SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 14-62160
DATE: 2015/06/10

RE: Myles Fernandes, Plaintiff (Responding Party)

AND:

Carleton University and BCE Inc., Defendants (Moving Parties)

BEFORE: Justice Patrick Smith

COUNSEL: The Plaintiff was self-represented

Jamie Macdonald, Counsel for the Defendants

HEARD: May 19, 2015

ENDORSEMENT

[1] The defendants, BCE Inc. and Carleton University bring this motion against the plaintiff for two remedies:

1. Summary judgment dismissing the claim against BCE under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194;

2. An order dismissing the action against Carleton University as an abuse of process pursuant to Rules 21.01(3) (d) and 25.11 (c) of the Rules of Civil Procedure or, in the alternative, an order striking portions of the Amended Statement of Claim as disclosing no reasonable cause of action under Rule 20.01 (b) of the Rules of Civil Procedure.

[2] While the plaintiff is seeking damages against BCE under a variety of causes of action, such as defamation and battery, the plaintiff’s claim is essentially an employment law claim.

[3] The claim against BCE is in connection with a retail position that the plaintiff had with The Source (Bell) Electronics Inc. (“The Source”). The Source is not a party to this action.

[4] The plaintiff’s claim against Carleton University is for damages in tort concerning his dissatisfaction with a failing grade in ELEC 3509 – Electronics II (“Electronics II”), his failure to obtain a higher grade through Carleton University’s internal appeal mechanism, and his subsequent decision to withdraw from academic studies.

[5] The plaintiff links the two claims together because he alleges that BCE and Carleton University entered into a conspiracy (on March 21, 2014, between 3:00 am and 12:00 pm) and that BCE agreed to terminate the plaintiff’s employment in order to “suffocate the plaintiff of any or all financial resources available to the plaintiff.”

[6] The plaintiff seeks damages in the amount of $40,940.50 plus pre-judgment interest and legal costs based upon his allegation that the combined actions of the defendants have caused him physical harm and destroyed his ability to pursue a career as an aerospace engineer.

The Claim against BCE

[7] The plaintiff describes his employment history as follows in the Amended Statement of Claim:

• he started working for “BELL” (which he defines at paragraph 4 of the amended statement of claim as The Source) in a part-time retail position at a store in Ottawa on November 4, 2012.

• he held a retail position at The Source where he made “wireless sales which included new activations for Bell cell phones, Bell Internet, Bell Landline and other indirect Bell services such as Virgin Mobile cell phones.”

• The Source terminated his employment on January 4, 2013.

• The Source re-hired him in the summer of 2013 to work in Toronto.

• he subsequently transferred to a store in Ottawa.

• The Source terminated his employment on March 21, 2014.

[8] BCE has filed an affidavit stating that BCE and The Source are separate and distinct legal entities. The Source is a wholly-owned subsidiary of Bell Canada, which is in turn a wholly-owned subsidiary of BCE.

[9] Further, BCE is not responsible for the day-to-day activities of The Source or The Source’s employees and plays no part in the hiring, termination or supervision of any retail employees of The Source.

[10] The affidavit evidence of BCE states that BCE has no knowledge of and has played no role in the events described in the Amended Statement of Claim.

[11] Specifically, BCE states that it did not employ the plaintiff or have any contractual or legal relationship with him at any time.

[12] Similarly, BCE states that it did not employ, or have any contractual or legal relationship with any of the individuals referred to in the Amended Statement of Claim who allegedly defamed, wronged and committed various other torts against the plaintiff.

The Claim against Carleton University

[13] Carleton University’s internal appeal mechanism for undergraduate students such as the plaintiff is set out in the Academic Regulations section of the Undergraduate Calendar. Those regulations provide the following procedure for the formal appeal of a grade:

2.8 Formal Appeal of Grade

A student may submit a formal appeal of grade when the informal appeal process has not addressed their concerns. The appeal must be submitted to the Registrar's Office with full supporting documentation, normally within 20 working days of the day on which the grade was made available to the student. The resolution of an appeal of grade is the responsibility of the Dean of the Faculty offering the course. The appeal must be specific to one or more graded components of the course and/or the determination of the final grade.

