



COURT OF APPEAL
FOR BRITISH COLUMBIA




Citation:



Williams
  v. Simon Fraser University,









2019 BCCA 41




Date: 20190130

Docket: CA45591

Between:

Aleesha Williams

Appellant

(Plaintiff)

And

Simon Fraser University

Respondent

(Defendant)




Before:



The
  Honourable Mr. Justice Frankel

The
  Honourable Mr. Justice Willcock

The
  Honourable Mr. Justice Savage




On appeal from:  An order of the Supreme Court of British
Columbia, dated
September 7, 2018 (
Williams v. Simon Fraser University
, 2018 BCSC 1787,
Vancouver Registry S175149).

Oral Reasons for
Judgment




The Appellant
  appeared in person:



A. Williams





Counsel for
  the Respondent:



R.B.J. Kennedy, Q.C.
Y. Li-Reilly





Place and
  Date of Hearing:



Vancouver, British Columbia

January 30, 2019





Place and
  Date of Judgment:



Vancouver, British Columbia

January 30, 2019










Summary:

The appellant was withdrawn from the professional teacher
education and certification program at the respondent university due to concern
over her performance in the program. After two unsuccessful appeals of the
withdrawal to university officials, the appellant commenced an action against
the respondent for breach of contract and various torts. The respondent applied
to strike the claim, or alternatively, to obtain summary judgment. The judge
allowed the respondents application. The appellant argues the judge erred in
refusing to allow her to file a further amended notice of civil claim,
dismissing her claim summarily, trivializing her claim, conducting the hearing
in a biased manner, and relying on hearsay affidavit evidence. Held: Appeal
dismissed. The judges refusal to allow the appellant to file a further amended
notice of civil claim did not affect the result as the judge considered the
application as though the pleading had been filed. The judge did not err in
striking the claim or granting summary judgment. The dispute was academic in
nature and outside of the jurisdiction of the court, except on judicial review.
The judges conduct during the hearing did not suggest he trivialized the
appellants claim, and it did not give rise to a reasonable apprehension of
bias. The judge did not rely on hearsay evidence in making his decision.

[1]

SAVAGE J.A.
: In this action, Aleesha Williams
challenges the decision of Simon Fraser University (SFU) to withdraw her from
the Professional Development Program in the Faculty of Education (the
Program), a professional teacher education and certification program. The
chambers judge, Mr. Justice Myers, granted a motion to strike the claim
under Rule 9‑5 of the
Supreme Court Civil Rules
as disclosing
no reasonable claim. Alternatively, he would have dismissed the claim pursuant
to Rule 9‑6 of the
Rules
, the summary judgment rule.

[2]

In 2016, Ms. Williams
was a student enrolled in the Program at SFU (a student teacher). The Program
includes educational experiences in a classroom setting, professional
coursework and an intensive training practicum. A student teachers performance
in the Program is monitored by an instructional team. Student teachers who are
unable to continually meet the requirements of the Program may be withdrawn
from the Program.

[3]

If the instructional
team of a student teacher identifies performance issues with a student teacher,
and those performance issues are not sufficiently remedied, a faculty member
may initiate a process referred to as Due Process. The initial step in Due
Process is to issue a Notice of Concern that identifies the performance issues
and specifies conditions which must be met, including timelines within which to
meet the conditions.

[4]

If a student teacher
is unable to meet the conditions, the student teacher can be placed on Notice
of Potential Withdrawal. The Notice of Potential Withdrawal sets out in detail
the performance concerns identified by the instructional team. If significant
improvement is not forthcoming the student teacher may be required to withdraw
from the Program.

[5]

The decision to
require a student teacher to withdraw from the Program is subject to appeal. A
faculty member is assigned to hear and determine the appeal (the First Appeal Review).
The First Appeal Review decision is subject to a further appeal to the Dean of
the Faculty of Education (the Second Appeal Review). This does not end the
opportunities of the student. A student is entitled to apply for re‑entry
into the Program.

[6]

Ms. Williams
was placed on a Notice of Concern on April 12, 2016, which she
successfully addressed, and on a second Notice of Concern on October 5,
2016, which is the subject of this appeal. On October 13, 2016, the
instructional team determined that she had not provided evidence of significant
improvement and placed her on a Notice of Potential Withdrawal. The Notice of
Potential Withdrawal set out in detail the performance concerns identified by
the instructional team. On November 1, 2016, the instructional team
determined that Ms. Williams had not met the performance concerns and she
was withdrawn from the Program.

