



COURT OF APPEAL FOR ONTARIO

CITATION: Fernandes v. Carleton University, 2016 ONCA 719

DATE: 20161003

DOCKET: C60632

Weiler, Blair and van Rensburg JJ.A.

BETWEEN

Myles Fernandes

Plaintiff

(Appellant)

and

Carleton University and BCE Inc.

Defendants

(Respondents)

Myles Fernandes, acting in person

Jamie Macdonald, for the respondents

Heard: September 19, 2016

On appeal from the order of Justice G. Patrick Smith of
    the Superior Court of Justice, dated June 10, 2015.

ENDORSEMENT

Background:

[1]

Mr. Fernandes was a student enrolled in Aerospace Engineering at
    Carleton University. In 2013 he received a failing grade in one of his courses,
    Electronics II. He attempted unsuccessfully to overturn this grade through
    Carletons internal appeal process. As a result, he claims that he was unable
    to continue and finish his degree. He holds Carleton responsible for his
    failure to become an aerospace engineer.

[2]

Mr. Fernandes was also employed by The Source as a retail employee,
    selling various Bell products such as telephone and internet plans. In March
    2014, his employment was terminated by The Source, a subsidiary of Bell Canada
    which is, in turn, a subsidiary of BCE Inc.

[3]

These proceedings are a by-product of the foregoing events. Mr.
    Fernandes sued both Carleton and BCE Inc. As against both, he claimed damages
    for conspiracy to terminate his employment in reaction to an email he sent to
    Carleton threatening legal action. He sued BCE Inc. for wrongful termination of
    his employment at The Source. He sued Carleton for damages for breach of duty
    of care, intentional infliction of emotional distress, the tort of inducement
    and defamation (based on certain remarks made by his professor and the
    Associate Dean during the grade appeal process).

[4]

The defendants moved for summary judgment dismissing the action,
    pursuant to r. 20 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194.  Carleton also moved to have the statement of claim struck as against it
    as an abuse of process pursuant to rules 21.01(3)(d) and  25.11(c). The motion
    judge granted the relief claimed.

[5]

He dismissed the claim against BCE Inc. on the ground that Mr.
    Fernandes claim for wrongful termination lay against The Source and not
    against BCE Inc. because he was employed by The Source which is a different
    legal entity than BCE Inc. and because, on the record before him, there was no
    evidence tying BCE Inc. to The Sources employment decisions or to Mr.
    Fernandes employment. He did not consider it appropriate to pierce the
    corporate veil in the circumstances.

[6]

The motion judge dismissed the conspiracy claim because the evidence
    satisfied him that there had been no contact between the defendants concerning
    Mr. Fernandes or his circumstances. He struck the statement of claim against
    Carleton on the basis that it constituted an abuse of process because it was in
    substance an indirect attempt to re-litigate the unsuccessful internal
    grade-appeal process which is an essentially academic matter.

[7]

Mr. Fernandes appealed the decision of the motion judge.

[8]

In addition, however, he brought a motion within the appeal to have the
    affidavits of Suzanne Blanchard and Deborah Stanbridge struck from the record. 
    Ms. Blanchard is the Vice-President (Students and Enrolment) and University
    Registrar at Carleton. It was through her affidavit that Carleton placed on the
    record the evidence relating to the internal appeal process regarding the
    appeal of Mr. Fernandes failing grade. Ms. Stanbridge is the Director  Employee
    Services with BCE Inc. She provided the evidence on behalf of BCE Inc.
    regarding the corporate separation of BCE Inc., Bell Canada, and The Source and
    the lack of connection between BCE Inc. and any employment decisions of The
    Source.

[9]

For reasons discussed below, LaForme J.A. dismissed that motion, which
    also sought to strike an additional affidavit filed by the respondents in reply
    to Mr. Fernandes motion to strike the Blanchard and Stanbridge affidavits. Mr.
    Fernandes seeks to have that order set aside by a panel. By order of Doherty
    J.A., that motion is before us to be heard at the same time as the main appeal.

