Court File and Parties
Court File No.: CV-14-512539 Date: 2017-11-22 Ontario Superior Court of Justice
Between: SIMON LAM Plaintiff – and – THE UNIVERSITY OF WESTERN ONTARIO BOARD OF GOVERNORS Defendant
Counsel: Christopher Stienburg, J. Gardner Hodder, Selwyn Pieters, for the Plaintiff Sarah L. Jones, for the Defendant
Heard: September 27, 2017
Koehnen J.
Endorsement
[1] This is a motion for summary judgment by the defendant, the University of Western Ontario Board of Governors (“Western”) dismissing a claim by the plaintiff, Simon Lam, a former student at Western’s faculty of science. After obtaining his B.Sc. at Western, Mr. Lam enrolled in a Master’s program in 2011 from which he transferred into a Ph.D. program.
[2] Mr. Lam alleges that, after his Ph.D. thesis supervisor died unexpectedly of cancer in 2012: (i) the new supervisory committee that Western constituted lacked the expertise in his area of research and was unwilling to acquire that expertise; and (ii) his supervisory committee misled him about the extent of funding available to him.
[3] Mr. Lam says his supervisory committee used knowingly wrongful information about funding and unfair criticism of his work as an excuse to persuade him to transfer from the Ph.D. program back into a Master’s of Science program.
[4] Mr. Lam takes the position that these are legal issues for which he is entitled to bring an action for damages for breach of contract and breach of fiduciary duty. He seeks damages for pain and suffering, out of pocket expenses and loss of income over his lifetime as a result of the loss of opportunity to complete his Ph.D.
[5] Western asserts that Mr. Lam’s claims are academic complaints dressed up as legal causes of action that create no genuine issue that requires a trial.
[6] I have concluded that it is appropriate to grant summary judgment dismissing Mr. Lam’s claim because, as a matter of law it should have been brought as a complaint to Western, whose decision would have been subject to judicial review. If I am wrong in this conclusion, I find that the conflict in the factual record underlying the claim does create issues that would require a trial to resolve.
I. Factual Background
[7] The record does disclose a conflict in the facts on both the issue of Mr. Lam’s supervisory committee and on the issue of funding. Those issues require a trial to resolve and potentially raise issues of credibility.
[8] With respect to supervision, Western’s Graduate Student Handbook provides that the thesis supervisors:
“…should have sufficient familiarity with the field of research to provide appropriate guidance and supervision, or indicate a willingness to gain that familiarity before agreeing to act as supervisor.”
[9] After Mr. Lam’s first thesis supervisor died of cancer in 2012, Western reconstituted his supervisory committee and appointed Dr. Brendl as his thesis supervisor.
[10] The new supervisory committee met formally with Mr. Lam on November 15, 2012, April 10, 2013 and May 3, 2013. On November 15, 2012, the committee noted that Mr. Lam’s work was satisfactory and that the committee wanted his thesis completed by mid-December, 2012. On April 10, 2013, the committee told Mr. Lam: to provide a list of additional experiments, to fix up the remaining elements of his paper by April 17, 2013, that his work habits were unsatisfactory and that he had to pick up the pace significantly to complete his Ph.D. by September 2014.
[11] Mr. Lam recorded and transcribed the meeting of May 3, 2013. Both parties rely on the transcript to support their positions.
[12] The first approximately 50 pages of the transcript deal with technical and scientific reviews of Mr. Lam’s work. During that discussion, the supervisory committee suggested numerous ways in which Mr. Lam might be able to correct certain experiments and provided general troubleshooting advice.
[13] The discussion then turned to whether Mr. Lam should remain in the Ph.D. program or transfer to the Master’s program. Mr. Lam submits that numerous passages of the latter portion of the transcript show the committee admitting that they did not have and were unwilling to acquire the required degree expertise to supervise his Ph.D. Mr. Lam submits that the transcript also shows that the committee had made up its mind to transfer Mr. Lam to the Master’s program immediately after his first supervisor passed away.
[14] Western points to other passages of the transcript which it says are consistent with the committee providing an adequate degree of supervision.