[7]

Ms. Williams
appealed the withdrawal and the appeal was heard by Dr. Ann Chinnery, the
Director of Undergraduate Programs. In written reasons dated December 15,
2016, Dr. Chinnery dismissed the appeal. Ms. Williams appealed the
First Appeal Review decision to the Dean of the Faculty of Education, Dr. Kris
Magnusson. Dr. Magnusson found no basis to overturn the First Appeal Review
decision and dismissed the appeal on February 10, 2017. Ms. Williams
was then advised of the process for re‑entry to the Program but did not
seek re‑entry.

[8]

Twelve days after
receiving the Second Appeal Review decision, Ms. Williams commenced an
action against SFU in Small Claims Court. An application to transfer the Small
Claims action to BC Supreme Court was dismissed. On June 1, 2017, the
within action was commenced in BC Supreme Court. Ms. Williams filed a notice
of trial on July 25, 2017, setting the action for a 19‑day trial
commencing October 1, 2018, although the trial was later adjourned. On
September 7, 2018, SFUs application to dismiss the action was granted by
Justice Myers in reasons for judgment indexed as
Williams v. Simon Fraser
University
, 2018 BCSC 1787 (RFJ).

[9]

Ms. Williams
appeals the order of Justice Myers on the following grounds, which I summarize
and paraphrase as follows: (1) that the court below erred in not
consenting to her filing a further amended notice of civil claim; (2) that
the court below erred in allowing the motion to dismiss to proceed; (3) that
the court below erred in trivializing and interpreting the facts; (4) the
court below erred in accepting certain evidence; and (5) the court below
conducted the hearing in a manner that was biased.

[10]

In her written
submission, Ms. Williams refers at some length to minor differences
between her transcription of the judges oral reasons and the written judgment
issued by the court. Some of these differences concern alternate citations, punctuation,
others concern such things as how a judge is referenced and substituting a name
for an indefinite reference. I should say at the outset that there is nothing
untoward in such non‑substantive changes made by a judge when finalizing reasons
delivered orally.

[11]

The first ground of
appeal can be dealt with briefly. During her submissions on the application, Ms. Williams
sought to file a further amended notice of civil claim during her reply. SFU
took the position that the application should proceed as though the unfiled
pleadings provided further particulars of Ms. Williams claim. The judge dealt
with SFUs application based on Ms. Williams proposed further amended
notice of civil claim as if this was the governing pleading (RFJ at para. 2).
Thus, whether the notice of civil claim was filed or not was of no consequence
to the outcome of SFUs application.

[12]

The second ground of
appeal is that the matter should not have been determined summarily. Ms. Williams
would have preferred that the matter be determined at a lengthy 19‑day trial
instead. Ms. Williams advances this point based on two general grounds. First,
she says she was misled about the application. Second, she says that because of
the complexity of the matter, and her opposition to proceeding summarily, it
should not have proceeded in that fashion. I see no merit in these positions.

[13]

The application made
by SFU, to deal with the question of whether there was a genuine issue for trial,
and whether the pleadings disclosed a reasonable claim, was made with proper
notice and was not misleading. In her factum, Ms. Williams quotes from
correspondence she received from counsel for SFU, which is not part of the
record before the Court. The portion quoted put Ms. Williams on notice
that SFU intended to proceed summarily. SFUs application was filed on July 12,
2018 and heard on September 6 and 7, 2018. The Notice of Application
and the Amended Requisition made it clear that the matter was to proceed based
on
Civil Rules
9‑6 and 9‑5.

Although the
matter was contested, the judge did not err in allowing SFUs applications to
proceed.

[14]

On the application
to strike, the judge considered what was set out in both the amended notice of
civil claim and in the proposed further amendment (RFJ at para. 9). He
concluded that the gravamen of the complaints is the manner in which SFU
evaluated her and her ultimate dismissal from the program (at para. 10). Further,
he held that characterizing what is in substance an academic matter as a tort
does not avail a plaintiff (at para. 12). The judge also considered the
authorities. Those authorities support the test he applied: that the test on a
motion to strike is whether, assuming the facts in the pleadings are true, is
it plain and obvious that the pleadings disclose no reasonable cause of action.

