CITATION: Jaffer v. York University, 2010 ONCA 654
DATE: 20101007
DOCKET: C51476
COURT OF APPEAL FOR ONTARIO
Feldman, MacFarland and Karakatsanis JJ.A.
BETWEEN:
Ashif A. Jaffer
Plaintiff (Appellant)
and
York University
Defendant (Respondent)
James S. Schacter, for the appellant
Alexander D. Pettingill, for the respondent
Heard: June 28, 2010
On appeal from the order of Justice Romain Pitt of the Superior Court of Justice, dated November 2, 2009, with reasons reported at 2009 60086 (ON S.C.).
Karakatsanis J.A.:
[1] This is an appeal from the order of Pitt J. dismissing the appellant’s claim against the respondent university seeking damages for the university’s failure to accommodate him as a student with a disability.
[2] The respondent, York University, brought a motion under rr. 21 and 25.11 for an order striking out the appellant’s Statement of Claim on the basis that it failed to plead a known cause of action within the jurisdiction of the Superior Court of Justice, or in the alternative, that it disclosed no reasonable cause of action, or was frivolous, vexatious, and otherwise an abuse of process.
[3] The motion judge found that the matter was outside the jurisdiction of the Superior Court of Justice on the basis that the issue relates to academics and is within the discretion of the University or alternatively, if the issue is one of human rights, it is properly a matter for the Ontario Human Rights Commission (OHRC).[^1]
BACKGROUND FACTS
[4] The appellant, Ashif Jaffer, has Trisomy 21 Down Syndrome. He had been accommodated in high school in accordance with an Independent Education Plan and graduated as an Ontario scholar.
[5] His pleadings assert that when he was 19 years old, he enrolled at Glendon Campus at York University for the academic term commencing in September 2006. After his application had been accepted, in the summer leading up to and during his freshman year there were communications between the parties regarding the accommodations Jaffer should receive, but no resolution was reached. In April 2007, one of Jaffer’s professors offered Jaffer the opportunity to resubmit a paper, and confirmed that he would not be giving Jaffer a failed grade but would instead enter a deferred status. That paper was submitted in the summer of 2007. Jaffer pleads that he relied upon his professor’s statements and understood that his status for all his academic courses for the 2006-2007 academic term would be deferred because of the ongoing dispute over the failure to accommodate him. He enrolled in courses for his second year but was informed that, because he did not achieve at least a D+ average, his academic status was “failed to gain standing, no credit retained”. He was advised that this standing meant he could not continue his studies. His relationship with York has now ended.
The Statement of Claim
[6] Jaffer claims breach of contract, negligence and negligent misrepresentation, as well as a breach of a duty of good faith, for York’s failure to accommodate his disabilities and to properly investigate, assess and evaluate his claim for accommodation.
[7] With respect to breach of contract, Jaffer alleges at paras. 47 and 48 of his Statement of Claim that York “is in breach of its contract with him to provide educational courses” and “failed to honour its contractual obligations, including, but [not] limited to, failing to provide appropriate accommodations to Mr. Jaffer while he attended courses at Glendon Campus given that he was a student with a disability”.
[8] At paras. 49 and 50, the Statement of Claim also alleges that York has “a duty to act in good faith in providing Mr. Jaffer with timely and appropriate accommodations in accordance with [his] specific needs” and “has a duty to act in good faith by acting fairly and expeditiously in investigating, assessing, and evaluating [his] claim for accommodations, particularly where they have knowledge that [he] is a person in a vulnerable position with a disability”.
[9] Jaffer further claims at para. 51 that York “owes a duty of care to [him] and is obliged to deal with him in a fair, honest, and judicious manner in the investigation, assessment, and evaluation of the necessary and appropriate accommodations [he] requires”, and that there is a “special relationship” between the parties “giv[ing] rise to a duty of care with respect to the representations made by its agents”.
