Court File and Parties

CITATION: Obita v. Algonquin College, 2024 ONSC 2320

DIVISIONAL COURT FILE NO.: 106/24

DATE: 20240419

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Rachel Obita, Appellant

-and-

Algonquin College, Respondent

BEFORE: FL Myers J

COUNSEL: Rachel Obita, on her own behalf Chris Rutherford, for the Algonquin College

READ: April 19, 2024

Endorsement

[1] This is a motion to extend the time for the appellant Ms. Obita to seek leave to appeal from the decisions of Doyle J. dated August 23 and November 27, 2023.

[2] This motion was read in writing pursuant to the direction of Shore J. dated March 11, 2024.

[3] In her notice of motion dated February 12, 2024, Ms. Obita provides the following ground for her request for an extension of time:

I am a self-represented litigant who made several procedural errors when attempting to file my notice of motion for leave to appeal. Once I made all the necessary corrections the window to submit expired. Additionally, the issues I am raising are in the interest of the public.

[4] I have read Ms. Obita’s extensive material filed before Doyle J. and in this court. I have read Ms. Obita’s preliminary and supplementary notices of motion and her preliminary and supplementary factums.

[5] Ms. Obita raises extensive concerns with many of Algonquin College’s policies.

[6] The decisions made by Doyle J. dismissed Ms. Obita’s requests for pre-trial injunctions requiring the respondent college to implement her proposed policy fixes and for other pre-trial orders.

[7] As a self-represented litigant, Ms. Obita is entitled to procedural assistance to ensure that she understands the processes of the court. As the plaintiff in the lawsuit and the appellant in this court, she also has burden to try to obtain information about the proceedings that she is bringing.

[8] In her lawsuit, Ms. Obita seeks to have the court order Algonquin College to change many of its policies.

[9] The lawsuit is at its very beginning. Algonquin College has brought a motion to ask a judge to strike some or all of the statement of claim on numerous grounds under Rule 21.01 and perhaps otherwise.

[10] Lawsuits go through three broad phases: pleadings; discovery; and trial. This case is still in the pleadings stage. Algonquin College is not required to deliver its statement of defence until the contents of the statement of claim are finalized. No documentary or oral discovery has taken place. A trial is not likely to be held for at least a year and likely more.

[11] Ms. Obita went before Doyle J. and asked the judge to grant the relief she is seeking in the lawsuit at the very beginning of the process and long before she has proven at a trial that she is entitled to the relief that she claims.

[12] The court has the authority to grant relief before trial. But it is rare and requires extraordinary circumstances. This is especially the case because Ms. Obita does not just seek to prohibit or delay the respondent from doing something. Rather, she asks the court to order the respondent to actually do things it does not want to do. This is called a “mandatory injunction” and it is even more exceptional than a prohibitory injunction before trial.

[13] For the court to consider granting a mandatory injunction before trial Ms. Obita had to prove:

a. that she has a very strong case for trial i.e. that she is virtually certain to win her claim when it gets to trial in the future;

b. if required to wait for trial to obtain the relief that she claims, the plaintiff will suffer harm that cannot be compensated after the trial – that she will be harmed in an irreparable way just by waiting for the trial;

c. that the harm to be suffered by the plaintiff if an order is not granted now outweighs the harm to be suffered by the college if an order is granted (especially if the college wins the trial so that in retrospect it turns out that the order was wrongly granted);

d. the order sought is capable of being expressed clearly and concretely so that implementation of the mandatory terms does not require the court to be involved in ongoing supervision of the parties’ compliance; and

e. the plaintiff undertakes to compensate Algonquin College if it turns out that the order should not have been made and it caused the Algonquin College harm. The plaintiff must also have the financial ability to pay this compensation unless the court orders otherwise.

[14] Justice Doyle held that Ms. Obita did not submit evidence to establish any of these circumstances required to obtain the injunction she sought at this very early stage of the lawsuit.

[15] Ms. Obita wants to appeal that decision. If Doyle J. had made a final decision that decided the whole case, Ms. Obita would have a right to appeal to the Ontario Court of Appeal. But to appeal this type of decision - that just decides a procedural issue while a case is ongoing - Ms. Obita needs to obtain permission or leave to appeal to this court. As she delivered her documents seeking leave to appeal after the time to do so had expired, Ms. Obita asks me to extend the time for her to deliver the material for a motion for leave to appeal.

[16] Just like the request for an injunction before Doyle J. has a legal test or a set of specific requirements to be met, so too does a motion to extend time to appeal.