[15] In my view, the transcript has portions that support both Mr. Lam’s and Western’s characterization of events.
[16] Mr. Lam applied to transfer to the Master’s program on May 6, 2013. Dr. Brendl signed the transfer application which read in part:
“The advisory committee cannot provide the level of supervision necessary for Simon to complete his PhD. There is also no other faculty member in the biochemistry or other program that can act as supervisor.”
[17] It is unclear from the form whether the supervisory committee is unable to provide the necessary level of supervision because Mr. Lam required too much handholding or because the committee did not have the expertise and was not willing to acquire it.
[18] None of the three members of the supervisory committee filed an affidavit on this motion. Instead, the affidavit was filed by Dr. Miller, the Vice-Provost, School of Graduate and Postdoctoral Studies.
[19] Western submits that it acted reasonably in reconstituting the thesis committee and that Mr. Lam cannot point to more suitable candidates for his committee than Western appointed.
[20] Turning to funding, Mr. Lam submits that his supervisory committee told him at the May 3, 2013 meeting, that research money to fund him was up in the air and that the grant under which Western was funding him might be cancelled. When his committee told him this, the funding had in fact already been extended. When the grant was extended, one of the approved cost items was financial support for Mr. Lam.
[21] Shortly after Mr. Lam transferred to the Master’s program in May 2013, he was told that his funding would expire in September 2013. The supervisory committee took this position based on the theory that Western had agreed to give Mr. Lam funding for two years of a Master’s program and five years of a Ph.D. program. The committee calculated the two-year financial commitment as having commenced in September 2011 when Mr. Lam commenced graduate studies in the Master’s program.
[22] It appears that one member of the supervisory committee, Dr. Edgell, then began using grant money that had been ascribed to Mr. Lam, for other purposes. When Mr. Lam advised the funder, the Canadian Institute of Health Research (the “CIHR”), it cancelled the grant.
[23] Western argues that the issue of funding is irrelevant. It says it had no obligation to fund Mr. Lam beyond the two-year mark of a Master’s program. Whether that funding came from a CIHR grant or from another source was immaterial. Indeed, if the CIHR grant had disappeared, Western says it would have been obliged to find another source of funding for Mr. Lam for up to two years in a Master’s program or five years in a Ph.D. program.
[24] In the absence of any overriding legal principle, the conflicting explanations about supervision and funding do create genuine issues that require a trial to resolve. These include:
(a) Whether the supervisory committee recommend Mr. Lam’s transfer to a Master’s program because it genuinely believed there were problems in Mr. Lam’s work or because they were unwilling to familiarize themselves with his research. (b) What was Mr. Lam told about funding, were those statements justified, and was it appropriate or inappropriate to cut of Mr. Lam’s funding in September, 2013?
[25] In my view, however, it is not necessary for any of those issues to proceed to trial because the claim should not be before this court to begin with.
II. The Distinction between Academic and Legal Issues
[26] Western submits that Mr. Lam’s complaints relate to academic issues that should be resolved first within the University, after which Mr. Lam would have the opportunity to seek judicial review if he were not satisfied with the University’s decision. I agree.
[27] Courts have historically distinguished between academic and legal issues when reviewing university conduct. Academic issues are to be resolved using a university’s internal processes. These include informal operational processes and formal appeal processes. If the complainant is not satisfied with the way in which the university has resolved the issue, he has a right of judicial review: Gauthier v. Saint-Germain, 2010 ONCA 209 at para. 30.
[28] An example of an issue clearly on the academic end of the spectrum might be a complaint about a mark a student received. An example of an issue clearly on the legal end of the spectrum might be a complaint by a student that a professor assaulted him. Assault amounts to the tort of battery and does not involve any academic issue.
[29] If a plaintiff alleges facts that constitute a cause of action based on tort or breach of contract, the court has jurisdiction even if the dispute stems from an academic or educational activity of the university: Gauthier at paragraph 46; Jaffer v. York University, 2010 ONCA 654 at para 26.
[30] However, by registering at a university, a student subjects him or herself to the discretion of the institution for the resolution of academic issues including evaluation of the quality of the student’s work, the structure and implementation of university programs, and the competence of thesis supervisors: Gauthier at paragraph 47; Jaffer at para. 26.
