Court File and Parties

COURT FILE NO.: CV-18-645 DATE: 2019/04/23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MUHAMMAD SHAFIQUE, Plaintiff AND: THE UNIVERSITY OF WATERLOO, Defendant

BEFORE: Mr. Justice D.A. Broad

COUNSEL: Plaintiff – Self-Represented Sean Murtha, Counsel for the Defendant

HEARD: January 25 and March 20, 2019

Endorsement

Background

(a) Nature of Motion and Procedural Background

[1] The plaintiff (“Mr. Shafique”) commenced an action against the defendant (the “University”) by Statement of Claim issued May 23, 2018 claiming compensatory damages in the amount of $7,000,000, compensation for intentional infliction of emotional distress in the amount of $2,000,000 and punitive and aggravated damages in the amount of $200,000,000.

[2] The University delivered a Notice of Intent to Defend on June 5, 2018.

[3] Mr. Shafique subsequently twice purported to amend his Statement of Claim by delivering a Fresh as Amended Statement of Claim on August 24, 2018 and then an Amended Fresh as Amended Statement of Claim on September 13, 2018. However neither of these amended pleadings appear to have been properly issued by or filed with the court.

[4] On October 12, 2018 the University served a Motion Record, initially returnable November 14, 2018, seeking an order striking out whatever is the current version of Mr. Shafique’s Statement of Claim, as filed with the court, without leave to amend on the bases that:

(a) it fails to plead a known cause of action within the jurisdiction of the court; (b) it is frivolous, vexatious, and otherwise an abuse of process of the court; or (c) it pleads extensive evidence rather than a concise statement of the material facts.

[5] The University relies upon rules 21.01(1)(b), 21.01(3)(a), 21.01(3)(d) and 25.11 of the Rules of Civil Procedure in support of its motion.

[6] On the return of the motion on November 14, 2018 Justice Braid ordered the plaintiff to advise the defendant which version of his Statement of Claim he was proceeding with and to provide the defendant with proof that that version of the Statement of Claim has been filed with the court, and laid down timelines for the delivery of Facta and Books of Authority by the parties.

[7] Mr. Shafique brought a motion returnable January 17, 2019, on less than one day’s notice to counsel for the defendant, seeking certain disclosure. On the return of the motion Mr. Shafique requested more time to further amend his Statement of Claim. Justice Braid declined to grant Mr. Shafique’s request for further time to prepare a new amended Statement of Claim and set the University’s motion for hearing on January 25, 2019.

[8] At the hearing of the motion Mr. Shafique confirmed that the version of the Statement of Claim which should be the subject of the University’s motion to strike is the Amended Fresh as Amended Statement of Claim dated September 13, 2018.

[9] The University’s motion was argued on January 25, 2019 following which I reserved my decision.

[10] On February 6, 2019 the Court of Appeal released its decision in the case of Lam v. University of Western Ontario, 2019 ONCA 82 (C.A.). On February 7, 2019 I wrote to Mr. Shafique and to Mr. Murtha, counsel for the University, advising that it appeared that the Lam case addressed issues that are relevant to the University’s motion, which was currently under reserve, and that it was appropriate that the parties be given an opportunity to make submissions with respect to the applicability and effect of the Lam decision and the reasons of the Court of Appeal to the issues in the motion before the court, and set March 20, 2019 for Mr. Shafique and Mr. Murtha to appear for that purpose.

[11] Mr. Shafique and Mr. Murtha each filed a Supplementary Factum prior to the hearing as directed.

[12] Mr. Shafique brought a further motion returnable on March 20, 2019 seeking leave to further amend his Statement of Claim by delivering a Second Fresh as Amended Statement of Claim. Following argument I ruled that it would be manifestly unfair to the defendant, and an abuse of the court’s process, to permit Mr. Shafique to further amend his Statement of Claim while my decision on the University’s motion was under reserve, and that the version of the plaintiff’s pleading which was the subject of the motion and the decision under reserve was that which was before the court on argument of the University’s motion. I declined to hear the plaintiff’s motion to further amend his Statement of Claim and stayed it pending release of my decision on the University’s motion to strike Mr. Shafique’s pleading.

Guiding Principles on Motions to Strike Pleadings

[13] Rule 21.01(b) provides that a party may move to strike out a pleading on the ground that it discloses no reasonable cause of action or defence.

[14] Rule 21.01(3)(a) provides that a defendant may move before a judge to have an action stayed or dismissed on the ground that the court has no jurisdiction over the subject matter of the action.

[15] Rule 21.01(3)(d) provides that a defendant may move to have an action stayed or dismissed on the ground that the action is frivolous or vexatious or is otherwise an abuse of the process of the court.

[16] Rule 25.11 provides that the court may strike out all or any part of a pleading, with or without leave to amend, on the ground that the pleading (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.

[17] Pursuant to rule 21.01(2) no evidence is admissible on a motion under rule 21.01(1)(b).

[18] The Court of Appeal summarized the applicable principles on a rule 21.01(1)(b) motion in the case of McCreight v. Canada (Attorney-General), 2013 ONCA 483 at paras. 39-40, as follows:

(a) the claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action; (b) there is a need, in the interest of efficiency and correct results, to weed out hopeless claims - a housekeeping dimension which underlies rule 21; (c) if the cause of action pleaded has been recognized, all of its essential elements must be pleaded; (d) if the cause of action has not been recognized, this is not necessarily fatal but there must be a reasonable prospect that the claim will succeed; (e) a claim should not be struck merely because it is novel; (f) the facts pleaded are accepted as being true for the purposes of the motion, unless they are manifestly incapable of being proven; (g) the pleading forms the basis of the motion, and accordingly, possible future facts that have not been pleaded may not supplement the pleading; (h) the pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies; and (i) a motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose, and different rules relating to evidence.

Guiding principles respecting granting leave to amend following the striking of pleadings

[19] Before embarking on an analysis of the University’s motion to strike, it would be useful to review the principles governing the question of whether leave to amend should be given to correct deficiencies in Mr. Shafique’s pleading, should it be found that the Statement of Claim should be struck out in whole or in part.

