Mehedi v. Culturelink Settlement & Community Services, 2017 ONSC 5225

COURT FILE NO.: CV-16-556462

DATE: 20170906

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Golam Sarwar Mehedi
Plaintiff

– and –

Culturelink Settlement & Community Services
Defendant

Unrepresented

Erich R. Schafer

HEARD: September 1, 2017

REASONS FOR JUDGMENT

S. F. DUNPHY, J.

[1] The plaintiff and defendant each brought separate motions for summary judgment before me. The plaintiff seeks judgment allowing his claim and the defendant seeks to have the same claim dismissed. Both state that the position of the other side raises no genuine issue for trial. Both agree that they have put their best foot forward and that I have before me evidence of all the matters they would seek to prove at trial.

[2] These motions were scheduled to be heard September 1, 2017 on a preemptory basis by Firestone J. on May 9, 2017. While the defendant at first suggested that the plaintiff’s motion was unclear as to what relief was sought due to ambiguities in a notice of motion drafted by a lay person, the plaintiff agreed that he was indeed seeking judgment on the entirety of his claim and the defendant agreed to deal with the motion on that basis.

[3] The statement of claim seeks $100,000 in damages plus interest and costs arising from:

“a. Pain and suffering and wrongful distress

b. Wrongful dismissal;

c. Breach of contract;

d. Negligence

e. Cost of tuition expenses SSW447 and SSW 457”

[4] In support of his claim, Mr. Mehedi relied upon his own affidavit sworn June 9, 2017 as well as the transcript of the examination of Ms. Rivera. The defendant filed two affidavits of Ms. Rivera (May 1, 2017 and June 12, 2017) and, in addition, cross-examined Mr. Mehedi on August 1, 2017. These affidavits and transcripts formed the evidentiary foundation of the motions.

[5] Mr. Mehedi sought to rely on his own statements either in court or in his written argument as evidence. I was required to make it quite clear – repeatedly – that evidence is not made by way of written or oral argument and took no account of such “evidence” when it was offered. The motion proceeded solely on the basis of the evidence validly placed before me.

[6] For the reasons that follow, I am dismissing the plaintiff’s claim and order the plaintiff to pay the full indemnity costs of the defendant that I have fixed in the amount of $9,606.25. The plaintiff’s claim raises no triable issues. He was dismissed from a position as an unpaid intern volunteer and there is no contract between the plaintiff and the defendant from which consequential damages may arise. Further, the plaintiff’s extremely inappropriate conduct in regards to an 18 year old female high school student left the defendant with no reasonable alternative but to terminate the arrangements it had with him. Even granting a large and generous reading of a statement of claim drafted by a lay person, the plaintiff has pleaded no torts for which any reasonable foundation in fact has been established despite having been given every opportunity to put his best foot forward. This claim must therefore be dismissed. Having made numerous improper, unfounded and inflammatory allegations regarding the defendant, its personnel and counsel, the plaintiff ought to be ordered to pay the full indemnity costs of the defendant.

Background Facts

[7] In January, 2016, Mr. Mehedi was a 54 year old student enrolled in a social services worker training course of study with Seneca College in Toronto. His course work required him to complete 200 hours of a field practicum. On January 4, 2016, he applied to the defendant Culturelink Settlement and Community Services for an unpaid internship/placement practicum to fulfill that course requirement.

[8] Culturelink is a not-for-profit agency providing settlement programs for recent immigrants and refugees. Among other things, Culturelink relies on volunteers from a girl’s high school across the street (Bishop Marrocco School) with whom it has forged a relationship to accomplish its mission.

[9] Mr. Mehedi applied to Culturelink for a student practicum placement as a volunteer/intern on January 4, 2016. His application was accepted. He received orientation training on January 15, 2016 and began his internship shortly thereafter. The position was expected to last until April 18th and provide Mr. Mehedi with the 200 hours of experience he required for his courses. Culturelink confirmed these arrangements directly with Seneca College.

