CITATION: Turner v. York University, 2012 ONSC 4272
DIVISIONAL COURT FILE NO.: 487/10
DATE: 20120814
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
cunningham A.C.J., Swinton AND Crane jj.
B E T W E E N :
JONATHAN TURNER
Plaintiff (Appellant)
- and -
YORK UNIVERSITY
Defendant (Respondent)
Henry Juroviesky and Eliezer A. Karp, for the Plaintiff (Appellant)
Ronald G. Slaght, Q.C., and David Quayat, for the Defendant (Respondent)
Heard at Toronto: April 4, 2012
CUNNINGHAM A.C.J.:
[1] Jonathan Turner, the appellant, brought a motion before Cullity J. seeking certification of a class proceeding on behalf of York University students whose classes and examinations were allegedly disrupted by a late 2008 strike at the university.
[2] In his decision dated September 7, 2010, Cullity J. dismissed the motion, concluding that the test set out in s. 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”), had not been met. It is Mr. Turner’s appeal of this Order with which we are concerned. At the heart of this appeal is the conclusion of Cullity J. that the proposed proceeding failed to disclose a reasonable cause of action as is required by s. 5(1)(a) of the CPA.
[3] This matter came before a differently constituted panel of this Court on May 24, 2011, at which time, concurrent with his appeal, Mr. Turner sought to amend his statement of claim. The appeal was not heard and the appellant then sought leave to amend. Horkins J. denied leave on November 24, 2011. Hence, the appellant proceeded with his appeal before us upon the original record.
[4] For the reasons that follow, we find Cullity J. did not err in dismissing the certification motion. The appeal is dismissed.
Background
[5] When over 3,000 contract faculty at York University went on strike in the fall of 2008, the university suspended academic activities pursuant to its cancellation policy as set out in the University Calendar. The strike lasted approximately 85 days. Classes were rescheduled, but even with rescheduling, some instructional time was lost. Examinations were also rescheduled.
[6] The appellant sought damages for financial and non-financial losses which he alleges resulted from the rescheduling of academic activities and the loss of instruction time. In his statement of claim, the appellant advances three theories of liability: breach of contract; breach of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A; and unjust enrichment.
[7] Cullity J. considered each theory in his reasons for refusing certification. With respect to the breach of contract claim, he found the pleadings were deficient in that the terms and form of the contract had not been pleaded, and most importantly, that there was nothing pleaded concerning what term of the contract was alleged to have been breached. Moreover, he noted that even if there were a breach of some contractual term, there was nothing pleaded to suggest that the university had exceeded the broad discretion it enjoys as an academic institution with respect to its operations.
[8] As to the alleged breaches of the Consumer Protection Act, the appellant pleaded that the university had breached a number of different sections of the Act by, among other things, making unsolicited material changes to the services it was supposed to provide students, by failing to provide “clear, comprehensible and prominent” disclosure of its Strike Disruption Policy, as well as violations related to the contract between students and the university (being a “remote agreement” or “internet agreement”).
[9] Cullity J. found that these claims were, as with the contract claim, premised on the idea that the university was required to provide (relatively) uninterrupted instruction during the 13-week term and the exam period. However, this allegation was insufficiently pleaded because there were no facts advanced to support the existence of any agreement to provide uninterrupted or relatively uninterrupted instruction or exams.
[10] Moreover, nothing was pleaded to support the claim that the university had not provided services of a “reasonably acceptable quality” or that it had “materially changed” the services it provided to students. And, as with the breach contract claims, Cullity J. found there were significant policy reasons supporting judicial deference to the university in the exercise of academic decision-making.
[11] Finally, with respect to unjust enrichment, Cullity J. found the claim was precluded for the same reasons as precluded the breach of contract and Consumer Protection Act claims. Given the broad academic discretion enjoyed by the university, it would be problematic to inquire into unjust enrichment, as this would require an inquiry into the quality of the response of the academic institution in order to determine whether there was a juristic reason for its enrichment.