[10]

Shortly
    after the dismissal of his motion by LaForme J.A., Mr. Fernandes brought a
    second motion to strike Ms. Blanchards affidavit. Justice Hourigan  dismissed
    that motion as an abuse of process. Mr. Fernandes seeks to have the order of
    Hourigan J.A. set aside by a panel. By order of Epstein J.A., that motion is
    before us to be heard at the same time as the main appeal.

Discussion

[11]

For
    the reasons that follow, the motions to set aside the orders of LaForme J.A.
    and Hourigan J.A. are dismissed and the main appeal is dismissed.

The
    Order of LaForme J.A.

[12]

Mr.
    Fernandes evidence in support of the motion to strike the Blanchard and
    Stanbridge affidavits is contained in an affidavit purportedly sworn by a
    lawyer in Regina, Saskatchewan, named Michael Scott Tochor. The problem is
    that, on the evidence before LaForme J.A., Michael Scott Tochor does not
    exist.

[13]

The
    respondents inquiries of the Law Society of Saskatchewan and a search of the
    online directory of lawyers practising in that province revealed that there is
    only one Michael Tochor practising in Saskatchewan: Michael Dennis Tochor Q.C. Michael
    Dennis Tochor Q.C. filed an affidavit on the motion deposing that he did not
    know and has never communicated with Mr. Fernandes, has never acted in any
    capacity as legal counsel for Mr. Fernandes, and did not swear the affidavit
    purportedly sworn by Michael Scott Tochor on the motion.  We note as well that,
    when asked to do so, Mr. Fernandes admitted during the proceedings before
    LaForme J.A. that he could not produce Michael Scott Tochor and had no
    knowledge of his whereabouts, nor could he provide any contact information for
    him.

[14]

Instead
    Mr. Fernandes focussed his attention on attacking the affiants of the
    affidavits filed by the respondents to answer his allegations about the faults
    in the Blanchard and Stanbridge affidavits and certain non-essential matters (a
    dispute about the return date of a motion and the service of certain
    materials).  Mr. Fernandes challenges to these affidavits rely primarily on
    unfounded allegations of bias arising from the connection of the affiants with
    the respondents lawyers.  There is no merit in them.

[15]

The
    allegations respecting the Blanchard affidavit were that Ms. Blanchards
    affidavit stated that it was sworn in Toronto when she was apparently in Ottawa
    and that her affidavit was not sworn on February 13, as stated, but on February
    3, or at some other time.

[16]

The
    allegation with respect to the Stanbridge affidavit  contained in the Tochor
    affidavit was that the affidavit had been commissioned by an unauthorized
    person in Quebec. The affidavit of the articling student who commissioned Ms.
    Blanchards affidavit clarifies that it was indeed sworn before him in Ottawa
    (he mistakenly stated Toronto on Ms. Blanchards affidavit) and that it had
    been sworn on February 13.  The affidavit of Joan LaRoche confirms, among other
    things, that the records of the Province of Quebec show that the commissioner
    of Ms. Stanbridges affidavit is an authorized commissioner for the taking of
    oaths in Quebec.

[17]

Justice
    LaForme was completely justified in dismissing the motion to strike the
    affidavits. To put it mildly, the filing of the affidavit of a purported
    Michael Scott Tochor is troubling and an abuse of process providing the basis
    for dismissal. LaForme J.A. did not err in principle by drawing an adverse inference
    from the fact that Mr. Fernandes was unable to produce his purported affiant,
    Michael Scott Tochor, or provide any information regarding his whereabouts. 
    His inability to do so was telling in the circumstances.

[18]

In
    any event, the responding affidavits filed by the respondents provide ample
    explanation for any technical flaws that may have existed in the Blanchard and
    Stanbridge affidavits.

[19]

The
    motion to set aside the order of LaForme J.A. is dismissed.

The
    Order of Hourigan J.A.

