Executive Summary: Key Legal and Evidentiary Issues

• Independence of the external investigator was challenged based on an initial joint notice of intent to defend but found not to compromise his neutrality.
• The plaintiffs sought to stay or enjoin the university’s harassment investigation, but the court held there was no serious issue to be tried and no exceptional circumstances justifying early judicial intervention.
• Jurisdictional defects undermined the plaintiffs’ attempt to obtain judicial review-type remedies through a notice of action instead of a proper application under the Judicial Review Procedure Act.
• Claims of irreparable harm from reputational damage, stress, and potential punitive action were viewed as speculative and unsupported by clear evidence.
• A mandatory order compelling the university to investigate an alleged discrimination complaint was refused, in part because the communication did not amount to a formal Human Rights Code complaint and other remedies remained available.
• The court criticized the overbroad, late-expanded motion record and materials as an abuse of the urgent-hearing accommodation and indicated that defendants were entitled to partial indemnity costs, though the exact amounts were left for later determination.

Factual background

The proceeding arises out of events at Queen’s University’s Athletics & Recreation Centre (ARC) involving a student and a community member. The plaintiffs were Benjamin Reid Stobo, a Queen’s student, and his friend, Dominic Naimool, a practising lawyer in Kingston who had purchased a community ARC membership in September 2024. The defendants were Queen’s University, Gareth Cunningham (Director of Recreation and Active Living), and Raj Anand, an external investigator retained by the university. The relationship between the parties was framed by Queen’s internal policies, notably the Harassment and Discrimination Prevention and Response Policy (the H&D Policy), and by statutory duties under Ontario’s Occupational Health and Safety Act concerning workplace harassment investigations. The conflict began when, on 29 October 2025, Mr. Naimool emailed Mr. Cunningham in response to a request for a meeting. In that email he raised concerns about ARC policies and their enforcement, including what he described as “potential discriminatory factors” in how ARC members were treated. He suggested that his race might be a factor in what he perceived as disproportionate surveillance, enforcement, and hostility, while expressly noting that he did not assert intent. The following day, 30 October 2025, Mr. Cunningham filed a report under the H&D Policy, making allegations regarding the behaviour of both plaintiffs. On 19 November 2025, Queen’s notified each plaintiff that an investigation was being commenced and that Raj Anand had been retained as an independent third-party investigator. This set in motion both the internal investigative process and, later, the civil litigation and motion before the court.

Commencement of litigation and interaction with the investigation

On 10 March 2026, the plaintiffs commenced an action by issuing a notice of action, but had not yet delivered a statement of claim by the time of the motion hearing. That same day, their counsel emailed Mr. Anand, attaching the notice of action and copying the university’s Associate Vice-Principal (Complaints and Investigations) and its General Counsel. In response, Queen’s promptly retained outside counsel for itself, Mr. Cunningham, and initially also for Mr. Anand. On 16 March 2026, those lawyers delivered a notice of intent to defend on behalf of all three defendants. The day after, however, Mr. Anand retained his own lawyer, and an amended notice of intent to defend was served on behalf of Queen’s and Mr. Cunningham only, leaving Mr. Anand separately represented. Meanwhile, the investigation continued to move ahead. On 20 March 2026, Mr. Anand informed the plaintiffs’ counsel that the university had instructed that the investigation proceed and that the plaintiffs’ deadline to respond to the allegations was 27 March 2026. The plaintiffs had been given a summary of the allegations and an opportunity to respond; they had not yet done so by the time of the motion. Mr. Anand also invited details of alleged reprisal, including racial discrimination concerns, to be put forward as part of the defence in the existing investigation, but Mr. Naimool did not respond to that offer.

