[34] In April of 2007, the plaintiff wrote to Mr. Rogers, requesting a meeting in order to
resolve the matter. Like most if not all of the formal communications that came later, this letter
expressly stated that it was on behalf of all four students.
This was confirmed by
Ms. Mithoowani, who testified that the plaintiff was not the leader of the group. They were all
more or less equal. They continued to share the work depending on who had time to deal with it,
and all material was circulated to all of them for comments before it went out. They would each
review it, if they had time. I accept her evidence, which was unshaken in cross-examination.
[35] The students heard back from Brian Segal, President and CEO of Rogers, who indicated
that Rogers did not interfere with editorial views expressed by its magazines. He also stood
behind Maclean’s, indicating that the article raised issues that were legitimate for a national
magazine. The plaintiff wrote back on behalf of all four students, indicating that given their
unsuccessful attempts to resolve the matter, they thought they should go public with their
concerns.
[36] In what would turn out to be a very controversial decision, the students decided to pursue
relief through human rights legislation.
Ironically, while their original objective was in
furtherance of freedom of expression, their perceived attack on the article and the venerated
Maclean’s magazine resulted in their portrayal as attacking that very freedom.
[37] The students became the subject of a firestorm of criticism. Many people believed the
article was well-suited to public dialogue and to Maclean’s, and the students ought to have
simply entered that public dialogue. They could have written a letter to the editor, for example,
as many others did. To many, their chosen course was an attack on free speech. However, that
controversy is not the focal point of the words complained of in this action. The plaintiff has not
sued as a result of that criticism of him.
[38] After the exchange of correspondence with Rogers, the plaintiff prepared a complaint to
the Ontario Human Rights Commission and the other three students reviewed it. All four
students were complainants. Complaints to the Canadian Human Rights Commission and the
British Columbia Human Rights Commission were also prepared. While the plaintiff did not
prepare them directly, they were largely copied from his Ontario complaint. The students were
not the complainants in those complaints. Most significantly for this case, Dr. Mohamed
Elmasry, the then President of the CIC, was a complainant in the other two complaints.
[39] The students then looked for counsel who would assist them on a pro bono basis. They
canvassed a number of counsel. Ms. Mithoowani knew Faisal Joseph, a senior London trial
lawyer with the Lerners LLP law firm. She articled at Lerners in London and Mr. Joseph was
her articling principal. The plaintiff did not know Mr. Joseph, but he had been hired to article at
Lerners in Toronto once his clerkship was complete and he was invited to attend the opening of
the new London office. The plaintiff went to the opening with Ms. Mithoowani, and met
Mr. Joseph. They approached him in the parking lot after the event and asked for his help.
2014 ONSC 6890 (CanLII)
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