[20]

Within
    two weeks of the order of LaForme J.A. dismissing his application to strike 
    amongst others  the Blanchard affidavit, Mr. Fernandes brought a second motion
    to strike the same affidavit. On that motion he did not rely on the Tochor
    affidavit but attacked the Blanchard affidavit on the technical grounds
    referred to above (the date and place of swearing). Justice Hourigan  dismissed
    this motion on the basis that it was a collateral attack on the order of
    LaForme J.A., which was already subject to a motion to the panel to have it set
    aside.

[21]

Mr.
    Fernandes contests this order on the basis that the motion did not constitute a
    collateral attack because LaForme J.A. had made no finding of fact in his
    reasons concerning the complaints about the Blanchard affidavit. In his view,
    that kept the matter alive and subject to a fresh attack. He submitted at
    length that he was not precluded by the doctrine of issue estoppel from
    bringing the second motion. Because of the absence of factual findings and the
    errors of Hourigan J.A., he argued that the Blanchard affidavit must be struck
    or the matter remitted to another Chambers judge for such findings to be made
    (and, inferentially, that the main appeal cannot be determined until that
    exercise has been completed).

[22]

Accepting
    that Mr. Fernandes is a layperson and not trained in the law, he nonetheless
    misunderstands the basis upon which Hourigan J.A. dismissed his motion. The
    doctrine of issue estoppel has no application. The motion was dismissed because
    it constituted a collateral attack on the order of LaForme J.A. (itself under
    review) and was therefore an abuse of process. Whatever Mr. Fernandes personal
    views about the use (or abuse) of the abuse of process principles by lawyers
    and judges against self-represented litigants may be, courts are obliged to
    apply the law, where applicable, in the circumstances before them.

[23]

Justice
    Hourigan did not err in dismissing the motion before him on the basis that he
    did. The motion to set aside his order is dismissed.

The
    Main Appeal

[24]

Mr.
    Fernandes submitted that the motion judge went too far in exercising his discretion
    to determine the issues by way of summary judgment under r.  20.  He argued
    that there were a number of serious issues of fact and credibility that had to
    be determined on the motion and that these constituted a genuine issue requiring
    a trial. Included in the serious issues of credibility that Mr. Fernandes
    raised were the following:

 Who was the appellant answerable to?

 Did the appellant work for Bell Canada and, if so, was he an
    employee of Bell Canada?

 Did an employer-employee relationship exist between the appellant
    and Bell Canada?

 If no employment contract was signed, would common law notice
    of 24 months prevail?

 If the appellant was identified as a Bell Canada employee,
    without ever having signed an employment contract with Bell Canada, could there
    exist an employer-employee relationship between the appellant and BCE Inc. as
    described in their Annual Reports?

 What did BCE mean by Our Employees at the Source?

 Was the tortfeasor accused of battery a BCE employee by the
    same standards?

 Did BCE Inc. owe the appellant a duty of care at the time of
    the incidents?

 Did BCE breach their duty of care toward the appellant?

[25]

Mr.
    Fernandes contends that because he did not file evidence directly relating to
    these questions  because he did not understand that he was required to file
    evidence  the motion judge was not in a position to resolve those issues of
    credibility and therefore was not able to reach a fair and just determination
    of the action on its merits, as required by the decision of the Supreme Court
    of Canada in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87.

[26]

There
    are two difficulties with these submissions.

[27]

First,
    in making his arguments about the motion judges inability to reach a fair and
    just determination, Mr. Fernandes ascribed a narrower role for the summary
    judgment motion judge than that now called for in
Hryniak
. Mr.
    Fernandes argued that the purpose of a summary judgment motion was to weed out
    claims that have no chance of success, relying in this respect on a statement
    at para. 38 of
Hryniak
which was simply a summary of what the pre-
Hryniak
jurisprudence had narrowed the purpose to, and on a similar statement in an
    earlier decision of the Nova Scotia Supreme Court in
Spring Garden Holdings
    Ltd. v. Ryan Duffys Restaurants Ltd.
, 2010 NSSC 71, 297 N.S.R. (2d) 201,
    at para. 31.