Request for an urgent hearing and initial framing of the motion

On 23 March 2026, the plaintiffs’ lawyer contacted the court seeking an urgent hearing date. The request was framed as a focused need for temporary relief: an interim order restraining Queen’s and its external investigator from continuing the harassment investigation until a motion could be heard on its merits. Urgency was said to arise from the 27 March 2026 response deadline and from an apprehended lack of independence in the investigation. Among the concerns advanced was that Mr. Anand had allegedly shared information with a person, Tim Gleason, whose role was said to be unknown to the plaintiffs and for whom they claimed not to have consented to disclosure. In fact, Mr. Gleason was already identified as Mr. Anand’s counsel in the proceeding. The court accepted counsel’s assurance that there was no intentional attempt to mislead, but found it troubling that the urgency narrative partly rested on a false premise. At this stage, the relief described to the court remained narrow: a short, interim restraint of the investigation pending a more fulsome motion. Given the apparent urgency, the Local Administrative Judge convened a case conference on 25 March 2026 and set the motion to be heard on 1 April 2026. A timetable was arranged for the service of the notice of motion, motion record, and facta.

Expansion of relief and procedural concerns

When the plaintiffs’ materials arrived, the motion bore little resemblance to the constrained relief originally described. The amended notice of motion spanned 100 paragraphs over 37 pages and sought a wide range of remedies. These included: leave under s. 6(2) of the Judicial Review Procedure Act to bring an application for judicial review before a single Superior Court judge on an urgent basis; alternatively, an order under s. 8 of that Act to treat the proceeding summarily as a judicial review; declarations that the plaintiffs’ relationships with Queen’s were governed by unwritten contracts of adhesion incorporating various university policies; a declaration that those contracts attracted the court’s jurisdiction under the Judicial Review Procedure Act; application of contra proferentem against the university for any contractual ambiguities; a stay of the harassment investigation on multiple grounds; and a mandatory order requiring Queen’s to investigate Mr. Naimool’s discrimination complaint before resuming any investigation against the plaintiffs. The plaintiffs then filed a voluminous motion record of 595 pages and, on the morning of the hearing, a supplementary record of another 222 pages, for a total of 817 pages, without any compendium. Their factum cited 63 authorities. The court viewed this as a serious abuse of the urgent-hearing accommodation, noting that the compressed timetable and judicial schedule could not reasonably support the sudden expansion to a dozen or more forms of relief. Considerable time at the motion had to be devoted to sorting out the proper evidentiary record. A draft affidavit from a witness who ultimately refused to swear it was struck on consent. The supplementary record was struck entirely, save for two pieces of correspondence that were allowed in on counsel’s undertaking to file a proper affidavit, an undertaking that had not been fulfilled by the time reasons were released. This procedural morass left less time for oral submissions on the two live issues the court ultimately addressed in detail: the stay or injunction of the investigation and the request for a mandatory order compelling an investigation of discrimination.

Alleged lack of independence of the investigator

The first substantive issue was whether the independence of Raj Anand as investigator had been compromised. The plaintiffs argued that Mr. Anand could not be truly independent because he initially appeared under the same notice of intent to defend as Queen’s and Mr. Cunningham, represented by the same outside counsel. The court rejected this argument. It found the facts straightforward: the university’s lawyers initially filed a notice of intent to defend on behalf of all three defendants, but within 24 hours Mr. Anand had appointed separate counsel, and an amended notice was served limited to Queen’s and Mr. Cunningham. Counsel for those defendants confirmed in court that no common interest privilege would be claimed among all defendants, and that the initial filing was simply a procedural step to direct communications to counsel. The court emphasized that the Occupational Health and Safety Act requires an independent investigation into harassment complaints and that both Queen’s and Mr. Anand were aware of that obligation. It held that the plaintiffs’ claim that Mr. Anand’s independence had been “irrevocably compromised” by a short-lived, corrected procedural step was supported only by bare allegation, with no cogent evidentiary foundation. The court also noted a procedural anomaly: the notice of intent to defend was filed before the plaintiffs had even delivered a statement of claim, a consequence of their having issued only a notice of action. Under Rule 14.08(2) of the Rules of Civil Procedure, a notice of action and statement of claim must be served together, and Rule 16.01(2) deems service to occur when a party files a notice of intent to defend, even if no statement of claim exists. This, the court observed, was an oddity of the plaintiffs’ own procedural choices, but it did not undermine the investigator’s independence. The court concluded that the independence issue failed and that Mr. Anand remained an independent third-party investigator.

