not a basis for issuing the Trespass Notice. Mr. Rabi also argues that she committed a palpable and overriding error by misapprehending evidence relating to the finding of “compromise” by the University, and in identifying the basis for the opinion expressed in the letter from Dr. Agid. Mr. Rabi argues, as well, that the application judge ignored his medical evidence.

[11] None of these alleged errors occurred, nor have any other errors of fact or errors of mixed fact and law been successfully identified.

[12] Mr. Rabi’s argument that it was unreasonable for the application judge to rely on the medical notes as an accurate account of the events of May 5, 2017 rests in his claim that she failed to appreciate the discrepancies in the medical notes. Most significantly, the medical notes of the registered nurse record that Mr. Rabi wrote on a notepad that if he had a rifle, he would shoot “something”. In his medical notes, Dr. Mumtaz recorded that the note Mr. Rabi wrote stated, “that he wanted to kill someone (no name) and that he was good with a rifle”. Mr. Rabi argues that this error made its way into the Form 1 application.

[13] The application judge committed no palpable and overriding error in her treatment of these medical notes. She explained why she found them reliable. Specifically, they were “taken contemporaneously” and were taken by health care practitioners. This determination was for her to make.

[14] It is also clear that she was not misled by any imprecision there may have been in Dr. Mumtaz’s medical note about what Mr. Rabi had written. She accepted Mr. Rabi’s position that the note he wrote said that he wanted to shoot “something”. Her conclusion that there was evidence that Mr. Rabi wished to shoot “someone” was not based on evidence about the note, but on things Mr. Rabi is recorded as having said to the registered nurse and Dr. Mumtaz. This includes comments attributed to Mr. Rabi that he wanted “to shoot someone at random, as a sniper shooting at people who happened to be around”, and that “either [he] dies or someone else will”. The registered nurse’s medical notes also record Mr. Rabi explaining that in his note he wrote “something” instead of “somebody” because writing “somebody” would have been “incriminating”. Mr. Rabi has demonstrated no errors by the application judge relating to the medical notes.

[15] Nor did the application judge commit a palpable and overriding error by relying on what Mr. Rabi claims is an “irrelevant” finding that his threats were linked to animosity against University staff. We do not accept Mr. Rabi’s contention that the University did not rely on this consideration when issuing the Trespass Notice. The letter containing the Trespass Notice in fact describes the risk the University perceived Mr. Rabi to pose “in the University community”, a community that obviously includes University staff. Moreover, University records put before the application judge bore out Mr. Rabi’s animosity to staff members. It is an entirely reasonable inference that the University was mindful of this when issuing the Trespass Notice. No palpable error occurred.

[16] In any event, even if mistaken, the application judge’s findings relating to animosity against University staff would not amount to an overriding error. Given the evidence before the application judge that Mr. Rabi threatened to shoot people randomly as a sniper would, the seriousness of the threats made would not be materially diminished if not directed at University staff, or if not fueled by animosity against University staff.

[17] We also reject the submission that the application judge misapprehended the evidence by noting an offer of compromise by the University, when the University was, in fact, insisting on a psychiatric risk assessment. The Trespass Notice itself invited Mr. Rabi to provide other information, distinct from the request that Mr. Rabi consent to a psychiatric risk assessment. In its letter of September 14, 2017, while re-asserting its belief that a psychiatric risk assessment remains necessary and appropriate, the University said that it “undertakes to consider any medical reports touching on the subject of risk to its community, that refers to the position taken by Dr. Agid and supplements or updates it with cogent and comprehensive medical evidence”. There was therefore clear evidence of an offer to compromise on the record. The fact that the University’s repeatedly called for a psychiatric risk assessment does not alter this fact.

[18] Nor did the application judge misapprehend the evidence by describing the June 13, 2017 letter of Dr. Agid as being based on an assessment “that day”. The letter says this expressly. There is simply no basis for inferring that the application judge failed to appreciate that Mr. Rabi had been at CAMH for 18 days.

[19] In any event, even if it had been wrong to note that the letter was based on an assessment “that day”, such an error would not be overriding. What mattered was the application judge’s conclusion that Dr. Agid’s “extremely brief” letter of opinion did not “provide sufficient assurance of Mr. Rabi’s health and safety”, a decision supported by University’s evidence from Dr. Lisa Ramshaw that Dr. Agid’s letter of June 13, 3017, was inadequate, and “not a violence risk assessment”. The application judge noted that Dr. Agid’s letter gave no indication of the information he had been provided, said nothing about the nature of tests or assessments undertaken, and did not offer an assessment of future risk. Whether Dr. Agid’s conclusion was an assessment of Mr. Rabi’s risk “that day” or a more general assessment based on a larger body of information would not have altered the shortcomings identified by the application judge.