[31] This discretion on the part of universities is very broad: Gauthier at para. 47. Courts should recognize the discretion involved in the decision-making process in the academic sector and respect its independence. As a result, they should be reluctant to interfere in the internal affairs of universities: Gauthier at paragraph 30.
[32] If the pith and substance of the impugned conduct is academic, it does not belong in the courts even if it has been characterized as a breach of contract or tort claim: Jaffer at para. 20 – 21; Tran v. University of Western Ontario, 2016 ONSC 1781 at para. 81.
[33] As a general rule, when courts determine whether the essential character of a dispute is judicial in nature or whether it should be subjected to an internal administrative process supervised by judicial review, they should liberally interpret the powers given to the administrative authority to ensure that they do not assume jurisdiction which others are better equipped to assume: Regina Police Association Inc. v. Regina (city) Board of Police Commissioners, 2000 SCC 14; [2000] 1 SCR 360 at para. 34.
[34] This principle has been adopted in the university context. To bring a complaint in respect of a university before a court, the complainant must establish that the university’s actions go beyond the broad discretion that it enjoys: Jaffer at para. 28.
[35] In Gauthier, the Ontario Court of Appeal applied this deferential approach by asking whether the allegations in the statement of claim “ could be construed as being within the scope of the discretion afforded to universities in the creation and implementation of their academic programs.” (at para. 57, emphasis added).
[36] In Gauthier the plaintiff alleged sexual harassment. Sexual harassment is a legal, not an academic, issue. At root, Mr. Lam’s complaint concerns his supervisory committee’s assessment of his work, the committee’s recommendation that he transfer to a Master’s program and its comments about funding. Using the phraseology of the Court of Appeal in Gauthier, those complaints could those be construed as falling within the scope of discretion afforded to universities in the creation and implementation of their academic programs. Using the terminology of the Court of Appeal in Jaffer, the impugned conduct does not go beyond the broad discretion Western enjoys.
[37] Another useful way of applying the foregoing concepts to cases that are not clearly on one end of the spectrum or the other is to ask to what degree a university or a court is better placed to make an initial decision about the question at hand by reason of expertise, policy and practicality: Al-Bakkal v. de Vries et al., 2016 MBQB 45 at paragraph 57.
[38] In this case, the issues of expertise, policy and practicality are inter-related and point to the issues Mr. Lam raises as being academic, not legal issues.
A. Expertise
[39] Mr. Lam’s core complaint is that he was deprived of the opportunity to pursue his Ph.D. Western submits that the transfer to the Master’s program was in Mr. Lam’s best interests because his work was not up to the requisite standard for a Ph.D. Mr. Lam submits that criticism of his work was an excuse his supervisory committee used to rid themselves of a student whose area of research they did not understand and with which they were not prepared to become familiar.
[40] Mr. Lam’s thesis concerned DNA helicasing. Dr. Brendl described Mr. Lam’s research as follows when writing a letter of support for him on November 28, 2012, to attend a conference:
“His research has focused on the structure and function of the yeast Mcm2-7 helicase complex that is vital for replication in eukaryotic cells. He has shown a key role for the PS1 hairpin in Mcm3. Interestingly the PS1 hairpins of the other subunits are not essential. The work has significant implications for how the helicase translocates along DNA.”
[41] Both sides agree, that this is a highly specialized field in which there is little scientific expertise. There will be even less judicial expertise.
[42] Courts are simply not equipped to determine whether Mr. Lam’s experiments were appropriate, whether the troubleshooting that Mr. Lam engaged in was appropriate, whether the 50 pages of comments that his supervisory committee gave him during the early part of the May 3, 2013 meeting were legitimate comments on his research or were excuses to avoid supervising Mr. Lam.
[43] A court could address those issues only with the extensive, time consuming and costly use of experts. The competing views of those experts would then be assessed by a judge who most likely has no scientific background, let alone background in DNA helicasing or the intricacies of the research described above.