Request to stay or enjoin the harassment investigation

The next major issue was whether the ongoing university investigation should be stayed or enjoined. The court applied the well-established tripartite test for interlocutory injunctive relief, including stays: (a) whether there is a serious issue to be tried; (b) whether the applicant will suffer irreparable harm if relief is not granted; and (c) where the balance of convenience lies, relying on RJR-MacDonald Inc. v. Canada (Attorney General). Because some of the relief sought was mandatory in nature, the court also noted the higher threshold that requires a strong prima facie case, as set out in R. v. Canadian Broadcasting Corp. On the first branch, the court held that the plaintiffs failed to demonstrate a serious issue to be tried for two main reasons. First, there was no proper procedural vehicle before the court for the judicial review-type relief they sought; a notice of action could not ground relief under s. 6(2) of the Judicial Review Procedure Act. Without a properly constituted application for judicial review, their jurisdictional approach was fundamentally flawed. Second, independently, the court held that it should not interfere with an administrative process that was still underway and far from completion. Citing Court of Appeal authority in Volochay v. College of Massage Therapists of Ontario and more recent guidance in Wahbi v. Ontario College of Teachers, the judge stressed that absent exceptional circumstances, courts should not intervene mid-stream in administrative proceedings, particularly where there are adequate alternative remedies within the statutory and policy framework. In this case, the internal investigation had not yet reached its midpoint: the investigator had summarized the allegations and invited responses, and the plaintiffs had not engaged with that process. None of the procedural or jurisdictional complaints raised on the motion had been put to the investigator for consideration. There was therefore no ruling, decision, or finding for the court to review. To step in at such an early stage would require “truly exceptional circumstances,” which the plaintiffs had not shown. The court held that the plaintiffs fell at the first hurdle in failing to demonstrate even a serious issue, much less exceptional circumstances.

Assessment of irreparable harm and balance of convenience

Although it was unnecessary to address irreparable harm after finding no serious issue, the court did so briefly. The plaintiffs argued that the investigation itself would cause irreparable harm: Mr. Stobo was a student applying to law school; Mr. Naimool was a practising lawyer and college instructor; and they feared reputational damage, stress, potential punitive action by the university, and possible public dissemination of adverse findings. The court noted that evidence from a therapist to support the stress and anxiety claim had been withdrawn before the hearing. It emphasized that irreparable harm must be shown through clear, non-speculative evidence. The plaintiffs’ fears were contingent—premised on the possibility of a flawed investigation, possible punitive measures, and hypothetical publicity—and did not meet the standard for irreparable harm. Turning to the balance of convenience, the court held that it favoured the university. Queen’s had a statutory obligation under the Occupational Health and Safety Act to investigate workplace harassment. The speculative concerns advanced by the plaintiffs could not outweigh the university’s duty to investigate and the interests of its employees in having harassment complaints properly addressed. The motion for an order staying or enjoining the investigation was therefore dismissed.

