COURT FILE NO.: CV-22-89230 DATE: 2024/11/26

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

RACHEL OBITA Plaintiff – and – ALGONQUIN COLLEGE Defendant

Counsel: Self-represented plaintiff Chris Rutherford, for the defendant

HEARD: June 24 and August 8, 2024 (By videoconference)

RULING on motion

(Motion to Strike the Plaintiff’s Pleading)

Corthorn J.

Overview

[1] Rachel Obita attended Algonquin College (“the College”) from January 2019 to April 2021. Ms. Obita graduated with an Advanced Diploma in Business Administration - International Business. Ms. Obita commenced this action in May 2022. On the final page of her amended statement of claim (“the Pleading”), Ms. Obita lists ten causes of action asserted against the College.

[2] The claims Ms. Obita is pursuing relate to the treatment she alleges she received during her time as a student at the College. As an example of that treatment, Ms. Obita highlights the final grade she was assigned for a course taken during the Fall 2020 semester (“the disputed grade”). In January 2021, Ms. Obita requested a Review of Final Grade for that course. The review was conducted; the decision on the review was communicated to Ms. Obita in the latter half of January 2021. The decision resulted in a downward adjustment of the disputed grade.

[3] Ms. Obita appealed the review decision to the College’s Academic Appeal Committee. The appeal was dismissed. The Academic Appeal Committee concluded that the grade review had been determined in accordance with the relevant policies.

[4] Ms. Obita then requested a review of the decision on appeal. That request was made to the College’s Senior Vice-President, Academic; the request was denied.

[5] In the Pleading, Ms. Obita alleges that, during her time as a student at the College, she was the subject of academic bullying and verbal harassment. In addition, Ms. Obita questions the fairness and impartiality of the College’s policies and procedures. She does so not only for herself but also for the benefit of the student body at the College. Ms. Obita seeks (a) $1,000,000 in damages for pain and suffering; (b) $4,000,000 in punitive damages; (c) an order mandating that policy changes are made by the College; and (d) an order quashing the decision of the Academic Appeal Committee.

[6] In its fresh as amended statement of defence and on the motion before this court, the College takes two primary positions. First, the College asserts that the court does not have jurisdiction over the dispute between Ms. Obita and the College. The College describes the issues raised in the Pleading as “purely academic in nature”. The College submits the issues fall exclusively within the broad discretion academic institutions have to manage and implement their programs. The College asks the court to dismiss Ms. Obita’s action for want of jurisdiction.

[7] Second, the College asserts that Ms. Obita fails to plead the requisite elements of each of the causes of action she is pursuing. The College submits that the Pleading is completely devoid of material facts upon which any of the causes of action can be made out explicitly, or even inferred.

[8] The College asks that the relevant paragraphs of the Pleading be struck, without leave to amend, and that the action be dismissed in its entirety. The College highlights that Ms. Obita was previously given an opportunity to amend her pleading. The College submits that no further amendments to the Pleading would address the fact that Ms. Obita’s claims are fatally flawed; the Pleading discloses no cause of action; and the claims are entirely lacking in legal foundation.

The Issues

[9] The following issues are determined in this ruling:

1. Does the court lack jurisdiction over this action because it relates to a dispute that is academic in nature?
2. If the court has jurisdiction over the action, does the Pleading disclose a reasonable cause of action?
3. If the answer to Issue No. 2 is “no”, is Ms. Obita entitled to leave to amend the Pleading?

[10] Before determining the issues, I will first review the evidence and the Pleading.

The Evidence

a) The Laviolette Affidavit

[11] In support of its motion, the College relies on an affidavit from Michael Laviolette (“the Laviolette affidavit”). When he swore his affidavit in May 2023, Mr. Laviolette was the Director, Risk Management for the College. Ms. Obita did not cross-examine Mr. Laviolette on his affidavit.

[12] The following topics are covered in the Laviolette affidavit:

• The disputed grade, including the review and appeal process;
• The College’s online learning management system—Brightspace;
• College policies, including those titled “Respectful Workplace”, “Student Complaints”, and “Directive E23” (related to student complaints);
• The role of the College Ombudsman in the operation of the College; and
• Ms. Obita’s 2022 application to the Human Rights Tribunal of Ontario.