[10] At para. 53, Jaffer alleges “that the misrepresentations made by the professor that Mr. Jaffer could provide his paper by the end of the summer of 2007 constituted negligent misrepresentation and was made with the purpose of inducing Mr. Jaffer into refraining from pursuing further complaints or action against the professor” or others at York.
[11] Finally, Jaffer also pleads at para. 54 that York “failed to comply with their own policies to provide accommodations to students with disabilities, which clearly breached their duty of good faith”. He provides 13 particulars relating to York’s failure to accommodate him and its failure to properly investigate his situation, including that it “failed to allow Mr. Jaffer to complete his courses... with timely and appropriate accommodations” and “issued failing grades… rather than an ‘in process’ grade standing”.
[12] While Jaffer refers in his factum to a breach of fiduciary duty, it has not been pleaded in the Statement of Claim.
The motion judge’s decision
[13] The motion judge concluded at paras. 20 and 24 that there was no jurisdiction to hear the action, both because the complaint was academic in nature and because it belonged before the OHRC:
[I]t 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.
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.
ISSUES
[14] This appeal raises the issue of whether the Superior Court of Justice has jurisdiction to hear this action notwithstanding that it relates to a dispute about academics and, if so, whether the pleadings disclose a reasonable cause of action based upon breach of contract or in tort. The appeal also raises the issue of whether this matter should be properly dealt with under the enforcement scheme of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). Specifically, this appeal raises the following questions:
Does the court lack jurisdiction to hear this action because it relates to a dispute as to academics?
Does the court have jurisdiction to hear an action based upon the university’s failure to accommodate disabilities?
If the court has jurisdiction to hear this action, do the pleadings disclose a reasonable cause of action for breach of contract, including a breach of the duty of good faith?
If the court has jurisdiction to hear this action, do the pleadings disclose a reasonable cause of action for negligence or misrepresentation?
[15] For the following reasons, I would affirm the motion judge’s decision dismissing Jaffer’s claim, but I would grant Jaffer leave to amend the Statement of Claim in accordance with these reasons.
ANALYSIS
Rules
[16] A Rule 21 motion must be based upon the facts alleged in the Statement of Claim unless they are patently ridiculous or incapable of proof: see e.g. Slater Steel Inc (Re), 2008 ONCA 196, at para. 22, leave to appeal refused, [2008] S.C.C.A. No. 230. A pleading should only be struck under Rule 21 where it is “plain and obvious” that the claim has no chance of success: Freeman-Maloy v. Marsden (2006), 2006 9693 (ON CA), 79 O.R. (3d) 401 (C.A.), at para. 18, leave to appeal refused, [2006] S.C.C.A. No. 201, citing Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959.
[17] There are a number of different grounds upon which a pleading may be struck or an action may be dismissed. The rules relevant to this appeal provide:
21.01 (1) A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion,
(b) under clause (1) (b).
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(a) the court has no jurisdiction over the subject matter of the action;
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly.
25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
1. 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 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 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:
À 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 à faire renverser la décision académique interne d’une université, la voie appropriée est le contrôle judiciaire. Par contre, si la partie demanderesse allègue les éléments constitutifs d’une cause d’action fondée en délits civils ou en rupture de contrat, tout en réclamant des dommages-intérêts, la cour s’avérera compétente et ce, même 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 SCC 3, [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.
2. Duty to accommodate disabilities
[32] With respect to the application of the Code, it is Jaffer’s position that the motion judge erred in finding this matter falls only under the jurisdiction of the OHRC and is solely a discrimination claim. He submits that the court has jurisdiction to hear cases that not only touch on discrimination, but refer to human rights legislation in pursuing a civil action. Jaffer notes that he neither relies on human rights legislation nor asserts any claim for discrimination in his pleadings.
[33] York submits that the motion judge did not err in finding that this is a matter to be properly brought before the OHRC. They argue that Jaffer’s action invokes the public policy expressed in the Code, namely, the university’s obligation to accommodate students with disabilities. The action therefore falls within the jurisdiction of the OHRC and not the Superior Court.