[44] Similarly, courts are not equipped to determine whether the committee’s requests on April 10, 2017, that Mr. Lam conduct additional experiments and “fix up the remaining elements of his paper” were legitimate academic requests or excuses to transfer Mr. Lam into a Master’s program.
[45] Mr. Lam submits that his supervisory committee was not familiar with his area of research and was not prepared to gain familiarity. This too, requires scientific expertise to assess. A judge is ill equipped to determine what level of expertise is necessary for a thesis supervisor to possess, especially in a highly technical area of new scientific knowledge. Similarly, a judge is ill equipped to determine what level of effort a supervisory committee should be expected to devote to acquiring familiarity with a Ph.D. candidate’s field of research.
[46] Whether Western acted properly or improperly in cutting off funding to Mr. Lam also requires technical expertise that courts do not have. If the circumstances were such that Mr. Lam should have had Master’s level work by the time funding was cut off but did not (as the University alleges), then it might have been appropriate to take a literal approach to the funding and eliminate it when Western did.
[47] If, on the other hand, the work was not suitable for a Master’s degree because Mr. Lam’s access to resources was restricted (as he alleges), then a more flexible approach to funding might have been more appropriate.
B. Policy
[48] The policy issues in this case involve both academic and judicial policy.
[49] The degree of knowledge a supervisory committee should have or acquire, involves questions of academic policy as much as expertise.
[50] The decisions of different universities may well differ in this regard. Universities that want to build themselves as centres of research in a particular field, may demand a great deal more from thesis committees than universities that choose to focus on teaching more than research. The question involves operational and policy decisions about how a university should use its resources that courts are not equipped to make.
[51] Mr. Lam’s situation involves several judicial policies that place his claim in the academic sphere, including res judicata and the desirability of deciding like cases alike.
[52] Mr. Lam’s current statement of claim is his third. Two earlier statements of claim were struck with leave to amend because two other judges of this court held that his claims were, in substance, academic disputes over funding and supervision of his Ph.D.: Lam v. the University of Western Ontario Board of Governors 2015 ONSC 1642 at paragraph 28; Lam v. University of Western Ontario Board of Governors, 2015 ONSC 5281 at para. 28.
[53] Mr. Lam did not appeal those earlier rulings. His current statement of claim contains the same fundamental complaints about inadequate supervision and funding. Mr. Lam submits that the current motion is for summary judgment to which a different test applies than to a motion to strike. I agree and am not granting the motion because the issues are res judicata. It is relevant, however, that two other judges of this court have found that claims about supervision and funding are academic in nature.
[54] In Al-Bakkal, Joyal, C.J.Q.B. applied policies of proportionality and access to justice when determining whether an issue is academic or legal in nature. He noted that courts are already overloaded and that the legal system will not be well served by adding unnecessary costs, delays and complexities inherent in technical, academic claims that should not be before the court to begin with. Creating uncertainty in this regard leads not only to delays but to confusion among students and universities about the proper forum in which to adjudicate issues (at para. 94). He concluded at paragraph 95:
“…where a dispute is about the grading, advancement, graduation or academic designation of a student or where the dispute focuses on the academic requirements, rules and/or regulations that the University or faculty applies to a student, a civil suit for damages is not an available remedy.” (emphasis added)
[55] The claim at hand requires a court to determine whether the level of Mr. Lam’s work is more properly that of a Master’s program or a Ph.D. program. That is a claim about grading, advancement, graduation or academic designation.
[56] I underscore that, in maintaining a firm line on the distinction between academic and legal disputes we are not denying complainants access to the courts even for academic disputes. We are simply saying that those disputes should be addressed at first instance within the university. A university’s decision remains subject to judicial review.
[57] This approach makes optimal use of each institution’s expertise. Efficiency is achieved by having the body with the most technical knowledge of the subject matter make a first decision. Western has the most technical knowledge about the issues Mr. Lam raises. It can render a decision more quickly and cost effectively than a court could. Deferring initial decisions like this to universities also makes optimal use of judicial expertise because it allows the court to review the university record and assess whether it dealt fairly with a complainant. Fairness is well within the expertise of the courts. DNA helicasing is not.