[28]

It
    is clear from
Hryniak
and the jurisprudence following it, however,
    that the Supreme Court of Canada has broadened and liberalized the availability
    of summary judgment and has encouraged the judiciary to resolve disputes in
    that fashion when judges can justly do so. There will be no genuine issue requiring
    a trial where the judge is able to reach a fair and just determination on the
    merits and where the material filed on the motion: (i) allows the judge to make
    the necessary findings of fact; (ii) allows the judge to apply the law to the
    facts; and (iii) is a proportionate, more expeditious and less expensive means
    to achieve a just result:
Hryniak
, at paras. 32, 49-51. Under r. 20.04(2.1),
    the summary judgment motion judge is provided with a number of powers enabling
    him or her to weigh evidence, evaluate credibility, and draw reasonable
    inferences.

[29]

Here,
    the motion judge properly followed that approach.

[30]

The
    second difficulty is that, while Mr. Fernandes may not have put forward
    evidence directly on the issues outlined above, the respondents did.  That
    evidence  in the form of the Blanchard and Stanbridge affidavits  clearly
    provided the motion judge with the evidence necessary to resolve the issues before
    him.

[31]

While
    it may be Mr. Fernandes was somewhat confused, as a lay person, about the need
    to file evidence  a confusion enhanced, perhaps, by the companion claim for
    relief on the motion to strike  he is nonetheless required to prepare himself
    and present his case, like any other litigant, and he has shown himself capable
    of navigating the rules of procedure in other ways.

The
    Claim Against BCE Inc.

[32]

There
    was ample evidence to support the motion judges finding that Mr. Fernandes was
    not an employee of BCE Inc. and had no contractual relationship with it. His
    findings are entitled to deference.

[33]

Mr.
    Fernandes was employed by The Source. The fact that Mr. Fernandes sold Bell
    products at the store is insufficient to establish the necessary employment or
    contractual nexus. The Source is a wholly-owned subsidiary of Bell Canada
    which, in turn, is a wholly-owned subsidiary of BCE Inc. The evidence was that
    BCE Inc. played no role in the implementation of The Sources internal policies
    and operating decisions.

[34]

The
    motion judge addressed Mr. Fernandes submission that he should pierce the
    corporate veil and find BCE Inc. liable for the actions of The Source.  He
    properly applied the law on piercing the corporate veil and concluded that, on
    the facts before him, it was not appropriate in the circumstances to do so. 
    These findings were also open to him on the evidence and are entitled to
    deference.

The
    Conspiracy Claim

[35]

Although
    the motion judge did not say specifically in his reasons why he was dismissing
    the conspiracy claim, his reasons as a whole make it clear why he did so. On the
    basis of the evidence filed, there was no agreement between two or more
    persons. No one from Carleton had contacted, or directed anyone to contact, or
    had any knowledge of anyone contacting BCE Inc. or anyone else outside of
    Carleton regarding Mr. Fernandes; and that no one at BCE Inc. had any knowledge
    of Mr. Fernandes or the events referred to in the statement of claim prior to
    the commencement of the action, nor had anyone from BCE Inc. contacted or
    communicated with anyone at Carleton with respect to Mr. Fernandes or those
    events.

[36]

On
    the basis of that evidence, the conspiracy claim could not stand.

The
    Claim Against Carleton University

[37]

The
    claim against Carleton was struck on the basis of a different analysis.  Rule
    25.11(c) provides that a court may strike out a pleading where the pleading
    constitutes an abuse of process of the court. The motion judge relied on this
    provision in dismissing the claim against Carleton.