[13] The exhibits to the Laviolette affidavit include the relevant College policies and written communication between Ms. Obita and employees or representatives of the College.

b) The Obita Affidavit

[14] In response to the College’s motion, Ms. Obita delivered a 180-paragraph affidavit (“the Obita affidavit”). Ms. Obita was not cross-examined on her affidavit.

[15] The Obita affidavit is the subject of an interim ruling: Obita v. Algonquin College, 2024 ONSC 2901 (“Ruling No. 2”). Ruling No. 2 was released following a motion by the College for an order striking 60 of the 180 paragraphs and all of the approximately 70 exhibits from the Obita affidavit (“the interim motion”).

[16] The motion to strike was heard in January 2024, on the original return date for the College’s substantive motion. The latter motion was adjourned to June 2024, pending the court’s determination on the interim motion.

i) The Paragraphs in the Obita Affidavit

[17] The College was successful on the interim motion. All of the paragraphs in the Obita affidavit that were the subject of the motion were struck: Ruling No. 2, at paras. 39, 58. In addition, other parts of the substantive text of the affidavit were struck. The court concluded that those parts of the affidavit consist of argument, opinion evidence from Ms. Obita, inflammatory rhetoric, or inflammatory allegations: Ruling No. 2, at paras. 39, 58.

[18] The topics covered in the approximately 120 paragraphs admitted into evidence include the topics listed in para. 12, above. In addition, in her affidavit, Ms. Obita addresses each of the causes of action listed in the Pleading.

[19] Ms. Obita’s response to the affidavit evidence of Mr. Laviolette is limited. For example, at para. 61 of her affidavit, Ms. Obita says, “I would like to point out that Mr. Laviolette stated in his affidavit what he was supposedly told by my academic chair. He was not involved when the events transpired, nor did he learn of these events as they occurred.”

[20] As another example, at para. 120 of her affidavit, Ms. Obita addresses Mr. Laviolette’s role as Director, Risk Management. She therein says, “Mr. Laviolette is the director risk management. His job revolves around emergency management and fraud prevention. Mr. Laviolette has no knowledge of academic policies and procedure. Mr. Laviolette certainly did not write the unethical policies that are being used to perpetually abuse students and staff.”

[21] Ms. Obita does not dispute Mr. Laviolette’s chronology of the events that comprise the review and appeal process Ms. Obita followed; nor does Ms. Obita dispute Mr. Laviolette’s description of the outcome at each stage of that process.

ii) The Exhibits to the Obita Affidavit

[22] There are approximately 70 exhibits to the Obita affidavit. The exhibits are not attached to the affidavit; they are interspersed throughout the substantive text of the affidavit.

[23] On the interim motion, the College originally requested that all the exhibits be struck from the Obita affidavit. On the return of the interim motion, the College abandoned that request.

[24] At para. 40 of the Ruling No. 2, the court (a) highlights its gatekeeper function; and (b) states that, when ruling on the substantive motion, the court will determine which of the exhibits are properly in evidence and the weight to be given to those exhibits.

[25] Set out below is a non-exhaustive list of the types of documents included in the 70 exhibits:

• Emails between Ms. Obita and College employees;
• The May 2021 letter from the Chair, Academic Appeal Committee, addressed to Ms. Obita and informing her that her appeal from the decision on the Review Final Grade is dismissed;
• The July 2021 letter from the Senior Vice President, Academic addressed to Ms. Obita and informing her that her request for a review of the Academic Appeal Committee’s decision is denied;
• Excerpts from the Ombudsman Annual Report for 2020 to 2021; and
• Online job postings for positions with the College, the Law Society of Ontario, the Legislative Assembly of Ontario, and the Information and Privacy Commissioner of Ontario.

[26] Many of the exhibits are irrelevant to the issues raised on the motion; those exhibits are inadmissible. For the exhibits admitted into evidence, I highlight that the attachment or inclusion of a document as an exhibit does not necessarily result in the contents of the document becoming evidence on the motion. For some of the exhibits, the purpose served by their admission is limited to providing evidence of the existence of a document.