[10] There was no formal “contract” entered into. The arrangements were documented by, among other things, Mr. Mehedi’s application, his resumé, a checklist of things either given to him or made available to him for review (including policies of the agency) as well as a number of documents from Seneca College outlining the functioning of the practicum, Seneca’s role in supervising it and the student, etc.

[11] The position was an unpaid one. Mr. Mehedi did not receive any wages or honorarium.

[12] An incident occurred on February 24, 2016 at about 11 a.m. that led to the suspension and then termination of Mr. Mehedi’s position with the defendant later that day. There is some dispute as to what exactly happened during the incident.

[13] Despite the dispute, the objective facts are unfortunately straightforward. On the morning of February 24, 2016, Mr. Mehedi was working along with another volunteer. She was an 18 year old female student volunteer from Bishop Marrocco School, the school with which the defendant had a working relationship. At about 11 a.m., Mr. Mehedi was alone in an elevator with the young woman. An incident occurred. The young woman has given one account; Mr. Mehedi has given several. She claimed to have been touched inappropriately and without her consent; he has variously claimed that she hugged him after he asked her if she wanted to, that nothing at all happened or that he asked her to hug him and she complied voluntarily and he then kissed her hand. When the elevator reached its destination, the young woman was upset. She returned to the school and told her teacher that she had been touched inappropriately without her consent. Police were called to investigate. The school provided the defendant with details of the incident. Ms. Rivera immediately investigated. It was clear that the defendant’s important relationship with the school would be in jeopardy if the matter was not dealt with appropriately. Mr. Mehedi was quickly identified as the one who had been in the elevator with the young woman. Mr. Mehedi was interviewed along with other volunteers. He was immediately suspended.

[14] While traumatized, the complainant elected not to press charges. The police advised both Mr. Mehedi and the defendant of that fact. The police also advised Mr. Mehedi that he should not approach the young woman or be near her school. Since the school is located across the street from the defendant’s premises, he interpreted that to mean that he could not return to the defendant’s premises. Later that day, Mr. Mehedi was advised that his arrangements with the defendant were terminated.

[15] There are two principal factual controversies arising from this incident: what happened in the elevator and what the police did about it. In each case I have competing versions of the disputed events from the plaintiff himself and from the defendant arising from Ms. Rivera’s internal investigation. Sorting out these controversies does require me to make use of the tools placed at my disposition by Rule 20.04(2.1) of the Rules of Civil Procedure which in turn requires me to consider whether it is in the interest of justice that these issues be left to be resolved at trial rather than be resolved here based on the record the parties have placed before me.

[16] I have concluded that the interests of justice do not require a trial to resolve these factual controversies. Mr. Mehedi’s admissions in his own statement of claim are largely sufficient to dispose of contradictory accounts of the facts that he has advanced long after the fact. There are few cases where credibility can so readily be assessed as here. Mr. Mehedi’s evolving story line was riddled with internal contradictions, obviously self-interested, often incomprehensible and at times appeared delusional. It was many things but it was seldom credible.

The elevator incident

[17] I have before me at least four competing versions of what happened in the elevator incident that I mentioned above. Three of these are advanced by the plaintiff and contradict each other to a greater or lesser degree.

[18] The plaintiff’s “first” version of events is in the form of an admission in paragraph 14 of the statement of claim. This paragraph admits:

“At or about 11:00 a.m. the plaintiff was in the elevator with [the student]. The elevator temporarily ceased operating with the door open. Another employees forced the door closed. At that time, the plaintiff became concerned that the elevator would “get stuck” with him and his co-worker inside. The plaintiff jokingly told [the student] “if you wish you can give me a hug”. [The student] responded by giving the plaintiff a hug. The elevator opened at the desired floor and the plaintiff and [the student] continued unloading the bags of donated items without incident”.

[19] On February 27, 2016, Mr. Mehedi sent the defendant an email with an attached letter bearing the title “factum” (and dated the 25th) providing his version of events after he had been terminated. In this version of events, he claimed to have asked the student “do you wish to give me a hug” and “she quickly responded and gave me a hug. At that time I gave her a hug and kiss her hand. I realized that it was not unwelcoming. She is 18 years old and a co-op student. She is in high school.”