[20] The principles and considerations applicable to the question of whether leave to amend a pleading found to be defective were very usefully reviewed by Epstein, J. (as she then was) in the case of Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario [2003] O.J. No. 5331 (S.C.J.) at paras. 80-86. The following principles may be drawn from this case:

(a) The approach that amendments should be presumptively approved unless they would occasion prejudice that cannot be compensated by costs or an adjournment, they are shown to be scandalous, frivolous, vexatious, or an abuse of the Courts process, or they disclose no reasonable cause of action, is relevant to the issue of whether, on a motion to strike a pleading, a court should exercise its discretion to grant leave to amend; (b) leave to amend should properly be given where a pleading can be put right or improved by amendment and no injustice is done thereby; (c) leave to amend should only be refused in the clearest of cases; (d) depending on the circumstances of the case, striking out a pleading without granting leave to amend often does little to advance the ends of justice; (e) in disposing of a motion to strike when a recognized cause of action has been improperly pleaded, but can be put right without non-compensable prejudice to the defendants, the preferred route is to afford the plaintiff the opportunity, upon appropriate terms, to plead the cause properly within the action before the court; and (f) the foregoing approach makes practical sense and is in keeping with the objectives set out in rule 1.04, namely that the rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

The Plaintiff’s Pleading

[21] Mr. Shafique’s Amended Fresh as Amended Statement of Claim (the “pleading”) is 55 pages long, comprising of 164 paragraphs. It consists largely of a lengthy and detailed narrative of Mr. Shafique’s experience as a full-time PhD student at the David R. Cheriton School of Computer Science (“SCS”) of the University from January 2011 to July 2016. The pleading is rambling, repetitive, and difficult to follow.

[22] The following is an attempt to summarize the factual and legal allegations advanced by Mr. Shafique in the pleading to assist in the analysis of the issues raised by the University’s motion. The individuals named in the pleading have been identified by initials as their full names are not necessary for the purposes of the motion and the allegations made against them in the pleading have not been proven:

(a) Mr. Shafique received a formal admission offer to the PhD program offered by SCS on January 21, 2011; (b) Dr. C., Dr. A., and Dr. W. were Mr. Shafique’s co-supervisors. Later Dr. A informed Mr. Shafique that he was his main supervisor, while Dr. C. and Dr. W. were co-supervisors; (c) Mr. Shafique was invited to join the research group of Dr. C. and Dr. A. (the “Research Group’); (d) Dr. A. asked Mr. Shafique to work in “publish/subscribe (sub/pub) systems” a sub area of DEBS (which was not defined in the pleading), in which Mr. Shafique had working experience; (e) Dr. A. did not help Mr. Shafique in scholarly development and selection of a career-oriented research topic and he received no help from his two co-supervisors; (f) In December 2012 Dr. A. implemented the replacement of Dr. W. with Dr. B. as a co-supervisor, over Mr. Shafique’s protests; (g) Dr. A asked Mr. Shafique to work in four different research areas/topics to identify a set of potential research problems in order to select one or two for a PhD thesis proposal; (h) After experiencing multiple unprofessional exercises from Dr. A., Mr. Shafique approached the then SCS Director of Graduate Studies Dr. Ke and complained that Dr. A had wasted his time in having him explore four different research areas and in providing no feedback about his proposal document and requested to change his supervisor. Dr. Ke advised Mr. Shafique that it was his responsibility to arrange an alternative supervisor and the SCS administration would provide no help. Mr. Shafique was unable to find an alternative supervisor who had funding and he was left with no option but to continue research under Dr. A’s supervision; (i) Dr. A advised the plaintiff to switch research areas, which would require a new literature study consuming another one to two years. In April 2014 Mr. Shafique postponed his proposal defence exam to save himself from utter humiliation; (j) Mr. Shafique came to know that Dr. C and Dr. A had received multi-million dollar research funding and they were working on a research project. Mr. Shafique was a member of the Research Group for more than three years but did not know that his supervisor and a co-supervisor were working on a heavily-funded research project; (k) Mr. Shafique informed Dr. Ke that Dr. A was working on an unseen research project. Mr. Shafique also advised the then Director of SCS, Dr. T, who advised him that SCS had no responsibility to arrange alternate supervision; (l) Dr. Ke arranged for Mr. Shafique to present his research idea to potential supervisors. Dr. Ka was appointed as new supervisor with Dr. T and Dr. W as members of Mr. Shafique’s proposal committee. Mr. Shafique was asked by SCS Administration to successfully defend his proposal defence within one year to continue his PhD and funding; (m) Following his complaint about Dr. A’s involvement in the research project the University decided, in bad faith, to force the plaintiff to withdraw from the PhD program. Mr. Shafique was unaware of certain things, including: i. That Dr. A was not eligible to work as a supervisor and was working as a co-supervisor; ii. That Dr. A was not in fact a supervisor from January 2011 until April 2014; iii. That the University was obliged to formally investigate inadequate supervision by Dr. A; iv. That the University was obliged to investigate possible research misconducts in the research project of Dr. C and Dr. A; v. That the University intentionally chose not to launch an investigation concerning Dr. A and the research project. (n) The supervision provided by Dr. Ka was inadequate and he wasted Mr. Shafique’s time with irrelevant recommendations and tasks; (o) Dr. Ka discouraged Mr. Shafique from seeking help from other researchers in the University and elsewhere; (p) From May 2014 to March 2015 Dr. Ka failed to properly supervise him by giving him necessary and useful feedback and acted intentionally, wilfully and in bad faith to create an environment “to mentally prepare the plaintiff to seek no help from his supervisor”; “wasted the time of the plaintiff to prevent him identifying and fixing the research flaws”; “did not identify the research flaws” or communicate them to him and “documented that the plaintiff was an unfocused researcher who used to work in multiple areas without proper planning”; which “inherently meant that Dr. A was not at fault when Mr. Shafique worked with him”; (q) Although Mr. Shafique needed access to appropriate network hardware to evaluate and improve his research Dr. Ka made no proper arrangements for such hardware, made demands on Mr. Shafique in order to obtain access to network hardware which were impossible to meet and in the result he was not granted access to the network hardware; (r) Without his consent Dr. Ka, shared with Dr. T documentation respecting a novel cyclic topology called SCTON that Mr. Shafique had developed; (s) Dr. Ka asked Mr. Shafique to read an irrelevant research paper and made another illogical demand on him; (t) On June 8, 2015 Dr. Ka resigned from supervision of Mr. Shafique, citing the following reasons: i. Mr. Shafique did not accept his authority and ignored advice from him as his supervisor; ii. The proposal defence report indicated that it would take a long time to produce an acceptable PhD thesis; and iii. Mr. Shafique has some unknown personal issues and should therefore quit his PhD and look for a job. (u) Dr. Ka had been appointed for one year as Mr. Shafique’s supervisor to increase his sufferings and to fail him in his research efforts. He arranged to waste Mr. Shafique’s time on irrelevant research activities in order to fail him on his proposal defence exam before recommending that he withdraw from the PhD program and leave the University. This was important to cover up the scandal relating to his complaint concerning the research project and inadequate supervision by Dr. A; (v) Mr. Shafique wrote to the then SCS Director of Graduate Studies Dr. M in June 2015 regarding Dr. Ka’s resignation, raising various concerns regarding his failings as his supervisor. Dr. M did not reply in writing and repeatedly demanded in meetings that Mr. Shafique should withdraw and leave the University due to having no supervisor; (w) In June 2015 a member of a research group at the University of Toronto agreed to co-supervise Mr. Shafique but he still required a supervisor at the University which Dr. M refused to arrange; (x) Mr. Shafique filed a grievance for an internal hearing on March 3, 2016. The grievance handler Dr. W intentionally used different delay tactics in processing the grievance. Dr. S investigated the issues twice and delivered his reply to Mr. Sharique on May 7 and July 5, 2016. The grievance was processed in four months and none of the allegations were substantiated; (y) The grievance handlers conducted a biased investigation in bad faith; (z) On July 14, 2016 Mr. Shafique was unable to access online resources of the University. On July 16, 2016 he received initial information about the termination of his enrolment in the PhD program and on August 5, 2016 he was informed by the Associate Vice-President of Graduate Studies that his registration had been terminated for failure to have a supervisor at the University. Mr. Shafique was denied a right to file a grievance against the termination decision. The University has still not formally informed Mr. Shafique of the reasons for his termination as a graduate student of the University; (aa) Dr. A had planned to punish him because of the conflict related to his protest against the change of a co-supervisor; (bb) Dr. Ke failed (a) to follow “Integrity in Research Administrative Guidelines 2013” (“IRAG”) to inform the Vice-President of University Research about Mr. Shafique’s complaint about possible research misconduct by Dr. C and Dr. A, (b) to follow the guidelines of the “Guide for Graduate Research and Supervision at the University of Waterloo 2011” (“GGRS”) to formally investigate the complaint against Dr. A of inadequate supervision, and (c) to ask Mr. Shafique to write a letter to provide details about the conflict with Dr. A in order to commence a formal investigation under GGRS; (cc) in response to his complaint about Dr. A and the research project, the University orchestrated a malicious plan to force Mr. Shafique to withdraw from his PhD and leave; (dd) Dr. Ka failed to follow guidelines respecting the role and responsibilities of a graduate supervisor as outlined in GGRS; (ee) Dr. Ka failed to fulfil his responsibilities to educate Mr. Shafique about the applicable University policies and guidelines; (ff) Dr. M knew or ought to have known that he lacked the authority to request a PhD student to withdraw from the PhD program and leave the University. He did so because he knew that Mr. Shafique had not been informed of applicable policies and guidelines; (gg) The University owed Mr. Shafique a duty of care and was responsible to inform and/or educate him about its policies, guidelines and procedures. The SCS Director Graduate Studies at the time of his admission neglected his responsibilities to inform him about the University’s policies guidelines and procedures; (hh) Dr. A did not fulfil his responsibilities as supervisor and acted negligently and in bad faith by: i. failing to follow the policies and guidelines of the University in supervising him; ii. failing to inform him about policies and guidelines of the University; iii. failing to inform him that he was hired to work on the research project; iv. failing to assign any research project–related research activity to him; v. pushing him to change his co-supervisor; vi. instructing him to explore for research areas in parallel to waste his time; vii. showing no concern to develop a research plan for him in a timely manner; and viii. failing to thoroughly examine his proposal document. (ii) Dr. Ke failed to adhere to the GGRS when Mr. Shafique complained about Dr. A and acted negligently and in bad faith: i. by not following the policies and guidelines of the University to address the complaint of the plaintiff; ii. by failing to fulfil his responsibility of informing the plaintiff about policies and guidelines; iii. by failing to guide the plaintiff to inform the Vice-President of University Research about the research project that Dr. A was supposedly doing; iv. by failing to investigate the complaints of the plaintiff about supervision by Dr. A; v. by failing to ask the plaintiff to submit written complaint about Dr. A’s supervision and his involvement in the research project; and vi. when arranging presentation for the plaintiff on May 2, 2014 (sic). (jj) Dr. Ka owed a duty of care to Mr. Shafique. It was his responsibility to work with him to help him refine his research idea. Dr. Ka made all possible efforts to make sure he wasted his time in research and left the University. Dr. Ka was appointed to force Mr. Shafique to leave the University and acted negligently, recklessly and/or in bad faith: i. by failing to follow the policies and guidelines of the University in acting as his supervisor; ii. by failing to inform him about university policies and guidelines; iii. by providing no help to him with his research idea and by using his power and privileges to create hurdles in learning for the plaintiff; iv. by failing to discuss his research when he was wasting his time pursuing a flawed research idea; v. by claiming to have expertise in pub/sub systems while failing to assist him to improve his research; vi. by consistently ignoring the evaluation part of his research and providing insufficient help in the analysis of initial results; vii. by wasting his time by assigning him to study irrelevant research material; viii. by providing him with insufficient access to appropriate network hardware; ix. by failing to make any arrangements for him to collaborate with other researchers; and x. by providing ambiguous feedback about his scholarly writing and experimental results. (kk) After Dr. Ka’s resignation from his supervision, Dr. M acted unlawfully, negligently and in bad faith: i. by failing to follow policies and guidelines of the University; ii. by failing to inform him about policies, guidelines and procedures of the University; iii. by intentionally ignoring his complaint about inadequate supervision by Dr. Ka; iv. by asking him to withdraw for not having a supervisor when he had no authority to do so; v. by asking the him to find a supervisor for himself while it was the responsibility of the University to arrange a supervisor; vi. by failing to arrange a supervisor for him; and vii. by refusing to provide him with network hardware access. (ll) The University contracted with him and breached the terms of the contract; i. by failing to honour policies and guidelines of the University; ii. by failing to inform and/or educate him about the University policies, guidelines and procedures; iii. by failing to inform him about his supervisor from January 2011 until April, 2014; iv. by failing to provide him with adequate supervision; v. by failing to honour guidelines to form an advisory committee; vi. by failing to ensure a healthy student/supervisor relationship between the him and his supervisors; vii. by failing to honour guidelines for the change of a supervisor and/or co-supervisor; viii. by failing to ensure his academic freedom at the University; ix. by failing to provide him with continuous access to appropriate network hardware; x. by failing to ensure continuity of supervision; xi. by failing to conduct an unbiased and transparent investigation of the grievance that he filed; xii. by failing to provide adequate counselling and medical services to him; xiii. by failing to properly investigate his complaint about medical treatment received in February 2016; and xiv. by unlawfully forcing him to leave the University. (mm) The University, by its employees, committed the tort of intentional infliction of emotional distress. In particular certain employees of the University caused mental and physical suffering to him, by the following means: (i) Dr. A violating policies and guidelines of the University by working as supervisor when he knew or ought to have known that he was not his supervisor but never informed him; forcing him to replace Dr. W with Dr. B as co-supervisor; violating GGRS by assigned him to explore four different research areas and providing inadequate feedback about his scholarly writings, and intentionally and recklessly making arrangements to fail him in the proposal exam; (ii) Dr. Ka was appointed by the University to assure that he would end up wasting time by pursuing a flawed research idea, failing the proposal defence exam and leaving the University. Dr. Ka used stress as a tool to put psychological pressure on him in meetings and in emails; (iii) Dr. M used unlawful ways to demand that he withdraw, knowing that there were no policies or guidelines of the University requiring a student to withdraw if he/she has no supervisor, and knowing that he was already under stress, failing to inform him about applicable policies and guidelines and failing to inform and/or educate him about the guidelines and policies, and making an unlawful and illegitimate demand that he find a supervisor. (nn) The University breached its duty of care to him by Dr. Ka’s failure to document minutes of meetings with him. Dr. Ka also breached his duty of care by resigning as his supervisor and failing to explain his reasons for doing so. (oo) The University fraudulently concealed the fact that Dr. A was a co-supervisor but was unlawfully functioning as his supervisor and that he was hired by Dr. C and Dr. A to work on the research project. (pp) The University fraudulently concealed information about his supervisor for the first 3 years and 4 months of his PhD and that he did not know who his supervisor was during that period. (qq) The University is vicariously liable for the actions of its employees; (rr) As a result of the unfair practices of employees of the University, Mr. Shafique suffered damages including: i. loss of past, present and future income; ii. medical costs incurred overseas; iii. loss of research and development accomplishments; iv. loss of trust in academic institutions and their administration; v. loss of trust in student-supervisor mentor-minty relationship; vi. loss of trust in internal accountability of the University; vii. loss of enjoyment of life for him and his family; and viii. continuous physical and psychological sufferings. (ss) Dr. A intentionally, maliciously and in bad faith assigned Mr. Shafique to explore four different research areas to fail him in the proposal defence exam, Dr. Ke and SCS administration intentionally and in bad faith failed to investigate his allegations against Dr. A and his research activities and orchestrated a malicious plan against him. Dr. Ka intentionally and recklessly created hurdles to waste his time with the aim of failing him on the proposal exam before resigning from the supervision and recommending that he withdraw and leave the University. The conduct of the University and its employees constituted such a wanton and reckless disregard for their professional duties, their contractual obligations and caused such devastating harm to Mr. Shafique that an award of punitive and aggravated damages is warranted.