[27] In the context of the motion now before the court, it is not possible to review each of the exhibits individually. The principles discussed in the preceding paragraph summarize the court’s treatment of the exhibits to the Obita affidavit.

c) Ms. Obita’s May 2023 Affidavit

[28] Ruling No. 2 was released approximately one month prior to the return date for the College’s substantive motion. During that one-month period, Ms. Obita filed a confirmation form for the motion. In that document, Ms. Obita listed an affidavit sworn in May 2023 in support of a motion she brought in 2023 for interim substantive relief (“the May 2023 affidavit”).

[29] Ms. Obita did not include the May 2023 affidavit in her responding record on the College’s substantive motion. The confirmation form referred to in para. 28, above, was the first time that Ms. Obita gave the College notice she intended to rely on the May 2023 affidavit in response to the College’s substantive motion.

[30] At the outset of the hearing in June 2024, Ms. Obita requested leave to rely on the May 2023 affidavit in response to the College’s substantive motion. The court heard submissions from Ms. Obita and from counsel for the College. For oral reasons given that day, the request for leave to rely on the May 2023 affidavit was refused.

The Pleading

[31] The Pleading consists of 49 numbered paragraphs and concludes with two unnumbered paragraphs. Attached to the Pleading is a single page listing ten causes of action, described as “grounds for [the] lawsuit”.

[32] During the hearing of the motion, Ms. Obita informed the court that she is not pursuing three of the ten listed causes of action. On the consent of the parties, claims based in the following three causes of action are dismissed as abandoned: (a) the tort of harassment (item 2 on the list); (b) breach of fiduciary duty (item 3 on the list); and (c) breach of confidentiality (item 8 on the list).

[33] Ms. Obita is pursuing claims based in the following seven, remaining causes of action:

i) Intentional infliction of pain and suffering; ii) Defamation; iii) Intrusion on seclusion (described in the Pleading as “the tort of invasion of privacy”); iv) Breach of contract; v) Negligence; vi) The tort of deceit; and vii) Fraudulent misrepresentation.

[34] The first paragraph of the Pleading begins with an allegation that “underneath [the] polished veneer [of a long-maintained respectable image, the College] is a cruel organization motivated by greed.” That same paragraph concludes with the following three sentences: “Initially, I took legal action against Algonquin College because I was seeking to get a refund of my tuition and a remedy for my grades. My professor sabotaged my grades for 4 semesters. For the past year I have been monitoring Algonquin College’s online activity and investigating Algonquin College. I have a twisted tale to tell this court.”

[35] The Pleading covers topics ranging from the treatment Ms. Obita alleges she received from the professor who taught the course in which she received the disputed grade, to allegations that the College is spying on students by monitoring and collecting information from student activity on College networks.

[36] The Pleading does not comply with r. 25.06(1); the Pleading does not “contain a concise statement of the material facts on which [Ms. Obita] relies for the claim […], but not the evidence by which those facts are to be proved.” The Pleading is replete with both evidence and argument.

[37] Ms. Obita is a self-represented litigant. The technical deficiencies in the Pleading are not determinative of the outcome on this motion.

▪ The Disputed Grade, Grade Review Process and Appeals Process

[38] Approximately one-half of the Pleading is devoted to the course in which Ms. Obita was assigned the disputed grade; the conduct of the professor who taught that course; allegations that both the College’s grade review and appeals processes are procedurally unfair; and shortcomings in the appeal process specific to Ms. Obita’s appeal. Those topics are addressed in paras. 2-13 and 19-21 of the Pleading.

[39] Paragraphs 14-18 of the Pleading consist of evidence related to Ms. Obita’s pursuit of her appeal to the Academic Appeal Committee. Those paragraphs do not include allegations of material facts.

[40] During oral submissions, Ms. Obita informed the court that paras. 11-14 set out the allegations upon which she relies in support of her claim for damages for breach of contract.

▪ The College Ombudsman

[41] Content from the Ombudsman Annual Report for 2020 to 2021 is set out in detail in paras. 22-25 of the Pleading.

