ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RACHEL OBITA
Plaintiff
– and –
ALGONQUIN COLLEGE
Defendant
Self-represented plaintiff
Chris Rutherford, for the defendant
HEARD: January 11, 2024
(By videoconference)
PRELIMINARY RULING
(On the Defendant’s Motion to Strike the Plaintiff’s Pleading)
corthorn J.
Introduction
1Rachel Obita attended Algonquin College (“the College”) from January 2019 to April 2021. Ms. Obita graduated with an Advanced Diploma in Business Administration - International Business. In May 2022, Ms. Obita commenced this action. She alleges that, during her time as a student at the College, she was the subject of academic bullying and verbal harassment.
2On the motion now before the court, the College asks the court to strike Ms. Obita’s pleading (“the pleading motion”). This motion is the second interim proceeding in the action.
3In the summer of 2023, the court heard Ms. Obita’s motion for injunctive and other relief. As part of that motion, the College was successful on a motion to strike paragraphs in Ms. Obita’s supporting affidavit.
4In the context of the pleading motion, the College once again brings a motion to strike paragraphs from an affidavit filed by Ms. Obita. The College asks the court to strike all or part of approximately 60 paragraphs from the 180-paragraph affidavit filed by Ms. Obita. In addition, the College asks the court to strike approximately 45 paragraphs from the 298-paragraph factum filed by Ms. Obita.
5The pleading motion was scheduled to be heard on January 11, 2024. On that date, the court instead heard the College’s motion for relief related to Ms. Obita’s affidavit and factum. The pleading motion is now scheduled to be heard on June 24, 2024.
Background
6In her amended statement of claim (“the Pleading”), Ms. Obita alleges that, during her time as a student at the College, she was a victim of academic bullying and verbal harassment. Ms. Obita alleges that the College engaged in deceitful conduct, made fraudulent misrepresentations, made defamatory statements, breached their contract with her, was negligent, and harassed her. In her prayer for relief, Ms. Obita claims, (a) $1,000,000 in damages for pain and suffering; (b) $4,000,000 for punitive damages; (c) policy changes; and (d) an order quashing a decision of the appeals committee.
7When before Doyle J. in August 2023, Ms. Obita relied on her status as a self-represented litigant as the reason she did not know that, as a deponent, she is not permitted to use inflammatory language in an affidavit: Ruling No. 1, at para. 41. Both when hearing the motion, and in her endorsement, Doyle J. explained to Ms. Obita that she is not permitted, in an affidavit, to express her opinion or to make arguments: at para. 42.
8In response to the pleading motion, Ms. Obita delivered an affidavit sworn on July 10, 2023 (“the Affidavit”). The Affidavit is 87 pages; it contains approximately 180 paragraphs; the exhibits, approximately 70 in number, are mixed in with the substantive paragraphs; and the jurat is in a separate document from the document which contains the substantive paragraphs and exhibits. The Affidavit was served prior to the date on which Ruling No. 1 was released.
9In late 2023, Ms. Obita delivered her factum for the pleading motion (“the Factum”). The Factum is 29 pages; contains 298 paragraphs; and includes, as an attachment, a copy of a September 2022 letter written by Ms. Obita for the purpose of a complaint to the Human Rights Tribunal of Ontario.
10To give Ms. Obita notice of its intention to request that paragraphs be struck from the Affidavit and the Factum, the College served a supplemental factum dated January 8, 2024. On the return date for the pleading motion, Ms. Obita, for the first time, gave notice of her intention to seek an order striking two paragraphs from each of two supporting affidavits upon which the College relies in support of the pleading motion. Despite the lack of notice, the College did not object to the court hearing, and the court heard, Ms. Obita’s request for relief in that regard.
11I will first review the law related to the form and content of court documents. I will then, in the following order, deal with: (a) the College’s motion to strike, in whole or in part, paragraphs from the Affidavit; (b) Ms. Obita’s request for relief related to the supporting affidavits upon which the College relies; and (c) the College’s motion to strike paragraphs from the Factum.
The Law
a) The Form and Content of Court Documents
12First, an affidavit is a “court document” within the meaning of Rule 4 of the Rules of Civil Procedure1. As such, an affidavit must meet the document standards for court documents, including those for margin size, font size, and spacing: r. 4.01.
13Second, r. 4.06 prescribes in detail the requirements for the form and content of an affidavit. The form of an affidavit is addressed in r. 4.06(1):
(1) An affidavit used in a proceeding shall,
(a) be in Form 4D;
(b) be expressed in the first person;
(c) state the full name of the deponent and, if the deponent is a party or a lawyer, officer, director, member or employee of a party, shall state that fact;
(d) be divided into paragraphs, numbered consecutively, with each paragraph being confined as far as possible to a particular statement of fact; and
(e) be signed by the deponent and sworn or affirmed in accordance with the Commissioners for Taking Affidavits Act.
14Form 4D is available to counsel, and to self-represented persons, in the forms which accompany the Rules.
15The permissible content for an affidavit is addressed in the Rules. Rule 4.06(2) restricts the contents of an affidavit as follows: “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.”
16At para. 36 of Ruling No. 1, Doyle J. addresses the requirement to restrict the contents of an affidavit to facts within the personal knowledge of the deponent: “it is trite law that affidavits, or portions of them that simply express opinions on the very issues raised, may be struck, and [an] affidavit should be limited to factual information.”
17In China Yantai Friction Co. Ltd. v. Novalex Inc., 2023 ONSC 3424, at para. 5, Chang J. makes the same point: “It is settled law that affidavits should be limited to statements of facts within the affiants’ personal knowledge”. Justice Chang allows for the exception for evidence based on information and belief, when expressed in a Rules-compliant manner.
18Justice Chang also summarizes the law regarding opinion evidence, argument, and rhetoric in an affidavit from a lay witness:
25Generally, and subject to specific recognized exceptions, only properly qualified experts may provide opinion evidence respecting matters of fact, but not respecting legal issues (see: R. v. Daou, 2021 ONCA 380, at paras. 69-70).
26Opinion and argument “are not facts but conclusions and unless the witness is tendered as an expert then the witnesses’ opinion is neither admissible nor probative of anything” (see: Glasjam v. Freedman, 2014 ONSC 3878, at para. 35).
27Statements in an affidavit that contain “legal and factual argument belonging in the factum” or inflammatory rhetoric may be struck out in whole or in part (see: Gutierrez v. The Watchtower Bible and Tract Society of Canada, 2019 ONSC 3069, at para. 27).
19Last, r. 4.06(3) prescribes how exhibits referred to in an affidavit shall be put before the court:
(3) An exhibit that is referred to in an affidavit shall be marked as such by the person taking the affidavit and where the exhibit,
(a) is referred to as being attached to the affidavit, it shall be attached to and filed with the affidavit;
(b) is referred to as being produced and shown to the deponent, it shall not be attached to the affidavit or filed with it, but shall be left with the registrar for the use of the court, and on the disposition of the matter in respect of which the affidavit was filed, the exhibit shall be returned to the lawyer or party who filed the affidavit, unless the court orders otherwise; and
(c) is a document, a copy shall be served with the affidavit, unless it is impractical to do so.