Exhibits

[23] During the hearing of the motion, with the consent of counsel for the University, four documents which were referred to in Mr. Shafique’s pleading were made exhibits, as follows:

Ex. 1- A Guide for Graduate Research and Supervision at the University of Waterloo – 2011; Ex 2 – University of Waterloo Policy 71 – Student Discipline - Established June 6, 1989, last updated September 13, 2010; Ex 3 – Integrity in Research Administrative Guidelines – Established July 2013, last updated August 2013; Ex 4 – Report on Policy 70 Student Grievance of Muhammad Shafique – June 28, 2016.

Principles Governing Actions against Universities for Damages in the Academic Context

[24] Prior to Lam the leading authorities in Ontario respecting claims for damages by students or former students against universities arising from the relationship between the student and the university in an academic context were Gauthier c. Saint-Germain, 2010 ONCA 309 (C.A.) and Jaffer v. York University, 2010 ONCA 654 (C.A.) leave to appeal refused [2010] S.C.C.A. No. 402 (S.C.C.). The Court of Appeal in Lam clarified and reinforced its approach and reasoning in Gauthier and Jaffer.

[25] In Lam the plaintiff had enrolled in the PhD program at the defendant university’s faculty of science in 2011. He had funding for his research through a grant obtained by his thesis supervisor. In 2012 the plaintiff’s thesis supervisor unexpectedly died. As a result a new supervisory committee was formed. After various meetings and discussions with the new supervisory committee the plaintiff transferred out of the PhD program into a master’s program.

[26] The plaintiff alleged that he had been pressured by the supervisory committee to transfer out of the PhD program because the committee lacked, and were unwilling to acquire, the necessary expertise in his area of research and misled him and provided incorrect information to him about the availability and security of his funding. The plaintiff alleged that the conduct of the university, through the supervisory committee, constituted a breach of contract and a breach of fiduciary duty and claimed damages and equitable compensation against the university.