[17] In the precedent decision of Carleton Condominium No. 28 v. Bassi Construction Ltd., 2022 ONSC 759, https://canlii.ca/t/jmf7h this court held:

The test on a motion to extend time to bring a motion for leave to appeal is well-settled, and was stated by Gillese J.A. in Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at para. 15:

The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) the length of, and any explanation for the delay in filing;

(c) any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and

(d) the merits of the proposed appeal.

[18] Unfortunately, as was the case before Doyle J., Ms. Obita has not provided any evidence on the key elements of the test that she needs to meet to obtain the relief that she wants.

[19] I do not know when Ms. Obita decided to appeal or when she actually first tried to file material with his court. So, I cannot make a finding on point (a) from Enbridge Gas.

[20] The length of delay is brief.

[21] I see no prejudice to the respondent by the delay.

[22] The final test – the merits of the proposed appeal – is the most weighty or important piece generally. This motion must fail on this basis alone. Even if the court will weigh-in on the policies of Algonquin College after a trial, that day is a long way off. There is no real doubt that the decisions made by Doyle J. to deny mandatory injunctions at this early stage of the proceeding were correct and will not be overruled on appeal. Ms. Obita adduced no evidence before Doyle J. on any of the issues needed to obtain a mandatory injunction before trial. Moreover, I cannot imagine what evidence she could have submitted to obtain the relief she sought. It is virtually inconceivable that a court would order a community college to incur the expense and inconvenience of revising numerous policies on an interlocutory or pre-trial basis. The need for supervision of compliance is obvious. Ms. Obita will want to have a say on whether any proposed amendments are sufficient for her purposes. The court will either become a mediator or it will have to determine the merits of the issues now (before pleadings are even closed) in order to police compliance with mandatory order.

[23] Moreover, Ms. Obita does not seek relief just for herself. She is asking for policy changes that affect the entire community at Algonquin College. Does the court have jurisdiction to weigh-in on such matters? The court has limited ability to direct academic affairs at a university. Doers the same principle apply to a community college?[^1] Does Ms. Obita have status or the right to ask for changes that affect others? Should anyone else who is affected by the relief she claims be given notice of this lawsuit and an opportunity to have a say before their rights are considered and affected?

[24] The absence of a meaningful undertaking on damages is also a hard stop.

[25] No judge will likely intervene in such a consequential manner at such an early stage with so many procedural and substantive issues to be decided.

[26] In my view, the interests of justice do not favour granting an extension of time to bring a motion to leave to appeal where the decision below was plainly correct and where there was no evidence adduced to support the relief sought before Doyle J. or the extension of time sought here.

[27] The motion to extend the time for bringing a motion for leave to appeal is dismissed.

[28] The respondent seeks costs on a full indemnity basis due to the many procedural defects in Ms. Obita’s documentation. In my view, the respondent’s technical complaints with Ms. Obita’s factums and the like were not helpful nor apt for a public institution. It ought to be addressing Ms. Obita’s allegations. Its Rule 21 motion will be a start and perhaps all that it needs. But no one benefits from Algonquin College’s counsel incurring cost to nitpick a self-represented litigant’s technical compliance with the Rules of Civil Procedure.

[29] In my view, it is fair and reasonable for Ms. Obita to partially indemnity the respondent for the costs it reasonably ought to have incurred in this appeal. The motion was straightforward and needed but a very brief factum. The respondent also incurred time reviewing Ms. Obita’s material and dealing with the directions to implement this motion.

[30] In all, Ms. Obita is ordered to pay costs to the Algonquin College of $1,250 all-inclusive within 30 days.

[31] I know nothing of Ms. Obita’s financial wherewithal. Doyle J. also ordered her to pay costs to the respondent. It is important for Ms. Obita to understand that bringing a lawsuit includes taking a serious financial risk of being ordered to pay costs. If she keeps making procedural missteps, like seeking a mandatory injunction before trial and then trying to appeal the denial of the order, she will incur more and likely higher costs orders.

[32] Ms. Obita needs legal advice from a lawyer or law clinic about whether she can obtain the relief that she seeks in this proceeding and, if so, how she can best try do so. Are there precedent cases in which relief like she seeks has been granted? Does she have standing to seek the relief that she hopes to obtain? Can a court award the relief that she wants? Can she sustain the cost and stress imposed by a lengthy piece of civil litigation against a well-funded institutional opponent?

[33] Ms. Obita needs to weigh very carefully the possible benefits that she seeks against the potential costs. Courts award money and not principles. Chasing a longshot for one’s principles can be very expensive especially if unsuccessful. A litigant bankrupted by cost orders payable to a public body may well wonder in retrospect whether the fight was really worth the cost.

FL Myers J

Date: April 19, 2024

[^1]: See, for example, the discussions in cases like Longueépée v. University of Waterloo, 2020 ONCA 830 and Lam v. University of Western Ontario, 2019 ONCA 82.