[20] Mr. Mehedi’s June 9, 2017 affidavit provided a third version of this incident of February 24, 2016. In this affidavit, he alleges that nothing at all happened in the elevator: “I was quiet in the elevator. I came out from the elevator when it arrived at the down level”.

[21] I have not attempted to recount further versions of this evidence from non-evidentiary sources such as written or oral argument. I have also left out much of the rambling background to the story as told by Mr. Mehedi. It is a story replete with claims of conspiracies, of numerous women (including the complainant) allegedly making improper sexual advances of some sort in his direction, etc.

[22] The evidence of Ms. Rivera’s investigation paints an entirely different picture. Given the contradictions in the three versions of the plaintiff’s own version of this incident, I have no hesitation in resorting to the toolbox of Rule 20.04(2.1) of the Rules of Civil Procedure to resolve the controversy on this subject by accepting the defendant’s version of events as related by Ms. Rivera in relation to the incident and her investigation of it. It is in all possible respects the most credible and realistic account of what occurred.

[23] Among other things, Ms. Rivera evidence confirms and I find as follows:

a. Ms. Rivera conducted an investigation of the incident after being contacted by a teacher from the high school;

b. In the course of this investigation, she discussed the matter with other volunteers and staff, with Mr. Mehedi and with the police;

c. Another student had seen Mr. Mehedi touching the complainant’s shoulder before the incident in “an intimate manner” leading this other student to believe Mr. Mehedi was the complainant’s father;

d. When asked about the incident, Mr. Mehedi did admit that he had hugged and kissed the complainant in the elevator that day;

e. Following this investigation and a phone call with police (see below), Mr. Mehedi’s placement with the defendant was terminated.

The Police advice.

[24] The plaintiff issued a subpoena and sought to call viva voce testimony at the hearing of the motions from a Toronto Police Service officer who investigated the complaint. No advance warning of this request had been given to counsel or to the court. Mr. Mehedi was unable to supply me with a convincing argument as to why this request was not made earlier than at the hearing. I was advised that he wished to examine the officer about what the police had advised him when they contacted him after the complainant (i.e. the young woman) decided not to press charges. His own affidavit touched upon this very subject and, of course, the information would necessarily have been entirely within his own knowledge all along.

[25] I declined this late-breaking request to introduce new evidence. There was nothing new or unexpected about the issue of the actions of the police. Both parties dealt with the issue in their affidavits and on cross-examination. Mr. Mehedi apparently wished to obtain evidence that the police had not advised him that he could not return to the defendant’s premises. I reminded the plaintiff that his own statement of claim pleaded that “The officers advised that no charges would be laid against him. The plaintiff was cautioned and told that he could not attend at Culturelink and that he could not communicate with [the girl]”. No request to lead viva voce evidence was made in a timely way and this motion was scheduled on a preemptory basis on the plaintiff’s request. Leave to introduce viva voce testimony was denied.

[26] I find that the police warned Mr. Mehedi to stay away from the complainant. Doubtless they also gave him a very real understanding of how fortunate he was that charges were not being laid and how likely it was that the young woman’s decision not to press charges might change were he not to heed their advice and stay well away both from the complainant and her school. I find that Mr. Mehedi himself construed this police warning as requiring him to stay away from the defendant’s premises, these being across the street from the girl’s school, and communicated that understanding to the defendant as he himself admitted in the statement of claim.

Other allegations made

[27] I have not repeated the numerous tangents followed by the plaintiff’s affidavit evidence or his two facta. Mr. Mehedi made a number of intemperate and at times clearly fabricated statements in his factum, his affidavit, on cross-examination and in argument regarding the motives, integrity or behaviour of the defendant, other employees or volunteers with the defendant and the young woman who complained about his behaviour in the elevator. He alleged, among other things, that the complainant had sexually assaulted him the prior day; that other volunteers or employees of the defendant had been making inappropriate sexual advances towards him; that there was a conspiracy or other fraudulent behaviour aimed at harming him; that counsel for the defendant was acting in a criminal fashion and that there were various unspecified breaches of fiduciary duty.

