On appeal from the decision of a Master.

Date: 20140620
Docket: CI 13-01-84768
(Winnipeg Centre)
Indexed as: Olfman v. University of Manitoba et al
Cited as: 2014 MBQB 128


COURT OF QUEEN'S BENCH OF MANITOBA


BETWEEN: ) APPEARANCES:
)
) Shawn Olfman
HENYA RACHELL OLFMAN, ) for the plaintiff
)
plaintiff, )
) Jamie Kagan and
- and - ) Andrew Sain
) for University of Manitoba
)
THE UNIVERSITY OF MANITOBA AND )
THE PROVINCE OF MANITOBA, ) Jim Koch
) for Province of Manitoba
defendants. )
)
) Judgment delivered:
) June 20, 2014

MARTIN, J.

More than any other case in Canadas history,
this case will determine Canadas next few hundred years.

[plaintiffs appeal brief, para. 11]

I. INTRODUCTION

[1] Henya Olfman wants to be a doctor. In 2005 she enrolled at the
University of Manitoba taking what is often referred to as pre-med courses.
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She wrote the required MCAT test and then applied for admission to the Faculty
of Medicine in October 2009, hoping to gain admission starting in the 2010
academic year. She went through the admissions process but was not offered
admission.
[2] She complains that the medical faculty admission process she was obliged
to follow was unfair and illegal, specifically, as she says, because it changed from
2005 to 2009 by introducing and using an interview process (Multi Mini Interview
or MMI) and a Rurality Co-efficient (which apparently gave extra weighting to
rural applicants), contrary to her understanding of what the selection process
would entail.
[3] She appealed according to University protocol and channels but her
appeal was denied. Not satisfied, she and her lawyer father, who acts for her in
this action, chose litigation as the forum for her complaints.
[4] An action was initially filed on February 6, 2012, comprised of a 154-page
statement of claim including 45 pages dedicated to the prayer for relief. As here,
the defendants were the University and the Province of Manitoba. The claim was
struck about six months later by the master, because the essence of that claim
was of an academic nature and thus not a claim properly before the court as the
University had a statutorily enshrined internal process to deal with academic and
admission matters. This was appealed before a Court of Queens Bench judge
who summarily dismissed the appeal on February 15, 2013 for a different
reason, that the claim grossly offended the rules of pleadings. Further to Court
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of Queens Bench Rule 25.11, he found that the pleading would prejudice or
delay the fair trial of the action and it was clearly an abuse of process of the
court. Recognizing that the claim may be re-filed, the judge strongly cautioned
Mr. Olfman, as counsel to his daughter, to do so carefully and correctly. To be
clear, in no way did the judge encourage Mr. Olfman to file anew.
[5] On July 31, 2013, Mr. Olfman filed a new statement of claim, respecting
the same issues. The defendants remain the same and essentially took the same
steps, for the same grounds, to have the statement of claim struck. Without
articulating written reasons, the master did so on February 5, 2014. Now before
me is the appeal of the masters decision.
II. ISSUE
[6] The Province asks that the claim be struck because it does not disclose a
reasonable, or any, cause of action against it and that it is frivolous, vexatious
and/or an abuse of the court process (Rule 25.11(b), (c) and (d)).
[7] The University asks that the claim:
(a) be summarily dismissed for want of jurisdiction; and
(b) be struck for failing to describe a reasonable cause of action and
being an abuse of process (Rule 25.11(c) and (d)).
To be clear, the jurisdiction submission is the same position accepted by the
master in striking the first claim. It is framed as the University having, by its
statute, a process to deal with academic and admission appeals which, short of
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judicial review, is an exclusive power to the University over such matters.
(Warraich v. University of Manitoba, 2003 MBCA 58, 173 Man.R. (2d) 202).
III. BACKGROUND
[8] The background to this situation, as noted in the introduction, is gleaned
primarily from the statement of claim. Two affidavits were filed on this motion,
including one simply attaching the 2012 statement of claim and the other, of Mr.
Olfmans assistant, attaching various documents supporting the statement of
claim. Properly, statements of defence have not yet been filed.
[9] No doubt the statement of claim is different and trimmed down from the
2012 statement of claim. Now, it is 49 pages in length and seeks approximately
36 items of relief including many and varied declarations, writs of certiorari and
mandamus, general, special and punitive damages and costs. To understand the
complexity, nuance and nature of the statement of claim, a brief tour through it
may be beneficial.
[10] Ignoring for a moment the prayer for relief, and putting the claim as a
whole in its best light:
a) the claim starts by quoting, at some length, 12 news releases that
counsel asserts in para. 9 demonstrate that the Province and the
University are in a partnership in running the Faculty of Medicine.
He then cites more evidence or argument about this before
concluding at para. 14 that they are partners according to The
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Partnership Act, C.C.S.M. c. P30, and thus certain legal
consequences flow from that;
b) the next substantive portion of the claim is tantamount to an
argument attempting to substantiate a claim for breach of contract
and fiduciary duty for, in essence, the University leading Ms.
Olfman to believe, and knowing she relied on it, that the Faculty of
Medicine admission process when she entered University in 2005
was a contract she could rely upon when she was ready to apply
for admission to the Faculty of Medicine in 2009. These assertions
culminate at para. 24 with the claim that under this 2005
contract, she was entitled to be offered a medical student position
and the University breached the contract, and its fiduciary duties to
her, by not offering her a position and using a different admissions
formula than in 2005. Paragraphs 25-33 follow, adding
considerable narrative to the contract and fiduciary duty theory.
There is also a related but independent 2009 contract claim,
essentially for having used the Rurality Co-efficient without notice;
c) starting at para. 34 and through para. 68, the claim details Ms.
Olfmans University appeal process including extensive argument
and narrative as to the perceived weaknesses and flaws inherent to
the MMI process and the Rurality Co-efficient, along with the
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assertion that no other university uses such a process. Some
examples of pleading from the claim include:
56. Except in the Faculty of Medicine, all faculty members
and administrators at the U of Ms other faculties, and in all
faculties of the U of W and the U of Brandon, believe that
what one student thinks of how another student expresses
himself or herself or supports and defends his or her opinions
or arguments, in no way diminishes or enhances that other
students: academic qualifications, professional merit, job or
work performance, job or work rating, or that other students
entitlement to be admitted to that faculty.