C. Remedy
[58] A further policy reason for deferring to universities on academic issues is that universities can provide far more effective remedies than can courts.
[59] The immediate damage a student suffers as a result of an academic decision is usually an unfair grade, the failure to graduate, or the inability to continue in a particular program.
[60] Courts are poorly equipped to determine whether a grade should be changed or a degree should be conferred. Apart from the use of injunctions in extreme cases, courts are limited to damages. Damages for a poor mark or for the inability to proceed in a Ph.D. program are, in most cases, impossible to determine with any accuracy. There are simply too many uncertainties. In this case, Mr. Lam claims, among other things, loss of income over his lifetime that would have resulted from having obtained a Ph.D. This raises a host of questions. Would Mr. Lam even have obtained a Ph.D.? What sort of employment would he have obtained? Would he have advanced in that employment? The list of uncertainties goes on and on. While courts are often called on to assess damages in difficult cases, the point is that the university has the ability to remedy the actual wrong by changing a grade or re-instating a student into a program. That is a far more surgical and precise remedy than the crude guesstimate of damages that a court would be left with.
[61] These uncertainties in the calculation of damages have led some courts to conclude that that there is no cause of action for damage to life and career arising out of academic disputes, even when a university has behaved unfairly and its decision has been reversed on judicial review: Al-Bakkal at paras. 77 (e) and 87.
[62] Had Mr. Lam pursued the matter through Western’s internal processes, it may well have been possible to extend funding to meet his needs, provide him with greater guidance about what he needed to do to complete a Ph.D., find alternate thesis supervisors, or assist him in transferring to another institution. There are no doubt a myriad of other operational solutions that a university process might arrive at. Indeed, after Mr. Lam transferred to the Master’s program, Dr. Simpson, the Associate Vice-Provost (Graduate and Postdoctoral Studies) sent him an email asking whether he was receiving the academic support he needed and whether there was anything the School of Graduate and Post-Graduate Studies could do to assist. Mr. Lam interpreted this as asking whether he needed support with funding. Mr. Lam declined the offer of help.
[63] Resort to the court process for academic issues has inherent within it a further danger. Students faced with doubtful academic prospects through no fault of the university, would temporarily accept a university’s decision, obtain the best academic result they could but later sue for being deprived of the opportunity to pursue a particular program. That imposes a significant burden on courts, litigation cost on universities and creates financial pressure on universities to settle unmeritorious cases. The risk is exacerbated when one considers that universities often deal with thousands or tens of thousands of students per year. Evaluating a student is not a legal process replete with records of meetings, conversations, emails or professors recording in judicial detail their reasons for a particular. An internal university process to resolve disputes is speedy. The issue is dealt with relatively close to the time it arises when memories are fresh. Unfortunately, courts do not deal with issues until years after the fact when memories fade, especially in the high volume, low document context of a university.
D. The University Appeal Process
[64] Mr. Lam makes two submissions with respect to Western’s appeal process. First, he submits that there was no appeal process to pursue because he transferred out of the Ph.D. program voluntarily. Second, Mr. Lam submits that he contacted Western’s ombudsman who forwarded the matter to Dr. Simpson who, in turn, failed to address Mr. Lam’s concerns.
[65] Neither of these submissions justifies commencement of an action.
[66] The voluntary transfer to the Master’s program did not preclude use of an internal university process. Mr. Lam transferred to the Ph.D. program as a result of the meeting of May 3, 2013. During that meeting, a member of his committee specifically told Mr. Lam that if he wanted to discuss these issues with someone other than a member of the committee, he could approach the Associate Dean for Graduate Studies, Dr. Watson. Dr. Watson is, among other things, responsible for addressing issues between graduate students and their supervisors. Mr. Lam never approached Dr. Watson. Instead, he applied to transfer to the Master’s program three days later on May 6, 2013. By that time Mr. Lam had the recording of the May 3 meeting and could have taken it to those in the university who are charged with overseeing student-supervisor relations.
[67] There were a number of other resources Mr. Lam had available to him including the Vice-Provost of the School of Graduate and Postdoctoral Studies.