[20] Mr. Rabi’s submission that the application judge disregarded the medical evidence he provided fares no better. As the prior paragraph makes plain, the application judge considered this evidence but found it to be wanting. Mr. Rabi’s arguments that it was unreasonable for the application judge not to assign weight to Dr. Agid’s letter amounts to no more than an effort to reargue the case before us and must be rejected.

B. Did the application judge err in the application of the legal test for an interlocutory injunction?

[21] The application judge correctly set out the legal test for an interlocutory injunction from RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334. This test requires the applicant to demonstrate that the interests of justice call for a stay by showing: (1) that there is a serious issue to be tried; (2) that he will suffer irreparable harm if the injunction is refused, and (3) the balance of convenience favours the injunction.

[22] Mr. Rabi does not take issue with the articulation of the test, nor with the application judge’s findings that there was a serious issue to be tried, and that he will suffer irreparable harm if the injunction is denied. He argues that the application judge erred in law in applying the test by not conducting “a fluid, not rigid, analysis of the elements” and by giving disproportionate emphasis to her finding that the balance of convenience favoured the University. On this latter point, he argues that the strength of the first two components of the test should have overcome any deficiency in the last.

[23] The University does not contest that in determining whether a stay is in the interests of justice, an application judge is entitled to consider the relative weight of the three components of the test, or that a strength in one area may offset the weakness in another. However, the University argues that Brown J. made clear in R. v. Canadian Broadcasting Corporation, 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 12, that “an interlocutory injunction must satisfy each of the three elements of [the] test”. Since the application judge found that the third component was not met – that the balance of convenience instead favoured the University – this was not a case for the kind of fluid assessment that Mr. Rabi calls for.

[24] We need not determine whether the dictum in R. v. Canadian Broadcast Corporation has the significance the University ascribes to it, such that no matter how strong the applicant’s case is, or how serious the irreparable harm may be, an interlocutory injunction may not issue if the balance of convenience favours the respondent. (See e.g., Robert J. Sharpe, Injunctions and Specific Performance, at para 2.540). We need not explore this question because we are satisfied that the application judge considered the weight of each component of the test and was satisfied that this was not a case where, in all the circumstances, the strength of the factors that favoured Mr. Rabi could sustain Mr. Rabi’s application.

[25] In particular, she found the serious issue to be tried arose from Dr. Agid’s opinion, an opinion whose deficiencies she described. And she clearly tempered her finding that Mr. Rabi had demonstrated irreparable harm by noting that he took two years to seek the injunction. It would not be accurate to suggest that she found the first two factors favouring Mr. Rabi to be strong.

[26] Then, when describing the balance of convenience, the application judge said that the impact of providing updated medical information to the University on Mr. Rabi was less significant than the impact of the injunction on the University and gave an explanation that we are about to describe that made that determination decisive.

[27] Put simply, the application judge’s evaluation of the relative strength of each component of the test leaves no room for a finding that she failed to conduct a fluid assessment or gave undue weight to the balance of convenience. Even if Mr. Rabi’s claimed errors amount to errors of law, the application judge committed neither of them.

C. Did the application judge unreasonably conclude that the “balance of convenience” favoured denying the interlocutory injunction?

[28] There is no basis for impugning the reasonableness of the application judge’s finding that the balance of convenience favoured the University. Her reasons were clear, grounded in the evidence, and compelling. In particular, she noted the very serious threats that had been demonstrated to the university community, the concerning context in which Mr. Rabi’s threats were made, and the absence of sufficient assurances of Mr. Rabi’s mental health. “On the other side”, she reasoned that, if he did not pose the threat apprehended, the harm to Mr. Rabi could be overcome by the inconvenience and loss of privacy that securing adequate medical information would entail. The application judge’s conclusion that, on balance, the balance of convenience favoured the university was entirely reasonable.

Conclusion

[29] The appeal is dismissed. If either party is seeking costs, the University’s bill of costs, supported by written submission of no more than three pages, shall be submitted by May 28, 2020. Mr. Rabi’s costs submissions shall be submitted by June 2, 2020 and shall also consist of a bill of costs and no more than three pages of written submissions. If Mr. Rabi seeks costs, the University will be entitled to provide two further pages, in response, by June 5, 2020.

“Doherty J.A.” “R.G. Juriansz J.A.” “David M. Paciocco J.A.”