[34] The complaint in this case is that York failed to offer Jaffer reasonable accommodation for his disability in its provision of educational services. However, for the reasons below, such failure does not by itself give rise to an action in negligence.
[35] The Statement of Claim does not specifically refer to the Code. Although the pleadings rely upon the Ontarians with Disabilities Act, 2001, S.O. 2001, c. 32, counsel was unable to identify the relevance of the legislation or in what respect it was relied upon. Instead, the pleadings appear to allege that York’s duty to accommodate arose from the special relationship with Jaffer; from its duty of care and its duty to act in good faith; and from its own policies and procedures.
[36] In the absence of a specific contractual term, however, the duty to accommodate arises from the Code. It is common ground that the Code obligates an educational institution to accommodate disabilities. According to section 1 of the Code, every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of “disability”. Education is a service under the Code: Peel Board of Education v. Ontario (Human Rights Commission) (1990), 1990 6605 (ON SC), 72 O.R. (2d) 593 (Div. Ct.). The appellant suffered from a “disability” as defined under s. 10 of the Code. Section 17 of the Code requires accommodation of a disability unless it cannot be provided without undue hardship on the person responsible for providing accommodation. In addition, the OHRC has issued detailed Policies and Guidelines, both on Accessible Education and Disability and the Duty to Accommodate. Accordingly, the Code, along with the publications of the OHRC, sets out the analysis and principles which are applicable when determining whether an educational institution has made the appropriate accommodations for a student with a disability. The duty to accommodate a disability is a central part of the public policy enshrined in the Code.
[37] In Seneca College of Applied Arts and Technology v. Bhadauria, 1981 29 (SCC), [1981] 2 S.C.R. 181, the Supreme Court of Canada rejected the recognition of an independent tort of discrimination and established that a civil cause of action cannot be grounded directly in an allegation of a breach of human rights legislation or the public policy expressed therein. If a claim for discrimination is founded directly upon a breach of the Code, or invokes the public policy expressed in the Code, that claim cannot be brought in the courts, but rather is subject to the comprehensive enforcement scheme of the Code for a violation of its substantive terms. The Supreme Court of Canada recognized the comprehensiveness of human rights legislation, its administrative and adjudicative function and its remedial focus.
[38] In Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, at para. 63, the Supreme Court of Canada concluded that a breach of the Code is neither an actionable tort, nor an “independently actionable wrong” for the purposes of awarding punitive damages.
[39] To recognize a common law duty of care that required the university to provide reasonable accommodations would, in my view, undermine the comprehensive dispute resolution mechanisms established by the Code in precisely the ways that the Supreme Court has cautioned against in cases such as Bhadauria and Keays. The Code contemplates more flexible remedial measures in addition to compensation. A civil action based upon the allegation that a university breached its duty of care to its student by failing to accommodate disabilities (or in its process related to that duty) cannot be based solely upon the duty created by the Code. To do so would be to recognize the independent tort that was specifically rejected in Bhadauria.
[40] Thus, in the absence of a specific contractual provision, the duty to accommodate in the provision of education does not exist independently from the Code. There is no free-standing duty of care to provide accommodation that can ground a claim in negligence. The motion judge was therefore correct in his view that whether or not the university failed to comply with its duty to accommodate under the Code was a matter for the OHRC.
[41] It may be however that breach of the Code is relevant to a cause of action that is otherwise based upon breach of contract or negligent misrepresentation.
[42] For example, this court has expressly upheld pleadings that contained allegations of discrimination in constructive dismissal claims. In L’Attiboudeaire v. Royal Bank of Canada (1996), 1996 1411 (ON CA), 131 D.L.R. (4th) 445, this court was satisfied that the cause of action alleged was not based upon a breach of human rights legislation or on an invocation of the public policy expressed in that legislation. Morden A.C.J.O. explained that in order to prove conduct that amounted to constructive dismissal, the plaintiff did not need to invoke the public policy of the Canadian Human Rights Act. This did not mean that the Act’s terms could not be relevant factors to take into account in assessing the defendant’s conduct. See also Andrachuk v. Bell Globe Media Publishing Inc. (c.o.b. Globe and Mail) (2009), 2009 3974 (ON SC), 71 C.C.E.L. (3d) 224 (Ont. S.C.).