20What remedy is available to a party when an affidavit or another court document filed by the opposing party does not comply with the Rules?
b) Striking or Expunging Court Documents
21The remedy available to a party who seeks relief arising from the contents of a court document is set out in r. 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.
22Both the College and Ms. Obita rely on r. 25.11 in support of the relief they seek on their respective preliminary motions.
The College’s Motion to Strike Paragraphs from the Affidavit
a) The Positions of the Parties
- The College
23The College submits that, for reasons including the following points, the Affidavit does not comply with the requirements of Rule 4:
The Affidavit is not in the form prescribed by Form D;
The Affidavit does not comply with the document standards set out in r. 4.01;
The jurat of the Affidavit is not in the proper form; and
The 70 exhibits are mixed in with, as opposed to being identified separately from, the substantive portions of the Affidavit.
24The College’s position is that the Affidavit is replete with argument, opinion evidence (from Ms. Obita personally), and inflammatory rhetoric or allegations. Attached as Schedule ‘C’ to the College’s supplemental factum is a chart in which approximately 60 paragraphs from the Affidavit are quoted in their entirety. For each paragraph quoted, the College sets out, (a) the portion of the paragraph the College requests be struck; and (b) the basis for the request.
25At the outset of oral submissions, the College took the position that all exhibits to the Affidavit must be struck. The College submitted that the presentation of the exhibits does not comply with the requirements of r. 4.06(3). Prior to the conclusion of the submissions on behalf of the College, the court took a break specifically to permit counsel for the College to prepare a list of the 70 exhibits for which the College is pursuing relief. Upon returning from the break, counsel for the College informed the court that the College withdraws its request for an order striking exhibits from the Affidavit.
- Ms. Obita
26In her submissions, Ms. Obita acknowledged that, as of July 2023, when she prepared the Affidavit, she did not have a good understanding of what is meant by “argument” or “inflammatory”, as those terms relate to the contents of an affidavit. Ms. Obita asked the court to consider that the Affidavit was prepared approximately five weeks prior to the release of Ruling No. 1.
27Ms. Obita did not make submissions specific to any of the 60 paragraphs which are the subject of the College’s preliminary motion.
b) Analysis
28The Affidavit is at least the second affidavit prepared by Ms. Obita in this proceeding. By July 2023, she had already prepared the affidavit upon which she relied in support of her motion for injunctive and other relief. Also, by July 2023, Ms. Obita had the benefit of the motion record served by the College for the pleading motion.
29The motion record for the pleading motion includes a notice of motion and a 31-paragraph affidavit sworn by an employee of the College. When preparing the Affidavit, Ms. Obita could have taken her cue from the form and content of the employee’s affidavit; she did not do so. Nor, does it appear, did Ms. Obita review the Rules to ascertain how to prepare an affidavit.
30I accept that, as of July 2023, Ms. Obita did not have the benefit of the guidance provided by Doyle J. during hearing of the motion in August 2023 and in Ruling No. 1. That lack of guidance is not, however, a sufficient explanation for the deficiencies in the form and content of the Affidavit.
31In 2006, the Canadian Judicial Council (“CJC”), released a document titled, “Statement of Principles on Self-represented Litigants and Accused Persons” (“the Statement”). In Section C of the Statement, the CJC sets out the responsibilities of justice system participants – the judiciary, court administrators, the bar, and self-represented persons. Put simply, self-represented persons who participate in the justice system must fulfil certain responsibilities.
32The CJC identifies three specific responsibilities self-represented persons must fulfil. The first responsibility is “to familiarize themselves with the relevant legal practices and procedures pertaining to their case.”
33Based on the form and content of the Affidavit and on Ms. Obita’s admission, summarized in para. 28, above, I find that Ms. Obita failed to familiarize herself with the practices and procedures relevant to the form and content of an affidavit.
34Ms. Obita’s failure in that regard is also evident from the form and content of her July 10, 2023 motion record. The deficiencies in that record include the following deficiencies:
In the index to the record, the document at Tab A is described as “Responding Motion”. The document does not include a title of proceeding; is not called a “notice of motion”; and appears to be comprised of the substantive paragraphs and exhibits for what Ms. Obita intends to be her affidavit; and
In the index, the single-page document at Tab B is described as “Affidavit of Rachel Obita”. That document is comprised of a single, numbered paragraph in which Ms. Obita says, “Everything I have stated in this responding motion record, I believe to be true.”
35To efficiently set out the court’s ruling on the motion regarding the Affidavit, I rely on a modified version of Schedule ‘C’ to the College’s supplemental factum. Attached to this ruling as Appendix ‘A’ is the modified version of Schedule ‘C’. The modifications include the addition of a column titled, “The Court’s Ruling”.
36In Appendix ‘A’, I rely on yellow highlighting to identify the portions of the paragraphs which the College requests be struck. Where the request is for a paragraph to be struck in its entirety, there is no highlighting. In blue font, I identify the portion of a paragraph which (a) the College did not request be struck, and (b) was the subject of submissions, because the court raised the possibility that the portion now in blue font consists of argument, opinion evidence (from Ms. Obita personally), and/or inflammatory rhetoric or allegations. During oral submissions, counsel for the College informed the court that, because Ms. Obita is self-represented, the College chose to exercise restraint. The College therefore did not identify all of the contents of the Affidavit which, in its view, are argument, opinion evidence, and/or inflammatory rhetoric or allegations.
37In summary, the relief requested by the College regarding the substantive contents of the Affidavit is granted. In addition, all but one passage of content, which appears in blue font, is struck from the Affidavit.
38Before leaving the College’s motion regarding the Affidavit, I will turn to the College’s now-abandoned request for exhibits to be struck. Regardless of the abandonment of that aspect of the College’s motion, the court remains a gatekeeper. The court will, when determining the pleading motion, consider the manner in which the exhibits are presented to the court and determine (a) which, if any of them, are properly in evidence before the court, and (b) the weight to be given to exhibits admitted into evidence.
Ms. Obita’s Motion Regarding the College’s Supporting Affidavits
a) The Positions of the Parties
- Ms. Obita
39Ms. Obita requests that two paragraphs from the affidavit of Michael Laviolette, sworn on May 26, 2023 (“the first2 Laviolette affidavit”), be struck: (a) para. 26, for lack of relevance to the pleading motion; and (b) para. 28, because its contents are false.
40Ms. Obita also requests that two paragraphs from the reply affidavit of Kerry Surman, sworn on August 16, 2023 (“the Surman affidavit”), be struck: (a) para. 6, because the College may rely on the contents of this paragraph to obscure the truth; and (b) para. 7, for lack of relevance.
- The College
41The grounds upon which Ms. Obita relies do not fall within the category of grounds set out in r. 25.11, or otherwise established through the case law, to support an order striking the subject paragraphs.
b) Analysis
42It is not necessary to set out any of the four paragraphs which Ms. Obita asks the court to strike. I agree with the submission on behalf of the College. None of the grounds upon which Ms. Obita relies falls within the categories listed in r. 25.11, or otherwise established through the case law, to support an order striking all or part of a paragraph in an affidavit.
