



COURT OF APPEAL FOR ONTARIO

CITATION:
Rabi v.
    University of Toronto, 2020 ONCA 305

DATE: 20200521

DOCKET: C67362

Doherty, Juriansz and Paciocco
    JJ.A.

BETWEEN

Lakshmikanth Kishor Rabi

Applicant (Appellant)

and

The University of Toronto

Respondent (Respondent)

M. Olanyi Parsons and Christopher
    Breton, for the appellant

Robert A. Centa and Emily Home, for the
    respondent

Heard: In writing

On appeal from the order of Justice Shaun
    OBrien of the Superior Court of Justice, dated July 17, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant,
    Lakshmikanth Kishor Rabi, seeks to set aside the decision to deny his
    application for an interlocutory injunction to prevent enforcement by the
    respondent, The University of Toronto (the University), of a Trespass Notice
    that is impeding the completion of Mr. Rabis studies and putting his student
    visa status at risk. He sought the interlocutory injunction pending a
    proceeding before the Human Rights Tribunal of Ontario (the Tribunal). The
    appellant contends that the application judge committed palpable and overriding
    errors in her assessment of the evidence, misapplied the test for interlocutory
    injunctions, and arrived at an unreasonable decision in finding that the balance
    of convenience favoured the respondent. For reasons that follow, we would
    dismiss Mr. Rabis appeal.

BACKGROUND FACTS

[2]

On May 5, 2017, Mr.
    Rabi, a student enrolled at the University, attended at the university Health
    and Wellness Centre. As the result of events that transpired during his visit,
    the on-call psychiatrist, Dr. Soraya Mumtaz, formed the opinion that Mr. Rabi
    posed a threat to himself and others. As a result, Mr. Rabi was immediately
    involuntary committed for psychiatric review in the Centre for Addiction and
    Mental Health (CAMH). Four days later, on May 9, 2017, the respondent issued
    a Trespass Notice to Mr. Rabi, which is the subject of this appeal.

[3]

Mr. Rabi, who was
    released from CAMH 18 days later after voluntarily extending his stay, denies
    that he posed a danger to anyone, then or now. He contends that confusion over
    the contents of a note he wrote as well as cultural misunderstanding led to his
    benign expressions of frustration being interpreted as threats, and that
    comments he made about past ruminations of suicide and the suicide of another
    were misconstrued and mistakenly treated as current suicidal ideation. He also
    claims that the accounts of events offered by the attending registered nurse,
    Dr. Mumtaz, and campus police who attended on May 5, 2017, are inaccurate and
    exaggerated. He notes, as well, that the comments he did make to Dr. Mumtaz
    were made while he was emotional, exhausted, and being pressingly
    interrogated.

[4]

The letter containing
    the Trespass Notice invited Mr. Rabi to furnish, for consideration, any
    information that he wished to have considered. It affirmed that the Trespass Notice
    would not be rescinded until the University is satisfied that he do[es] not
    pose a threat to the health and safety of others and sought Mr. Rabis
    consent to undergo a psychiatric risk assessment by a qualified expert who
    will report to the University.

[5]

Mr. Rabi furnished the
    university with a letter from his treating physician at CAMH, Dr. Ofer Agid,
    dated June 13, 2017, which said in relevant part:

During the state in the in-patient unit (May 5
th
to May 23
rd
) the patient was not offered any type of medical
    treatment and was fully cooperative with the psychiatric observation.

At this point he does not require psychopharmacological
    treatment. The assessment conducted today, reveals that he is not at any risk
    to self or others.

[6]

The University did not
    find Dr. Agids letter to be adequate to allay its concerns. Mr. Rabi contends
    that this position is unreasonable and insists that the Trespass Notice should
    be rescinded on the strength of the letter. Accordingly, he has not consented
    to a psychiatric risk assessment. Extensive correspondence between the parties
    did not resolve the impasse.