[43] Section 46.1 of the Code provides:
(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.
[44] Although a person may not commence an action based solely on an infringement of a right under Part I of the Code, breach of the Code may be properly raised in an action if the claim is otherwise properly before the court. Thus, whether or not a claim for breach of the duty to accommodate disabilities can proceed in the Superior Court depends upon whether or not the pleading discloses a reasonable cause of action that does not arise solely from a breach of the Code.
3. Do the pleadings disclose a reasonable cause of action for breach of contract?
[45] In Gauthier, Rouleau J.A. cautioned at para. 48 that in a claim for breach of contract, a student will have to demonstrate that the university breached an implied or express term of the contract to which it became a party in accepting the student’s enrolment. By enrolling in the university, 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 carrying out of university programs: para. 47. He also stressed at paras. 47-48 that simply asserting that a mark was incorrect or a professor was incompetent will not normally be sufficient to establish a cause of action, but that a plaintiff must plead specific facts to demonstrate the terms of the contract and how they were breached.
[46] The pleadings in the present case contain a bald statement that it was an implied term of the contract between the parties that the university would accommodate Jaffer’s disability. It does not identify the nature or source of the term requiring accommodation in the contract between Jaffer and York, nor does it plead the circumstances to support such a conclusion.
[47] There is no basis in the facts pleaded upon which to find that accommodation was an implied term of the contract assumed by the institution in approving the student’s enrolment. For example, even on a generous reading of the pleadings there is no suggestion that the university was aware of any disabilities when it accepted him as a student. In fact, the pleadings suggest the opposite – that it was only after Jaffer’s acceptance into York that the appellant’s mother “contacted student services to advise that [the appellant] was a student with a disability and required accommodation”. In oral argument, counsel for Jaffer asserted that York knew or ought to have known about Jaffer’s needs for accommodation prior to accepting him, as that acceptance was based on his high school record and the IEP formed part of that record. This circumstance could support Jaffer’s claim if it was included in the pleadings. Moreover, there is no suggestion that York’s policies provided for accommodation independently of York’s obligations under the Code or that York intended to bind itself to such an obligation.
[48] In my view, this claim does not have the specificity called for in Gauthier. There is no basis in the facts pleaded upon which to find that accommodation was an express or implied term of the contract between the university and Jaffer. Nor is it necessary to imply such a term in order to give effect to the agreement. In addition, the appellant has not given any detail as to what accommodations he was entitled to pursuant to his contract with the university or as to what accommodations he was offered. Rather, he simply asserts that the accommodations offered were not sufficient or appropriate. Without more, this does not establish a cause of action for breach of contract.
[49] Jaffer’s pleadings suggest that York breached its duty of good faith. Such a duty is not a stand-alone duty that is independent from the terms expressed in the contract or from the objectives that emerge from the provisions: Transamerica Life Canada Inc. v. ING Canada Inc. (2003), 2003 9923 (ON CA), 68 O.R. (3d) 457 (C.A.), at para. 53. In order for a claim for a breach of duty of good faith to survive, such a duty must be an express or implied term of the contract and there must be a tenable cause of action for breach of contract.
[50] While counsel suggested that it may be possible to amend the pleadings to include facts that allege York was aware of the student’s disability and undertook to provide him with accommodations or that it bound itself to specific terms regarding accommodation independently from its obligations under the Code, the pleadings do not currently allege or support such a conclusion.
