Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Tahar Amrane, Plaintiff/ Respondent
AND:
York University, Defendant/Appellant
BEFORE: H. Sachs, Thorburn and Ricchetti JJ.
COUNSEL: Alex Pettingill, for the Defendant/Appellant
James Morton, for the Plaintiff/Respondent
HEARD at Toronto: December 12, 2016
ENDORSEMENT
Background
1The Appellant, York University, appeals, with leave, the interlocutory order of Faieta J., dated January 15, 2016, dismissing its motion to strike the Respondent’s Fresh as Amended Statement of Claim (the “Claim”) on the basis that it was statute-barred and did not assert a reasonable cause of action.
2In his Claim, the Respondent pleads that during the 2006-2007 academic year, while an undergraduate student of York, he took an English course for which he received a D grade. As part of the course, he submitted written assignments. He sought the return of those assignments in order to understand his grade. He also sought to have the grade explained to him.
3The Respondent pleads that his relationship with York was contractual in nature and included terms that his graded papers would be returned with comments and that the instructor would be available to discuss the grades given. The Claim alleges that the Appellant breached this contract, resulting in harm to the Respondent for which he seeks damages.
4The Claim asserts that throughout the years 2009 to 2015, he sought to obtain the information he was seeking “through many and various internal York University processes”. These steps, which were all unsuccessful, included a petition to the English department and the principal at Glendon College in April of 2010; an undated review of the matter by a conflict resolution office/tribunal at York; an undated petition to the vice provost academic for York; an undated review of the request by the ombudsmen at York and undated discussions and contact with the Ministry of Training, Colleges and Universities, York Chief of Staff and the Board of Governors of York.
The Motion Judge’s Decision and Standard of Review
5The Appellant moved to strike the Respondent’s claim without leave to amend on the following grounds:
(a) The claim is barred by the Limitations Act,2002, S.O. 2002, c.24 because it was not commenced within two years of the alleged breach of contract, which occurred in 2006 or 2007 (the claim was commenced in August of 2015); and
(b) The Claim discloses no reasonable cause of action and is frivolous, vexatious or otherwise an abuse of process because the alleged breach of contract relates to matters within the broad discretion afforded to universities with respect to academic matters.
6The motion judge dismissed the Appellant’s motion.
7He concluded that the argument concerning the expiry of the limitation period was a defence that had to be pleaded in a statement of defence, thereby giving the Respondent the opportunity to respond to that defence by way of reply. He also found that it was not plain and obvious that no additional facts could be asserted that “would alter the conclusion that the limitation period for the [Respondent’s] claim has expired”.
8The motion judge found that the Claim in breach of contract satisfied the requirement of providing “the necessary details to show that the university or its employees went beyond the scope of their discretionary power”.
9The parties agree that the applicable standard of review on this appeal is correctness.
Analysis
10There is considerable jurisprudence on the issue of whether and when a court will assume jurisdiction over a dispute such as this one that is academic in nature. The jurisprudence does, as the motion judge found, leave open the possibility of asserting a claim for breach of contract against an academic institution. However, in order to do so, the claim must be more than a bald pleading that there was a contract that included certain terms and that those terms were breached. The claim must plead both the term alleged and the source of the term (i.e., the particulars of the written, oral or implied agreement relied upon). The Claim must also establish why the university’s actions go beyond the broad discretion it enjoys in academic matters such as grading. (see Jaffer v. York University, 2010 ONCA 654; King v. Ryerson University, 2015 ONCA 648; and, Lam v. University of Western Ontario, 2015 ONSC 1642).
11In this case, the Claim contains no particulars as to the source of the terms relied upon. It also contains no particulars as to why, if there was a breach, the breach went beyond the academic discretion of the university. Thus, the motion judge erred in finding that the Claim contained the necessary details to establish that the Appellant went beyond the scope of its discretionary power.
12The Respondent argues that any inadequacies in the pleading could be remedied by granting him leave to amend. I disagree for two reasons. First, the Respondent has already amended his pleading once in response to the Appellant’s motion to strike and the issues raised in that motion (including the limitation period issue). Second, I find that the motion judge erred when he found that it was not plain and obvious that there were no additional facts that could be asserted by the Respondent to show that he had brought his claim within the applicable two-year limitation period.
13The course which forms the basis for the breach of contract claim was taken in the 2006-2007 academic year, 8 years before the claim was commenced. The breach alleged would have occurred at the point when the Respondent’s request to receive his paper back with comments and meet with his instructor to receive an explanation for his grade was refused. The Claim makes it clear that this occurred before April of 2010 as, by that date, the Respondent was petitioning York to seek redress. The Respondent then made other undated further claims for redress. Limitation periods for causes of action based on breach of contract cannot be extended simply by making repeated complaints about the breach.
14I agree with the motion judge that the expiry of a limitation period is normally a defence that must be pleaded. However, as the Court of Appeal recognized in Beardsley v. Ontario, 2001 CarswellOnt. 4137 at para. 21, in those cases where it is plain and obvious from a review of the claim that no additional facts could be asserted that would alter the conclusion that a limitation period had expired, it would be unduly technical to require the delivery of a statement of defence.
Conclusion
15For these reasons, I would allow the appeal, set aside the order of the motion judge and strike the Claim without leave to amend. The Appellant is entitled to its costs of this appeal, the motion for leave to appeal and the motion below, which the parties agree should be fixed in the global amount of $10,000.
H. SACHS J.
I agree
THORBURN J.
I agree
RICCHETTI J.
Date: 20161215