. . .

63. The MMI used by the Faculty of Medicine to attempt to
assess, evaluate and determine the caring, ethics, tolerance,
effective coping, critical thinking, collaboration, leadership
and motivation, of the students, including Ms. Olfman, who
applied to the Faculty of Medicines first year class of 2010,
was invalid, as it was NOT capable of determining those
students caring, ethics, tolerance, effective coping, critical
thinking, collaboration, leadership or motivation.

64. NOT even a single one of the doctors teaching in the
Faculty of Medicine had an MMI used to determine if they
should be allowed into medical school. Not even a single one
of the doctors teaching in any Faculty of Medicine anywhere
in the world had an MMI used to determine if they should be
allowed to medical school. ...

d) At para. 69 the claim alleges dicta from a Supreme Court of Canada
decision, that a breach of the United Nations International
Covenant on Civil and Political Rights must also be a breach of the
Canadian Charter of Rights and Freedoms. Thus it is alleged that
the Canadian Charter of Rights and Freedoms is applicable to
this situation, in many ways, but rather sweepingly framed in the
claim as:
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Therefore, a breach by MB and the U of M of the U.N.s
International Covenant on Civil and Political Rights means a
breach by MB and the U of M of the Canadian Charter of
Rights and Freedoms, as the Charters protections includes all
of the protections in the U.N.s International Covenant on
Civil and Political Rights.