[7]

On February 28, 2018,
    Mr. Rabi initiated a court application alleging that the University breached
    its contractual and fiduciary duties in its dealings with him. On May 4, 2018,
    he filed a complaint with the Tribunal. On May 23, 2019, he amended his
    application, adding a request for an interlocutory injunction restraining the
    University from enforcing the Trespass Notice.

[8]

On July 17, 2019, the
    application judge dismissed the application in its entirety.

ISSUES

[9]

Mr. Rabi appeals only
    the denial of the interlocutory injunction. No issue was taken with the decision
    of the application judge to exercise her jurisdiction and hear an application
    for an interlocutory injunction relating to a complaint before the Tribunal,
    notwithstanding that the Tribunal also has jurisdiction to order the interim
    relief requested and would arguably have been in a better position to determine
    its suitability: see e.g.,
Nelson et al. v. Her
    Majesty the Queen in Right of Ontario et al
.
,
    2019 ONSC 5415, at para. 21; Robert J. Sharpe,
Injunctions
    and Specific Performance
,
    loose-leaf (2019-Rel. 28), (Toronto: Thomson-Reuters, 2019) at para. 3.990. The
    issues he raises can be organized as follows:

A.

Did the application judge commit palpable and overriding errors?

B.

Did the application judge err in the application of the legal test
    for an interlocutory injunction?

C.

Did the application judge unreasonably conclude that the balance of
    convenience favoured denying the interlocutory injunction?

ANALYSIS

A.

DID THE APPLICATION JUDGE COMMIT PALPABLE AND OVERRIDING ERRORS?

[10]

Mr. Rabi argues that
    the application judge made unreasonable factual determinations relating to the
    cogency of the medical notes relied upon by the University, and that she
    unreasonably relied upon her finding that the threats implicated University
    staff, when this was not a basis for issuing the Trespass Notice. Mr. Rabi also
    argues that she committed a palpable and overriding error by misapprehending
    evidence relating to the finding of compromise by the University, and in
    identifying the basis for the opinion expressed in the letter from Dr. Agid.
    Mr. Rabi argues, as well, that the application judge ignored his medical
    evidence.

[11]

None of these alleged
    errors occurred, nor have any other errors of fact or errors of mixed fact and
    law been successfully identified.

[12]

Mr. Rabis argument
    that it was unreasonable for the application judge to rely on the medical notes
    as an accurate account of the events of May 5, 2017 rests in his claim that she
    failed to appreciate the discrepancies in the medical notes. Most
    significantly, the medical notes of the registered nurse record that Mr. Rabi
    wrote on a notepad that if he had a rifle, he would shoot something. In his
    medical notes, Dr. Mumtaz recorded that the note Mr. Rabi wrote stated, that
    he wanted to kill someone (no name) and that he was good with a rifle. Mr.
    Rabi argues that this error made its way into the Form 1 application.

[13]

The application judge
    committed no palpable and overriding error in her treatment of these medical
    notes. She explained why she found them reliable. Specifically, they were
    taken contemporaneously and were taken by health care practitioners. This
    determination was for her to make.

[14]

It is also clear that
    she was not misled by any imprecision there may have been in Dr. Mumtazs
    medical note about what Mr. Rabi had written. She accepted Mr. Rabis position
    that the note he wrote said that he wanted to shoot something. Her conclusion
    that there was evidence that Mr. Rabi wished to shoot someone was not based
    on evidence about the note, but on things Mr. Rabi is recorded as having said
    to the registered nurse and Dr. Mumtaz. This includes comments attributed to
    Mr. Rabi that he wanted to shoot someone at random, as a sniper shooting at people
    who happened to be around, and that either [he] dies or someone else will.
    The registered nurses medical notes also record Mr. Rabi explaining that in
    his note he wrote something instead of somebody because writing somebody
    would have been incriminating.  Mr. Rabi has demonstrated no errors by the
    application judge relating to the medical notes.

