SCJ Jurisdiction Over Academic Disputes

The Ontario Court of Appeal recently released its decision in Jaffer v. York University, 2010 ONCA 654, which reaffirms the proposition that the Superior Court of Justice does have jurisdiction over academic disputes that are grounded in contract or tort.

University administrators will find the ruling important in assessing their liability to civil claims, and students bringing civil suits against universities will find it useful in constructing proper pleadings.

Background

The plaintiff, Ashif Jaffer, had Trisomy 21, also known as Down’s Syndrome, and was accepted to York’s Glendon College in September 2006. Although attempts were made to determine what accommodations should be made, no agreement was reached by the time he commenced his studies. He was successful in high school through the implementation of an Independent Education Plan (IEP).

The dispute arises at the end of his first year, when he was unable to continue his studies because he had not maintained a sufficient grade average. Jaffer claims that York failed to properly accommodate his disability, and had detrimentally relied on an alleged promise by a professor to defer his status while the dispute over disability was resolved which would have allowed him to continue his studies the following year. York claims that the issue was more properly heard at a Human Rights Tribunal as an issue of human rights.

The Ontario Superior Court of Justice concluded on a motion that it did not have jurisdiction to hear the dispute and dismissed the action, stating,

[20] After reviewing all the materials filed by the parties, it seems to me that this is a matter outside of the court’s jurisdiction. There are two parts to the plaintiff’s argument. First, he asserts that the school failed to accommodate him. Second, he asserts that this failure to accommodate led to his unjust expulsion from the program. Failure to accommodate belongs to the OHRC, and a dispute about expulsion is within the university’s internal resolution process.

…

[24] While there may be contractual or tortious issues within the broader claim, if the pith and substance of the impugned conduct is academic in nature, the action cannot be continued in the courts.

The Court of Appeal assessed whether the action contained a cause for breach of contract, negligence or misrepresentation. The respective positions of the parties are set out in paras. 18-19,

[18] Jaffer submits that the motion judge erred in finding that the action related to a matter of academics and therefore in finding that the court had no jurisdiction to hear an action based in contract and tort. He argues that having pleaded that it was an implied term of his contract with York that he was to be provided with appropriate accommodation for his disability, the scope and extent of the contract raises triable issues. Further, Jaffer argues that he has properly pleaded that York owed him a duty of care and a duty to act in good faith to provide appropriate accommodations. With respect to the negligent misrepresentation claim, Jaffer claims that he has pleaded the elements of the tort and seeks damages for his unnecessary expenses and for the resulting delayed entry into the workforce. Jaffer asserts that, given that these causes of action were properly pleaded, the Superior Court had jurisdiction to hear the claim.

[19] York submits that, even if Jaffer frames the dispute in contract or tort, the essential character of the dispute is academics as it arises out of academic decisions and procedures of the university and is therefore beyond the jurisdiction of the court. Essentially, York argues, Jaffer complains that during his first academic year he should have obtained a deferred grade standing instead of failing grades, and that in assigning him failing grades, York failed to follow its own internal policies and procedures. York submits that a student has a right of judicial review with respect to procedural matters, but the court should not be asked to interfere with a university’s decisions or judgments relating to academic matters. York submits that Jaffer has attempted to frame his dispute with his professor regarding his paper assignment as grounds for a claim for negligent misrepresentation; however, that dispute is “part and parcel” of the dispute over Jaffer’s grades.

Determining Jurisdiction

Courts are generally reluctant to interfere in the internal affairs of university decision-making. The Ontario Court of Appeal stated in Paine v. University of Toronto, [1981] O.J. No. 3187,

11 The right to be considered for tenure is one of the terms of employment of members of the teaching staff of the University. It is a contractual right; but the consequence of a denial of tenure is the termination of the employment of the disappointed candidate. An action for damages for breach of the employment contract is probably not an adequate remedy. The Divisional Court found in the present case that there was [at p. 88 O.R. ] “that element of public employment and support by statute that requires us to consider whether or not essential procedural requirements were observed by the university, its president and Governing Council in carrying out their respective functions with respect to the application of Mr. Paine for tenure”. I agree with that conclusion, but note the admonition of Beetz J. in Harelkin v. University of Regina, [1979] 2 S.C.R. 561 at 594-95, 96 D.L.R. (3d) 14, [1979] 3 W.W.R. 676, where he said that the incorporation of a university by statute does not alter the traditional nature of such an institution as a community of scholars and students enjoying substantial internal autonomy. Its immediate and direct responsibility extends primarily to its present members and, in practice, its governing bodies function as domestic tribunals when they act in a quasi-judicial capacity. The courts should use restraint and be slow to intervene in university affairs by means of discretionary writs whenever it is still possible for the University to correct its errors with its own institutional means. In the present case, Mr. Paine did exhaust all procedures available to him within the University. I cite the Harelkin case only for the proposition that the courts should be reluctant to intervene in university affairs.
[emphasis added]

The court in Jaffer applied the recent judgment in Gauthier c. Saint-Germain, 2010 ONCA 309, which was not available at the time of the motion, and assumed jurisdiction over the case. In Gauthier the court concluded that where the pith and substance of a dispute is academic in nature the action should not be held in the courts, even where there are larger contractual or tortious claims.