e) at para. 70 the claim asserts that the Rurality Co-efficient was in
violation of the United Nations International Covenant on Civil and
Political Rights contrary to its articles 2, 25, and 26;
f) at para. 71 the claim sets out that the MMI, which scored Ms.
Olfman based on her thoughts, opinions and beliefs and on her
expressions violated articles 18, 19 and 26 of the United Nations
International Covenant on Civil and Political Rights;
g) paras. 72 and 73 of the claim set out how the Rurality Co-efficient
and MMI were in violation of eight separate articles of the United
Nations Universal Declaration of Human Rights;
h) the balance of the claim sets out:
breaches or violations (a) by the University of its policy on
Respectful Work and Learning Environment and Human
Rights; (b) by the Province of The Advanced Education
Administration Act, C.C.S.M. c. A6.3; and (c) by MMI
interviewers of The Medical Act, C.C.S.M. c. M90 and The
Psychologists Registration Act, C.C.S.M. c. P190;
an argument respecting the Charter transgressions; and
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a claim of foreseeability of great emotional distress caused by
the breaches and negligence of the University and the Province.
IV. ANALYSIS
[11] Given the nature and drafting of this claim, the relationship of Mr. Olfman
as lawyer to his daughter as client, the clear absence of objectivity, focus and
proportionality shown by Mr. Olfman, and that in essence this claim has been
struck once already, I will deal with this matter more bluntly and briefly than I
might otherwise. Frankly, despite having laid out an outline and glimmers of the
claims character as I have, I am not confident that anything short of glancing
over the document itself could truly convey how bad a piece of drafting it is.
[12] Mr. Olfman argues the claim may be lengthy and that he could pare it
down to an ordinary claim of 20 pages or less, but that would do it an injustice
as it is an extraordinary claim that will alter the course of Canada for years to
come. Further, he asserts that once the Province and the University are
compelled to file their statements of defence, they will admit the truth of most of
the allegations and evidence he cites such that the discovery and trial process
will be tightly focused and efficient. Finally, he says, all of the claims have merit,
are supportable on the facts and the pleading, and are within the jurisdiction of
the Court of Queens Bench particularly as he has pled that the Senate
Committee on Admissions and Appeals said it did not have jurisdiction to deal
with these matters.
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[13] Dewar J. recently expounded on the rules of pleadings in Peguis First
Nation et al v. Canada (Attorney General), 2014 MBQB 98. Respecting Rule
25.06, at para. 6 he noted the following comments of Holmested and Watson,
Ontario Civil Procedure, looseleaf (Toronto: Carswell, 1993):
This is the master rule of pleading: all of the other pleading rules are
essentially corollaries or qualifications to this basic rule that the pleader
must state the material facts relied upon for his or her claim or defence.
The rule involves four separate elements: (1) every pleading must state
facts, not mere conclusions of law; (2) it must state material facts and
not include facts which are immaterial; (3) it must state facts and not the
evidence by which they are to be proved; (4) it must state facts concisely
in a summary form. See Odgers, Principles of Pleading and Practice (21st
ed.) p. 94. As Master Haberman stated in Pineau v. Ontario Lottery &
Gaming Corp., 2011 CarswellOnt 11375 (Master), "A pleading is meant to
give all parties fair notice of what the others plan to prove at trial, but not
necessarily of how they intend to prove it." Thus, a party should avoid
pleading (a) bald conclusory statements or arguments, (b) irrelevant
matters, (c) evidence and (d) prolix descriptions of factual detail.

Dewar J. went on to say in his conclusion:

46 When Rule 25.06(1) says that a pleading must consist of "a concise
statement of material facts", it does not necessarily mandate that a
statement of claim must be short. Due to the complexity of a matter and
the abundance of material facts, there may well be statements of claim
which run several pages. However, what Rule 25.06(1) does say is that
whatever is required to be pleaded, it must be stated as simply and
directly as possible. Immaterial allegations, such as unnecessary
description, platitudes, and repetition are not to be included. A statement
of claim is a functional document - its purpose is to define the parameters
of a party's case to enable the other side to understand what is being
alleged. It is not to entertain or even to persuade. The pleading must
simply contain the material facts in a concise and logical order that
supports a cause or causes of action. Anything beyond that is surplusage.

47 In my opinion, the re-amended statement of claim in totality does
not meet the grade required by Rule 25.06(1). Courts often turn a blind
eye to statements of claim that do not measure up in some respect. But
the re-amended statement of claim is simply too prolix and repetitive on
the one hand and not specific enough where it counts on the other to
qualify as a proper pleading in this litigation. Furthermore, it is not
capable of spotty strikeouts or insertions as was done following the
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decision of Master Berthaudin. This pleading needs to be completely
redrafted with an eye on the objectives of pleading and Rule 25.06(1).

