Court File and Parties
COURT FILE NO.: CV-22-89230
DATE: 2023/08/15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rachel Obita, Plaintiff
AND
Algonquin College, Defendant
BEFORE: Justice A. Doyle
COUNSEL: Self represented, for the Plaintiff
Chris Rutherford, Counsel for the Defendant
HEARD: August 10, 2023
Motion ENDORSEMENT
[1] The plaintiff, Rachel Obita, attended Algonquin College from January 2019 to April 2021. She graduated with an Advanced Diploma in Business Administration – International Business.
[2] Ms. Obita alleges that she was the victim of academic and verbal harassment and has brought a claim against the defendant Algonquin College (the “College”) for deceit, fraudulent misrepresentation, defamation, breach of contract, negligence and harassment.
[3] Ms. Obita has brought a motion for the following relief:
- An order requiring the College to ensure that all their policies and webpages are traceable when exported as PDFs;
- An order for policy changes;
- An order for sanctions;
- An order for an injunction; and
- An order to open Ms. Obita’s Brightspace account.
[4] The College seeks an order striking portions of Ms. Obita’s affidavits.
[5] A Rule 21 motion brought by the College is scheduled for January 16, 2024.
ALLEGATIONS
[6] In her amended statement of claim, Ms. Obita alleges that the College is involved in “illegal privacy and information use violations to mitigate risk” (para. 1).
[7] The issues arose in a class she had with a professor who reduced her grade from 69 to 55. As she had the same professor for other courses, she alleges that she attempted to speak to him regarding his treatment of her. She then describes the arduous process she encountered in attempting to deal with what she perceived as the professor’s inappropriate behavior.
[8] At the academic appeals hearing, she alleges that some important evidence was not filed. She was found to have violated “academic integrity and committed self-plagiarism” (para. 16).
[9] She later learned that she could have appealed for “personal bias/unfair treatment” (para. 20).
[10] She alleges that the College’s description of the role of the Ombudsman is “a façade to give appearance of fairness” (para. 27).
[11] She also alleges that the College has “taken countless measures to cover up misconduct by employing fraud and misrepresentation, among other tactics” (para. 36).
DISCUSSION
[12] I will deal with each head of relief being sought.
- An order requiring the College to ensure that all their policies and webpages are traceable when exported as PDFs;
- An order for policy changes; and
- An order for an injunction.
[13] In essence, Ms. Obita’s claim is based on her allegation that the College does not have a transparent and robust system that permits students to bring forward complaints in a timely and open manner. She alleges that the College, despite its statements to the contrary, does not promote an atmosphere that would be expected from an educational system that promotes openness and accountability. The respectful workplace policies are not readily accessible to students attending the College.
[14] She is seeking redress by requesting that the court issue mandatory injunctive relief requiring them to address these deficiencies. Her objective is that the College be ordered to comply with industry standards and workplace policies and eliminate the current system that attempts to evade liability. In addition, the system in place is not accessible to those requiring accommodation such as students with disabilities or mental health issues.
[15] Ms. Obita is requesting that students’ complaints of harassment or other inappropriate behavior occurring in the College be able to be dealt with in a system that permits access and that the available evidence be handled in an impartial fashion and in line with the principles of fairness, impartiality and openness.
[16] Ms. Obita alleges that she was not properly dealt with in her own complaints regarding a professor and her academic marks. Her lawsuit is aimed at correcting the problems with the process for others who may experience issues in the future
[17] Ms. Obita amended her statement of claim but has not included the injunctive relief as a claim.
[18] During Ms. Obita’s argument at the motion, she acknowledged that she had not claimed an injunction in her amended statement of claim. An injunction was claimed in her reply. In the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), Rule 25.08(2) set out the purpose of a reply. A new issue cannot be raised in reply as it cannot be addressed by further defence pleadings. See Ghany v. Federal Express et al., 2012 ONSC 7258 at para. 84.
[19] This motion cannot proceed without that amendment.
[20] Her statement of claim should clearly set out the injunctive relief she is seeking and the remedies sought.
[21] The above relief request remedies that are of injunctive nature.
[22] Ms. Obita indicates that she plans to amend her statement of claim to include an injunction.
[23] Therefore, the court finds that it has no jurisdiction to grant the relief requested by Ms. Obita in her motion that is in the form of an injunction or mandatory injunction. There is no pending proceeding in which a permanent injunction is claimed. See Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., 1995 CanLII 10638 (ON SC), 1995 23 O.R. (3d) 766 (Div. Court).