[27] The university defended the action and brought a motion for summary judgment seeking dismissal of the plaintiff’s action on the basis that the claim related to matters that were “purely academic” in nature and therefore the action failed to disclose a reasonable cause of action.

[28] The motions judge found that, although there were two genuine factual issues that would require a trial to resolve, the action should be dismissed because, as a matter of law, the plaintiff’s action should have been brought as a complaint to the university whose decision would have been subject to judicial review. The motions judge held that academic and legal issues must be distinguished and that academic issues are to be resolved using the university’s appeal processes and thereafter by judicial review (see Lam para. 23).

[29] The Court of Appeal allowed the plaintiff’s appeal and dismissed the university’s motion for summary judgment.

[30] Zarnett, J.A., writing for the panel, observed that in Gauthier and Jaffer, each of which involved claims for breach of contract by students of universities, the Court of Appeal held that if a plaintiff claims damages, alleging the constituent elements of a cause of action in tort or breach of contract, the court will have jurisdiction even if the dispute stems from the scholastic or academic activities of the defendant university. In Lam the question for determination was therefore whether the factual issues the motion judge found to exist could, if resolved in the plaintiff’s favour at trial, make out a cause of action for breach of contract. If so, the university’s motion for judgment should have been dismissed (see Lam para. 29).

[31] At paragraph 31 Zarnett, J.A. identified four propositions that emerged from Gauthier and Jaffer as follows:

(a) The relationship between a student and the University has a contractual foundation, giving rise to duties in contract and tort. The terms of the contract and the organizing principles of contract law are important to determine whether a breach of contract by the University would be made out if the facts determined at trial favoured the plaintiff; (b) A student who enrolls at the University 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. This proposition is best understood as an implied term of the contract between student and university. When the plaintiff complains of a breach of contract there will be a viable cause of action if the impugned conduct falls outside the broad discretion of the university. As with any implied term, this must be considered in light of the contract’s express terms and the legal obligations any contract entails; (c) It is the remedy sought that is indicative of jurisdiction, not whether the claim arises out of the dispute of an academic nature. Where the claim by a student is for damages for breach of contract or tort, jurisdiction exists to deal with the claim even if the dispute arises out of an academic matter; and (d) A claim by student against the University will fail if it is an indirect attempt to appeal an academic decision for which judicial review would be the remedy, or if insufficient detail is given in the pleadings to show that the university’s actions go beyond the broad discretion it enjoys. A claim that does not allege conduct outside of the university’s broad discretion does not allege breach of contract. It alleges conduct the university may engage in without breaching its contract because it has been given a discretion by the agreement to act as it has. A claim that is an indirect appeal of an academic decision is not really a claim that the university breached its agreement, but rather a claim that it should have exercised its discretion differently.

[32] At para. 41 in Lam, Zarnett, J.A. noted that the contract between a student and the university will also be subject to general provisions of the law, including the general duty of honesty in contractual performance, as set out in Bhasin v. Hrynew, 2014 SCC 71 (S.C.C.).

Requirement to Plead Requisite Elements of the Cause of Action

(a) Negligence

[33] An action in negligence requires that the plaintiff demonstrate four elements:

(a) that the defendant owed him/her a duty of care; (b) that the defendant’s behaviour breached the standard of care; (c) that the plaintiff sustained damage; and (d) that the damage was caused, in fact and in law, by the defendant’s breach.

[see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (S.C.C.) at para. 3]

[34] In the context of a claim in tort by a student against a university, there is an additional element that must be established – the student must submit specific facts to show that the behavior of the university, or the professor in question, constituted an intentional tort or was outside the discretionary scope granted to universities and its professors (see Gauthier at para. 49 and Jaffer at para. 56).

(b) Breach of Contract

[35] In an action for breach of contract a plaintiff must plead with sufficient clarity all the required elements of such a claim, namely,

(a) the particulars of the alleged contract, including its terms; (b) the nature of the alleged breach; (c) causation; and (d) the damages that are alleged to have flowed from the breach.

[see McCarthy Corp. PLC v. KPMG LLP [2006] O.J. No. 1492 (S.C.J.) at para. 41; see also Turner v. York University, 2010 ONSC 4388 (S.C.J.) at paras. 12-13]

(c) Intentional Infliction of Mental Distress

[36] In an action for intentional infliction of mental distress the plaintiff must plead three elements:

(a) an act or statement by the defendant that is extreme, flagrant, or outrageous; (b) the act or statement was calculated to produce harm; and (c) the act or statement causes harm.

[see High Parklane Consulting Inc. v Royal Group Technologies Ltd. [2007] O.J. No. 107 (S.C.J.) at para. 31]

[37] It is not enough to simply plead that the defendant’s conduct was extreme, flagrant and outrageous. The plaintiff must actually plead conduct that is extreme, flagrant and outrageous (High Parklane at para. 41).

Pleading Generally

[38] In McCarthy Corp Spies, J. reaffirmed at para. 9 the purpose of a pleading which is to ”define with clarity and precision the question in controversy between the parties, give fair notice of the precise case which is required to be met and the precise remedy sought and assist the court in its investigation of the truth in the allegations made.”

[39] Spies J. observed at para. 10 that “defence counsel and the court should not have to puzzle through an unintelligible statement of claim in an effort to try and determine what the precise nature of the causes of action pleaded is and what facts are alleged in support of the causes of action pleaded.”

[40] Spies J. also pointed out at para. 30 that, to avoid confusion, each of the claims must be separately pleaded and each element of each specific cause of action must be carefully and separately pleaded, as the claims are quite different and the requirements of each cause of action are different. The defendant is entitled to know what specific duties it is alleged to have incurred in contract and which in tort, the manner in which it is alleged to have become subject to those duties, and how it breached its duty in tort and the terms of the contract.

