The Prince Edward Island Court of Appeal has dismissed an appeal from a man who sought to strike the French Language School Board’s statement of defence over a missing document central to his discrimination lawsuit1. The court ruled that while the key file is lost, the specific rules of court do not permit striking the defence at this pre-trial stage, finding that any remedy for the missing evidence must be determined at a full trial. The case, which involves allegations of hiring discrimination, was first filed in 2015. While the appellant, Noël Ayangma, lost his appeal on the main issues, the court did grant him a partial victory by reducing a punitive costs award he was ordered to pay, finding the school board was “equally to blame” for litigation delays.
Click here to read our previous reporting on this case.
Mr. Ayangma, who is representing himself, first filed his lawsuit on July 21, 2015. He claims that both the French Language School Board (FLSB) and the English Language School Board (ELSB) discriminated against him based on his race, colour, and national origin during separate hiring processes. His claim against the FLSB relates to a May 2012 competition for the position of Director General, where he alleges he was wrongfully screened out before the interview stage. His claim against the ELSB involves a 2013 competition for a Director of Human Resources position, where he was also screened out.
The school boards have denied all allegations of discrimination. In its statement of defence, the FLSB pleaded that the May 2012 job competition did not result in a hiring, and that the position was filled in a subsequent competition in August 2012, for which Mr. Ayangma did not apply. The ELSB pleaded that its decision to screen Mr. Ayangma out was based on its assessment that he did not have all the minimum qualifications and was not better qualified than the candidates who were admitted to an interview. The litigation has been protracted, involving a significant number of pre-trial motions, including previous summary judgment motions that were appealed in 2024.
The current appeal stems from a series of motions Mr. Ayangma brought in 2024 concerning a critical piece of evidence: the FLSB’s complete corporate hiring competition file for the May 2012 Director General position. This file, which would contain the applications, screening notes, and other records from the competition at the heart of his claim, has been lost. In March 2024, the FLSB served its affidavit of documents, a required step where each party lists all relevant documents. The May 2012 Hiring File was not listed in the schedule for documents the FLSB currently possesses, but in “Schedule C,” which lists documents that were formerly in its possession but are no longer.
In response, Mr. Ayangma filed motions asking the court for severe remedies. He sought an order striking the FLSB’s entire statement of defence, a move that would effectively grant him a default judgment in his claim. In the alternative, he asked the court to preclude the FLSB from calling any witnesses who might provide evidence about the May 2012 hiring process or the investigation into the file’s location. He argued these remedies were necessary because the FLSB had failed to produce this crucial document.
The motions judge at the PEI Supreme Court dismissed Mr. Ayangma’s motions. She found that the FLSB had met its technical disclosure obligations under Rule 30 of the Rules of Civil Procedure by properly identifying the lost file in Schedule C of its affidavit. The motions judge determined that any remedy for the loss of the file, whether it was inadvertent or an intentional act of “spoliation,” was a matter for the trial judge to decide after hearing all the evidence, not for a pre-trial motion. Following this dismissal, the motions judge ordered Mr. Ayangma to pay costs to the school boards. For the motions seeking to strike the defence, she awarded “substantial indemnity” costs, a higher, punitive scale, finding Mr. Ayangma’s motions were an “unnecessary delay” and an attempt to seek remedies that a previous 2024 appeal court decision had already reserved for trial.
Mr. Ayangma appealed this decision, arguing the motions judge made several errors. His main argument was that the judge erred in her application of the disclosure rules. He pointed to Rule 30.08, which provides remedies, including striking a pleading, when a party fails to disclose a document or fails to produce it for inspection. Justice Thomas P. Laughlin, writing for a unanimous three-judge panel of the Court of Appeal, disagreed. The court’s decision explained that remedies under Rule 30.08 are only available if a party fails one of four specific preconditions: failing to disclose a document in an affidavit, failing to produce a document when required, failing to serve an affidavit of documents, or failing to comply with a court order relating to disclosure.
Justice Laughlin found that none of these preconditions were met. The FLSB did disclose the document’s existence in its affidavit, correctly listing it in Schedule C as a lost document. Furthermore, the court clarified that the duty to produce a document for inspection only applies to documents currently in a party’s “possession, control or power.” Since all evidence indicates the FLSB no longer has the file, it cannot be forced to produce it. The court distinguished this situation from other cases where a defence was struck, noting those cases involved parties who had documents but repeatedly failed or refused to produce them, even in the face of court orders. The court concluded that while the appellant may be entitled to a remedy for the missing file, that remedy does not lie under Rule 30.08 in the absence of one of the four preconditions.
The Court of Appeal also dismissed Mr. Ayangma’s other arguments. The appellant had alleged that an FLSB witness misrepresented the English translation of the French-language job posting in an affidavit, but the court declined to consider this, noting the issue was raised improperly for the first time on appeal and that his “certified translation” was not properly submitted as expert evidence. The court also affirmed the motions judge’s decision that the overall fairness of the trial given the missing file is an issue for the trial judge. The trial judge, the court noted, will be able to hear all evidence about the circumstances of the file’s disappearance and its importance before fashioning any appropriate remedy.
However, Mr. Ayangma was successful on his fourth ground of appeal, which challenged the costs award. The Court of Appeal allowed the appeal on this single point and set aside the substantial indemnity costs award. The motions judge had based the punitive award on her finding that Mr. Ayangma’s motion was an “unnecessary delay.” The Court of Appeal strongly disagreed with this reasoning. Justice Laughlin wrote that the FLSB was “equally to blame for the delay” in the litigation. The FLSB only served its affidavit of documents in March 2024, nearly five years after the close of pleadings in 2019, despite the Rules directing this be done within ten days.
The court noted that Mr. Ayangma could not have brought his motion alleging failures in the FLSB’s affidavit of documents until the FLSB finally served that long-overdue document. “While I understand the ten-day timeline prescribed by the Rules may often be over ambitious,” Justice Laughlin wrote, “…the school boards still took far too long to attend to their obligations.” Because Mr. Ayangma’s motion was a direct and necessary consequence of the FLSB’s own profound delay, the court found it was an error in principle to punish him with substantial indemnity costs. The award was reduced to the lower “partial indemnity” scale, which the court assessed at $8,000.
Ultimately, the Court of Appeal dismissed Mr. Ayangma’s appeal on all substantive grounds, and the FLSB’s statement of defence remains intact. As the FLSB was mostly successful on the appeal, Mr. Ayangma was ordered to pay $4,000 in costs for the appeal itself. The court concluded its reasons by echoing previous comments, stating that the action “has been before the courts for far too long” and that it is “imperative that the parties focus on bringing this matter to a resolution as soon as possible.”
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