[28] Nothing of the sort was pleaded in the plaintiff’s statement of claim nor was the plaintiff able to suggest how proof of these allegations raised in argument could possibly advance proof of any claims he had pleaded. The greater part of these allegations were the very definition of frivolous or vexatious. I found not one of them to be remotely justified by the evidence and Mr. Mehedi’s evidence on so many matters was so self-evidently incredible or fabricated that I could accept none of his evidence unless corroborated by other sources.

[29] The court is well used to affording leeway to self-represented litigants who are doing their best to navigate an often technical and complicated set of rules to have their voice heard by the courts. Mr. Mehedi’s voluminous and repetitive recitation of these allegations go far beyond any allowance that might reasonably be made in his favour. I shall return to this matter in relation to costs.

[30] During oral argument, I was required time and again to plead with the plaintiff to anchor the arguments he advanced to the actual statement of claim before me. I had limited success in my efforts although to his credit Mr. Mehedi did appear to make an effort to follow my direction not to continue to argue points that were not pleaded. I led him through the main points of his statement of claim and the theory of the defendant’s motion in order to ensure that I had the best understanding he could impart of the evidence he relied upon and arguments he wished to advance for each point he wished to make. I am satisfied that I did.

Issues Raised

[31] The following issues were raised by the parties at the hearing:

a. Is this an appropriate case for summary judgment on either motion?

b. Was the plaintiff an “employee” entitled to bring a wrongful dismissal claim or a claim for contractual reliance damages?

c. Has the plaintiff provided sufficient evidence to sustain his claim for negligence or other tort claims?

d. Costs.

Analysis and Discussion

(a) Is this an appropriate case for summary judgment?

[32] Both parties assured me at the outset of argument that I had before me all evidence necessary to rule upon the issues they were raising. None suggested that the interests of justice required that these matters only be resolved at a trial. None suggested that they had failed to put their best foot forward or been deprived of an opportunity to do so.

[33] It has been necessary to sift through a great volume of irrelevant or inadmissible material to find the bits and pieces of relevant evidence secreted in the file, but I have found that I was required to make only occasional use of the tool box available to me under Rule 20.04(2.1) of the Rules of Civil Procedure to resolve controversies in the evidence – in most cases, the plaintiff’s own evidence offered a sufficient number of competing and internally inconsistent versions to make the task of weighing evidence or assessing credibility a straightforward one.

[34] It would not be in the interest of justice to have a trial on this matter. I have before me all that is needed to do justice between the parties and decide the issues raised. I have found it advisable to decide issues of credibility and weight by using the tools made available to me by Rule 20.04(2.1) and, having done so and reviewed the evidence carefully, I am of the view that there are no genuine issues for trial raised by this claim. This is therefore an appropriate case to be disposed of in this fashion.

(b) Was the plaintiff an “employee” of the defendant entitled to bring a wrongful dismissal claim or a claim for contractual reliance damages?

[35] Mr. Mehedi has admitted that he was a registered student at Seneca College, that his position with the defendant was that of an “unpaid internship/placement practicum” and that this was part of his course requirement at Seneca College. He was not paid a salary or honorarium of any kind.

[36] Mr. Mehedi’s arrangements with the defendant were not in the nature of an employment contract. He was in a short-term, temporary and unpaid position in association with Mr. Mehedi’s school. Seneca College was an integral part of what can only fairly be described as a tri-partite arrangement involving Mr. Mehedi and the defendant. Seneca College had a continuing supervisory role in relation to the placement of Mr. Mehedi with the defendant.

[37] While there was an educational component attached to this arrangement by reason of the role of Seneca College, the relationship between Mr. Mehedi and the defendant was at all times that of an unpaid volunteer. The defendant has cited Nikolau v. Ash, 2009 92548, Evard v. University of British Columbia (Alma Mater Society), [1995] B.C.J. No. 1392 and Nodin v. Whitesand First Nation, [2017] O.J. No. 3139 in support of the proposition that volunteers such as Mr. Mehedi are not employees and may not advance a claim for consequential or reliance damages arising from the severing of that relationship. While the circumstances in each of the cited precedents differ to some degree, the underlying principle is the same.