Discussion

[41] The essence of Mr. Shafique’s claims against the University may be characterized as follows:

Claims in Negligence:

(a) his supervisors failed to supervise him properly, did not follow the policies and guidelines for supervision of a graduate student and failed to advise him of University policies and guidelines – in particular, one or both of them failed to assign relevant research activity to him, wasted his time in instructing him to study irrelevant research areas, failed to assist him with his research idea; failed to provide him with proper evaluation, failed to arrange for him to collaborate with other researchers, failed to provide him with sufficient access to network hardware; and failed to provide him with clear feedback on his scholarly writing and experimental results; (b) the SCS Director of Graduate Studies at the time did not deal properly with Mr. Shafique’s complaint about the allegedly unethical involvement of Dr. A and Dr. C in the research project; (c) the SCS Directors of Graduate Studies at the various times did not deal properly with Mr. Shafique’s complaints respecting Dr. A’s and Dr. Ka’s supervision; (d) the SCS Director of Graduate Studies at the time failed to arrange a supervisor for Mr. Shafique following Dr. Ka’s resignation as his supervisor; (e) the SCS Director of Graduate Studies at the time asked Mr. Shafique to withdraw from the PhD program for failing to have a supervisor, without having any authority to do so; and (f) Dr. Ka breached the intellectual property policy of the University by sharing his confidential scholarly writing with Dr. T.

Claims for Breach of Contract:

(a) the University failed to follow its own policies and guidelines by failing to provide adequate, proper continuous of supervision of him; (b) the University failed to inform or educate him about its policies, guidelines and procedures; (c) the University failed to ensure that he enjoyed academic freedom; (d) the University failed to provide him with continuous and adequate access to appropriate network hardware; (e) The University failed to conduct a proper investigation of his grievance; (f) The University failed to provide adequate counselling and medical services to him; (g) The University failed to properly investigate his complaint about medical treatment; (h) The University forced him to leave the PhD program.

Claims for Intentional Infliction of Mental Distress:

(a) the University failed to provide him with proper supervision and replaced his co-supervisor without his agreement; (b) his supervisors assigned him to study irrelevant research areas and to pursue a flawed research idea; (c) his supervisor used stress as a tool to put psychological pressure on him; (d) The SCS Director of Graduate Studies made demands on him to find a supervisor, knowing that he was under stress and demanded that he withdraw from the PhD program without authority to do so.

Do the claims advanced in the pleading disclose a reasonable cause of action?

[42] In my view it is clear that the claims advanced by Mr. Shafique in negligence and in contract related to the quality of the supervision and evaluation provided to him by his supervisors during his tenure as a PhD student at the University and the nature of the research work assigned to him by them fall squarely within the University’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 and therefore do not disclose reasonable causes of action. The claim related to the adequacy of Mr. Shafique’s access to network hardware also falls within the University’s broad discretion related to academic matters and in particular the implementation of the PhD program and the allocation of access to University resources to Mr. Shafique. His claim on this basis similarly does not disclose a reasonable cause of action.

[43] In my view the claims in negligence and contract based upon an alleged failure of the SCS Director of Graduate Studies to properly investigate or advise Mr. Shafique respecting his complaints regarding the quality and nature of his supervision also fall within the University’s discretion in resolving academic matters and do not disclose a reasonable cause of action. If Mr. Shafique felt that his complaint respecting the quality of his supervision was not being dealt with properly it was open to him to file a grievance, as he did, using the University’s internal dispute resolution process and, if not satisfied with the process or its outcome, to thereafter apply for judicial review. Similarly, his claim respecting his complaint to the SCS Director of Graduate Studies regarding his co-supervisors’ involvement in the research project also falls within the same category. The question of whether and the extent to which faculty members should be permitted to engage in externally funded research and to involve PhD students in such research falls squarely within the University’s discretion in academic matters. Moreover, the nature of the alleged ethical issue respecting their involvement is not apparent from Mr. Shafique’s pleading. Nor is the basis by which Mr. Shafique suffered any damages caused by his co-supervisors’ involvement in the research project, or any failure on the part of the University administration to investigate his complaint about it.

[44] The claim in negligence that Dr. Ka breached the University’s intellectual property policy by disclosing his scholarly writing to another faculty member does not disclose a reasonable cause of action because the pleading fails to allege that Mr. Shafique suffered any foreseeable damages alleged to have flowed from the breach.

[45] Moreover the pleading fails to properly plead the applicable standards of care in respect of any of the claims in negligence referred to above.

[46] Mr. Shafique’s claim in contract that the University failed to ensure that he enjoyed academic freedom also falls within the University’s discretion in resolving academic matters and fails to disclose a reasonable cause of action.

[47] The remaining claims in negligence or contract are the following:

(a) that the University failed to provide Mr. Shafique with continuity of supervision; (b) having failed to provide him with continuity of supervision, the University wrongfully terminated his registration in the PhD program; (c) that the University failed to inform or educate him about its policies, guidelines and procedures; and (d) the University failed to provide adequate counselling and medical services to him and failed to properly investigate his complaint about inadequate medical treatment.

[48] Mr. Shafique referenced the “GGRS” in his pleading and impliedly alleged that its provisions constituted terms of the contract between him and the University. As indicated above, the GGRS was made an exhibit at the hearing of the University’s motion (Ex. 1).

[49] The following statement is included in the Introduction to the GGRS:

“this document outlines key roles and responsibilities vital to a collaborative approach to graduate education, and should be read in conjunction with the regulations set forth in the Graduate Studies Calendar, faculty and department manuals, and pertinent University policies.”

[50] In section 1, entitled “Roles and Responsibilities of Departments and Graduate Officers” it states that “acceptance of a student into a program carries with it an obligation to provide supervision and/or advice to the student as long as the student remains in good standing in their academic program.”

[51] Paragraph 1.9 provides that departments and Graduate Officers should “ensure that every student has a supervisor or advisor” and paragraph 1.11 provides that ”where a supervisor is absent for any significant period of time,” departments and Graduate Officers should “ensure that their students receive interim supervision from a faculty member competent in the student’s particular area of work” and states that “no student should be left without supervision for more than two months.”

[52] Paragraph 1.15 provides that departments and Graduate Officers should “respond promptly to requests for the replacement of a supervisor or Advisory Committee member. The department has a responsibility to review the case in order to secure alternative supervision where appropriate.”