[68] The record does disclose offers of help. As noted earlier, Dr. Simpson wrote to Mr. Lam asking whether he was receiving the academic support he needed for the program and asked whether there was anything further that the School of Graduate and Post Graduate Studies (“SGPS”) could do to assist. Mr. Lam understood this to be asking whether he needed support with funding, one of Mr. Lam’s chief complaints.
[69] Mr. Lam responded by saying:
“I don’t really know what kind of help SGPS can really offer to assist me in finishing my thesis. At this point my family and I only expect that there is no retaliatory measures taken against me that would impede me from graduating.”
[70] Mr. Lam’s interpretation of the email and his response to it suggests that he did not want to pursue any internal mechanisms, not even to help with funding.
[71] By September – October 2013, Mr. Lam had learned that funding for him had in fact been extended under the CIHR. If he believed that was a basis for a complaint, he could have taken that information to people within Western.
[72] Although Mr. Lam may have agreed to transfer to the Master’s program, that was his decision. He could instead have pursued the issue with the authorities available to him. Pursuing the issue does not necessarily mean invoking a procedure that will give rise to retaliation or anger by the targets of the complaint as Mr. Lam’s email to Dr. Simpson suggests. The advantage of informal mechanisms like approaching the Deans, Provosts or their deputies is that issues can be raised as discussion points where the object is to find operational solutions rather than to institute formal complaint/appeal mechanisms which might escalate matters unnecessarily.
[73] Solutions that remedy the actual harm a student suffers are far more readily available from Deans or Provosts than they are from courts.
[74] Mr. Lam’s second submission, that he raised the matter but that Dr. Simpson failed to address his concerns misses the point. If that is in fact what occurred, then Mr. Lam has the ability to put together the complete record of communications with the ombudsman and with Dr. Simpson and seek judicial review from that process. That would be a far speedier and less expensive proceeding than the one Mr. Lam has embarked on. The failure to pursue a faster, cheaper procedure can only lead me to conclude that Mr. Lam does not believe the record of his communications with the ombudsman or Dr. Simpson would assist him on judicial review.
Conclusion
[75] As set out above, Mr. Lam’s complaints are more appropriately resolved within Western, always subject to the court’s supervisory role through judicial review. The subject matter of the complaint involves academic advancement and administration of a university program. That is well within the sphere of discretion universities enjoy; a sphere to which this court should defer. The decisions involved in assessing Mr. Lam’s complaint are ones in which universities have much expertise and courts have none. They involve questions of academic policy that courts are not equipped to determine. They involve issues with respect to which a university can give an immediate and direct remedy that actually addresses the harm alleged. I therefore grant Western’s motion for summary judgment and dismiss Mr. Lam’s action.
[76] Western seeks costs and disbursements of $15,480.45 on a partial indemnity scale. The quantum of that request is reasonable given the time spent. It is about half of what Mr. Lam sought in costs had he been successful.
[77] I have nevertheless decided, pursuant to my discretion under Rule 57.01 not to award any costs in this proceeding. I am sufficiently troubled by some of the statements of the committee members at the May 3 meeting to be concerned that they may well have dealt with Mr. Lam unfairly. As noted earlier, in the absence of an over-riding legal basis for dismissing Mr. Lam’s claim, I would have found that there was a genuine issue that required a trial. The members of the supervisory committee could have introduced evidence that: explained their statements about the alleged uncertainty of funding in the May 3 meeting, explained why cutting off Mr. Lam’s funding shortly after he transferred back to the Master’s program was equitable and why Mr. Lam’s interpretation of the reasons for which they were recommending a transfer to the Master’s program was incorrect. They did not do so. I am therefore left with a sense that they may well have engaged in conduct that may have been less than fair. In those circumstances I do not believe it would be just to compel Mr. Lam to pay Western its costs.
Koehnen J.
Released: November 22, 2017
Reasons for Judgment
Court File No.: CV-14-512539 Date: 2017-11-22 Ontario Superior Court of Justice
Between: SIMON LAM Plaintiff – and – THE UNIVERSITY OF WESTERN ONTARIO BOARD OF GOVERNORS Defendant
Koehnen J.