[38] Mr. Mehedi claimed that the arrangements he had with the defendant were not strictly of a volunteer nature because he alleged an arrangement to be employed by the defendant after his course work was completed. That claim was not pleaded in the statement of claim and was explicitly denied by Ms. Rivera. The evidence of Mr. Mehedi to that effect did not survive cross-examination as he admitted that he had no factual basis for this claimed expectation on his part. I find that the defendant made no representations to Mr. Mehedi that could have reasonably led to such an expectation. It may well be that Mr. Mehedi’s hopes and aspirations led him to make to such an assumption; if so, it was a unilateral assumption.

[39] Mr. Mehedi was not an employee and was never bound to the defendant under a contract of employment. While the relationship that did subsist between the defendant and the plaintiff is not necessarily immune from all possible tort liability, I do find that the plaintiff has not proved any facts from which a contractual claim for consequential damages can be asserted. A volunteer cannot sue in contract for such damages arising from loss of the opportunity to volunteer services any more than a philanthropist can sue when a monetary donation is refused.

(c) Has the plaintiff pleaded evidence to sufficient to demonstrate a cause of action in negligence or tort?

[40] The plaintiff placed great stock in the argument that the defendant failed to provide him with proper supervision or feedback. I have found that the claim is factually unfounded even if its legal anchor as a possible tort remains unspecified.

[41] The plaintiff was in fact given orientation training including in relation to the defendant’s policies. His own email letter of February 27, 2015 specifically acknowledged having received appropriate feedback from his supervisors. In oral argument, the defendant appeared to allege that it was the complainant who was inadequately supervised and that she was somehow “pushed” on him as if that would somehow justify his utterly inappropriate behaviour towards her. There is no contractual or tort claim that can be advanced from the failure to supervise a third party without something more being alleged. At all events, such an allegation would be as spurious as it is false. The effort of the plaintiff to blame the victim of his own inappropriate behaviour toward her is the product of an active imagination but has no foundation in reality.

[42] There is also no causal relationship between the alleged lack of supervision and any of the damages claimed. The plaintiff’s claim arises from the termination of the arrangement and not from inadequate supervision of a truncated learning experience. He has denied repeatedly having done anything wrong and therefore does not claim that he received inadequate training to avoid doing that which he denies having done.

[43] I can find no basis in fact or in law for a tort claim of failure to supervise as claimed. This aspect of the statement of claim cannot succeed and must be dismissed.

[44] The claim for negligence appears to be advanced upon the premise that the defendant owed the plaintiff a duty of care not to terminate his volunteer position before completing a proper (non-negligent) investigation.

[45] The moving party defendant submits – and I agree – that such a duty of care does not exist. A non-profit agency such as the defendant is not obliged to permit the plaintiff to continue to volunteer. They are entitled to terminate the unpaid volunteer arrangement at any time for reasons sufficient to them.

[46] Even if negligence in the conduct of an investigation of cause for termination of a volunteer arrangement could give rise to a tort claim, I am quite satisfied that there is no triable issue as to the existence of such a breach. Ms. Rivera outlined the process undertaken to investigate the allegations brought to her attention regarding Mr. Mehedi and I have no hesitation in accepting her uncontradicted evidence. The complainant’s story was reasonably investigated by her and her reasons for acting upon the results of that investigation and terminating the relationship with Mr. Mehedi were reasonable and credible. Mr. Mehedi was given an opportunity to present his side of the story. The defendant even considered whether alternative arrangements at a different location might be practicable but concluded they were not. There is little that even the counsel of hindsight might suggest should have been done differently here. There is no fact in evidence before me now that, if known to the defendant then would have resulted in a different outcome. The defendant acted entirely properly and prudently in dispensing with Mr. Mehedi’s future services when it did.