[15]

Nor did the application
    judge commit a palpable and overriding error by relying on what Mr. Rabi claims
    is an irrelevant finding that his threats were linked to animosity against University
    staff. We do not accept Mr. Rabis contention that the University did not rely
    on this consideration when issuing the Trespass Notice. The letter containing
    the Trespass Notice in fact describes the risk the University perceived Mr.
    Rabi to pose in the University community, a community that obviously includes
    University staff. Moreover, University records put before the application judge
    bore out Mr. Rabis animosity to staff members. It is an entirely reasonable
    inference that the University was mindful of this when issuing the Trespass
    Notice. No palpable error occurred.

[16]

In any event, even if
    mistaken, the application judges findings relating to animosity against University
    staff would not amount to an overriding error. Given the evidence before the
    application judge that Mr. Rabi threatened to shoot people randomly as a sniper
    would, the seriousness of the threats made would not be materially diminished
    if not directed at University staff, or if not fueled by animosity against University
    staff.

[17]

We also reject the
    submission that the application judge misapprehended the evidence by noting an
    offer of compromise by the University, when the University was, in fact,
    insisting on a psychiatric risk assessment. The Trespass Notice itself invited
    Mr. Rabi to provide other information, distinct from the request that Mr. Rabi
    consent to a psychiatric risk assessment. In its letter of September 14, 2017,
    while re-asserting its belief that a psychiatric risk assessment remains
    necessary and appropriate, the University said that it undertakes to consider
    any medical reports touching on the subject of risk to its community, that
    refers to the position taken by Dr. Agid and supplements or updates it with
    cogent and comprehensive medical evidence.  There was therefore clear evidence
    of an offer to compromise on the record. The fact that the Universitys
    repeatedly called for a psychiatric risk assessment does not alter this fact.

[18]

Nor did the application
    judge misapprehend the evidence by describing the June 13, 2017 letter of Dr.
    Agid as being based on an assessment that day. The letter says this
    expressly. There is simply no basis for inferring that the application judge
    failed to appreciate that Mr. Rabi had been at CAMH for 18 days.

[19]

In any event, even if
    it had been wrong to note that the letter was based on an assessment that
    day, such an error would not be overriding. What mattered was the application
    judges conclusion that Dr. Agids extremely brief letter of opinion did not
    provide sufficient assurance of Mr. Rabis health and safety, a decision
    supported by Universitys evidence from Dr. Lisa Ramshaw that Dr. Agids letter
    of June 13, 3017, was inadequate, and not a violence risk assessment. The
    application judge noted that Dr. Agids letter gave no indication of the
    information he had been provided, said nothing about the nature of tests or
    assessments undertaken, and did not offer an assessment of future risk. Whether
    Dr. Agids conclusion was an assessment of Mr. Rabis risk that day or a more
    general assessment based on a larger body of information would not have altered
    the shortcomings identified by the application judge.

[20]

Mr. Rabis submission
    that the application judge disregarded the medical evidence he provided fares
    no better. As the prior paragraph makes plain, the application judge considered
    this evidence but found it to be wanting. Mr. Rabis arguments that it was
    unreasonable for the application judge not to assign weight to Dr. Agids
    letter amounts to no more than an effort to reargue the case before us and must
    be rejected.

B.

DID THE APPLICATION JUDGE ERR IN THE APPLICATION OF THE LEGAL TEST
    FOR AN INTERLOCUTORY INJUNCTION?

[21]

The application judge
    correctly set out the legal test for an interlocutory injunction from
RJR-MacDonald v. Canada (Attorney General)
, [1994] 1 S.C.R. 311, at p. 334. This test
    requires the applicant to demonstrate that the interests of justice call for a
    stay by showing: (1) that there is a serious issue to be tried; (2) that he
    will suffer irreparable harm if the injunction is refused, and (3) the balance
    of convenience favours the injunction.