[14] This conclusion follows the often stated sentiment by many courts,
including the Manitoba Court of Appeal, of the importance of accurate and timely
pleadings. Properly done, pleadings define issues and direct counsel and the
court to the real matters in the dispute. They should be a relatively clear
roadmap, not a bewildering maze. Like the claim before Dewar J., this claim is
verbose, repetitive, and lacks delineation.
[15] When striking the first, 2012 claim, the judge walked Mr. Olfman through
various rules of pleading, particularly Rules 25.06(1) and (2):
25.06(1) Every pleading shall contain a concise statement of the material
facts on which the party relies f/or a claim or defence, but not the
evidence by which those facts are to be proved.

25.06(2) Where a party seeks relief in respect of separate and distinct
claims, or raises separate and distinct grounds of defence, the material
facts supporting each claim or ground of defence shall be stated
separately as far as may be possible.

(emphasis added)

I need not expand further on these prerequisites required of any pleading. They
are for the most part self-evident. Nothing in this claim demonstrates any
attempt to be guided by these rules.
[16] Further, despite this statement of claim being about one-third of the
volume of the first statement of claim, the judges reasoning for striking the first
claim remains absolutely applicable. He said, in part:
It is a -- do not want to be too harsh on it but for well intentioned
reasons perhaps, and some misguided thoughts on what constitutes a
statement of claim, everything has been thrown in by reference to
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various conventions, international conventions, the Charter of Rights. It
may be appropriate to include all of those in a speech given about the
issues; it is not appropriate to include all of those just thrown in like that,
into the statement of claim.

. It cant be just backing up a truck, if you will, into the statement of
claim and unloading everything that conceivably could be related in any
remote way or impinge upon the success of the claim. You cannot just
throw that in willy nilly forcing the court, as the master said, digging the
essence of the claim or having counsel tell you what the causes of action
are. The defendant and the court should not have to rummage through a
series of paragraphs to try to distill, if I may use the word the master
use, to distill the essence of what the case is about. It should be as clear
cut as possible what the issues are, what the supporting facts are.

[See transcript of oral reasons, tab 2 of Provinces motion brief]

[17] What he kindly did not say then, but is warranted now, is that the
statement of claim does not read so much as a claim, but rather as a
meandering essay or thesis or debate. It casually intertwines some items that
could be described as material facts with, for the most part, irrelevant detailed
references to documents such as news releases and university handbooks,
quotes of case law, evidence, inferences, argument and conclusions, all with
great repetition. I fail to see how this claim could properly or fairly be pled to in
response, or could in any way contribute to an efficient and focused lawsuit.
[18] I agree with the Province that the claim is so prolix as to make the
pleading in its present form impossible to meaningfully reply to and further, as
drafted, there is no basis in law or fact for the plaintiffs action against the
Province.
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[19] Similarly, I agree with the University that the claim seeks vague,
inappropriate and speculative declarations from the court. For example para.
1.(ab) seeks:
(ab) a declaration that the U of M and MB are bound by the Canadian
Charter of Rights and Freedoms, and the denial of an offer of admission
to Ms. Olfman, to the Faculty of Medicine, was in violation of the
aforesaid Charter, and Ms. Olfman would have been admitted to the
Faculty of Medicine had the U of M and MB not violated aforesaid Charter,
therefore, the U of M must offer admission to Ms. Olfman to the Faculty
of Medicine and the U of M and MB must compensate Ms. Olfman for all
loses [sic] said offer of admission cannot compensate for;