Gauthier cited TeleZone Inc. v. Attorney General (Canada), 2008 ONCA 89, where Borins J.A. of the Ontario Court of Appeal said,

[4] Jurisdiction is the power of the court to render an enforceable judgment. Therefore, for the purpose of these appeals, jurisdiction relates to whether the Ontario Superior Court has the power to adjudicate the claim, or claims pleaded in the four statements of claim. As there are not concepts such as partial, inchoate or contingent jurisdiction, either the Superior Court has jurisdiction, or it does not. Nothing in the Courts of Justice Act, R.S.O. 1990, c. C.43 or the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in any way precludes the Superior Court from having jurisdiction to hear any claim that is substantively adequate. This is because, as I will explain, the superior court is a court of general jurisdiction having inherent jurisdiction to adjudicate claims consisting of virtually any subject matter.
[emphasis added]

The proper jurisdiction can be identified by the type of remedy sought by the plaintiff. When seeking to reverse an internal academic decision, judicial review is the proper procedure. But if damages are claimed in tort or contract, the court does have jurisdiction even over academic disputes. The Supreme Court of Canada ruled in Young v. Bella, [2006] 1 S.C.R. 108, that a student-university relationship can give rise to claims in tort or contract,

31 …The appellant, even as a “distant” student, was a fee-paying member of the university community, and this fact created mutual rights and responsibilities. The relationship between the appellant and the University had a contractual foundation, giving rise to duties that sound in both contract and tort: Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147.

Rouleau JA held in Gauthier that where elements of a breach of contract or a claim in negligence are pleaded properly the Superior Court of Justice does have jurisdiction to even hear claims that are academic in nature. Disputing a mark or proposing that a professor is incompetent is not normally sufficient to provide a civil cause of action.To establish that a university has breached its duty of care, specific facts must be plead to demonstrate conduct clearly falling outside the broad discretion afforded to universities and professors.

An allegation that a university has acted negligently solely on the basis of failing to accommodate under the code does not by itself create an actionable tort. They may, however, help form the basis for a claim in negligent misrepresentation. In Olar v. Laurentian University (2007), 49 C.C.L.T. (3d) 257 (Ont. S.C.) Gates J. ruled that a special relationship may exist between a student and a university,

[70] The notion that duty of care exists between a university and its students is not without precedent. The courts have established that the duty of care of the university is based upon a “special relationship.” Similarly, in this case there is sufficient evidence to find that the defendant, Laurentian University, owed a duty of care to Mr. Olar. The defendant ought reasonably to have foreseen that students would rely on the statements included with the Student Guide and Calendar. These promotional materials were published with the intention that students would read them and rely upon the information included in order to become informed about the academic programs offered and to assist them in their decision about the academic program that they wanted to pursue. Because of this, it was reasonable for a student like Mr. Olar to have relied on these statements.

However, Rouleau JA also held in Gauthier that a court may strike a claim at the motion stage where an action is an indirect attempt to appeal an academic decision, and the appropriate remedy is judicial review. By choosing to enroll in a university, a student agrees to subject themselves to the school’s discretion in academic matters. Pleadings should properly disclose enough details to demonstrate that the actions of a university go beyond their broad discretion.

At issue in this case then was not whether the court had jurisdiction over the dispute, but rather whether the plaintiff had properly plead his claim.

Assessing the Claim

The Court of Appeal assessed both the claim that York was under a duty to accommodate Jaffer’s disability, and whether the pleadings contained a reasonable cause of action. Jaffer’s claim for the duty to accommodate referenced an implied contractual term, but did not provide any particulars for the nature or source of this term or express what accommodations he was entitled to. Additionally, nothing in the university’s policies independently provided for any accommodation beyond the obligations under the Ontario Human Rights Code.

The court held that the motion judge did not err in dismissing the claim for breach of contract, but varied the order to permit an amendment of the pleadings to plead the specific term of the agreement that was allegedly breached, if available on the facts. This amendment should properly include the existence, contents, and breach of the obligation owed to him by the university.

The court also ruled that a claim for negligent misrepresentation had not been made as a causal link between the professor’s promise to defer Jaffer’s status and his damages claimed are not established in the pleadings. In this claim as well, the court held that the motion judge did not err in dismissing the claim for negligent misrepresentation, but also varied the order to permit an amendment of the pleadings. The amendment should properly establish that but for the misrepresentation, Jaffer would have been able to continue his studies.

Assuming the factual basis for these amendments exist, we may see this case revisited by the Superior Court of Justice to assess the validity of Jaffer’s claims.