[53] Mr. Shafique has claimed that, pursuant to his contract with it, the University, through the department and its Graduate Officers, had a duty to provide a supervisor to him and to ensure the continuity of supervision. The corollary to this is his claim that the University breached the contract by allegedly requiring him to find his own supervisor upon the resignation of Dr. Ka and, when he was unable to do so, by terminating his enrolment in the PhD program. In the alternative, Mr. Shafique claims that the University breached its duty of care by failing to provide continuity of supervision, a breach which led to the termination of his registration and expulsion from the University.

[54] In my view, Mr. Shafique’s claim that the University breached its duty to provide him with continuity of supervision and, as a consequence, wrongfully terminated his enrolment for failing to have a supervisor, unlike the balance of the claims in negligence and contract referred to above, is not an indirect attempt to appeal an academic decision for which judicial review would be the remedy, and does not lack sufficient detail to show that the University’s actions go beyond the broad discretion it enjoys. If the GGRS formed part of the contract between the parties and if it required the University to provide Mr. Shafique with continuity of supervision, as he alleges, a decision by the University to not provide Mr. Shafique with a supervisor would not, in my view, clearly come within the University’s broad discretion in resolving academic matters.

[55] As confirmed by Lam, the relationship between Mr. Shafique and the University in this case has a contractual foundation, giving rise to duties in contract and tort, opening the way for the potential for concurrent liability in contract and negligence. On the basis of Mr. Shafique’s pleading, the standard of care which applied to the University in reference to the provision and continuity of supervision is supplied by the terms of the GGRS.

[56] In my view, the claim that the University failed to provide Mr. Shafique with continuity of supervision and, having done so, wrongfully terminated him from enrolment in the PhD program because he lacked a supervisor, whether couched in negligence or breach of contract, does disclose a reasonable cause of action. As set forth above, the facts pleaded in Mr. Shafique’s pleading in support of this claim are accepted as being true for the purposes of the University’s motion, unless they are manifestly incapable of being proven, which I do not find.

[57] With respect to the claim that the University failed to inform Mr. Shafique of applicable policies, guidelines and procedures, the pleading references section 2 of “Policy 70 – Student Petitions and Grievance” (PSPG 70) which provides that “students have the right to be informed of policies, procedures and guidelines what may affect them, and have the right to question whether decisions are consistent with those policies, procedures, or guidelines.”

[58] The pleading also references section 1.5 of the GGRS which provides that departments and Graduate Officers should “ensure that all policies, procedures and regulations with respect to graduate programs are accessible and adhered to.”

[59] Although the claim that the University failed to inform Mr. Shafique of relevant policies, guidelines and procedures is grounded on the contract, on the basis that it is pleaded implicitly that the foregoing provisions formed terms of the contract, the pleading is deficient as a claim in negligence in failing to set out the applicable standard of care and how the defendant’s behaviour breached the standard of care. Moreover the pleading is deficient on the basis of both negligence and contract in tying the claim to the damages that are alleged to have flowed from the breach. However, in my view the pleading of this claim is capable of being put right to disclose reasonable causes of action by means of an amended or fresh pleading.

[60] Mr. Shafique’s pleading introduces claims that the University failed to provide adequate counselling and medical services to him and failed to properly investigate his complaint about inadequate medical treatment for the first time in his summary of his breach of contract claim at para. 150. The basis for a contractual duty on the University to provide Mr. Shafique with counselling and medical services, is not set out in the pleading, No particulars are provided with respect to the alleged breach and the basis upon which it caused damages to him. It is pleaded that Mr. Shafique sought and received medical treatment in Ontario and thereafter in Pakistan. The only head of damages related to this alleged breach is the claim at subpara. 160(c) for the “costs of medical expenses overseas.” No causal connection is alleged in the pleading between the University’s alleged failure to provide him with counselling and medical treatment and his incurring “medical expenses overseas.” The claim related to the University’s failure to provide counselling and medical services to Mr. Shafique therefore does not disclose a reasonable cause of action.

[61] In my view the bases of Mr. Shafique’s claim for intentional infliction of mental distress does not approach the threshold requirement that the University’s alleged conduct must have been “extreme, flagrant and outrageous.”

[62] At para. 36 of High Parklane Perrell, J. observed:

It is trite to say that making a living is a stressful activity and that much of life can be nasty and brutish. Tort law does not provide compensation for all stress-causing and nasty conduct that individuals may suffer at the hands of another, and the elements of the tort of intentional infliction of mental distress that the conduct must be extreme, flagrant, outrageous and calculated to cause harm are the law's ways of narrowing the ambit of the tort.

[63] In my view these observations are equally applicable in the academic context as in the employment context.

[64] As indicated above, simply applying the adjectives “extreme, flagrant and outrageous” to a defendant’s alleged conduct is not enough. A plaintiff must plead conduct that is actually extreme, flagrant and outrageous.

[65] In my view Mr. Shafique should be given the opportunity, if he is so advised, to amend his pleading to properly plead conduct on the part of the University that is actually extreme, flagrant and outrageous.

[66] The pleading makes various allegations of malice and fraud against the University or certain of its employees. These include the following allegations:

(a) para. 105 – that in response to his complaint about Dr. A and the research project, the University orchestrated a malicious plan to force him to withdraw from the PhD program and leave; (b) para. 118 – Dr. A orchestrated a malicious plan…to humiliate Mr. Shafique in the proposal exam; (c) para. 143 – Dr. Ke negligently, recklessly and/or fraudulently breached his duty of care to Mr. Shafique; (d) para. 146 – Dr. Ka acted as the main character to execute a malicious plan against Mr. Shafique; (e) para. 153 – the University knew or ought to have known that its malicious plan against Mr. Shafique would not only destroy his career but also result in severe physical and mental health issues; (f) para. 158b – the University fraudulently concealed the fact that he was hired by Dr. C and Dr. A to work on the research project; (g) para. 158c – the University acted fraudulently…to force Mr. Shafique to leave; (h) para. 161 – Dr. Ke and SCS administration orchestrated a malicious plan against Mr. Shafique; and (i) para. 162 – a malicious plan was orchestrated to target the learning and the mental health of Mr. Shafique.

