Superior Court has (limited) Jurisdiction to hear an action based upon a dispute as to academics

Jaffer v. York University, 2010 ONCA 654 was released today and holds that academic disputes can, in certain circumnstances, be subject to the jurisdiction of the Courts.

The decision provides:

Jurisdiction to hear an action based upon a dispute as to academics

[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.

[20]          The motion judge did not have the benefit of this court's decision in Gauthier c. Saint-Germain, 2010 ONCA 309, when he concluded at para. 24 of the endorsement that "[w]hile 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." After the release of the motion judge's reasons, this court in Gauthier addressed the basis upon which a university may be sued in relation to academic matters.

[21]          In Gauthier, Rouleau J.A. at para. 29 started from the proposition that the Superior Court of Justice is a court of inherent jurisdiction. Its jurisdiction is therefore limited only by express language in a statute or a contractual provision. After analyzing the case law related to academic questions, he determined at para. 45 that the jurisprudence did not stand for the broad proposition that the court lacks jurisdiction solely because a breach of contract or negligence claim arises out of a dispute of an academic nature. At para. 46, Rouleau J.A. found that where the elements of a breach of contract or negligence are properly pleaded, the Superior Court will have jurisdiction to hear a claim even if the dispute is academic in nature and arises out of the academic activities of the university.

[22]          I do not accept York's submission that Gauthier was wrongly decided or that there are conflicting cases of this court. Gauthier has clarified that the decisions of this court upholding the dismissal of claims relating to academic matters did not do so on the basis that the court lacked jurisdiction pursuant to r. 21.01(3)(a), but rather under r. 21.01(1) because the pleadings did not disclose a reasonable cause of action based upon contract, tort, or negligence or under r. 25.11 because the cause of action was untenable in law.

[23]          For example, in Wong v. University of Toronto (1992), 4 Admin. L.R. (2d) 95 (Ont. C.A.), the question of jurisdiction was not argued on appeal.  The plaintiff argued in that case that the university's decision to assign him a new supervisor constituted a breach of contract.  However, this court noted that for a cause of action based upon breach of contract to succeed, the plaintiff would have to show that it was an implied term of the contract that the university agreed that it would provide a specific professor as supervisor. The court held that it was not necessary to imply such a term in that case in order to give the "contract" efficacy.  The basis for the Court of Appeal's decision was therefore based upon the terms of the contract between the university and its student, and not the jurisdiction of the Superior Court.

[24]          In Dawson v. University of Toronto, 2007 ONCA 875, this court did not adopt all the reasons of the motion judge by agreeing with the result that the statement of claim disclosed no cause of action. The court did not base its decision upon the court's lack of jurisdiction; rather, the court concluded that the particulars of the plaintiff's "negligence" claim demonstrated that the plaintiff's complaint was part and parcel of her academic dispute with the university. The court also noted that in advising the plaintiff of her options, the supervising professor referred her to the calendar which clearly set out the options available to her. Thus, the claim did not disclose a valid cause of action in negligence.

[25]          In Zabo v. University of Ottawa, 2005 CanLII 22452 (ON C.A.), leave to appeal refused, [2005] S.C.C.A. No. 354, this court agreed that the motion judge properly dismissed the action because, on the facts pleaded, breach of contract could not succeed as a cause of action. The court was doubtful that the action could have been dismissed under r. 21.01(3)(a) on the ground that the court had no jurisdiction, but concluded that the claim was untenable in law as essentially an academic matter and thus could be struck under r. 25.11.  It should also be noted that the motion judge refused to strike out claims based on allegations of bad faith and a conspiracy to cause the plaintiff harm:  [2004] O.J. No. 1499, at para. 57.  Thus, neither the motion judge nor the Court of Appeal found that the court lacked jurisdiction over the dispute by virtue of its academic nature.  Rather, the question was one of the tenability of each claim.

[26]          After reviewing the cases, Rouleau J.A. concluded at para. 46 of Gauthier that it is the remedy sought that is indicative of jurisdiction.  Judicial review is the proper procedure when seeking to reverse an internal academic decision.  However, if a plaintiff alleges the basis for a cause of action in tort or contract and claims damages, then the court will have jurisdiction even if the dispute arises out of an academic matter:

Ŕ mon avis, pour déterminer si la cour est compétente, il est plus révélateur de se pencher sur la réparation revendiquée par le demandeur.  Quand une partie cherche ŕ faire renverser la décision académique interne d'une université, la voie appropriée est le contrôle judiciaire.  Par contre, si la partie demanderesse allčgue les éléments constitutifs d'une cause d'action fondée en délits civils ou en rupture de contrat, tout en réclamant des dommages-intéręts, la cour s'avérera compétente et ce, męme si le différend découle des activités scolaires ou académiques de l'université en question. 

[In my opinion, to determine whether the court has jurisdiction it is more useful to look at the remedy claimed by the plaintiff. When a party is seeking to have the internal academic decision of a university reversed, the proper procedure is judicial review. However, if the plaintiff is alleging the basis for a cause of action in tort or breach of contract and claiming damages, the court will have jurisdiction even if the dispute arises out of the scholastic or academic activities of the university in question. [Note: this is an unofficial translation] 

[27]          At para. 47, Rouleau J.A. noted that by enrolling at the university, it is understood that the student agrees to be subject to the institution's discretion in resolving academic matters, including the assessment of the quality of the student's work and the organization and implementation of university programs. As a result, a student will usually have to do more than simply argue that an academic result is wrong or a professor is incompetent in order to make out a cause of action in breach of contract or a duty of care.

[28]          Thus, although the court has jurisdiction to hear such claims, Rouleau J.A. noted at para. 50 that the court may strike a claim under r. 21.01(1), or in exceptional circumstances r. 25.11, when it appears that the cause of action is untenable or unlikely to succeed. This will occur if, for example, an action is simply an indirect attempt to appeal an academic decision and the appropriate remedy would be judicial review, or if the pleadings do not disclose details necessary to establish that the university's actions go beyond the broad discretion that it enjoys.

[29]          The Superior Court's jurisdiction over the action in this case is thus not ousted by the raising of issues relating to the university's academic function.  As in Gauthier, the action is not simply an indirect attempt at judicial review, as the appellant does not seek to reverse decisions with respect to his grades or compel the university to readmit him.  His claim is that the university owed him various obligations in both contract and in tort, and that its failure to meet those obligations has caused him pecuniary and non-pecuniary damages.  Such claims fall within the jurisdiction of the Superior Court and may proceed if they are properly pleaded and tenable in law and disclose a reasonable cause of action.

[30]          There is no dispute that the relationship between a student and a university has a contractual foundation, giving rise to duties in both contract and tort: Young v. Bella, [2006] 1 S.C.R. 108, at para. 31.

[31]          The real issue in this case is not whether the dispute is academic in nature, but rather whether the pleadings support a cause of action in either contract or tort.