43Ms. Obita’s request for an order striking paragraphs from the first Laviolette affidavit and from the Surman affidavit is dismissed.
The College’s Motion to Strike Paragraphs from the Factum
a) The Positions of the Parties
- The College
44The College relies on two grounds in support of its request for an order striking, in whole or in part, paragraphs from the Factum. First, the College submits that the Factum does not follow the generally accepted format of a statement of evidence, followed by a citation for the source paragraph or exhibit. The College submits that Ms. Obita’s failure to provide the requisite citation results in an increase in the time required – for the College’s counsel and for the court – to attempt to correlate the contents of the Factum to the contents of the Affidavit.
45Second, the College submits that at least one-quarter of the paragraphs in the Factum include content that is not in evidence – either in the College’s motion record or in the Affidavit.
46The College adds that the length of the Factum breaches the standard 20-page maximum for facta on motions before this court.
47Attached as Schedule ‘D’ to the College’s supplemental factum is a chart in which approximately 100 paragraphs from the Factum are listed. For each paragraph quoted, the College sets out the portion of the paragraph which it submits is not supported by the evidence.
48During oral submissions, counsel for the College identified the paragraphs listed in Schedule ‘D’ for which the College is no longer asking the court to strike. Of the paragraphs originally listed in Schedule ‘D’, approximately 45 remain as the subject of the College’s motion.
- Ms. Obita
49Ms. Obita acknowledges that several of the documents to which she refers in the Factum are not exhibits to the Affidavit or otherwise before the court. For example, Ms. Obita refers in the Factum to a report by the provincial Ombudsman for the year 2020-21. Ms. Obita submits that the lack of inclusion of that document as an exhibit does not matter, because it is likely that those responsible for the operation of the College have seen the report before.
50As another example, Ms. Obita refers in the Factum to policies of other colleges. She submits that she should be permitted to refer to these policies, despite the fact they are not in evidence, because they are relevant to the pleading motion.
51At the conclusion of the hearing of these preliminary motions, Ms. Obita was asked to update Schedule ‘D’ and assist the court by identifying the source of the content for those paragraphs for which the College is no longer seeking relief. The court now has the updated version of Schedule ‘D’, with citations from Ms. Obita for some of the statements made in the Factum. Ms. Obita will, on the return of the pleading motion, be entitled to rely on those paragraphs for which she has now provided the source/citation.
b) Analysis
52Before turning to the substantive contents of the paragraphs from the Factum, which remain in issue, I will deal with the form of the Factum. Like the Affidavit, and for reasons discussed in the section of this ruling regarding the Affidavit, the Factum does not comply with the standards for court documents.
53Statements of fact contained in a factum and unsupported by evidence do not constitute evidence for the purpose of a motion: Thomas-Jahn v. Windsor Casino Limited, 2009 CanLII 87100 (Ont. S.C.J.), at para. 20.
54To efficiently set out the court’s ruling on the Factum, I rely on a modified version of Schedule ‘D’. Attached to this ruling as Appendix ‘B’ is the modified version of Schedule ‘D’. The modifications made include, (a) the elimination of the entries for which the College withdrew its request for relief; (b) the elimination of source information; and (c) the addition of a column titled, “The Court’s Ruling”.
55It was incumbent upon Ms. Obita to make submissions specific to the paragraphs set out in Appendix ‘B’; she did not do so. A self-represented person is not entitled rely on the court to do the work that the self-represented person is required to carry out in support of their positions at various stages of an action. In the absence of submissions from Ms. Obita specific to the paragraphs set out in in Appendix ‘B’, the court strikes each of the paragraphs.
Disposition
56I summarize the outcome on the three components of the preliminary motions before the court as follows:
The relief requested by the College regarding the substantive contents of the Affidavit is granted. In addition, all but one passage of content, which appears in blue font, is struck from the Affidavit. For para. 129 of the Affidavit, the longer of the two sentences which appears in blue font is not struck.
Ms. Obita’s request for an order striking paragraphs from the first Laviolette affidavit and from the Surman affidavit is dismissed.
The paragraphs of the Factum listed in Appendix ‘B’ to this ruling are struck.
57The College is largely successful on those portions of the preliminary motion which it pursued. The College is entirely successful in opposing Ms. Obita’s preliminary motion. The costs of these preliminary motions form part of the costs of the pleading motion and shall be determined when costs of the pleading motion are determined.
Ms. Obita’s Court Documents in the Future
58At the conclusion of his submissions, counsel for the College asked the court to address Ms. Obita’s repeated failure to deliver court documents which comply with Rule 4. At this stage of the proceeding, that request is reasonable.
59Ms. Obita has the benefit of the example of documents delivered by the College – all of which were prepared by a lawyer. Ms. Obita has responded to two motions to strike portions of her court documents. Two judges have reviewed the requirements for the contents of an affidavit. In this ruling, the court reviews in detail the requirements for court documents.
60The failure of any party – whether represented by counsel or not – to deliver materials that comply with the standards and requirements for court documents serves to increase the costs incurred by the opposing party. The failure of a party to deliver court documents in the form and format required also contributes to excessive demands on judicial resources.
61From the date of this ruling forward, all documents delivered by Ms. Obita in this proceeding shall be prepared in compliance with Rule 4 of the Rules and with the case law discussed in this ruling.
Released: May 23, 2024
Justice S. Corthorn
APPENDIX ‘A’
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
Algonquin college’s rule 21 motion was devised as a ploy to delay exchanging the affidavit of documents and to delay the discovery process.
Inflammatory/Argument: Entire paragraph.
Struck
The college’s rule 21 motion and statement of defence is devoid of particulars because the college has no defence.
Argument: Entire paragraph.
Struck
The college has abused the case conference mechanism to cause delays, meanwhile altering, removing, and restricting evidence that I am going to use to prove my allegations.
Inflammatory/Argument: “The college has abused the case conference mechanism to cause delays, meanwhile altering, removing, and restricting evidence that I am going to use to prove my allegations”.
Struck
During my time at Algonquin college and soon afterwards, I developed severe anxiety because of the reckless and callous way the college is managed. The management team has created an environment where students are abused and exploited. Policies have been put in place to consolidate this abuse. I have detailed the college’s abusive, racist, and discriminatory policies extensively in a motion that was filed on May 15, 2023.
Inflammatory: “…because of the reckless and callous way the college is managed.”
Inflammatory/Argument: “The management team has created an environment where students are abused and exploited. Policies have been put in place to consolidate this abuse. I have detailed the college’s abusive, racist, and discriminatory policies extensively in a motion that was filed on May 15, 2023.”
Struck
In the college’s statement of defence and rule 21 motion, counsel to the defendant tries to manufacture technicalities that do not apply. Algonquin college’s decisions are not subjected to judicial review since the college is not a board, agency, or commission.
Argument: Entire paragraph.
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
The decisions made by the college’s board of governors are subjected to judicial review. The college’s board of governors is listed as a board in Ontario’s board, agencies, and commissions website.
