ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GREGORY KOGAN
Plaintiff
– and –
UNIVERSITY OF TORONTO
Defendant
Gregory Kogan on his own behalf
Robert A. Centa and Denise Cooney, for the defendant
READ: September 16, 2020
F.L. Myers J.
[1]
Overview
The defendant moves to dismiss this action on the basis that the statement of claim discloses no reasonable cause of action. It also objects the language used in the claim; characterizing it as scandalous.
[2]
Legal Standard
A statement of claim will be reviewed at the beginning of the lawsuit on a very narrow basis. The court will assume that the facts pleaded in the statement of claim are true and then will assess whether it is possible for the plaintiff to succeed in the lawsuit on that assumption. If the plaintiff cannot possibly succeed in the lawsuit even if all the facts that he has pleaded are true, then the claim will be dismissed. There would be no point in allowing the lawsuit to proceed if it cannot possibly succeed based on the allegations advanced by the plaintiff. Doing so would just put all parties to the cost and distress of a legal proceeding with no hope of success. Ending the claim at the outset saves the defendant needless jeopardy and saves the plaintiff from incurring a substantial costs award when the claim is dismissed later.
3The court will take a generous view of the statement of claim at this stage. The lawsuit will not be dismissed based on a technical or a strained reading of the allegations. If the claim suffers a technical deficiency that might be fixed by an amendment to the words used, the court will generally allow the plaintiff to try again.
4For the reason that follow, this action must be dismissed. It cannot possibly succeed. Moreover, the plaintiff has delivered four iterations of his statement of claim. Each adds allegations. Nevertheless, the most recent version, dated July 29, 2020 still cannot succeed and this outcome cannot be cured by an amendment.
[5]
Background
Briefly stated, Mr. Kogan complains of actions taken by the University and others associated with it in and around 2000. He alleges that he was wrongfully expelled from his Ph.D. programme, assaulted, discriminated against, and his administrative appeals ignored.
[6]
Limitation Period
Even with some events being alleged to have occurred in Germany in 2003, this claim is too late to proceed. Subsection 15 (1) of the Limitations Act, 2002, SO 2002, c 24, Sch B, provides,
General (2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.
7All of the acts pleaded by the plaintiff occurred before the date that is 15 years before the commencement of this lawsuit in 2019. Nor can there be any issue that the claims were not discoverable when they occurred. The plaintiff pleads that he complained to the U of T police, a justice of the peace, and that he appealed his expulsion at the time. The nature of the wrongs alleged, including assault, battery, and overt anti-Semitism of the worst kind, leave no room for deferred or delayed discoverability.
[8]
Academic Decisions
To the extent that the plaintiff alleges improprieties in his academic treatment, including a 2019 refusal of the University’s Ombudsman to look into his case once he had already sued, and the ongoing failure of the University to hear his initial academic appeal, those are not matters for a civil lawsuit in Ontario. Jaffer v. York University, 2010 ONCA 654.
[9]
Human Rights Claims
Finally, Mr. Kogan has now proposed to bring claims under the Human Rights Code, RSO 1990, c H.19. He notes himself in his most recent amended pleading that those claims would be made to the Ontario Human Rights Tribunal rather than to the court.
[10]
Plaintiff's Concluding Statement
Finally, I note that in each version of his pleading, Mr. Kogan has concluded with the following statement:
I request that the Superior Court of Justice in Toronto consider my Statement of Claim essentially and hence uphold my and other Jewish, racialized and international students' absolute human right for a state protection against all the forms of unheard abuse, harassment, mockery, violence, and racial discrimination, including open anti-Semitism, anti-Israelism and anti-Jewish discrimination, our civil right to be treated in the full accordance with Canada’s laws, not the ones invented for Jews by Hitler and his accomplices! If, nevertheless, my Statement of Claim is stricken without leave to amend under Rules 21.01(1)(b), 21.01(3)(d), 25.11, 37, and 57.03 of the Rules of Civil Procedure in accordance with the Respondent’s lawyer’s request, it will mean nothing else but DECLARING WAR ON JEWS, ISRAELI CITIZENS AND RACIALIZED PERSONS in Canada as any complaints regarding beating, torture, kidnapping, involuntary/slave labour, robbery, insulting, discrimination and unlawful firing submitted by such a person in Canada will be declared scandalous, frivolous, vexatious, disclosing no reasonable cause of action or/and an abuse of process in such a case, and hence Jews, Israelis and racialized persons will be declared OUTLAWED, exactly like it was done in the Nazi Germany by the infamous Nuremberg laws !
11Nothing could be further from the truth. Canada is a nation bounded by the rule of law. Its respect for individual rights free from invidious discrimination, including anti-Semitism in any of its virulent forms, is enshrined in its most fundamental laws and tenets. Jews, Israelis, and racialized people of all kinds are not outlawed by this ruling. To the contrary, the law is applied to all equally, without fear of prejudice or hope of benefit because of one’s immutable characteristics or any prohibited ground of discrimination. The court has nothing but empathy for Mr. Kogan’s suffering assuming the facts that he has pleaded are true. But, in Ontario, no one can sue for the kinds of things that he has claimed after 15 years have passed. No one in Ontario can sue a university civilly for its exercise of its academic discretion to expel or to hear or not to hear an appeal. No one can sue in civil court for the breaches of human rights legislation claimed by Mr. Kogan that occurred before 2008. Dobreff v. Davenport, 2009 ONCA 8, leave to appeal to SCC dismissed, 2009 CanLII 23093.
12Would that I had found that Mr. Kogan had asserted facts capable of amounting to a viable claim, I still would have struck out his statement of claim but with one final chance for him to amend to try to plead a cogent set of factual allegations. I will not provide directions for amendment in view of my decision that no amendment can save the claim that Mr. Kogan wishes to make.
[13]
Disposition
The action is dismissed.
[14]
Costs
If the University seeks costs, it may send no more than three pages of submissions in searchable PDF format attached to an email to my Assistant by September 25, 2020. Mr. Kogan may respond with no more than three pages of submissions in searchable PDF format attached to an email to my Assistant by October 9, 2020
F.L. Myers J.
Released: September 16, 2020
COURT FILE NO.: CV-19-614817
DATE: 20200916
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GREGORY KOGAN
Plaintiff
– and –
UNIVERSITY OF TORONTO
Defendant
REASONS FOR JUDGMENT
F. L. Myers, J.
Released: September 16, 2020