On receiving a formal appeal from the Registrar's Office, the Faculty Dean may decide not to proceed with the appeal if, in the opinion of the Dean, reasonable grounds have not been established as a basis for the appeal. Circumstances which may result in a decision not to proceed may include, for example, cases where the Dean determines that the informal process has adequately addressed the student's concerns or where the Dean determines that a reasonable expectation of error or bias in the original grade has not been established. If the Dean decides not to proceed with the appeal, the student will be informed of the reasons for the decision.

In proceeding with an appeal, the Dean may assign reassessment of the work to one or more qualified readers other than the instructor. In this case, the identity of the reader(s) will not be made known to the appellant and the identity of the appellant will not be made known to the reader(s). After due consultation, the Dean, as chief academic officer of the Faculty, will assign the grade. The decision of the Dean is final. As a result of this formal appeal process the original grade may be raised, lowered or left unchanged. The student will be given a concise explanation of the decision.

[14] Carleton University accepted the plaintiff into the Bachelor of Engineering degree program in Aerospace Engineering for the Fall 2011 semester.

[15] The plaintiff enrolled in Electronics II in the Fall 2013 semester with Professor John Rogers. The plaintiff’s final grade was ‘F’.

[16] On January 2, 2014, the plaintiff filed a formal appeal of his final exam grade and his final grade in Electronics II with the Registrar’s Office, in accordance with section 2.8 of the Academic Regulations. The plaintiff’s appeal was based on the allegation that “there was biasedness in the marking.”

[17] On January 16, 2014, the Associate Dean of Engineering and Design (Student Affairs), Heng-Aik Khoo, denied the plaintiff’s appeal because he had not presented any evidence to support his claim.

[18] On January 22, 2014, the plaintiff presented a petition challenging Associate Dean Khoo’s decision to the Engineering Committee on Admissions and Studies (the “CAS”).

[19] The CAS did not have any jurisdiction under the Academic Regulations to hear an appeal from the decision of Associate Dean Khoo. Nonetheless, Donald Russell, the Chair of the CAS and the Associate Dean, Policy and Planning, agreed to hear the appeal in his role as the Associate Dean because the petition involved issues concerning Professor Roger’s treatment of the plaintiff that went beyond the consideration of his final grade.

[20] The grounds for the plaintiff’s appeal with respect to Associate Dean Khoo’s decision on Electronics II were as follows:

• The plaintiff accused Associate Dean Khoo of bias and lack of attention to the details of his appeal.

• The plaintiff alleged that a grade he received on a laboratory assignment included a significant “arbitrary” reduction that suggested that someone had interfered with the TA’s marking.

• The plaintiff alleged that Professor Rogers used “arbitrary numbers” when he graded his final exam and that Professor Rogers was biased against him as a result of an interaction with the plaintiff in front of other students.

• The plaintiff alleged that Professor Rogers had denied his request for accommodation with regard to the midterm exam despite the fact that he had presented a valid medical certificate.

• The plaintiff alleged that Professor Rogers treated him disrespectfully during the above interactions.

[21] An affidavit file on behalf of Carleton explains that Associate Dean Russell met with the plaintiff three times during which they reviewed the plaintiff’s file and discussed the plaintiff’s concerns. Associate Dean Russell also met with Professor Rogers.

[22] On April 3, 2014, Associate Dean Russell rejected the plaintiff’s appeals. Associate Dean Russell found with respect to the plaintiff’s appeal of his failing grade and treatment in Electronics II as follows:

• The plaintiff had not presented any evidence that Associate Dean Khoo’s decision was erroneous or biased. On the contrary, Associate Dean Khoo’s decision was correct.

• There was no justification to suspect either error or bias in the grade the plaintiff received on his laboratory assignment.

• Professor Rogers was not in any way biased in the marking of the plaintiff’s final exam. On the contrary, Professor Rogers gave an appropriate mark.

• It was clear that all material on the examination was considered and that there were significant errors in the plaintiff’s work.

• Professor Rogers had agreed to defer the plaintiff’s midterm exam mark to his final mark, as the plaintiff requested.

[23] Despite dismissing the plaintiff’s appeal of his final grade in Electronics II, Associate Dean Russell gave the plaintiff a prerequisite waiver for that course so he could go on to take ELEC 3909 – Electromagnetic Waves.

[24] On May 20, 2014, the plaintiff presented a request for a procedural review to Katharine Kelly, Clerk of the Senate. Ms. Kelly did not find any procedural errors in the handling of the plaintiff’s appeal.