Argument: Entire paragraph.
Struck
I removed all my allegations of racial harassment from this lawsuit when I amended my statement of claim. Counsel to the defendant claiming there is an ongoing proceeding at the human rights tribunal that contains the same details as this lawsuit is another attempt to manufacture a technicality.
Argument: “Counsel to the defendant claiming there is an ongoing proceeding at the human rights tribunal that contains the same details as this lawsuit is another attempt to manufacture a technicality.”
Struck
Competent adjudicators are necessary to ensure a fair process. Later in this responding motion, I will draw a connection between the regulatory environment or more appropriately, the lack of a regulatory environment and how this has made Algonquin college’s misconduct possible.
Argument: Entire para
Struck
I underwent a kangaroo appeals process where I was not afforded with fairness, a reoccurring theme the ombudsman of Algonquin college talks about in his annual reports. The college benefits financially from denying students due process because this minimizes cost associated with providing academic accommodation. Financial interests motivate the college to engage in rampant unethical practices that devastate students and staff.
Inflammatory: Entire paragraph.
Struck
In my motion that I filed on May 15, 2023, I discuss how the college has maliciously taken steps to suppress student complaints about harassment and discrimination
Inflammatory: “… I discuss how the college has maliciously taken steps to suppress student complaints about harassment and discrimination.”
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
Algonquin college has a culture of denial because so far, those denials have helped the college evade liability.
Inflammatory/Argument: Entire paragraph.
Struck
The college has created an environment where systemic racism and discrimination are rampant. Yet the college denies that systemic racism and discrimination exists within the institution. Below is the response for Claude Brule, president of Algonquin college.
Inflammatory/Argument: “The college has created an environment where systemic racism and discrimination are rampant.”
Struck
Claude Brule, the president of Algonquin college responded to the letter, explaining all the mechanisms in place to address systemic discrimination. However, these mechanisms are designed to do anything but address systemic discrimination. I have discussed this in detail in the motion I filed on May 15, 2023.
Opinion/Argument/Inflammatory: “However, these mechanisms are designed to do anything but address systemic discrimination.”
Struck
My appeals process was tainted with the restriction of information, where I was not provided with the basic information I needed to advocate and defend myself. My attempts to obtain this information was met with no response.
Inflammatory/Argument: “My appeals process was tainted with the restriction of information, where I was not provided with the basic information I needed to advocate and defend myself.”
Struck
Furthering this point, Chris Janzen, the senior vice president is the overall manager at Algonquin college. Mr. Janzen must protect the college from reputational and financial damage. His position as the college’s highest authority conflicts with his role of determining whether students appeals review should go forward.
Opinion: “Mr. Janzen must protect the college from reputational and financial damage”
Argument: “His position as the college’s highest authority conflicts with his role of determining whether students appeals review should go forward.”
Struck
The outcome of students appeals can create reputational and financial damage for the college. Conflicts of interests are a reoccurring theme I will discuss in this responding motion.
Argument/Opinion: “The outcome of students appeals can create reputational and financial damage for the college Conflicts of interests are a reoccurring theme.”
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
Firas’ behavior is nothing unusual for many young men in this day and age who resent women. In Firas’ case he abused his power as a professor to retaliate against me because of his disdain for women. In class Firas made sexist comments about women, calling us Golddiggers.
Inflammatory: “In Firas’ case he abused his power as a professor to retaliate against me because of his disdain for women. In class Firas made sexist comments about women, calling us Golddiggers.”
Struck
Sometimes when I tell people what happened to me, they respond by saying that Firas is probably a racist. Firas has serious issues of his own but being a racist is not one of them.
Inflammatory: “Firas has serious issues of his own but being a racist is not one of them.”
Struck
The grades for final exams are not revealed to students until final grades are published. In this way the final grade can be changed without the student’s knowledge. Policy AA13 makes no mention of providing the student with notice of a final grade change.
Argument: “The grades for final exams are not revealed to students until final grades are published. In this way the final grade can be changed without the student’s knowledge”
Struck
Mr. Laviolette’s is director of risk management. His job is to oversee emergency management and fraud prevention. Mr. Laviolette has no knowledge of academic policies; his affidavit was carefully constructed by counsel to the defendant.
Argument: “Mr. Laviolette has no knowledge of academic policies; his affidavit was carefully constructed by counsel to the defendant.”
Struck
Algonquin College’s statement of defence and rule 21 motion is devoid of particulars. These documents include general denials and hearsay, none of which is supported by facts and college policy.
Argument: Entire paragraph.
Struck
This is a common pattern at the college, stonewalling students and restricting information throughout the appeals process. This allows the college to protect their financial interest. The less information the student has, the less likely the student will be able to successfully argue for an appeal.
Inflammatory: Entire paragraph.
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
The students knowing the identity of the formal reviewer as well as being able to ask them questions for clarification is necessary for a fair process. The college’s unwillingness to disclose the identity of the reviewer suggest that the reviewer is not an impartial one.
Argument: Entire paragraph.
Struck
The college uses the ombudsman to give an appearance that the appeals process is fair. However, the ombudsman has no decision-making power and can only make recommendations. Restricting the information, the student has access to results in an unfair process even when the student is advised by the ombudsman. The college tries to create the appearance that because students have been advised by the ombudsman, they have been afforded a fair process, even if that process has been tainted with the restriction of information that is necessary to have a successful appeal.
Inflammatory: “The college uses the ombudsman to give an appearance that the appeals process is fair; The college tries to create the appearance that because students have been advised by the ombudsman, they have been afforded a fair process, even if that process has been tainted with the restriction of information that is necessary to have a successful appeal.”
Struck – including the portion of the paragraph in blue font.
On June 4, 2021, I asked Katherine Root, which software I could use to open the supporting documents. Katherine Root told me no special software was required. That means the college deliberately created files which I could not open.
Argument/Inflammatory:
“That means the college deliberately created files which I could not open.”
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
The restriction of information happens at every step of the appeals process. The college does not want students to have successful appeals because there is a cost involved when providing students with academic accommodations. The entire appeals mechanism has been set up to ensure students will have a failed appeals process. It is a kangaroo court from the beginning to the end. There are no independent and impartial parties throughout the appeals process.
Inflammatory: “The college does not want students to have successful appeals because there is a cost involved when providing students with academic accommodations. The entire appeals mechanism has been set up to ensure students will have a failed appeals process. It is a kangaroo court from the beginning to the end.”
Inflammatory/Argument: “There are no independent and impartial parties throughout the appeals process.”
Struck – including the portion of the paragraph in blue font.
The college removing documents that “are not relevant to the appeal” suggest that the college has a self-serving agenda. The documents removed are likely to be materials provided by the students. Further, the student does not have the opportunity to argue against the removal of the documents.
Inflammatory/Argument: “The college removing documents that “are not relevant to the appeal” suggest that the college has a self-serving agenda.”
Struck
The Dean could have influenced Jessica Bourgaize to exclude policy AA20 from material that would be heard at the appeals hearing. The Dean also has a stake in the outcome of the appeals process.