[12] Cullity J. went on to find that even if a cause of action had been properly pleaded, the class was defined too broadly in that it failed to distinguish between those students whose instructors were not on strike, and those whose instructors were. He also found that any common issues would be undermined because there was nothing pleaded to support that students had entered into a standard form or common contract with the university. Given the difficulties posed by this claim, the lack of common issues, and in light of academic discretion, Cullity J. concluded a class proceeding was not the preferable procedure and refused the appellant’s motion to certify.
Issues
[13] The appellant argues that the motions judge erred in his application of the certification test under s. 5 of the CPA in dismissing the motion for certification. The appellant presented arguments dealing primarily with the requirement under s. 5(1)(a) that the pleadings must disclose a cause of action. While the appellant also took issue with the motion judge’s findings on the balance of the s. 5 test, we find it necessary only to deal with the appellant’s arguments concerning s. 5(1)(a).
Standard of Review
[14] The standard of review in a judicial appeal is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. According to Housen, at paragraph 10, a finding of fact cannot be reversed unless there is palpable and overriding error. The same standard applies for issues of mixed fact and law where there is no extricable legal issue that can be separated from the issues of fact. Questions of law and principle are reviewable for correctness (Housen, at paras. 36-37).
[15] Moreover, numerous cases have established that substantial deference is owed to a motion judge on appeal of a certification motion. See e.g. Cassano v. The Toronto Dominion Bank, 2007 ONCA 781, 87 O.R. (3d) 401, at para. 23; Anderson et al. v. Wilson et al. (1999), 1999 3753 (ON CA), 44 O.R. (3d) 673 (C.A.), at para. 12; and Markson v. MBNA Canada Bank, 2007 ONCA 334, 85 O.R. (3d) 321, at para. 33, leave to appeal refused at [2007] S.C.C.A. No. 346.
Analysis
Section 5(1)(a): do the pleadings disclose a cause of action?
[16] The appellant makes several arguments concerning the s. 5(1)(a) requirement.
[17] With respect to breach of contract, the appellant argues that Cullity J. erred by finding that the appellant had failed to plead the terms of the contract said to have been breached. The appellant argues that he pleaded several terms of the contract, including seasonal dates, schedules of instruction and the terms of the Student Calendar, which, he claims, provide students with 13 weeks of instruction on a specific schedule that must be completed by a certain date.
[18] The appellant argues that, in sum, Cullity J. found there was no cause of action because the claims were barred by academic discretion. The appellant characterizes the certification decision as being premised on a narrow interpretation of the contract claim, being equivalent to “cancellation [of classes] equals a breach of contract, but if academic standards are maintained then the breach of contract is permissible.” He argues that this narrow interpretation is erroneous and inconsistent with the generous reading that should be given when determining whether it is “plain and obvious” that the action will fail. And even though the enrolment agreement gave York the right to alter class schedules, the appellant argues that this term was unconscionable and/or there was insufficient notice of it, such that it was not “plain and obvious” that the breach of contract claim would fail.
[19] The appellant also takes issue with Cullity J.'s reliance on Gauthier v. Saint-Germain, 2010 ONCA 309, saying Cullity J. misinterpreted it as granting a form of per se immunity to universities in respect of claims against them by students. The appellant argues that Gauthier and academic discretion do not apply in the present case because his claims do not relate to academic activities (such as grading, evaluations or admissions), which are the kinds of things that may be addressed through judicial review of the exercise of academic discretion. Rather, the claims relate to class cancellation and exam rescheduling, which are not normally things which one would challenge through judicial review of the exercise of academic discretion.
[20] In any event, the appellant argues, Gauthier and other cases establish that even if class scheduling and examinations are covered by academic discretion, civil courts retain jurisdiction to hear claims in tort or contract even where they involve the exercise of academic discretion.
[21] With respect to his Consumer Protection Act claims, the appellant argues that Cullity J. improperly characterized the claim as a form of statutory breach of contract. This is an error, in that the Consumer Protection Act provides statutory protections and remedies where any consumer agreement exists, regardless of what its terms are, and therefore, regardless of the terms of the contract between prospective class members and York University. Hence, it was an error for Cullity J. to find that a breach of contract claim was necessary to support the Consumer Protection Act claims, or for him to inquire into academic discretion in assessing this claim.