[42] Paragraphs 26-35 appear under the title “Role of the Ombudsman”. Only four paragraphs in this section of the Pleading include what can generously be described as allegations of material facts. It could also be said that the same four paragraphs are devoid of material allegations and include only argument:

• At para. 25, after reviewing the content of the Annual Report, Ms. Obita makes the following allegation: “There has been a problem with procedural fairness in the academic appeals process for years. The Ombudsman has cited this in the annual Ombudsman reports year after year.”
• After reviewing the content of a College policy setting out the role of the Ombudsman (paras. 27-28 of the Pleading), Ms. Obita alleges that the policy constitutes “fraudulent misrepresentation to give the appearance to students that the Ombudsman can ensure fair treatment” (para. 29).
• In para. 29, Ms. Obita alleges that the “Ombudsman can be used by the College to send a false message to the students that they received fair treatment because they were advised by the Ombudsman.” In para. 33, Ms. Obita questions whether the Ombudsman has the power to ensure fairness.
• At paras. 34-35, Ms. Obita addresses the protection of the Ombudsman from involvement as a witness in a College or Students’ Association tribunal. Ms. Obita alleges that the policy appears to protect students, when in fact the intent behind the policy is protection of the College.

[43] Based the Pleading, the only involvement that the Ombudsman had in Ms. Obita’s grade review and appeal processes is set out in para. 11. Ms. Obita therein alleges that following the end of the September 2020 semester, she went to the Ombudsman for assistance. Ms. Obita states that following the intervention of the Ombudsman, she “was able to have an academic appeal hearing.” Paragraph 11 concludes with an allegation that Ms. Obita “received advisement from the Ombudsman of Algonquin College throughout [her] appeals process.”

[44] Nowhere in the Pleading does Ms. Obita assert that the assistance she received from the Ombudsman was insufficient, appeared to her to be unfair or to prejudice her in the appeals process, or in any way affected the result of that process. Nor is there any allegation that Ms. Obita was, in any general way, affected by the alleged lack of procedural fairness related to the Ombudsman’s role with the College (i.e., paras. 34-35 of the Pleading).

▪ Cover Ups, Fraud, and Misrepresentation

[45] In paras. 36-48, Ms. Obita addresses what she alleges are the “countless measures [taken by the College] to cover up misconduct by employing fraud and misrepresentation, among other tactics” (para. 36). Ms. Obita specifically addresses two forms of alleged cover ups, fraud, or misrepresentation.

[46] First, Ms. Obita describes her post-graduation effort to log into Brightspace. Ms. Obita alleges the response she received was that her student account had been shut down and she could no longer access it because she had graduated from her studies at the College (paras. 37-38 and 41).

[47] Ms. Obita alleges that, on its networks, the College makes fraudulent misrepresentations about the access former students, including graduates, of the College have to their student accounts (paras. 38-41). Ms. Obita alleges that the College network is set up in such a way that the College has the ability to “clear” all of a student’s course content; she suspects that the College has taken that step regarding her course content (para. 43).

[48] Ms. Obita does not claim that her grade review and appeals processes were affected because of the alleged cover ups, fraud, or misrepresentation. Nor does Ms. Obita assert that, during her time as a student at the College, she was impacted, either specifically or generally, as a result of the alleged cover ups, fraud, and misrepresentation.

[49] The only allegation in this section of the Pleading related to Ms. Obita’s grade review and appeals processes is found at para. 42. Ms. Obita therein alleges that, subsequent to her review and appeals process, the College took steps to prevent professors from unilaterally accessing the College networks for the purpose of changing a student’s grade (para. 42).

[50] In paras. 45-47, Ms. Obita addresses a second form of alleged cover ups, fraud, and misrepresentation. In those paragraphs, Ms. Obita alleges that, in its “Harassment and Discrimination” policy the College misrepresents the access that students have to, and the fairness of, the student complaints mechanism (para. 45). In summary, Ms. Obita alleges that the complaints mechanism is set up in such a way as to “attempt to suppress student complaints” (para. 46) and lead to the dismissal of student complaints (para. 47).

[51] The Pleading does not include any allegations relating this second form of purported cover ups, fraud, or misrepresentation to Ms. Obita’s grade review and appeals process.