Inflammatory/Argument: Entire paragraph.
Struck
AFTER PARA 119, NUMBERS DEVIATE AND RE-START AT 73
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
Chris Janzen, the senior vice president is not an impartial party. He also has a stake in the outcome of the appeals process because he is the overall manager of Algonquin college. His job is to protect the college from financial and reputational damage. There is an ethical way to do this, however, Chris Janzen does not conduct his duties in an ethical manner. Chris Janzen perpetually suppresses wrongdoing in his role as senior vice president. Although unethical, this is the most effective way to protect the college from financial and reputational damage.
Opinion/Argument: “Chris Janzen, the senior vice president is not an impartial party.”
Inflammatory: “Chris Janzen does not conduct his duties in an ethical manner. Chris Janzen perpetually suppresses wrongdoing in his role as senior vice president. Although unethical, this is the most effective way to protect the college from financial and reputational damage.”
Struck
In a zoom call on August 11, 2021, with Chris Janzen, meeting ID 950 0898 7749, I told Mr. Janzen about the trouble I had with Firas and the unfairness of the appeals process. Chris Janzen did not acknowledge any of what I said. It was like staring into the eyes of a lifeless person. Instead, Chris Janzen was taking notes when I was providing him evidence to support my allegations. I later realized he had no intention of ensuring fairness. Chris Janzen was just collecting information to address the matter privately.
Opinion: “Chris Janzen did not acknowledge any of what I said; I later realized he had no intention of ensuring fairness. Chris Janzen was just collecting information to address the matter privately.”
Inflammatory: “It was like staring into the eyes of a lifeless person”.
Struck
The rubric was not evaluated in an impartial way, the senior vice president had an agenda. When I confronted Mr. Janzen about the fact that Firas never provided us with rubrics, Mr. Janzen offered to have discussions to find a resolution. Any resolution that is found must be found within the appeals process.
Opinion/Argument/Inflammatory: “The rubric was not evaluated in an impartial way, the senior vice president had an agenda.”
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
Chris Janzen was trying to bypass the appeal committee and set up a private meeting between me, him, and the Dean. I refused to go to this meeting because I would have been vulnerable to the Dean and Senior Vice President’s coercion and manipulation. These are not impartial parties; they both had a stake in the outcome of the matter.
Inflammatory/Opinion: “I refused to go to this meeting because I would have been vulnerable to the Dean and Senior Vice President’s coercion and manipulation. These are not impartial parties; they both had a stake in the outcome of the matter.”
Struck
For arguments sake, let’s just say my assignment was not evaluated in bad faith. One of the grounds students can appeal for is personal bias/unfair treatment. a. “Unfair treatment of the student by a professor in comparison to the other students within the course. For example, where two students provided an identical or very similar answer and were graded differently”.
Argument: Leading to next para.
Struck
If I had been given all the correct information at the beginning, I would have filed my academic appeal on this basis. It was after I compared my schoolwork to my classmates that I decided to file an appeal.
Argument (including use of hypothetical): First sentence only.
Struck
The ombudsman stresses that the college should “provide students, the necessary information on alleged violations before scheduled meetings to enable fair and reasonable time for preparation, as well as the opportunity to respond to alleged violations.” The college avoids giving students relevant information by telling them to advise the ombudsman who was no information related to the student’s appeal.
Argument/Inflammatory: “The college avoids giving students relevant information by telling them to advise the ombudsman who was no information related to the student’s appeal.”
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
Policy IT05, the college’s information sensitivity and security policy states that if information about appeals were to be disclosed to the public, “this information can be expected to have a serious adverse effect on the operations, assets, or reputation to the college”. Imagine if the court kept rulings a secret. Handling appeals in secret is a breeding ground for serious misconduct.
Argument/Inflammatory: “Imagine if the court kept rulings a secret. Handling appeals in secret is a breeding ground for serious misconduct.”
Struck
The college began redesigning evidence that I intended to use to prove my allegations shortly after I began litigating against them. This is evidence that is contained in my statement of claim and in my motion that I filed on May 15, 2023. Algonquin College is in custody of all the evidence I must use to prove my allegations. I do not have any paper copies of the evidence, only digital evidence which I retrieved from the college’s website.
Inflammatory/Argument: “The college began redesigning evidence that I intended to use to prove my allegations shortly after I began litigating against them.”
Struck
Right before I began litigating against Algonquin college, my student account was closed. My student account contains evidence which I am going to use to support my allegations against the college. The college created policies with fabricated dates to cover up Firas’ actions.
Inflammatory/Argument. “The college created policies with fabricated dates to cover up Firas’ actions.”
Struck
Algonquin college must have reasonably known that redesigning evidence contained in my statement of claim would have caused mental distress. In the September 14, 2022, case conference, counsel to the defendant stated that he wanted to “declare me a vexatious litigant.” This is because the college was redesigning, altering, and restricting evidence referenced in my statement of claim.
Argument: “Algonquin college must have reasonably known that redesigning evidence contained in my statement of claim would have caused mental distress.”
Inflammatory/Argument: “This is because the college was redesigning, altering, and restricting evidence referenced in my statement of claim.”
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
Although I know the province of Ontario does not recognize the tort of harassment. I think this is a good time to nudge legislators in this direction because this is not the last time a party to a lawsuit will engage in this fraudulent behavior. It amounts to harassment. The Cambridge dictionary definition of harassment is as follows:
Argument/Opinion: Entire paragraph.
Struck
Algonquin college has been harassing me ever since I initiated this civil action by redesigning evidence in the form of webpages, websites, and policies. The college also shut down my student account which contains evidence I need to use to prove my allegations.
Inflammatory/Argument: “Algonquin college has been harassing me ever since I initiated this civil action by redesigning evidence in the form of webpages, websites, and policies”
Struck
The college added a feature onto Brightspace where professors could edit their rubrics after the rubrics have been given to students. The college is trying to normalize my professor’s behavior of going back into the system to reduce my grade. On average professors have 140 + students. It is not feasible to go back into the system and start editing rubrics which have already been given to students. Grades and rubrics provided by professors are final. If a student seeks a formal review, then the student’s grade and rubric can change depending on what the formal reviewer finds.
Opinion/Argument: “The college added a feature onto Brightspace where professors could edit their rubrics after the rubrics have been given to students. The college is trying to normalize my professor’s behavior of going back into the system to reduce my grade; Grades and rubrics provided by professors are final. If a student seeks a formal review, then the student’s grade and rubric can change depending on what the formal reviewer finds.”
Struck
The college does not comply to its policies when handling appeals processes, student complaints and when providing disability related accommodations. The college also does not comply to legislation such as Human Rights Code, R.S.O. 1990, c. H.19, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Ontarians with Disabilities Act, 2001, S.O. 2001, c. 32.
Argument/Opinion: Entire paragraph.
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
Algonquin college is increasing the likelihood of students and employees being sexually assaulted. Moreover, we live in the digital age, a tort of invasion of privacy must be introduced.