[22] Lastly, the appellant argues that Cullity J. erred in dismissing the unjust enrichment claim. Assessing whether there was unjust enrichment would not actually require a qualitative assessment of the academic instruction he argues, but merely a determination whether York failed to provide for the timely completion of the academic term, as promised. Thus, Cullity J. should not have dismissed this claim on the basis of academic discretion and the unwillingness of the courts to inquire into a qualitative assessment of the academic instruction provided.
[23] The respondent argues that there were insufficient facts pleaded to support any of the various claims made, and that Cullity J. was correct to find there was nothing to support the appellant's allegation that the university owed a duty to the students not to revise class and exam schedules. There were no facts pleaded to establish a contract even existed, and the references to an "enrolment agreement" were part of the amendments rejected by Horkins J.
[24] In effect, the respondent argues, the appellant has attempted to rectify his insufficient pleadings by relying on case law to establish that a contract could exist between a student and his or her university. But this is not the same as pleading that a contract did exist between prospective class members and York University, nor does it suffice to plead the terms that were allegedly violated. And in order to have a valid claim under the Consumer Protection Act, the pleadings must plead facts that support the existence of an agreement, which it does not.
[25] Cullity J.'s reliance on Gauthier was appropriate the respondent argues. That case establishes, at paragraphs 47-50, that "the organizing and carrying out of university programs" falls within the boundaries of academic discretion. Each of the three kinds of claims the appellant makes in his pleading would require the court to inquire into academic program delivery decisions, such that they all fit within the broad boundaries of academic discretion as understood by the Court of Appeal in Gauthier.
[26] Moreover, the respondent argues, the York University Act, 1965, S.O. 1965, c. 143, s. 20, vests the York Senate with power over the subject-matter concerning which the appellant makes his complaints, including the setting of the university's academic policies, establishing the curriculum and conducting all courses of study and examinations. The choices York made were academic policy decisions, and therefore it argues, it was appropriate for Cullity J. to consider academic discretion.
[27] Lastly, the respondent argues that even assuming it was necessary to consider the enrolment agreement or Student Calendar as possible bases for a contract, the Student Calendar includes an "Important Notice and Disclaimer" clause precluding the very claims the appellant made. It protects York from any responsibility for losses or damages suffered as a result of "delays in or termination of its services, courses or classes" by reason of, among other things, strikes and lock-outs. This clause would, on its face, bar all three claims. And while the appellant claims this term was unconscionable and there was insufficient notice of it, the affiants who provided evidence in support of certification refused to answer questions concerning this disclaimer on the basis that the questions were irrelevant to the case as pleaded. This means there is no evidence in the record, or facts pleaded in the claim, to support the appellant's contentions concerning the disclaimer.
i. No claim in Contract
[28] I agree with Cullity J. that the appellant has failed to meet the requirements of s. 5(1)(a) of the Class Proceedings Act.
[29] The basis of a certification claim is drawn from the pleadings. The pleadings, before Cullity J., (the same as before me), make reference to a "contract" which the plaintiff and class members entered into with York, which was "to provide each of the Plaintiff and Class Members with access to resources, class instruction and higher education." No other details were pleaded.
[30] The appellant has attempted in the past to amend his pleadings, however Horkins J. did not permit him to do so. Before this Court, the appellant made reference to an "Enrolment Agreement" or an agreement made by way of the course Calendar. Given that these "agreements" are not part of the statement of claim, they cannot form the basis of a cause of action.
[31] Further, I agree with Horkins J., in her decision denying leave to amend, that Gauthier and Jaffer v. York University, 2010 ONCA 654 are entirely unhelpful to the appellant. While it is possible for a student to enter into a contract with a university, that is not to be confused with the academic relationship between a student and his or her university. Gauthier enunciates, and Jaffer confirms that the contract must be pleaded and there must be particulars given that the university has gone beyond its broad academic discretion.