▪ College Policies and Privacy Violation

[52] In a single paragraph (para. 48), Ms. Obita alleges that the College relies on its networks to monitor online student activity and to collect information about students, including when students who live in residence access those networks. Paragraph 48 concludes with the following allegations: “This use of people’s information also ensures Algonquin College has the upper hand in any kind of matter. [The subject policy] details measures to help the College evade liability. Policy IT01 also contains fraud and misrepresentation. Algonquin College is illegally collecting and using people’s information for research and profit with ‘business partners’.”

[53] In the first of the two unnumbered paragraphs in the Pleading, Ms. Obita alleges that the College security policy, which permits the College to monitor and access information on the College networks, constitutes a breach of an individual’s right, pursuant to s. 8 of the Canadian Charter of Rights and Freedoms, to protection from illegal search and seizure.

▪ College Attacks on Freedom of Speech

[54] In the final numbered paragraph, Ms. Obita reviews the College’s “workplace violence prevention” policy, which she contends extends to students. Ms. Obita alleges that the language of the policy allows the College to rely on the policy to “muzzle those who are challenging the College”.

▪ Defamation

[55] The allegations in the second of the two unnumbered paragraphs include that the “College has defamed [her] internally to members of the faculty and other employees as being unstable”. Ms. Obita alleges that in a College response to one of her student complaints, the document states that she was acting in an “obsessive, harassing and vexatious manner” and that the College “has been pushing this narrative about [her] to the board of governors and employees”. Ms. Obita describes the impact of the review, appeals, and litigation processes on her mental health. Ms. Obita asserts that “College management did not acknowledge [her] deteriorating mental health.”

[56] With the evidence and the Pleading reviewed, I determine the issues in the order in which they are listed in para. 9, above.

Issue No. 1 - Does the court lack jurisdiction over this action because it relates to a dispute that is academic in nature?

a) The Law

[57] The College relies on r. 21.01(3)(a), which 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”. The parties are permitted to file evidence on a motion brought pursuant to that rule.

[58] On a motion pursuant to r. 21.03(3), the court must consider the material facts alleged in the statement of claim as true, unless they are incapable of being proven or are manifestly ridiculous: Gauthier v. Saint-Germain, 2010 ONCA 309, 325 D.L.R. (4th) 558, at para. 8.

[59] Post-secondary institutions have a very broad discretion when resolving academic issues, including issues regarding (a) the evaluation of the quality of a student’s work, and (b) the structure and implementation of institution programs: Gauthier, at para. 47. When a student seeks to alter an internal academic decision made by an institution’s officials, the appropriate route for the student is to apply for judicial review of the decision: Gauthier, at para. 30.

[60] When a student or former student seeks to do more than simply alter an internal academic decision; pleads other causes of action, such as breach of contract or negligence; and claims damages, a nuanced review of the subject pleading is required: Gauthier, at para. 46. The court must determine whether the action “is simply an indirect attempt to appeal an academic decision” for which the appropriate remedy is judicial review: Jaffer v. York University, 2010 ONCA 654, 326 D.L.R. (4th) 148, at para. 28.

[61] In Lam v. University of Western Ontario, 2019 ONCA 82, 144 O.R. (3d) 587, at para. 32, the Ontario Court of Appeal sets out the approach on a motion of the kind now before the court:

Therefore, the correct approach is not to ask whether the complaint falls on the academic or legal end of the spectrum and then determine the answer by considering which, as between a court and an internal university process, is the more desirable forum from the standpoint of efficiency, policy and practicality. Rather, the correct approach flowing from Gauthier and Jaffer is to ask whether the complaint is one for damages for breach of contract or tort, as opposed to an assertion that what the university did was something it had the discretion to do.

[62] The analysis below is based on the application of the principles cited in this section of the ruling to the Pleading.

b) Analysis

[63] To determine whether the court has jurisdiction, it is helpful to focus on the remedy claimed by the plaintiff: Lam, at para. 31(c). A request for an order overturning an internal academic decision, by a university or college, and nothing more, must be addressed by judicial review: Gauthier, at para. 46.