[38]

Mr.
    Fernandes resists the application of the doctrine, particularly in the case of
    a self-represented litigant. However, the jurisprudence establishes that courts
    may resort to abuse of process or other rules, in appropriate circumstances, to
    strike claims against universities where those claims are, at their heart,
    attempts to re-litigate the factual underpinnings of previously unsuccessful
    challenges to academic decisions that have already been subject to the
    universitys internal appeal processes:
Jaffer v. York University
,
    2010 ONCA 654, 326 D.L.R. (4th) 148, leave to appeal refused, [2010] S.C.C.A.
    No. 402;
Gauthier c. Saint-Germain
, 2010 ONCA 309, 325 D.L.R. (4th)
    558, leave to appeal refused, [2010] S.C.C.A. No. 257;
Dawson v. University
    of Toronto
, [2007] O.J. No. 591 (S.C.), affd in part 2007 ONCA 875. This
    is so even where, as here, the plaintiff attempts to dress up the previous
    academic dispute by adding claims for relief  such as a monetary claim for
    wrongful conduct  that are unavailable through the internal academic review
    process:
Aba-Alkhail v. University of Ottawa
, 2013 ONCA 633, 363
    D.L.R. (4th) 470, leave to appeal refused, [2013] S.C.C.A. No. 491. See also
Ontario
    v. Lipsitz
, 2011 ONCA 466, 334 D.L.R. (4th) 606, leave to appeal refused, [2011]
    S.C.C.A. No. 407 which, albeit in a different regulatory context, applies the
    same principle.

[39]

Mr.
    Fernandes correctly points out that there are decisions from other
    jurisdictions that have allowed some aspects of a complainant students action
    (that did not form part of the academic process) to proceed even though other
    aspects were struck as attempts to circumvent that process: see
Tapics v.
    Dalhousie University
, 2015 NSCA 72, 363 N.S.R. (2d) 202;
Mohl v. The
    University of British Columbia
, 2006 BCCA 70, 52 B.C.L.R. (4th) 89. Those
    decisions do not assist, however, because they do not conflict with the general
    application of the abuse of process doctrine in such circumstances. They simply
    reflect instances in which the courts were satisfied that the civil claim
    involved matters that had not been dealt with in the substance of the academic
    proceedings. It is noteworthy that in
Tapics
the majority of the
    plaintiffs claims were struck, following this Courts decisions in
Gauthier
,
Jaffer
, and
Aba-Alkhail
.

[40]

Here,
    the added dimensions to Mr. Fernandes civil claim are essentially the claims
    for damages for conspiracy, breach of confidence, invasion of privacy, and
    defamation. His claims in negligence, intimidation, and his other tort claims
    as against Carleton all arise out of the same factual nexus that formed the
    basis for his complaints in the academic process.

[41]

The
    breach of confidence and invasion of privacy claims are related to the
    conspiracy claim because they stem from the allegation that Carleton accessed
    Mr. Fernandes email after he threatened legal proceedings and then sent them
    to his employer. The conspiracy and these associated claims are properly
    dismissed on r. 20 principles, as explained above. Absent that claim, Mr.
    Fernandes relies on certain statements apparently made by one of his professors
    and by the Associate Dean during the course of the academic appeal proceedings.
    His professor is said to have stated that he (the professor) [knew] how easy
    it is for a student to get a medical note and that he was so tired of
    students using a medical note to get away with writing midterms.  The
    Associate Dean is said to have stated that Mr. Fernandes had a tendency to see
    that the world is against [him].  These comments were reviewed and addressed
    during the internal appeal process. No judicial review proceedings were taken.

[42]

In
    our view, the motion judge made no error in principle or in fact in determining
    that  on the case presented to him  Mr. Fernandes complaints in the civil
    action were in substance an attempt to challenge and re-visit the manner in
    which the university dealt with the complaints about his treatment in his
    Electronics II class and the unsuccessful outcome of the internal academic
    appeals process. It was open to him to conclude on this record that Mr.
    Fernandes claim against Carleton constituted an abuse of process, and we see
    no basis for interfering with that determination.

Disposition

[43]

For
    the foregoing reasons, the motions to set aside the orders of LaForme J.A. and
    Hourigan J.A. are dismissed, and the main appeal is dismissed.

[44]

The
    respondents are entitled to their costs of the appeal, fixed in the amount of
    $15,000.00 all inclusive.

Robert
    A. Blair J.A.

K.M.
    Weiler J.A.

K.
    van Rensburg J.A.