[67] Rule 25.06(8) of the Rules of Civil Procedure provides:

Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

[68] In Corfax Benefit Systems Ltd. v. Fiducie Desjardins Inc. (1997), 37 O.R. (3d) 50 (Ont. Gen. Div.), Wilson J. (as she then was) held that fraud should not be alleged in a pleading for tactical purposes and should not be alleged without a genuine factual basis that, if true, would support a finding of fraud.

[69] Moreover, where a plaintiff is attempting to allege fraud without any factual foundation the allegations must be struck. (see Vicor Mechanical Ltd. v. Pogah Construction Ltd. [2009] O.J. No. 5268 (Master) at paras. 8-9).

[70] In my view the allegations of malice and fraud in Mr. Shafique’s pleading in the case at bar lack factual foundation and are only advanced in the pleading for tactical purposes. As such they may prejudice or delay the fair trial of the action and are scandalous, frivolous and vexatious and should be struck without leave to amend.

Should the pleading be struck for failure to comply with the rules of pleading?

[71] As indicated above, Mr. Shafique’s pleading is rambling, repetitive, and difficult to follow. It is not restricted to material facts, but pleads evidence. It contains factual allegations which are clearly irrelevant and unnecessarily clutter the claims. As observed by Spies, J. in McCarthy Corporation at para. 51 this adds to its complexity and has the potential of unfairly broadening the scope of the claims and leading to discovery abuse.

[72] The following observations of Smith, J. in Homalco Indian Band v. British Columbia (1998), 25 C.P.C. (4th) 107 (B.C.S.C.) at para 11 apply with equal force to the pleading in the case at bar:

In my view, the statement of claim is an embarrassing pleading. It contains much that appears to be unnecessary. As well, it is constructed in a manner calculated to confuse the defendants and to make it extremely difficult, if not impossible, to answer. As a result, it is prejudicial. Any attempt to reform it by striking out portions and by amending other portions is likely to result in more confusion as to the real issues.

[73] Justice Smith offered the following useful guidance on the drafting of proper pleadings in order to achieve its purposes at para. 6:

A useful description of the proper structure of a plea of a cause of action is set out in J.H. Koffler and A. Reppy, Handbook of Common Law Pleading, (St. Paul, Minn.: West Publishing Co., 1969) at p. 85:

Of course the essential elements of any claim of relief or remedial right will vary from action to action. But, on analysis, the pleader will find that the facts prescribed by the substantive law as necessary to constitute a cause of action in a given case, may be classified under three heads: (1) The plaintiff's right or title; (2) The defendant's wrongful act violating that right or title; (3) The consequent damage, whether nominal or substantial. And, of course, the facts constituting the cause of action should be stated with certainty and precision, and in their natural order, so as to disclose the three elements essential to every cause of action, to wit, the right, the wrongful act and the damage.

If the statement of claim is to serve the ultimate purpose of pleadings, the material facts of each cause of action relied upon should be set out in the above manner. As well, they should be stated succinctly and the particulars should follow and should be identified as such.

[74] It is recognized that Mr. Shafique is self-represented and therefore all appropriate allowances must be given to reflect that reality. However, it must also be recognized that the rules of pleadings apply equally to self-represented litigants as to litigants with legal representation. Otherwise the purpose of pleadings may not be achieved, leading to confusion in the conduct of the litigation, increased expense to the parties and a risk that a just determination of the issues in the proceeding on their merits may be compromised.

[75] In my view the problems with the pleading are such that the University’s motion should be granted and Mr. Shafique’s pleading should be struck out in its entirety with leave to substitute a fresh statement of claim with respect to those claims which disclose a reasonable cause of action or which may be capable of disclosing a reasonable cause of action by means of the provision of a fresh pleading without non-compensable prejudice to the University. For the sake of consistency and clarity, the fresh statement of claim should be dated and entitled “Second Fresh as Amended Statement of Claim.”

[76] The claims in the fresh statement of claim shall be restricted to the following:

(a) claims in negligence and/or contract that the University failed to provide continuity of supervision to Mr. Shafique; (b) claims in negligence and/or contract that the University wrongfully terminated Mr. Shafique’s enrolment in the PhD program for failure to have a supervisor; (c) a claim that the University failed to adequately inform Mr. Shafique of relevant policies, guidelines and procedures; and (d) a claim that the University committed the tort of intentional infliction of mental distress based upon pleaded conduct that is actually extreme, flagrant and outrageous.

[77] In my view, the remaining claims in Mr. Shafique’s pleading are not capable of being put right so as to disclose reasonable causes of action by means of an amended or fresh pleading.

Disposition

[78] In accordance with the foregoing, it is ordered as follows:

(a) the defendant’s motion is granted and plaintiff’s Amended Fresh as Amended Statement of Claim is struck out in its entirety; (b) the plaintiff is given leave to amend his pleading to substitute a fresh statement of claim; (c) the plaintiff’s claims in his fresh statement of claim shall be limited to the following: i. claims in negligence and/or contract that the defendant failed to provide continuity of supervision to the plaintiff; ii. claims in negligence and/or contract that the defendant wrongfully terminated the defendant’s enrolment in the PhD program for failure to have a supervisor; iii. claims in negligence and/or contract that the defendant failed to adequately inform the plaintiff of relevant policies, guidelines and procedures; iv. a claim that the defendant committed the tort of intentional infliction of mental distress based upon conduct to be set out in the fresh statement of claim that is actually extreme, flagrant and outrageous. (d) The plaintiff’s fresh statement of claim shall be dated and entitled “Second Fresh as Amended Statement of Claim” and shall be served and filed within 30 days from the date hereof.

[79] Approval of the formal order to give effect to this endorsement by the plaintiff is hereby waived.

Costs

[80] The parties are strongly urged to agree upon costs. If they are unable to do so, the defendant may make written submissions as to costs within 14 days of the release of this Endorsement. The plaintiff has 10 days after receipt of defendant’s submissions to respond and the defendant has a further 5 days to reply. Each party’s initial written submissions shall not exceed four double-spaced pages, exclusive of Offers to Settle, Bills of Costs or Costs Outlines and authorities, while the defendant’s reply submissions, if any, shall not exceed 2 double-spaced pages. All submissions shall be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

D.A. Broad J. Date: April 23, 2019