[47] Mr. Mehedi has claimed that the defendant acted in bad faith when it terminated his volunteer arrangement and should have known this conduct would cause harm and emotional distress to him. I can find no credible evidence to sustain the bad faith allegation. The termination of the relationship with the defendant was handled professionally and dispassionately. There is no evidence of malice. There were efforts “above and beyond” to see if alternatives could be found. None were.

[48] I have not found it necessary to delve deeper into the finer points of such a tort claim on the facts before me. The pleading provides no guidance as to what conduct is alleged to have caused such distress. Since the defendant was entitled to terminate the relationship without cause, distress arising from the simple fact of termination alone cannot be actionable. No malicious or intentionally harmful actions associated with the delivery of the decision are alleged or proved in evidence. I am not required to speculate as to any other claim the plaintiff might have been able to imagine. Nothing in the proven facts sustains this claim no matter how generously I read it.

[49] The simple fact of the matter is that the plaintiff disagrees with a decision that I have found the defendant had every right and justifiable reason to take. There is no evidence and I do not find that the defendant harmed the plaintiff in any way in conveying its decision.

[50] The plaintiff has pleaded a number of heads of damages that are said to arise from the actions of the defendant. The plaintiff has adduced no evidence to substantiate any amount of damages that might be attributed to any of the heads of damages pleaded. Many of the heads of “damages” are nothing of the sort (e.g. discontinuance of social assistance benefits).

[51] I agree with the defendant that a damages claim cannot stand on its own but must flow from a breach of a recognized and valid obligation (contractual, tort, fiduciary or restitutionary). None of the pleaded causes of action has been proved. To the contrary, the evidence satisfies me that there are no triable issues with respect to any of them.

[52] I find that the facts do not support any of the pleaded causes of action in negligence or tort. At all events, no damages whatever have been proved.

(d) costs

[53] Finally, I must address the matter of costs.

[54] The defendant agency is entitled to its costs. The claim of the plaintiff has been entirely dismissed. Despite the adage that the best defence is a good offence, it is clear to me that this is an action that ought never to have been brought. Mr. Mehedi is clearly incapable of showing any insight into how wrong and inappropriate his behaviour towards a high school girl volunteering with him at the defendant agency was. He has lashed out in lieu of examining his own conduct in the mirror. He has done much more than this though. He has accused opposing counsel of criminal conduct, he has attempted to smear the reputation of Ms. Rivera and the complainant with ridiculous and unfounded complaints, he has accused the defendant of fraud and breach of fiduciary duty without any foundation.

[55] The court system is not an appropriate place to vent frustration, rage or similar feelings. Where a party has been required to respond to claims advanced as recklessly as these were, the court can and should send a message. Serious allegations require serious evidence. The privilege of advancing claims in litigation is not to be seen as license to smear without foundation in fact.

[56] When asked to address me on the subject of costs, Mr. Mehedi said that he would not make any payment of costs if I ordered him to do so. He later modified this somewhat to say that he could not make any such payment by reason of his finances. I have no disclosure from his as to his assets or liabilities. I cannot simply assume penury without some evidence. Further, his behaviour in this litigation ought not in fairness to go unsanctioned. Impecunious litigants have no license to abuse the process of the courts.

[57] Mr. Mehedi is ordered to pay the full indemnity costs of the defendant. The defendant filed a cost outline that seeks $9,606.25 in costs. I was advised that this was prepared on a full indemnity basis. I have reviewed it and find that the defendant has been more than reasonable both in terms of the hours claimed and rates charged.

[58] I am allowing the defendants costs at the amount of $9,606.25 all inclusive.

Disposition

[59] Accordingly, I rule as follows:

a. The plaintiff’s claim is dismissed; and

b. The plaintiff is ordered to pay the defendant’s costs on a full indemnity basis that I fix at $9,606.25 all inclusive.

S. F. Dunphy, J.

Released: September 6, 2017

COURT FILE NO.: CV-16-556462

DATE: 20170906

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Golam Sarwar Mehedi
Plaintiff

– and –

Culturelink Settlement & Community Services
Defendant

REASONS FOR JUDGMENT

S. F. Dunphy, J.

Released: September 6, 2017