[25] The plaintiff has not taken any further steps to appeal Associate Dean Russell’s decision but has instead commenced the present action.

Conspiracy allegations

[26] The plaintiff alleges that Carleton University and BCE entered into an agreement on March 21, 2014, between 3:00 am and 12:00 pm under which BCE agreed to terminate the plaintiff’s employment. Carleton University allegedly acted in response to an email that the plaintiff sent to Associate Dean Russell indicating that he was prepared to start an action against Carleton University.

[27] The affidavit filed by Carleton states that neither Associate Dean Russell, nor Suzanne Blanchard, the Vice-President (Students and Enrolment) and University Registrar, contacted, directed anyone to contact, or had any knowledge of anyone contacting BCE or any other party outside of Carleton University concerning the plaintiff.

[28] Similarly, until the commencement of this action, BCE had no knowledge of the plaintiff or the events described in the Amended Statement of Claim, and had no contact or communications with Carleton University with respect to the plaintiff or the events described in the Amended Statement of Claim.

The Test for Summary Judgment

[29] Under Rule 20.04(2)(a) of the Rules of Civil Procedure, the court shall grant summary judgment if “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”

[30] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. Summary judgment should be granted when the material filed on the motion: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (see: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 [Hryniak]).

[31] The Supreme Court in Hryniak encourages judges to consider “whether the added expense and delay of fact finding at trial is necessary to a fair process and just adjudication” (at paras 33, 49).

[32] Summary judgment should be granted where a judge is confident that he or she is able to make the findings of fact and legal determinations necessary to resolve the dispute without the need for a full trial.

[33] Rule 20.04(2.1) of the Rules of Civil Procedure sets out a number of powers that allow judges to weigh evidence, evaluate credibility and draw reasonable inferences.

Analysis: The Claim against BCE

[34] It is clear on the evidence before this Court that the plaintiff has sued the wrong company.

[35] The plaintiff has brought an employment claim against BCE, but BCE was never his employer nor was it the employer of any of the other individuals referred to in the Amended Statement of Claim who allegedly defamed, wronged and committed various other torts against the plaintiff.

[36] I accept the evidence of BCE and find that BCE has no knowledge of and played no role in the events described in the Amended Statement of Claim.

[37] The plaintiff has improperly joined in his claim a parent corporation and its subsidiary

[38] The plaintiff argued that this Court should pierce the corporate veil and find BCE liable for the actions of The Source.

[39] A court will only lift the corporate veil and find a parent liable for the actions of its subsidiary in exceptional circumstances. There is nothing exceptional about this case and the plaintiff has not shown that BCE completely dominates its subsidiary or that The Source does not function independently.

[40] In Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., Sharpe J. of the Ontario Court of Justice stated that a court cannot find that a parent has “complete control” of a subsidiary just because it owns the subsidiary ((1996), 1996 7979 (ON SC), 28 O.R. (3d) 423, at para 22 (Ont. C.J.) [Transamerica], aff’d [1997] O.J. No. 3754 (Ont. C.A.)). Instead, the plaintiff must show that there is “complete domination and that the subsidiary company does not, in fact, function independently” (Transamerica, at para 22). Justice Sharpe granted summary judgment in Transamerica and dismissed the claim against a parent where the evidence was that the relationship between the companies “was that of a typical parent and subsidiary” (ibid).

[41] I accept the evidence before me that BCE is not responsible for the day-to-day activities of The Source or The Source’s employees. It does not hire, terminate or supervise any retail employees of The Source, and it does not have any knowledge of or play any role in respect of The Source’s implementation of its own internal policies.

[42] Further, the evidence demonstrates that BCE does not directly own The Source and that the relationship between the two companies is a typical relationship between a parent and the subsidiary of a subsidiary.

Analysis: The Claim against Carleton University

[43] Rule 25.11 of the Rules of Civil Procedure provides:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[44] The defendant Carleton University submits that the plaintiff’s claim should be dismissed as an abuse of process.

[45] The plaintiff’s Amended Claim against Carleton University may be summarized as follows:

• Carleton University is liable in slander, intimidation and intentional infliction of emotional distress because of things that Professor Rogers said to him in Electronics II (paras 16-21, 73-77, 79-81, 93).

