Court File and Parties

Court File No.: CV-17-588331 Date: 2018-06-28 Superior Court of Justice - Ontario

Re: Kyle Sanjay Goomansingh, Plaintiff And: University of Manitoba, Defendant

Before: Carole J. Brown, J.

Counsel: Caryma Fayez, for the Plaintiff/Responding Party Alexander Pettingill and Sean Murtha, for the Defendant/Moving Party

Heard: May 22, 2018

Endorsement

[1] The defendant, University of Manitoba (“the University”), seeks an order striking the plaintiff’s statement of claim without leave to amend pursuant to Rule 21 of the Rules of Civil Procedure, on the ground that it is plain and obvious that the plaintiff’s claim cannot succeed.

[2] It is the position of the defendant that the plaintiff’s claim stems from his unsuccessful application to the University’s Faculty of Medicine in 2007. The plaintiff appealed on the basis of procedural errors, bias and racism, and exhausted the internal appeal system including a letter to the Assistant Dean on April 13, 2007, a formal reconsideration meeting on July 18, 2007 during which the plaintiff was permitted to make oral submissions, an appeal to the University’s Senate Committee on admission appeals in late July 2007 and a further complaint to the University’s equity services, which resulted in the University appointing an independent lawyer, Christopher Kozier, to investigate the specific allegations. These were all unsuccessful. In March 2009, the plaintiff’s mother, Mona Goomansingh wrote a letter to the President of the University, alleging bias on the part of the Faculty of Medicine’s admissions committee and suggested that the entire admissions process was tainted. As a result, the University arranged for a statistician to review the results from the various interview panels during the 2007 interview process and it was concluded that the process had been fair. A second letter was written also in 2009 by the plaintiff’s mother alleging bias on the part of the Faculty of Medicine’s admission committee. Thereafter, the plaintiff wrote to the University, to the Chair of the University’s Board of Governors. Legal counsel for the University responded advising that the University had thoroughly investigated the facts related to the plaintiff’s application and it found no evidence of procedural unfairness which would require the Board of Governors’ intervention.

[3] In January 2010, the plaintiff filed the complaint with the Manitoba Human Rights Commission, which ruled that the plaintiff had missed the limitation period to file a complaint and that it would not exercise its discretion to grant an extension.

[4] The plaintiff subsequently moved to Ontario. On April 5, 2016, he created a Wordpress blog entitled “Admission Inequality in Medicine” which documented his account of the flaws and underlying biases of the University’s Faculty of Medicine admissions process. The plaintiff subsequently made inquiries of other faculties of medicine regarding their admissions policies and has concluded that the University violated conflict of interest policies. The plaintiff is now preparing to publish a book about his experience with the admissions process at the University and states that he wishes to hold the admissions procedures of the University’s Faculty of Medicine under public scrutiny on the basis of fairness, transparency and accountability.

[5] On May 5, 2016, the plaintiff received correspondence from the University’s external counsel at Taylor McCaffrey in Manitoba in the form of a “cease and desist” letter as regards the blog post and the defamatory statements thereon.

[6] That letter states, in part, as follows:

Your email invites the reader to visit the website admissions fraud.wordpress.com. I have reviewed your postings on the site. My client takes issue with how you characterize various events, but recognizes that in a free and democratic society, you have the right to express your opinions, even if they have no basis in fact.

However, when you make false allegations against Mr. Danakas and Mr. LeClerc stating that they have broken the law and participated in a cover up, you have crossed the line. The content you are publishing is clearly defamatory and will not be tolerated. You are on notice of a claim pursuant to section 14(1) under the Defamation Act to remove the defamatory statements from your website. In the event that the defamatory content is not removed, a claim will be filed against you without further notice.…

When I compare your May 2 email and your website content to earlier communications you have had with the University of Manitoba, the new threatening tone and allegations of criminal behaviour are manifestly different. You have caused my client’s staff to be concerned about what your intentions are. The University is assessing your recent communications from a security perspective and appropriate steps are being taken to protect the institution and its staff.

[7] In or about late April to early May 2016, the plaintiff’s mother received a phone call from Winnipeg police at her home address asking about the plaintiff including what his intentions were toward the University. In November 2017, Kyle contacted the Winnipeg police service and asked for a copy of any police report, file or notes obtained about him within the last two years and was advised that no official complaint or case had been made against him. Kyle subsequently hired a freelance journalist to conduct interviews with representatives from the University’s Faculty of Medicine regarding the 2007 admissions process, as a result of which, the journalist received correspondence from counsel at Taylor McCaffrey in Winnipeg warning that the University may have to take legal proceedings against Kyle depending on his conduct.

[8] As a result of the foregoing the plaintiff commenced this lawsuit against the University. While the University takes the position that the claim arises from the plaintiff’s 2007 application to the Faculty of Medicine which was rejected, the plaintiff takes the position that the claim is based upon the attempts of the University to suppress his publications through legal threats and his Charter rights as regards freedom of expression. He points to the threatening letter from Taylor McCaffrey to him, the letter to the journalist and the phone call from the police to his mother.

