Implied Contract Between Students and Universities

The broad discretion of universities over resolving academic disputes has been clearly stated in Ontario in cases like Jaffer and Aba-Alkhail. The complex nature of such disputes means that the internal dispute resolution mechanisms within universities are usually the primary means to resolve such issues, though not necessarily the final one.

However, where a student’s claim goes beyond student evaluations, structure of the programs, competence of advisors, and other matters that are intrinsically academic, the situation is not necessarily so clear. The Ontario Court of Appeal recently weighed in on this further in Lam v. University of Western Ontario, where a PhD student sued the university for loss of income, pain and suffering, and out of pocket expenses when he felt pressured to transfer into a masters program after his thesis supervisor died. He claimed that the failure to make good faith efforts to ensure adequate alternate supervisors, and a failure to inform him of adequate funding, constituted a breach of contract and breach of fiduciary duty.

The action was initially dismissed on a summary judgement motion, on the basis that the impugned conduct could be interpreted as academic, as relating to “teaching, mentoring, supervising and administering the Ph.D. program and thus to matters that are “purely academic” in nature.” The motions judge found that these complaints would have been better resolved within the university, subject to judicial review, due to factors relating to expertise, policy and practicality.

The Court of Appeal overturned this decision on a standard of correctness, finding that the advantages of the university’s internal complaint process was not determinative of the issue. The proper question on a summary judgement was whether the factual issues as plead could make out a cause of action for breach of contract. The authorities emphasizing deference to internal university decision making only strengthened this finding,

[32] Therefore, the correct approach is not to ask whether the complaint falls on the academic or legal end of a spectrum and then determine the answer by considering which, as between a court and an internal university process, is the more desirable forum from the standpoint of efficiency, policy and practicality. Rather, the correct approach flowing from Gauthier and Jaffer is to ask whether the complaint is one for damages for breach of contract or tort, as opposed to an assertion that what the university did was something it had a discretion to do.

The basis for upholding the appeal is that the motion judge had concluded that genuine issues of fact exist that require a trial to resolve. The error was in concluding that there was a fatal legal impediment that would bar the claim.

The court found that part of the contract between the student and the university was the school’s Handbook, which itself made reference to thesis supervisors. The claim therefore alleged more than a wrong academic result or an incompetent professor, but that he was misled about the details around the performance of the contract. That was an issue that could result in a breach of contract, which the court would have jurisdiction over.

Use of university policies have obviously been employed in previous cases, including the ones cited by this decision. This issue becomes more interesting in Ontario though under the province’s new mandatory “free speech” policies, implemented this year. Many of the issues already identified under these policies could be characterized as on the legal end of the spectrum rather than the academic.

How these policies are employed, and the manner in which they could result in a breach of contract or Charter rights, including against those expressing their speech against the speech of others (i.e. protest), will likely be a hot button issue in the coming years.


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