[64] If, however, “a plaintiff alleges the constituent elements of a cause of action in tort or breach of contract, while claiming damages, the court will have jurisdiction even if the dispute stems from the scholastic or academic activities of the institution in question”: Gauthier, at para. 46. That said, a claim “that a grade is incorrect, or that a professor is incompetent, without more, will not normally be sufficient grounds on which to base a cause of action in breach of contract or tort”: Gauthier, at para. 47.

[65] The challenge on the motion before this court is that Ms. Obita seeks both (a) relief to which she is entitled only by way of judicial review (i.e., an order quashing the decision of the Academic Appeal Committee) and (b) damages based on causes of action in tort and breach of contract.

[66] In Gauthier, Rouleau J.A. reviews several decisions of the Court of Appeal for Ontario in matters involving students and post-secondary institutions. Based on that review, Rouleau J.A. rejects a submission by the respondent university that the decisions reviewed establish a broad principle that, “if the core of the dispute concerns a school matter, the court has no jurisdiction, even if the underlying cause is based in tort and breach of contract and the remedy sought aims to recover damages”: at para. 33.

[67] In his review of the earlier decisions, Rouleau J.A. highlights whether, at first instance, the moving party defendant relied on one or more of rr. 21.01(1), 21.01(3), and 25.11. In Jaffer, at para. 22, Karakatsanis J.A. (as she then was) summarizes the outcome of Rouleau J.A.’s review:

Gauthier has clarified that the decisions of this court upholding the dismissal of claims relating to academic matters did not do so on the basis that the court lacked jurisdiction pursuant to r. 21.01(3)(a), but rather under 21.01(1) because the pleadings did not disclose a reasonable cause of action based upon contract, tort, or negligence under r. 25.11 because the cause of action was untenable in law.

[68] Applying those principles to the Pleading, I start with the remedies Ms. Obita seeks. One of the remedies she seeks is an order quashing the decision of the Academic Appeal Committee. That type of remedy is only available to Ms. Obita on an application for judicial review. The fact that Ms. Obita is not entitled to one of the remedies she seeks does not, in and of itself, support a conclusion that the court lacks jurisdiction over the action.

[69] The question the court must answer can be framed in one of several ways:

• Is there something more to the action, other than the dispute grade, on which to base the seven causes of action being pursued?
• Does the Pleading amount to more than “window dressing” of the underlying complaint about the disputed grade? (See: Said v. University of Ottawa, 2013 ONSC 7186, at para. 30, citing Aba-Alkhail v. University of Ottawa, 2013 ONSC 2127).
• Leaving aside Ms. Obita’s claim for equitable relief (i.e., the order to quash), is the action nothing more than an indirect appeal, to this court from the academic appeals process, in the guise of a claim for damages? (See: Tran v. University of Western Ontario, 2016 ONSC 1781, at para. 81.)

[70] The claims Ms. Obita is pursuing are based not only on the College’s conduct regarding the disputed grade; in addition, the claims are based on the College’s conduct in the operation of the College networks, in the information displayed by the College on those networks, and in the dissemination of statements made about Ms. Obita. The claims pursued are based in several types of tortious conduct, breach of contract, and defamation.

[71] The court has jurisdiction over matters in each of the types of tortious conduct alleged, in breach of contract, and in defamation. The College does not identify any legislative or contractual provision that deprives Ms. Obita of her access to this court. In the absence of such a provision, the court is deemed to have jurisdiction to rule on the dispute: Gauthier, at para. 29.

c) Conclusion – Issue No. 1

[72] The court has jurisdiction over the matters raised in the Pleading. The answer to Issue No. 1 is “no”.

[73] Before moving on to Issue No. 2, I will address an alternative submission made by the College on the issue of the court’s jurisdiction. At para. 20 of its factum, the College attempts, for the purpose of the motion pursuant to r. 21.01(3)(a), to tie the quality of the Pleading to the issue of jurisdiction. The College therein submits that “the elements of the cause of action must be properly pleaded to allow the court to have jurisdiction over the claim, even if the dispute is academic in nature. That is, the plaintiff must plead sufficient material facts to make out the legal elements of the causes of action for the court to accept jurisdiction of the claim.”

