Most of our readers would be aware of the ongoing strik [1]e at York University [2] led by CUPE 3903 [3]. York administrators have also indicated [4] serious financial difficulties.
What people may not have realized is that the strike also affects law students at Osgoode Hall [5].
A second-year Osgoode student, Thomas Wisdom, shares [6]the challenges some of his peers are facing,
First- and second-year students with summer jobs: A lot of people are ecstatic about the fact that they will be gainfully employed at law firms in the summer months… [but] they face the frustration of renegotiation start dates with their employers.
Daniel Simard, also in his second year, points out [7]how graduating students are also impacted,
…third year students could potentially be detrimentally impacted if they have to complete their studies well into the month of May; the period perennially allotted for the fulfillment and preparation of licensing requirements [8] mandated by the Law Society of Upper Canada, including Bar Admissions.
Parents and students have also expressed that the reputation of York University, and by extension, Osgoode Hall, may be affected.
But do all these concerns give a right to sue? The Globe & Mail [9]mentioned yesterday that some of the families are considering a class-action lawsuit against both York University and the union.
David Doorey [10], Adjunct Professor at Osgoode, notes on his site [11] the difficulties in making a cause of action for such claim. Some of his readers mention that York has a disclaimer for class interruptions that may prevent claims for breach of contract, but others note the inequality of bargaining power between unsophisticated student parties.
Over 4,000 people (as of today), presumably York students, have joined a Facebook group, Student Class Action Lawsuit AGAINST York University [12]. Discussions in this group include a supposed York policy that will expel any student bringing legal action against the school, and how to form a claim against the union with the majority of the membership.
One student points out Ciano v. York University [13] over the 2000 York strike [14], which dismissed the case [13]in a motion for summary judgment under Rule 20 [15]of the Rules of Civil Procedure [16].
The students only lost classes, and not money, and could not demonstrate a financial loss. The court expressed reluctance over evaluating the quality of the education provided, and awarded costs of $35,000 against the student, which would likely discourage many would-be plaintiffs in the current labour dispute.
If law students (and others) can indicate that the tight deadlines around legal jobs and licensing requirements do have a direct financial impact, is it possible that the court could rule different in the future?
Winkler J. of the S.C.J. does discuss some of the issues around the university’s disclaimer,
16 York points to the Important Notice found in the 1995-1997 Undergraduate Program Calendar as an absolute defence to any claim arising out of the strike. The Notice states that,
“York shall incur no liability for loss or damage suffered or incurred by any student or third party as a result of delays in or termination of services, courses or classes by reason of: … strikes”.
The defendant states that each student is made aware of the Calendar through a number of publications distributed during enrolment and registration. While the Calendar itself is not mass distributed, it is made available at the libraries and on the University’s webpage [17]. The defendant contends that if indeed there is a contract between the University and the students, the Calendar forms part of contract and the terms of the Important Notice act as a total bar to any claim advanced by the plaintiff.17 However, in respect of the specific contractual defence asserted by the defendant, a number of issues arise. Does the Calendar and the Important Notice constitute a part of or a term in the contract between university and student? If so, is it superceded by the university’s Senate Policy [18]?
[emphasis added]
If anyone can figure out how to structure a more successful statement of claim than Ciano, the sizeable body of Osgoode law students would probably be the ones to do it. And social media might play a role in bringing them together to work collaboratively.
The legal fallout of this strike might be something interesting to watch in the near future.