[32] For a court to consider the claim as argued by the appellant, a court would have to inquire into whether York's decisions in dealing with the strike were right, as measured against a standard of academic integrity. This is exactly the kind of decision the courts ought not to review, as it falls within the purview of a university’s ability to make decisions concerning academic integrity.
[33] The appellant has failed to demonstrate that Cullity J. erred in his application of the law as it relates to the relationship between the parties. At issue is whether the university, in modifying the academic schedule to accommodate the strike's disruption, was within its discretion over "the organizing and carrying out the university programs", as noted in Gauthier. The appellant's statement of the existence of a contractual relationship is insufficient on its own, and moreover is not distinguished from the academic discretion described in Gauthier and Jaffer.
[34] At the hearing before us, the appellant argued that the Calendar formed part of the contractual agreement between the parties, which, as noted earlier, the respondent says was an improper attempt to add to the pleadings. Even if the Calendar was somehow part of a contractual nexus, the Calendar contains an "Important Notice and Disclaimer" reserving to York the right to make changes to the information in the Calendar. Moreover, it disclaims all liability for losses or damages resulting from delays or termination of services by reason of, among other things, strikes. If the Calendar were to be accepted as part of the contract between the appellant and York, the Calendar itself contains a complete bar.
ii. No claim under the Consumer Protection Act
[35] Cullity J. properly held that without the existence of a contractual relationship, or more specifically, pleadings containing the basis of a contractual relationship, there can be no proper claim under the Consumer Protection Act. Given the statutory requirement that there be "...an agreement between a supplier and a consumer in which the supplier agrees to supply goods or services for payment" (s.1), the pleadings fail to show an agreement within this definition.
[36] Further, the respondent has raised the same concerns about interference with academic decision-making under the Consumer Protection Act claims as was the case in the contract claim. I agree that even if some "agreement" within the Consumer Protection Act was properly pleaded, the appellant could not overcome the academic discretion issues as noted by Cullity J.
iii. No claim in Unjust Enrichment
[37] Finally, the appellant claims that York was unjustly enriched by the tuition money it received from students (and kept), despite the shortening of the academic term.
[38] Cullity J., however, held that in determining whether York was unjustly enriched, an investigation would be required into the adequacy of the academic response to the strike - precisely the kind of inquiry Gauthier and Jaffer tell us the courts are not to undertake. I agree.
The Remainder of the Section 5(1) Requirements Under the Class Proceedings Act
[39] The plaintiff briefly addressed the remaining criteria in s. 5(1) of the CPA which, in addition to requiring a cause of action, can be summarized as follows:
a) There must be an identifiable class;
b) The claims must raise common issues;
c) A class proceeding must be the preferable procedure for resolving the common issues; and
d) There must be a representative plaintiff who would fairly and adequately represent the class interests, who has a plan for the proceeding which sets out a workable method for advancing the proceeding and notifying the class, and who does not have a conflicting interest with other class members.
All of the criteria in s. 5(1) must be satisfied for the class to be certified. Cullity J. found the class to be over-inclusive and that there would have to be an inquiry into each of the contracts alleged, with consideration given on a case by case basis. Cullity J. concluded a class proceeding was not the preferable procedure, considering the criteria of access to justice, judicial economy or behavioural modification.
[40] Given that the remaining issues were not fully argued before this Court, and that full determinations are unnecessary upon the failure to satisfy s. 5(l)(a), I need not delve into these findings, other than to say I support the findings of Cullity J.
Conclusion
[41] For the reasons above, this appeal is dismissed.
[42] The respondent shall have its costs which are fixed at $7,500 all inclusive.
Cunningham A.C.J.
Swinton J.
Crane J.
Released:
CITATION: Turner v. York University, 2012 ONSC 4272
DIVISIONAL COURT FILE NO.: 487/10
DATE: 20120814
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
cunningham A.C.J., SWINTON AND CRANE jj.
B E T W E E N :
JONATHAN TURNER
Plaintiff (Appellant)
- and -
YORK UNIVERSITY
Defendant (Respondent)
REASONS FOR JUDGMENT
Cunningham A.C.J.
RELEASED: August 14, 2012