The Prince Edward Island Court of Appeal has overturned a lower court’s decision, allowing a discrimination lawsuit filed by Noel Ayangma against two provincial school boards to proceed to a full trial1. The Supreme Court of Prince Edward Island had previously dismissed Mr. Ayangma’s claims through summary judgment. The appeal court, however, found this dismissal was improper, primarily because the school boards had failed to produce crucial evidence from their hiring processes, including one board that could not locate an entire hiring file. The case, which alleges discrimination based on race, colour, and national origin, will now be sent back to the lower court.
Mr. Ayangma’s legal action began in 2015. In his statement of claim, he asserted that both the French Language School Board (FLSB) and the English Language School Board (ELSB) violated his equality rights under the Canadian Charter of Rights and Freedoms. He specifically alleged that the FLSB discriminated against him when it unfairly screened him out and denied him an interview for the position of Director General in May 2012. He made a similar claim against the ELSB regarding its 2013 competition for a Director of Human Resources. Mr. Ayangma claimed he was qualified for both positions, was treated differently than other candidates, and suggested a previous legal release he had signed with the boards in February 2012 was a factor in their decisions to exclude him.
The school boards denied all allegations of discrimination in their statements of defence. The FLSB stated that the May 2012 competition was unsuccessful and resulted in no hire, and that a subsequent competition in August 2012, for which Mr. Ayangma did not apply, ultimately filled the role. The ELSB contended it screened Mr. Ayangma out because he did not meet all minimum qualifications and was not as qualified as the candidates who were interviewed. After the exchange of pleadings, Mr. Ayangma moved for summary judgment against the boards and to strike their defence. In response, the school boards filed their own competing motion, asking the court to dismiss Mr. Ayangma’s entire lawsuit without a trial.
A central issue in the appeal revolved around the evidence, or lack thereof, filed by the school boards to support their motion. The FLSB’s evidence came from Robert Maddix, the board’s president in 2012. Mr. Maddix stated in an affidavit that he had “purged” his personal records from the hiring process years ago. More significantly, he stated he was informed by the board’s legal counsel that “the original hiring file has not been located” due to the passage of time and the record-keeping practices of the Public Service Commission (PSC). Mr. Maddix, who was one of six members on the selection committee, swore the process was proper and not discriminatory, but he could not recall key details, such as how many candidates applied or were interviewed. The FLSB did not provide affidavit evidence from any of the other five members of the selection board.
The ELSB provided more documentation, including an affidavit from Ronald MacLeod, an HR consultant who served on its selection committee. This evidence included Mr. Ayangma’s application, the board’s hiring policy, and a screening tool completed by another committee member. However, the ELSB did not produce the applications or resumes of the other eight candidates who applied for the position, two of whom were granted interviews. Mr. Ayangma argued that without this comparative evidence, it was impossible for the court to determine if he was treated differently, which was the core of his discrimination claim.
In the Supreme Court, the motions judge dismissed several preliminary motions from Mr. Ayangma, including a request to call additional witnesses (such as the FLSB’s lawyer and PSC staff) and a motion asking her to recuse herself for an apprehension of bias. The motions judge then ruled in favour of the school boards, granting their motion for summary judgment and dismissing Mr. Ayangma’s lawsuit. The judge found that the boards had provided sufficient evidence to show there was no genuine issue requiring a trial, and that Mr. Ayangma had not shown his claim had a real chance of success. Mr. Ayangma appealed all of these decisions to the province’s highest court.
Writing for a unanimous three-judge panel, Justice David H. Jenkins of the Court of Appeal allowed the appeal and set aside the summary judgment order. The court found that the motions judge had made reviewable errors. The central finding was that the school boards, as the parties moving for summary judgment, had failed to meet their burden of proof to demonstrate there was “no genuine issue requiring a trial.” Justice Jenkins wrote that the motions were brought “improvidently,” or unwisely, before the discovery of documents, a formal process where parties must disclose all relevant materials. This was described as putting “the horse before the cart” in a case that is heavily reliant on documents.
Regarding the FLSB, the appeal court found its evidence was “manifestly inadequate.” The court noted that with the entire hiring file missing and no complete explanation provided for its disappearance, and with evidence from only one of six selection members, the motions judge could not have been satisfied that Mr. Ayangma’s claim had no merit. The court stated the FLSB’s evidence “was doomed by a dearth of evidence and non-production of available evidence.” The conflicts alleged in the pleadings could not be resolved based on the minimal evidence that was presented.
Similarly, the ELSB’s motion for summary judgment was found to have failed. While its evidence was described as “strong and reliable as far as it goes,” it was incomplete. Justice Jenkins noted that two key questions remained in issue: whether the selection committee allowed “other candidates who were equally or less qualified” to be interviewed, and whether the committee was influenced by the 2012 Release. Without the applications of the other candidates for comparison, the court found it was impossible to resolve these issues on a summary judgment motion, meaning genuine issues for trial still existed.
The Court of Appeal also addressed the significant issue of the missing FLSB file. The lower court had dismissed Mr. Ayangma’s motion for a declaration of “spoliation,” which is the intentional destruction of evidence to affect litigation. The appeal court found the lower judge erred in this analysis. However, Justice Jenkins clarified that the case did not depend only on proving intentional destruction. Citing legal precedent, the court affirmed that even the inadvertent destruction or loss of key documents “is a procedural matter calling for procedural remedies.” Because the missing file “impeded his ability to prove his case,” the very fact that the documents are missing, and the circumstances surrounding their disappearance, creates its own genuine issue that must be addressed at a trial. The appeal court set aside the lower court’s spoliation decision and directed that the entire issue be “left for the trial judge to consider all the surrounding facts and circumstances.”
The appeal court also found that the motions judge’s decision to deny Mr. Ayangma’s request to call additional witnesses was “built on a faulty foundation.” Justice Jenkins wrote that the judge’s reasons for the denial were “not sustainable” and that Mr. Ayangma needed that oral evidence specifically because the FLSB had failed to produce its documents. The court also noted that the FLSB’s lawyer was a compellable witness because the board had relied on her hearsay evidence in its own affidavit. However, the appeal court did not agree with Mr. Ayangma’s ground of appeal concerning judicial bias. The court reviewed his allegations, including the judge’s past volunteer work with a predecessor school board, and found no “cogent or credible evidence” to overcome the high presumption of judicial impartiality. This part of the appeal was denied.
In its final decision, the Court of Appeal allowed Mr. Ayangma’s appeal from the order that granted summary judgment to the school boards. The order dismissing his claim was set aside, and the action is remitted back to the Supreme Court for a full trial. The court also upheld the lower court’s dismissal of Mr. Ayangma’s own motion for summary judgment, confirming that the competing claims must be resolved at trial. Finally, the appeal court set aside the lower court’s order that required Mr. Ayangma to pay the school boards’ legal costs. Instead, the Court of Appeal ordered the school boards to pay Mr. Ayangma $10,000 in costs for the appeal, citing their “stance regarding the missing documents” as the source of “a lot of added expense on the motions and the appeal.”
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