[20] As I have already found, a substantial portion of the claim is immaterial
fact, argument and evidence and I agree it is repetitious and incomprehensible in
parts. As with Manitoba, any attempt to defend this claim by the University
would by necessity just add to the muck.
[21] In terms of dealing with the motions, I find that the statement of claim
offends the rules of pleading and falls within that type of pleading captured
under all four sub-paragraphs of Rule 25.11, although, in line with the motions, I
find the claim violates ss. (b), (c) and (d) vis-a-vis the University and also ss. (c)
and (d) respecting Manitoba. Further, plainly, it is not salvageable by
amendment.
[22] However, I decline to provide the relief sought by the University for
summary dismissal for want of jurisdiction as frankly, having made the findings
that I have respecting the drafting of the pleadings, it would be inconsistent to
rely upon them in a substantive way to determine the jurisdictional issue as
presented in the University brief. Having said that, as a caution to Mr. Olfman, I
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would suggest that he very carefully read the Universitys brief in this respect as,
in my view, there is considerable merit to its positions, not only that the pith and
substance of this matter is an academic and admission issue, clearly within the
jurisdiction of the University pursuant to its governing statute, and that if any
remedy follows it is by way of judicial review, but also that (i) Mr. Olfman
mischaracterizes the Senate Committee on Admissions and Appeals comment
about its jurisdiction, and (ii) his reasoning or logic in alleging breaches of the
Charter and international conventions by the University is both legally and
factually fatally flawed.
V. CONCLUSION
[23] I indicated at the hearing that I would strike the statement of claim in its
entirety without recourse to amendment, with reasons to follow. These are
those reasons. Submissions respecting costs were made after I announced my
ruling.
[24] The Province seeks class 2 tariff costs. The University seeks class 4 tariff
costs because of the time and effort required to address this statement of claim
after having had to address the first statement of claim. Mr. Olfman argued that
the claim was an important one, not only to his daughter as an individual but to
the nation as a whole and, as it was against public bodies with large budgets, no
costs should be awarded.
[25] Rule 57.01(1) sets out factors a court may consider in awarding costs.
While class 2 costs have been awarded on the earlier iteration of the statement
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of claim by a master and judge, and on this claim by a master, I nonetheless do
not find that class 2 is an appropriate or fair tariff for this, effectively, second
appeal of the same issue. First, as drafted, the compensatory damages sought,
although not specified, do not appear to be insignificant, and special and punitive
damages are sought as well. On its face, this does not appear to be a claim of
less than $150,000. Further, there are 30+ other items of relief sought including
dense declarations, certiorari and mandamus. Second, the substance and nature
of the claim is complex and third, the volume of material is hefty. It is clear from
reading the defendants briefs that they have devoted, properly, substantial
effort to tackle this appeal. Fourth, the pleading falls well below the threshold
required by the rules - that should have been obvious to plaintiffs counsel.
Effectively, the exercise of filing this claim was, predictably, futile. Costs close to
class 4 are appropriate. I set costs at $3000 to each of the Province and
University. I suspect that this amount will nonetheless fall well short of the
actual costs of the defendants.
[26] Finally, I pause to candidly express some concerns respecting this action,
as I did at the very end of the hearing to Mr. Olfman directly, as his daughter
was not at the hearing. To somehow have elevated the significance or nature of
the underlying matter, as noted in the quote at the start of this judgment and
repeated in argument, to a seminal point in Canadas history for the next few
hundred years, is a shocking and profoundly sad indictment of the judgment and
common sense of the proponent. Nothing of this sort should be condoned or
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potentially perceived to be tacitly encouraged by a judgment veiled with judicial
courtesy or by no award of costs.
[27] That Mr. Olfmans daughter did not get into medical school at this
University is unfortunate for her and disappointing to her parents. Regrettably,
setbacks and denied aspirations are a part of life. Yet, to confront this through a
lawsuit with the attendant substantial expenditure of time, effort and money to
the specific defendants, as well as to the plaintiff herself, and to the
administration of justice generally, is remarkable. But it is worse yet. A similar if
not identical action in substance was previously struck for the same reasons.
Nothing was learned by that exercise. The same defendants were burdened and
taxed once again with a repeat performance of a claim which, through to its
core, appears exceptionally specious and falls well below the threshold required
to proceed. And, as an aside, I note this type of grandiose claim also contributes
to a clogging of the system which in turn delays or denies access to justice for
other proper claims.
[28] If the temptation remains to try yet a third time with a fresh claim, for the
plaintiffs sake, realistically, she should first seek out independent objective
advice from reputable litigation counsel. Paring this claim down to 20 or less
pages, as Mr. Olfman believes he can do, will not alter its core. If the claim
passes muster from a pleading standpoint, it is likely to immediately face a
formidable summary judgment application.

_________________________________ J.