Inflammatory: “Algonquin college is increasing the likelihood of students and employees being sexually assaulted.”
Argument: “… we live in the digital age, a tort of invasion of privacy must be introduced.”
Struck
Kerry Surman, Katherine Root and Julie Beauchamp behaved negligently throughout my appeals process. Kerry Surman provided me with false information and made no effort to provide the truth. Katherine Root disregarded relevant evidence at my appeals hearing. Julie Beauchamp, the Dean, did not respond to any of my concerns about my appeals process. Additionally, she did not respond to any of my concerns about my professor, Firas Sassi. There is a culture of fear at Algonquin college, where members of faculty are discouraged to pursue any endeavors which may cause reputational or financial damage, even though this comes at the detriment of the students. Therefore, members of faculty are forced to act negligently.
Inflammatory/Argument . “There is a culture of fear at Algonquin college, where members of faculty are discouraged to pursue any endeavors which may cause reputational or financial damage, even though this comes at the detriment of the students.”
Argument: “Therefore, members of faculty are forced to act negligently.”
Struck – including the portion of the paragraph in blue font.
The students are reliant on the college to provide rubrics, without feedback students cannot improve their work. A student not being able to improve their work defeats the purpose of education. Firas never provided us with rubrics. I was also not provided with rubrics by the formal reviewer. The college has the responsibility to ensure fair and impartial mechanisms to handle student complaints about academic matters and matters of harassment and discrimination. The students are reliant on the college to provide these services. These services are necessary to safeguard the students’ rights and their mental health.
Opinion/Argument: Entire paragraph, with the exception of the sentence in bold font.
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
The college has created a system to deprive students of these services. This is a serious breach of fiduciary duty. I would argue it’s criminal misconduct, however, the executive team at Algonquin college will never be held accountable for their white-collar crimes.
Argument/Opinion: “The college has created a system to deprive students of these services. This is a serious breach of fiduciary duty.”
Inflammatory/Opinion: “I would argue it’s criminal misconduct, however the executive team at Algonquin college will never be held accountable for their white-collar crimes.”
Struck
I was provided with false information by Kerry Surman during my appeals process. She told me I violated academic integrity and self-plagiarized. I went on to file my appeal based on plagiarism. I found out later when my academic appeal was denied that I never committed plagiarism. Kerry Surman refused to address any of my concerns.
Opinion/Argument: Entire paragraph.
Struck
Algonquin college misrepresents its complaint policies to induce inaction. This serves the college’s financial interest. If a student does not know how to make a complaint with the college, then that student will be denied a legal remedy by the court. This helps the college evade liability. The court has no jurisdiction over any matter which has not gone through the complaints process first. The college is in violation of criminal code which states that: (Criminal Code re Fraud)
Argument/Inflammatory: Entire paragraph.
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
Students with disabilities are also being defrauded out of receiving accommodation. The college does not reference a list of disabilities in AC01, students with disabilities. People with anxiety, depression and mental disorders are unaware that they can seek accommodation for their impairments. When most people think of a disability, they think of a physical impediment not a mental one. That is why it is necessary that the college include the definition of a disability which is stated in the Ontarians with Disabilities Act, 2001, S.O. 2001, c. 32, in policy AC01.
Inflammatory/Argument: “Students with disabilities are also being defrauded out of receiving accommodation.”
Argument: “That is why it is necessary that the college include the definition of a disability which is stated in the Ontarians with Disabilities Act, 2001, S.O. 2001, c. 32, in policy AC01.”
Struck – including the portion of the paragraph in blue font.
Algonquin college is setting up lower-level employees to take the blame for management’s actions. In the defendant’s Rule 21 motion, Mr. Laviolette claims he is the defendant in this matter in the first paragraph
Inflammatory: “Algonquin college is setting up lower-level employees to take the blame for management’s actions.”
Struck
The board of governors is aware of the serious misconduct of Claude Brule, the president of Algonquin college, as well as the misconduct of the executive management team.
Opinion: Entire paragraph.
Struck
The Board of governors is complicit in creating an unethical and coercive environment at the college where serious misconduct is the norm. There are no independent mechanisms at Algonquin college, even the board of governors is not impartial
Inflammatory: Entire paragraph.
Struck
It is likely that members of the board of governors are also trying to achieve concealed financial ends. The interests of the board of governors lies within protecting the college from reputational and financial damage. The board of governors has no interest in protecting the interest of students because this provides no return.
Inflammatory: Entire paragraph.
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
Algonquin college has a bogus whistleblowing mechanism where there is no independence. According to policy AD21, only employees, appointees, volunteers, consultants, and contractors can make a complaint. Former students and employees cannot make a complaint under this policy. To mitigate risk, the college has excluded the group of people most likely to make a complaint.
Inflammatory: “Algonquin college has a bogus whistleblowing mechanism where there is no independence.; To mitigate risk, the college has excluded the group of people most likely to make a complaint.”
Struck
The regulatory environment created by the Ford government has made Algonquin college’s misconduct possible. Algonquin college has faced little to no regulatory oversight from government agencies.
Opinion: Entire paragraph.
Struck
Algonquin college’s interest overlap with the province of Ontario’s interest. Therefore, when I reported the college to the ombudsman of Ontario and to the information and privacy commissioner, both government agencies declined to investigate the college. Additionally, the law society of Ontario declined to investigate my complaint about Mr. Rutherford utilizing the college’s complaint mechanism to minimize the college’s risk. The province of Ontario has a conflict of interest.
Argument: “Algonquin college’s interest overlap with the province of Ontario’s interest.”
Struck – including only the final sentence in blue font.
I began suspecting that this conflict of interest existed after all three government agencies declined to investigate my complaints. I started monitoring the hiring activities of all these agencies. From the job ads I assessed, I found that all three of these government agencies have failed to protect the public’s interest. All three agencies were hiring employees to mitigate their failures.
Argument/Opinion: “From the job ads I assessed, I found that all three of these government agencies have failed to protect the public’s interest. All three agencies were hiring employees to mitigate their failures.”
Struck
Para No.
Full Text of Paragraph
Defendant’s Submission: Argument /Opinion / Inflammatory Rhetoric
The Court’s Ruling
As you can see, the Ontario regulatory agencies that are supposed to protect the public’s interest are doing anything but safeguarding the wellbeing of the public. These agencies are in the process of mitigating their risk by hiring the required staff as well as engaging in public outreach to protect their reputation.
Opinion/Argument/Inflammatory: Entire paragraph.
Struck
The regulatory agencies of Ontario are complicit in Algonquin college’s perpetual abuse of students and employees.
Opinion/Argument/Inflammatory: Entire paragraph.
Struck
The province of Ontario is clearly not meeting its obligation to protect the public’s interest.
Argument/Opinion: Entire paragraph.
Struck
Algonquin college’s statement of defence is frivolous, devoid of particulars and should be dismissed.
Argument: Entire paragraph.
Struck
APPENDIX ‘B’
Factum Para. No.