Ms. Obita is seeking sanctions against the College
[24] Ms. Obita is requesting sanctions. Few particulars are given and no authorities. Ms. Obita has not outlined the court’s jurisdiction to impose general sanctions against the College.
[25] Given Ms. Obita’s failure to particularize the sanctions she is seeking and the authority for these sanctions, the court declines to grant this relief.
[26] Certainly, costs is a form of sanction and this court will deal with them in due course.
[27] Ms. Obita has requested other relief in her factum and materials. It should be noted that the court will only deal with the relief set out in the notice of motion in accordance with the Rules of Civil Procedure. Therefore, the court will not consider the other items that have been referred to such as the request for a jury notice.
An order to open Ms. Obita’s Brightspace account
[28] Brightspace is the College’s learning management system, that is, a portal to access digital materials associated with courses and programs. The system allows communication between faculty and students and professors can post assignments, quizzes and marks for assignments. It also has links to other resources including chat functions and calendars.
[29] Ms. Obita’s access to Brightspace was terminated on October 28, 2021 as her status was then changed to alumni. Brightspace ends with a student’s graduation.
[30] Ms. Obita does not have access to her Brightspace account as she is no longer registered as a student. She indicates that she intends to register for a course at the College to enable her to access her account.
[31] Without student access, the only method for the College to allow the reinstatement is to create a custom solution which would result in the College incurring significant costs and time. The College is prepared to provide her screenshots and copies of documents that are on her Brightspace account.
[32] The court has scanty evidence on the issue of what is needed for the College to reactivate the account. Ms. Obita reinstates her account when she registers for a course.
[33] At this stage a reasonable solution is that within 60 days, the College will provide Ms. Obita with screenshots and copies of documents found on Ms. Obita’s Brightspace account.
College’s motion to strike portions of Ms. Obita’s affidavits
Legal framework
[34] Rule 4.06(2) of the Rules provides:
(2) An affidavit shall be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where these rules provide otherwise.
[35] Rule 39.01(4) again sets out the contents of an affidavit:
(4) An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
[36] Firstly, it is trite law that affidavits, or portions of them that simply express opinions on the very issues raised, may be struck, and the affidavit should be limited to factual information.
[37] If an affidavit contains particularly offensive content, a party may move to strike the offending paragraphs.
[38] Pursuant to r. 25.11, the court has the power to strike documents which offend these rules:
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.
[39] It is now settled law that a “document” includes an affidavit within the meaning of r. 25.11: Allianz Global v. Attorney General of Canada, 2016 ONSC 29 and Holder v. Wray, 2018 ONSC 6133.
Discussion
[40] Certainly, the exhibits have not been properly marked to Ms. Obita’s affidavit which is a technical issue.
[41] More importantly, Ms. Obita who is self-represented was not aware that the language she used in her affidavits was not permissible as it was inflammatory in the legal sense.
[42] It was explained to her that affidavits should not contain opinions from her as she is not an expert and that they should not contain arguments.
[43] Schedule B to the factum of the College is also attached to this decision as an appendix that sets out the offending paragraphs. The court finds that these offending paragraphs are not properly contained in an affidavit and accordingly they will be struck.
SUMMARY
[44] Accordingly, Ms. Obita’s motion is dismissed save and except that the College will provide Ms. Obita with screenshots and copies of her documents on her Brightspace account within 60 days.
[45] The paragraphs contained in Ms. Obita’s affidavits as outlined in the Appendix attached are struck.
[46] I encourage the parties to resolve the issue of costs. Ms. Obita is well intentioned in her lawsuit and her lawsuit has an element of public interest. However, her motion was ill-conceived as it did not comply with the Rules.
[47] Despite what she believes is a worthy cause, costs follow the event and costs are normally awarded to the successful party. If the parties cannot resolve the issue of costs, the College may file their 2-page costs submissions by August 25, 2023, Ms. Obita may her 2-page costs submissions by September 1, 2023 and a one-page reply can be filed by the College by September 8, 2023.
Justice A. Doyle
Date: August 15, 2023
COURT FILE NO.: CV-22-89230
DATE: 2023/08/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Rachel Obita, Plaintiff,
AND
Algonquin College, Defendant
BEFORE: Justice A. Doyle
COUNSEL: Self represented, for the Plaintiff
Chris Rutherford, Counsel for the Defendant
ENDORSEMENT
Justice A. Doyle
Released: August 15, 2023