[22]

Mr. Rabi does not take
    issue with the articulation of the test, nor with the application judges
    findings that there was a serious issue to be tried, and that he will suffer
    irreparable harm if the injunction is denied. He argues that the application
    judge erred in law in applying the test by not conducting a fluid, not rigid,
    analysis of the elements and by giving disproportionate emphasis to her
    finding that the balance of convenience favoured the University. On this latter
    point, he argues that the strength of the first two components of the test
    should have overcome any deficiency in the last.

[23]

The University does not
    contest that in determining whether a stay is in the interests of justice, an
    application judge is entitled to consider the relative weight of the three
    components of the test, or that a strength in one area may offset the weakness
    in another. However, the University argues that Brown J. made clear in
R. v. Canadian Broadcasting Corporation
, 2018 SCC 5, [2018] 1 S.C.R. 196, at para. 12, that
    an interlocutory injunction must satisfy each of the three elements of [the]
    test. Since the application judge found that the third component was not met 
    that the balance of convenience instead favoured the University  this was not
    a case for the kind of fluid assessment that Mr. Rabi calls for.

[24]

We need not determine
    whether the
dictum
in
R. v. Canadian
    Broadcast Corporation
has
    the significance the University ascribes to it, such that no matter how strong
    the applicants case is, or how serious the irreparable harm may be, an
    interlocutory injunction may not issue if the balance of convenience favours
    the respondent. (See e.g., Robert J. Sharpe,
Injunctions
    and Specific Performance
,
    at para 2.540). We need not explore this question because we are satisfied that
    the application judge considered the weight of each component of the test and
    was satisfied that this was not a case where, in all the circumstances, the
    strength of the factors that favoured Mr. Rabi could sustain Mr. Rabis
    application.

[25]

In particular, she
    found the serious issue to be tried arose from Dr. Agids opinion, an opinion
    whose deficiencies she described. And she clearly tempered her finding that Mr.
    Rabi had demonstrated irreparable harm by noting that he took two years to seek
    the injunction. It would not be accurate to suggest that she found the first
    two factors favouring Mr. Rabi to be strong.

[26]

Then, when describing
    the balance of convenience, the application judge said that the impact of providing
    updated medical information to the University on Mr. Rabi was less significant
    than the impact of the injunction on the University and gave an explanation that
    we are about to describe that made that determination decisive.

[27]

Put simply, the
    application judges evaluation of the relative strength of each component of
    the test leaves no room for a finding that she failed to conduct a fluid
    assessment or gave undue weight to the balance of convenience. Even if Mr.
    Rabis claimed errors amount to errors of law, the application judge committed
    neither of them.

C.

DID THE APPLICATION JUDGE UNREASONABLY CONCLUDE THAT THE BALANCE OF
    CONVENIENCE FAVOURED DENYING THE INTERLOCUTORY INJUNCTION?

[28]

There is no basis for
    impugning the reasonableness of the application judges finding that the
    balance of convenience favoured the University. Her reasons were clear,
    grounded in the evidence, and compelling. In particular, she noted the very
    serious threats that had been demonstrated to the university community, the
    concerning context in which Mr. Rabis threats were made, and the absence of
    sufficient assurances of Mr. Rabis mental health. On the other side, she
    reasoned that, if he did not pose the threat apprehended, the harm to Mr. Rabi
    could be overcome by the inconvenience and loss of privacy that securing
    adequate medical information would entail. The application judges conclusion
    that, on balance, the balance of convenience favoured the university was
    entirely reasonable.

CONCLUSION

[29]

The appeal is
    dismissed. If either party is seeking costs, the Universitys bill of costs,
    supported by written submission of no more than three pages, shall be submitted
    by May 28, 2020. Mr. Rabis costs submissions shall be submitted by June 2,
    2020 and shall also consist of a bill of costs and no more than three pages of
    written submissions. If Mr. Rabi seeks costs, the University will be entitled
    to provide two further pages, in response, by June 5, 2020.

Doherty
    J.A.

R.G.
    Juriansz J.A.

David
    M. Paciocco J.A.