Factum Text
The Position of the College
Para. No. for Content Source
The Court’s Ruling
On September 18, 2020, under the team topic presentation announcement post, Professor Sassi instructed us to make 2 submissions for our presentations, one in word and one in PowerPoint. He stated that the word version would act as a study guide for our classmates and that we should make sure the content was good, descriptive and without fillers and that all subtopics must be covered.
Highlighted portion not in evidence.
N/A
Struck
The topic presentations served as our only reading materials throughout the semester. We researched our topic presentations using internet sources. We had to use our topic presentations as our study guide for tests and assignments.
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N/A
Struck
Since internet sources are used to compose the content of the team topic presentations, the reading materials each class has available varies.
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N/A
Struck
Further, George Brown College’s academic appeals policy states that even before a matter is heard in front of the appeals committee, the chair may modify an academic decision if: “the faculty member has misinterpreted, misapplied or breached College policies in a manner that is detrimental to the student and puts the College at risk”, page 7.
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N/A
Struck
On July 18, 2022, in response to my complaints about my appeals process, the College stated that SA03 student complaints requires that a complaint must be made within 30 days of the incident.
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N/A
Struck
Katrina Medina was a nursing student at the time and Xiuqi Lou is currently a student in the Bachelor of commerce e-supply chain management program.
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Struck
Niagara College’s appeals policy states that: “The Committee does not have the competency to carry out an actual evaluation of the student’s work. If the Committee determines that the decision under appeal should result in re-evaluation for a potential grade change, new work or reassessment of existing work as identified below may be directed”, para 21.
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Struck
Niagara College, Durham College and George Brown College all follow similar academic appeal policies; in such a way that the student argues to the committee the reasons their request for an appeal should be granted
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N/A
Struck
The colleges then identify a qualified person to assess the students work. The decision by the reviewer is final and cannot be appealed.
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Struck
Additionally, the ombudsman’s report for 2017- 2018 stated that: “The Office observed a certain level of inconsistency, and in some instances confusion, in the application of some policies, particularly – the Academic Appeal, Review of Final Grade, Academic Dishonesty, and Plagiarism policies. This includes:
Inconsistent practices in some programs resulting in different outcomes in some appeals.
Determining the appropriate grounds for an academic appeal, under certain circumstances.
The timeline(s) required in the application and/or processing of applicable submissions. This includes finding a reasonable balance of flexibility in deadlines from the side of the College (as a recipient/processor of a submission), and from students (as applicants or respondents).confusion regarding the application of some policies, namely;
questions about whether there are two-tier processes in the procedural implementation of the review of final grade and academic appeal policies;
questions about whether applications for academic appeals should be initiated at the end of the academic term or continually throughout the term;
determining whether to apply the plagiarism policy or academic dishonesty policy, under certain circumstances;
Procedural implementation of academic appeal hearings (including the role and scope of authority of members of the academic appeal committee; and training for the membership).”
Highlighted portion not in evidence.
N/A
Struck
Before becoming Senior Vice President Academic, Chris Janzen was Dean of the Faculty of Technology and Trades at Algonquin College
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N/A
Struck
Niagara College’s appeals policy states that “Transparency is paramount, and students may request that the College provide a rational explanation”, para 1f).
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N/A
Struck
Policy AA37 was revised on December 5, 2023, however, the newest version still contains barriers for those who are seeking an academic appeal.
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For over a decade the ombudsman has consistently raised concerns about procedural fairness in the appeals process. In the annual ombudsman’s report for 2008-2009, Herve R. Depow recounts how a student was given a 0 for a group project in which all other members received a mark of 21/25. As a result, the student failed the class. When the student asked for a formal review of the grade, the committee upheld the grade assigned by the professor.
Highlighted portion not in evidence.
N/A
Struck
Mr. Depow stated that: “based on the student’s poor performance on the first evaluation components of the course, the professor imposed upon the student as a condition of her passing the course the completion of a make-up assignment. I was not able to find any reference to this type of evaluation criteria in the course outline nor was I able to find any statement that passing the course was conditional upon passing specifically identified evaluation components. I was told that this was not a requirement of other students but only of this and one other student. This appeared to be a departure from the stated method of evaluation appearing in the course outline”.
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N/A
Struck
Mr. Depow concluded by stating: “It appeared that the assignment of a 0 grade to this student for the group assignment was made subjectively rather than in accordance with the stated method of evaluation for the assignment and the course”.
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Struck
In the 2014-2015 annual publication, the office of the ombudsman stated that: “Procedural Fairness focuses on the procedures entailed in the decision-making process. Questions asked include how the decision was made? What procedures, policies and regulations guided the decision-making process?”
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Struck
In the 2008 – 2009 report, Mr. Depow states that: “School policies [in reference to the different academic departments] should be consistent with College policies. This ensures that all students attending Algonquin College are treated equally. This applies, among other things, to the manner in which rules are enforced and sanctions are imposed for non-compliance with these rules. Unfortunately, students are being treated differently from School to School when it comes to the imposition of sanctions under Directive E43, Plagiarism and Directive E16, Academic Discipline”.
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Struck
In the ombudsman’s 2019 - 2020 report, the office of the ombudsman recommended: “A review of the policies on Academic Appeal, Review of Final Grade, Academic Dishonesty, and Plagiarism to ensure their clarity, alignment and consistent application across the College”.
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Struck
The report went on to say: “We reiterate this recommendation because our caseload in the 2019-2020 reporting period reflects a continuation of trends that suggest confusion, inconsistency, and potential unfairness in the application of policies; particularly, the four policies herein referenced. In this reporting period, both student and non-student visitors to our Office raised concerns in relation to these policies. Our recommendation is consistent with our observation on this matter from previous reporting periods (See pages 2 and 4 of the Ombudsman Annual Reports 2017 - 2018 and 2018 - 2019 respectively)”.
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N/A
Struck
According to the ombudsman’s report for 2020 - 2021, Katherine Root served as the academic administrative representative for the ORC committee.
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Struck
Erin Langevin’s department is responsible for investigating employee grievances and human rights complaints.
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Struck
Academic complaints and student human rights complaints are handled by Ben Brigstock’s department. The investigation of these complaints is delegated to professors and chairs.
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Struck
According to the ombudsman’s report for 2019 - 2020, 1304 complaints were received. 756 were academic complaints, 271 were services complaints, 34 were non-academic student conduct, 72 were human rights complaints, 9 student association complaints and the other 162 complaints had to do with interpersonal conflict, external landlord/tenant, co-op, and notary.
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Struck
As per appendix 1 in the ombudsman’s report for 2011-2012, when the ombudsman receives a complaint the first step is to refer the individual to the appropriate department, supervisor and/or external agency.
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Struck
In the January 11, 2023, executive team minutes, a recommendation was made that the College executive team accept the office of the ombudsman’s annual report for 2021- 22 as presented
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Struck
Further, the independence of the College’s board of governors is compromised due to its membership. Out of the 15 members, 7 are current and former members of faculty, alumni, and students. I made several complaints to the board of governors about the College’s policy and there was no response.