Request for a mandatory order to investigate discrimination

A distinct but related issue was whether the court should compel Queen’s to investigate what the plaintiffs characterized as a discrimination complaint by Mr. Naimool. They argued that his 29 October 2025 email triggered an immediate and mandatory duty on the university to investigate once it had knowledge of a potential human rights breach, whether or not a formal Human Rights Code complaint had been filed. The court disagreed. It examined the content and context of the email, noting that it was written in response to a request for a meeting and raised a series of concerns about ARC policies, including “potential discriminatory factors” in their enforcement. While the email suggested that race might be “a factor in the disproportionate surveillance, enforcement and general hostility” experienced by Mr. Naimool, it did so among several broader complaints and expressly disclaimed intent. The judge held that this did not amount to a formal complaint of racial discrimination invoking the Ontario Human Rights Code. The decisions relied on by the plaintiffs, such as Cybulsky v. Hamilton Health Sciences and Laskowska v. Marineland of Canada Ltd., were distinguished as arising in the employment context, where an employer’s duty to investigate under s. 5(1) of the Code (equal treatment in employment) was at issue. In contrast, Mr. Naimool’s relationship to Queen’s was as a recipient of services, engaging s. 1 of the Code on equal treatment in services, goods, and facilities. Whether Queen’s had discriminated in the provision of services remained an open question to be determined in this action or in other proceedings. The court further underlined that even if one accepted that some duty to investigate discrimination had arisen, a mandatory order compelling a specific investigation under the court’s supervision would still require a strong prima facie case. That standard was not met. Additionally, the court pointed out that Mr. Naimool had other avenues available: he could file an application with the Human Rights Tribunal of Ontario under s. 34(1) of the Code; he could pursue a claim for infringement of his Part I rights in this civil proceeding under s. 46.1; and his allegations of reprisal and discrimination could be aired and assessed within the existing harassment investigation, as Mr. Anand had already offered. Given the availability of these alternative remedies and the high threshold for mandatory relief, the court declined to make an order compelling a discrimination investigation.

Court’s broader comments on process, policy, and next steps

In its concluding remarks, the court criticized the plaintiffs’ conduct of the motion as misguided and chaotic. They had obtained an urgent hearing on the representation that a narrow, time-sensitive issue needed quick intervention, then transformed the motion into a sprawling challenge to university processes and policies, supported by an unwieldy record and extensive authorities. The judge stressed that allegations of discrimination and harassment are serious and must be addressed through proper channels. Queen’s University, as both educator and employer, had policies and procedures precisely for this purpose, including the H&D Policy and its investigative mechanisms. These internal processes, grounded in statutory duties such as those under the Occupational Health and Safety Act, should generally be allowed to run their course without court interference, except in the rarest of circumstances. No such exceptional situation was found here. The court also underscored that the plaintiffs were not left remediless. If the investigation’s outcome is adverse and they consider it unjust, they may pursue available routes of challenge. If Mr. Naimool believes he has been discriminated against in the services context, the Human Rights Code offers substantive and procedural remedies before the Tribunal and in civil court. If they wish to pursue judicial review, they must commence a proper application under the Judicial Review Procedure Act; if they wish to proceed civilly, they must file and serve a statement of claim in accordance with Rule 14.03(3). The plaintiffs were urged to decide which route to pursue and to proceed in a procedurally coherent manner.

Costs and outcome

On costs, the court highlighted that both Queen’s University and the courts themselves are publicly funded, and it viewed the plaintiffs’ approach to the motion as having wasted significant public resources. Costs outlines were filed: Mr. Anand’s showed actual fees and disbursements of $25,844.30, supporting a partial indemnity figure of $15,904.59, while Queen’s and Mr. Cunningham’s showed actuals of $37,983.82, supporting a partial indemnity award of $22,578.52. Counsel for Mr. Anand argued for full indemnity given what he characterized as unfounded attacks on his professional integrity. The judge expressed some sympathy with that contention but also noted principles of proportionality and that one of the plaintiffs was a student. Because plaintiffs’ counsel was not prepared to address costs at the hearing, no final costs order was made. The court indicated a preliminary view that the defendants were entitled to their costs of the motion on a partial indemnity basis and invited short written submissions from the plaintiffs or, alternatively, an agreed disposition between counsel. Overall, the motion was dismissed in its entirety. The defendants—Queen’s University, Raj Anand, and Gareth Cunningham—were the successful parties. No damages or fixed monetary award was ordered at this stage, and the exact costs payable, if any, could not yet be determined from this decision alone, as the court left the quantum of costs to be resolved in a later step or by agreement.