Saturday, March 28, 2015

Ability of students to sue University because on strike limited

Turner v. York University, 2011 ONSC 6151:

[25]           In Gauthier, the court held that there is no broad rule against jurisdiction. The compensation claimed defines the jurisdiction. A party seeking to challenge the internal academic decision (such as a mark) must seek judicial review. If the plaintiff alleges a cause of action in tort or contract and claims damages, then the court will have jurisdiction even if the  dispute arises out of a the scholastic or academic activities of the university. However, Gauthier clearly states that every student is subject to the University's "very broad" discretion "in resolving academic matters, namely the assessment of the quality of the student's work, the organization and carrying out of universityprograms and identification of the skills required to act as a professor or a thesis supervisor". (Gauthier at para. 47 [Emphasis added].) Gauthier was recently applied in Jaffer v. York University 2010 ONCA 654 (CanLII).

[26]           Given the University's broad discretion, "simply arguing that a scholastic result is wrong or a professor is incompetent will usually not suffice to make out a cause of action in breach of contract or the law of delict." (Gauthier at para. 47). To make out a cause of action Gauthier states at para. 48 as follows:

[48] To make out a cause of action for breach ofcontract, a student will have to show that the university has failed to perform an express or implied duty assumed by the institution in approving the students enrolment. 

[27]           Further, the court will exercise its discretion to strike out a cause of action "when it appears that the cause of action is untenable or unlikely to succeed". (Gauthier, at para. 50)

[28]           The circumstances in which the court will exercise its discretion to strikeout a cause of action fall into two categories. First, if the action is an indirect attempt to appeal an internal academic decision and the appropriate procedure is judicial review. Second (and relevant to this case), "if the pleading does not contain the particulars necessary to show that the university or its employees exceeded the broad discretion enjoyed by them, the court may strike out the cause of action." (Gauthier, at para. 50)

[29]           Cullity J. concluded at para. 23 that the amended statement of claim was seeking to have the court make "qualitative assessments of the effect on educational standards of York's response to the strikeand of the remedial measures introduced. These are matters that fall within the discretion of the University and - without a plea of facts that if proven could establish that York exceeded or abused its discretion - bald assertions that they constituted breaches of contract are not enough. 

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