• Carleton University is liable for failing to enforce its internal policies because it did not prevent or stop Professor Rogers from treating the plaintiff in the manner he did during Electronics II (paras 27-30, 36-41).

• Carleton University is liable in defamation because of things that Associate Dean Russell wrote in his decision dismissing the plaintiff’s appeal from his final grade in Electronics II (paras 22-26).

• Carleton University is liable for the invasion of privacy, breach of confidence, conspiracy to injure, the tort of unlawful means and the tort of inducement because it entered into an agreement with BCE to deal with the plaintiff’s complaints concerning Electronics II (paras 98, 103-104, 105-106, 111-112, 113).

[46] The plaintiff had an opportunity to raise all of his complaints and issues through Carleton’s internal appeal process.

[47] The proper way to challenge the decisions of the University is by way of judicial review.

[48] The plaintiff does not have a valid claim simply because he is seeking remedies that he could not have obtained in Carleton University’s internal appeal mechanism or on judicial review.

[49] In Ontario v. Lipsitz, 2011 ONCA 466, 334 D.L.R. (4th) 606 [Lipsitz], the Court of Appeal held that, if the civil claim is a disguised attempt to challenge decisions that have already been subject to review, and if the claim would inevitably require the court to make findings on the same facts that have already been the subject of judicial determination, then the claim is an abuse of process. This is exactly what the plaintiff seeks to do in the case before this Court.

[50] In Lipsitz, the Court upheld a decision dismissing a student’s action for damages based on the allegation that the University “failed to follow its own policies and procedures regarding academic probation and remediation and its own policies and procedures regarding appeals on such matters.” The Court upheld the decision of the motions judge that the subject matter of the litigation was within the University’s discretion and could only be dealt with on judicial review.

[51] Decisions made by academic institutions following their internal appeal process are given substantial deference by the courts (see: Gauthier c. Saint-Germain, 2010 ONCA 309, 325 D.L.R. (4th) 558 [Gauthier]).

[52] In Gauthier, the Court of Appeal confirmed that an action may be dismissed or a statement of claim struck where it is little more than an indirect attempt to appeal an internal academic decision or where the pleadings fail to disclose the necessary details to establish that a university exceeded its broad discretion in academic matters.

[53] The Court also stated in Gauthier, at para 41, that courts have the necessary jurisdiction to adjudicate disputes over academic discipline decisions, but should decline to do so where a student is attempting to re-litigate complaints that have already been subject to an internal appeal process:

The principle that emerges from Dawson was not that the court does not have jurisdiction to adjudicate disputes of an academic nature, but rather that the plaintiff in that case, having been refused her internal appeal by the university, could not submit what was essentially the same complaint before the courts, claiming it was now based in tort.

[54] In another 2010 case, Jaffer v. York University, 2010 ONCA 654, 326 D.L.R. (4th) 148, the Court of Appeal reiterated, at para 28, this principle:

[T]he 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.

[55] There are a number of cases involving claims for damages or other remedies brought by students dissatisfied with the results of an academic appeal process. Generally, courts will dismiss such cases finding that judicial review is the proper course of action.

[56] As stated by the motions court judge in Dawson v. University of Toronto, 2007 4311 (ON SC), [2007] O.J No. 591, at para 18 (Ont. S.C.), aff’d 2007 ONCA 875, [2007] O.J. No. 4861:

…apart from a judicial review function about procedural fairness and natural justice, the court does not have jurisdiction over matters of an academic nature. Where the essential character of the dispute is of an academic nature, the dispute remains exclusively a matter to be dealt with by the school's own procedures provided that the school does not breach the principles of natural justice.

[57] There is no evidence that the defendant Carleton breached the principles of procedural fairness or natural justice. The essence of the plaintiff’s dispute is academic in nature.

Disposition

[58] For the reasons set out above, summary judgment is granted dismissing the plaintiff’s claim against BCE Inc. and dismissing the action against Carleton University as an abuse of process.

[59] In the event that the parties are unable to resolve the issue of costs themselves, written submissions may filed within 30 days. Submissions are not to exceed five pages in length.

Patrick Smith J.

Date: June 10, 2015

COURT FILE NO.: 14-62160
DATE: 2015/06/10

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Myes Fernandes, Plaintiff (Responding Party)

AND:

Carleton University and BCE Inc., Defendants (Moving Parties)

ENDORSEMENT

P. Smith J.

Released: June 10, 2015