[51] Accordingly, I conclude that the motion judge did not err in dismissing the claim for breach of contract as pleaded, although I do so for different reasons. I would vary his order, however, to strike the pleadings with respect to breach of contract and duty of good faith and permit an amendment to the pleadings (if available on the facts) to plead the specific term of the agreement that was allegedly breached and the supporting circumstances, as indicated above. In so amending the pleadings, the appellant may choose to include the facts on which he asserts the existence, contents, and breach of the obligation owed by the university to him.
4. Do the pleadings disclose a reasonable cause of action for negligent misrepresentation?
[52] As discussed above, an allegation that the university was negligent based solely upon the breach of its duty to provide accommodation as required by the Code does not create an actionable tort. However, that failure may be part of a claim for negligent misrepresentation.
[53] A duty of care may exist between a university and its students based upon a “special relationship”: see Olar v. Laurentian University (2007), 49 C.C.L.T. (3d) 257 (Ont. S.C.), at para. 70, aff’d 2008 ONCA 699. In that case, a student reasonably relied on information set out in the university’s calendar and student guide that transferring to another university would be routine and without problems. The university had knowledge that the representations were not accurate. The student recovered based upon the misrepresentation by the university.
[54] As particulars of negligent misrepresentation, Jaffer alleges that in April of his first year, one of his professors offered him the opportunity to redo a paper over the summer and confirmed he would not be giving Jaffer a failed grade but would instead enter a deferred status. That paper was submitted in the summer of 2007. Although the professor confirmed receipt of the paper, Jaffer never received a grade for the paper. Jaffer pleads that he relied upon his professor’s statements and understood that his status for all of his courses from the 2006-2007 term would be deferred because of the ongoing dispute over the failure to accommodate him. As a result, he was induced to agree to attend the university and to pay tuition and additional costs for his attendance, with the expectation that he would receive appropriate accommodations. This reliance was to his detriment as he was forced out of the university, which has resulted in delay in his entry into the workforce.
[55] The Statement of Claim also alleges at para. 53 that the misrepresentations were “made with the purpose of inducing Mr. Jaffer into refraining from pursuing further complaints or action against the professor” or others at York.
[56] I note that in Gauthier, Rouleau J.A. cautioned at para. 49 that to establish a breach by the university of its duty of care, a student must plead specific facts that could demonstrate that the conduct constituted an intentional tort or fell outside the broad margin of discretion enjoyed by the university and its professors.
[57] In my view, Jaffer has not made out a claim for negligent misrepresentation. The professor’s offer to permit Jaffer to redo a paper in his course cannot reasonably found an action in negligent misrepresentation on the facts as pleaded. It is not clear that this was a misrepresentation or how it could result in the expectation that Jaffer would have a deferred standing in his other courses or that he would be accommodated in his other courses. The pleadings do not establish a causal link between the misrepresentation and the damages claimed. In other words, the pleadings do not establish that, but for the misrepresentation, Jaffer would have been able to continue his studies.
[58] Accordingly, as with the breach of contract claim, I conclude that the motion judge did not err in striking the claim for negligent misrepresentation, although I do so for different reasons. I would again vary his order, striking the negligent misrepresentation claim but permitting an amendment to the pleadings (if available on the facts) to plead specific facts demonstrating that the misrepresentation in question caused the damages pleaded.
DISPOSITION
[59] For these reasons, I would allow the appeal in part. I would strike the pleadings but vary the motion judge’s order to permit Jaffer to amend the Statement of Claim in accordance with these reasons. Costs to the respondent fixed at $7,500, inclusive of disbursements and taxes.
RELEASED: October 7, 2010 “KF”
“Karakatsanis J.A.”
“I agree K. Feldman J.A.”
“I agree J. MacFarland J.A.”
[^1]: Although the motion judge and the parties refer to the OHRC, subsequent to the Human Rights Code Amendment Act, 2006, S.O. 2006, c. 30, the proper body to which to apply is the Human Rights Tribunal of Ontario: Human Rights Code, R.S.O. 1990, c. H.19, s. 34, as amended by S.O. 2006, c. 30, s. 5.