[15]

In coming to his
conclusion, the judge considered a series of cases which hold that matters that
are fundamentally academic in nature, focusing on the academic requirements,
rules and regulations that a university applies to students, do not fall within
the jurisdiction of a court except when they are reviewable on an application for
judicial review:
Cruickshank v. University of Lethbridge
, 2010 ABQB 186
at para. 12;
Dawson v. University of Toronto
, [2007] O.J. No. 591
(S.C.), affd in part
2007 ONCA 875
;
Warraich
v. University of Manitoba
,
2003 MBCA 58
;
Fufa
v. University of Alberta
,
2012 ABQB 594
. I
agree that this general proposition applies to this dispute.

[16]

The judge also
considered whether allegations of bullying and defamation were independently
supportable. With respect, the allegation about bullying (which he interpreted
as harassment) he found that no allegations of fact were alleged that would
support actionable conduct (at para. 15). The allegations supporting
defamation were directed at Ms. Williams performance, were academic in
nature, and were no different than her complaints with respect to her
assessment and mandatory withdrawal (at para. 16). Furthermore, Ms. Williams
did not allege publication or damage, essential ingredients of the tort of
defamation. In the result, the judge found that the pleadings disclosed no
reasonable claim.

[17]

Pleadings are
required to allege material facts which, if proven, would make out an
actionable claim. The pleadings fell short of this standard but, in any event,
were directed at issues fundamentally academic in nature and not within the
jurisdiction of the courts. Consideration of the evidence did not change the
result. Thus, the judge held, correctly in my view, that the case should be
dismissed under Rule 9‑5 or, alternatively, under Rule 9‑6.

[18]

In my view, Ms. Williams
remaining three grounds of appeal also cannot succeed. The judge neither
trivialized Ms. Williams claims nor exhibited bias in dealing with the claims
in the manner he did. Nor did the judge err in his consideration of affidavit
evidence.

[19]

The examples Ms. Williams
provided as an illustration of the judges trivialization of the facts and her
claim do not show any trivialization or misinterpretation. The judge was merely
applying the legal tests required.

[20]

For example, Ms. Williams
says that the judge trivialized the matter because he dealt with the
application when all [of] the evidence was not there. However, the judge was
required to deal with the application based on the material actually before him.
Ms. Williams also says the judge trivialized the matter because he dealt
with the application over a two‑day hearing. However, the length of time
over which an application is heard is not a measure of whether it is trivial or
not. I see nothing in the manner by which the application proceeded that would
support the notion that the judge did not fully appreciate the importance of
the matter to Ms. Williams.

[21]

The test for reasonable
apprehension of bias is whether an informed person, viewing the matter
realistically and practically, and having thought the matter through, would
conclude that it is more likely than not that the judge would not decide the
matter fairly:
Wewaykum Indian Band v. Canada
, 2003 SCC 45 at para. 60.

[22]

Ms. Williams
says that the judge exhibited bias primarily by attempting to limit her time
for submissions, by restricting her submissions to material before the court
and by laughing and making a joke while SFUs counsel was speaking. I have
reviewed the transcript references provided by Ms. Williams and I find no
basis for her allegation of bias.

[23]

The transcript shows
that the judge directed Ms. Williams to stay focused on the issues
relevant to the application and not to stray into irrelevant matters after she
gave a time estimate of roughly three hours. Likewise, he directed her to
deal with the material actually before him and not to stray into evidence not
actually before the court. Of course, the judge was required to deal with the
matter based on the pleadings and the evidence before him. The judge committed
no error in attempting to focus submissions on the only material he could
consider on the application.

[24]

Ms. Williams points to two instances where she asserts the judges
demeanor and/or actions are evidence of bias: the judges apparent momentary
expression of amusement when counsel used a series of acronyms and when he
commented on counsel for SFUs mispronunciation of a well-known case name. With
respect, I do not think a reasonable person could construe the statements and conduct
of the judge in this respect, either considered separately or in the context of
the two‑day hearing, to demonstrate a reasonable apprehension of bias.

[25]

Lastly, Ms. Williams
says the judge erred by accepting affidavit evidence that was misleading and
contained hearsay. The affidavit material attached documents related to the Due
Process I described earlier. The affidavit was not tendered for the truth of
the contents of the documents attached. There is no merit to this ground of
appeal. There was nothing improper about the affidavit evidence filed by SFU, and
in any event, the judge made his decision based on Ms. Williams proposed
further amended pleading and the affidavit evidence as a whole. He found that
it did not disclose a cause of action outside of a matter fundamentally
academic in nature, about which the courts will not assume jurisdiction, except
on judicial review.

[26]

In the result, I
would dismiss the appeal.

[27]

FRANKEL J.A.
: I agree.

[28]

WILLCOCK J.A.
: I agree.

[29]

FRANKEL J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Savage