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The College started out by delegating the investigation of student complaints about harassment and discrimination to the chairs. In the ombudsman’s report for 2009 to 2010, Mr. Depow stated that: “Several years ago training in mediation was provided to the Chairs. During the training sessions it became apparent Chairs do not really have time to perform mediations, which can be a lengthy process, and more often make decisions, that is, they arbitrate”
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Struck
Ombudsman Depow stated in the annual report for 2008 - 2009 that he was asked to conduct two harassment investigations on behalf of human resources which “demanded a tremendous amount of time”. He stated that: “Initially I felt I might be able to contribute to ensuring a healthy workplace by offering my services in this regard. Following the completion of these investigations I realized it was not an appropriate role for me. First, the investigations took more time to conduct than I had anticipated, and I felt to continue doing these would affect my availability and ability to support students in my primary role as Ombudsperson. Second, the files that I maintained for these investigations belong to the College. Files that I maintain with respect to student complaints do not belong to the College due to the independent nature of my office. Continuing to do harassment investigations would blur the line on this issue and could compromise the independence of the office and I therefore informed Human Resources that I would no longer be able to do these investigations”.
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Struck
In the meeting with college officials guide, the College states: “In cases where students feel too insecure to make any approach to an authority for fear of consequences, the ombudsman can suggest systemic or delayed approaches. While these methods do not resolve the problem now, they may make a difference to future students” para 4c).
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Within this guide, the College advises that if a student has a problem with their professor, the student may write the complaint down. However, the college states: “The disadvantage is that putting something in writing sometimes makes a matter seem more serious than you think it is”, para 3.
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Struck
I filed several formal complaints in 2022, the College only responded to one of my complaints stating that the timeline to file a complaint had expired.
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Struck
Additionally, Christopher Rutherford, counsel for the defendant sent me the response to my student complaint through email on July 18, 2022.
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Struck
The College declined to investigate my complaints using this civil action as justification. The College stated: “you have elected to pursue your complaint through the Court process and not through SA03”, page 2.
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Struck
Returning to the fictional example in the meeting with college officials guide, the document states that: “Often students worry that if they raise an issue or appear critical of something an instructor has or hasn't done, he or she will retaliate when marking the student's work. There is no way of knowing in advance who is likely to retaliate, so it makes sense to be cautious”, page 3.
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The College goes on to advise students to: “assess the risks of speaking out.” The College goes on to state that: “problems with people in positions of authority or trust can sometimes be overwhelming”, page 6.
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The College identifies personal danger signs as:
a.
“You find yourself skipping class X or just not coming to school at all on those days
b.
your other courses are being seriously neglected because of class X
c.
after class X you are usually too upset to concentrate
d.
if you meet Professor (or Mr. or Ms) X in the hall you begin to shake
e.
you are not sleeping well
f.
you have lost (or gained) a significant amount of weight
g.
your friends are worried about you? your key relationships are stressed
h.
you are afraid there is no future for you
i.
you often feel angry, sad, depressed, anxious, ashamed, or worthless
j.
you have fantasies of getting back at Professor X after you graduate
k.
you have been avoiding family and friends you usually talk to
l.
you feel Professor X knows something bad about you no one else knows
m.
you feel that if only X would be pleased with you or your work, all would be well
n.
after years of wanting to go on in a particular discipline, you are unsure now
o.
you keep complaining about X; you can't seem to talk about anything else.
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Struck
I complained a lot to my classmates about Firas Sassi and his unfair treatment, so I did meet some of the criteria for the College’s personal danger signs checklist.
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In the meeting with college officials guide, the College suggests that students who are experiencing trouble with their professors can utilize workshops on stress management, time management, exam anxiety and other related topics. The College states that personal counseling is also available through Student Support Services. And that students should also talk to their academic advisor about how to limit or manage the academic consequences of the problem.
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Similarly, due to the worry academic appeals cause, Niagara College suggest that: “Students are encouraged to consult with Counseling Services or Enrollment Services for guidance and information at any stage of the [appeals] process”, 1d).
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Struck
In the ombudsman’s report for 2006 - 2007, a student named G failed a course which she stated was due to the problems she had with her professor. G sought a formal review to have someone objective to evaluate her work. This is a story known all too well in educational institutions.
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Struck
Additionally, in the summer of 2022, I filed a freedom of information request with the College to get some information. The College sent me unknown zipped files in folders which needed to be downloaded onto my computer
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I refused to download the unknown files onto my computer since the files could’ve contained viruses. Instead, I asked for the documents in PDF format which could be viewed from my email without being downloaded.
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On November 4, 2022, Susan Mainse, the risk manager at Algonquin College responded that: “Due to the security parameters set at the College, we are unable to condense these pdf records beyond the 4 zipped folders, which were sent to you on September 9th”.
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Susan Mainse went on to state that: “The department has created a binder for you, consisting of indexed labels for ease of perusal. This was mailed to you at the address noted below, via Canada Post Xpresspost service this afternoon. Delivery will require your signature, and the Tracking Number is 4347781195376465 for your reference”.
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I refused to accept this binder since I would have no way of tracing the documents I received, back to Algonquin College.
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Algonquin College sent two packages in December 2022, one from Canada Post, tracking number: 4347 7814 6923 1483 and one from UPS, tracking number, 1Z 368 35F 14 9565 1721. I sent both packages back to Algonquin College.
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In my freedom of information request, I sought a sexual assault report I filed with the College about another student. That complaint was handled incompetently by the investigator who was not transparent. It was my intention to include this incident in my statement of claim.
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If I had found something litigious in the paper report the College attempted to send to me and referenced it in my statement of claim; then that section of the report could be removed from the College’s internal records; and the College could deny that information was included in the paper report sent to me. That’s why I insisted on electronic PDF documents.
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This baseless rule 21 motion is for the purpose of delaying the discovery process. I never received an affidavit of documents from the defendant. The College was served with my affidavit of documents on October 27, 2022.
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In Justice Doyle’s August 15, 2023, endorsement, Algonquin College was ordered to provide me with screenshots and documents from my Brightspace account. The College only gave me some of the screenshots and documents, and I had to keep contacting opposing counsel for more information
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My request for the remainder of the information was met with no response. It’s the same information I require to have this Rule 21 motion dismissed.
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I have sent Algonquin College numerous requests for admission. The College has responded by denying all my allegations. This can be addressed at the hearing
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In the ombudsman’s 2008 - 2009 report, Mr. Depow stated: “When members of the College community, act in a way which preserves personal objectives rather than institutional objectives, they undermine the welfare of the institution”.
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COURT FILE NO.: CV-22-89230
DATE: 2024/05/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RACHEL OBITA
Plaintiff
– and –
ALGONQUIN COLLEGE
Defendant
PRELIMINARY RULING
(On the Defendant’s Motion
to Strike the Plaintiff’s Pleading)
Madam Justice S. Corthorn
Released: May 23, 2024
Footnotes
- R.R.O. 1990, Reg. 194. In the balance of this ruling, I refer to the Rules of Civil Procedure as “the Rules”.
- In reply, the College delivered an affidavit sworn by Michael Laviolette on August 17, 2023 (i.e., “the second Laviolette affidavit”).