[9] It is the position of the moving party defendant that the complaints in the statement of claim arise from and are based on the plaintiff’s 2007 rejection from the Faculty of Medicine in which he alleged bias, racism and improper admissions procedures. It is the position of the moving party that the plaintiff’s claim is statute-barred, given that it occurred over 10 years before the statement of claim was issued and that discoverability is not an issue. It further maintains that the substance of the plaintiff’s complaint is academic in nature and is not the type of dispute over which the courts will assume jurisdiction. The moving party maintains that the jurisprudence in this area clearly establishes that if a pleading’s “pith and substance” is an academic dispute, the court will find that these matters are within the discretion of the academic institution and are not to be addressed in the civil proceeding unless by way of judicial review and relies on the cases of Jaffer v York University, 2010 ONCA 654; Gauthier v St. Germain, 2010 ONCA 2009; King v Ryerson University, 2015 ONCA 648; Dawson v University of Toronto; Lipsitz v Ontario, 2011 ONCA 466; Aba-Alkhail v University of Ottawa, 2013 ONSC 2127; Said v University of Ottawa, 2013 ONSC 7186; Lam v University of Western Ontario, 2015 ONSC 1642 and 2015 ONSC 5281. Further, the moving party submits that the plaintiff failed to plead any reasonable cause of action against the University. It states that an action in negligence requires a plaintiff to demonstrate that the defendant owes the plaintiff a duty of care, breached that standard of care, that the plaintiff sustained damage and that the damage was caused by the breach. None of this has been pleaded in the statement of claim. Further, the plaintiff failed to plead material facts to support any allegations that the University breached the standard of care or that damages were caused by such a breach.

[10] It is the position of the plaintiff that this claim does not arise from, nor does it seek to re-litigate, the plaintiff’s rejection from the Faculty of Medicine and, as such, that it is not barred by the Limitations Act, 2002. Instead, the plaintiff’s claim is based on the University’s attempts to suppress his publications through legal threats and intimidating phone calls.

[11] The plaintiff further submits that the statement of claim does not fail to plead a known cause of action and that the fact that the law has not yet recognized a particular cause of action is not determinative as novel claims may be considered. The plaintiff states that it is not plain and obvious that his claim will not succeed.

[12] This plaintiff submits that in seeking to publish online material and a book, he is legitimately exercising his right to freedom of thought, belief, opinion and expression under the Charter and that the threats of legal action received from the University for posting defamatory content suppress his freedom of expression.

[13] Finally, the plaintiff maintains that section 137 of the Courts of Justice Act prevents pleadings that limit freedom of expression on matters of public interest, which he maintains this is.

The Law

Rule 21.01

[14] Rule 21.01(1)(b) provides that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.

[15] The purpose of Rule 21.01(1)(b) is to enable a judge to strike from the pleadings, claims and defences that do not, in law, have a chance of succeeding. While a court will be reluctant to strike out a claim, the claim should be struck where it is clear and obvious that no cause of action is disclosed. The pleading should not be struck if there is a chance of success. In determining whether a claim should be struck, the court is required to give a generous reading to the pleadings. The issue is whether, assuming the alleged facts to be true, the action is nevertheless certain to fail.

[16] While evidence is generally inadmissible in a motion under Rule 21.01(1)(b), the claim incorporates, by reference, any document pleaded in the pleadings and the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleadings.

[17] The novelty of the cause of action will not militate against the party pleading. A novel claim of negligence should not be struck for absence of reasonable cause unless it can be established that the claim is clearly unsustainable.

[18] Having reviewed the motion record and the responding motion record, as well as the facta of the parties, I am satisfied that the seminal issues arise from the plaintiff’s rejection from admission to the University’s Faculty of Medicine and, as such, are statute-barred. Being in “pith and substance” part of the academic decision-making process, they are not to be decided by a court, but rather by the internal University process. That process was thoroughly exhausted. To the extent that the statement of claim involves his unsuccessful application to the Faculty of Medicine in 2007 and what he holds to be a flawed, biased application process, the claim cannot be sustained.

[19] If I am wrong as regards the pith and substance of the action being the rejection from admission to medical school, and the basis of the action is really, “in pith and substance” the letter received by the plaintiff from external counsel for the University, Taylor McCaffrey LLP, which the plaintiff states were threatening and intimidating, and contrary to his Charter rights, the action would not be statute-barred. In this regard, the plaintiff pleads that the intimidation tactics and threats of legal action were used by the University of Manitoba against him. However, I am of the view that the one letter sent to the plaintiff directly was simply a “cease and desist” letter.

[20] As indicated above, I note that the plaintiff only received one letter, on May 5, 2016 which, when read as a whole, is a lawyer’s “cease and desist” letter and also gave notice of a potential defamation action pursuant to the Defamation Act. Nothing further was done as a result of that “cease and desist” letter. No action was brought by the University against the plaintiff. The plaintiff does not plead that he modified his behaviour or that the blog site was ever modified or removed. The book is still to be published. The other two complained of communications were not to the plaintiff but to others who are not parties to this action. For this reason, I do not consider them. I do not find the letter sent to the plaintiff to be contrary to his Charter rights and, indeed, the letter, set forth in part above, recognized his said Charter rights. I do not find that this basis for a claim is sustainable.

[21] I do not find that the statement of claim discloses a reasonable cause of action. I am cognizant of the fact that the motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are deemed to be true unless they are manifestly incapable of being proven. In this case, I do not find there to be a reasonable cause of action against the University, nor are there any material facts to support a cause of action in negligence or any other cause of action.

[22] The Courts of Justice Act, section 137 is not applicable in the circumstances of this case.

[23] Accordingly, I grant the moving party defendant’s motion and order that the plaintiff’s statement of claim be struck on the ground that it discloses no reasonable cause of action.

Costs

[24] The parties provided their bill costs in this matter. I award costs to the defendant in the amount of $3000 all-inclusive, which I find to be reasonable.

Carole J. Brown, J. Date: June 28, 2018