[74] I reject that submission. Whether the court has jurisdiction over the action does not depend on the quality with which the elements of the various causes of action are pleaded. Rather, the quality with which the elements of the causes of action are pleaded is relevant to a motion under r. 21.01(1)(b) or, in exceptional circumstances, under r. 25.11 when the court concludes the action is untenable or cannot succeed: Gauthier, at para. 50.

[75] The College relies on r. 21.01(1)(b) in support of its request that the action be dismissed for failure to disclose any reasonable cause of action. I move on, then, to Issue No. 2.

Issue No. 2 - If the court has jurisdiction over the action, does the Pleading fail to disclose a reasonable cause of action?

a) The Law

[76] The College relies on r. 21.01(1)(b), which provides that, “A party may move before a judge […] to strike out a pleading on the ground that it discloses no reasonable cause of action or defence”. No evidence may be filed on a motion pursuant to this rule: r. 21.01(2).

[77] A claim will be struck under this rule only, if assuming the facts pleaded to be true, it is plain and obvious that the claim has no reasonable chance of success: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980.

[78] In Fernandez Leon v. Bayer Inc., 2023 ONCA 629, at para. 8, the Court of Appeal for Ontario describes as “stringent”, the test for striking a pleading for failure to disclose a reasonable cause of action. In the same paragraph, the court highlights that “the moving party must satisfy a very high threshold in order to succeed.”

[79] When determining a motion pursuant to r. 21.01(1)(b), the court must read the subject pleading generously and err “on the side of permitting an arguable claim to proceed to trial”: Rausch v. Pickering (City), 2013 ONCA 740, 369 D.L.R. (4th) 691, at para. 34.

b) Analysis

[80] To determine Issue No. 2, I consider only the Pleading. I do not consider any of the affidavit evidence.

[81] For ease of reference, I repeat the list of the seven causes of action Ms. Obita is advancing:

i) Intentional infliction of pain and suffering; ii) Defamation; iii) Intrusion on seclusion (described in the Pleading as “the tort of invasion of privacy”); iv) Breach of contract; v) Negligence; vi) The tort of deceit; and vii) Fraudulent misrepresentation.

[82] I consider the causes of action in the order in which they are listed immediately above.

i) Intentional infliction of pain and suffering

[83] There are three elements to the tort of intentional infliction of mental suffering. The conduct must (a) be flagrant and outrageous; (b) be calculated to produce harm; and (c) result in a visible provable injury: see Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (C.A.), at para. 43, citing Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200, 29 C.C.L.T. 78 (B.C.S.C.), at paras. 52-56, a decision of McLachlin J. (as she then was).

[84] At para. 45 of Prinzo, Weiler J.A. explains what is required to establish the second element of this cause of action—the requirement “is met where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow”.

[85] I find that the Pleading is entirely lacking allegations of material facts in support of each of the three elements of this cause of action. It is plain and obvious the claim of intentional infliction of pain and suffering (or mental suffering, as the cause of action is known) stands no reasonable chance of success.

ii) Defamation

[86] In Grant v. Torstar Corp., [2009] 3 S.C.R. 640, at para. 28, McLachlin C.J. lists the three things a plaintiff in a defamation action is required to prove, on a balance of probabilities, to obtain judgment and an award of damages:

(1) That the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

[87] In the same paragraph, McLachlin C.J. explains that if those elements are established, falsity and damage are presumed.

[88] The tort of defamation is one of strict liability. The plaintiff in a defamation action is not required to establish that the defendant intended to do harm or even that the defendant was careless: Grant, at para. 28.

[89] I also consider the more recent decision of the Court of Appeal for Ontario in Catalyst Capital Group Inc. v. Veritas Investment Research, 2017 ONCA 85, 136 O.R. (3d) 23. Pleadings in defamation “actions have traditionally been held to a higher standard than in the case with other types of actions, in terms of the precision with which the material facts must be pleaded”: Catalyst Capital Group, at para. 22. The modern approach to assessment of defamation pleadings is less strict than the approach historically taken: Catalyst Capital Group, at para. 22.

[90] At para. 23 of Catalyst Capital Group, Blair J.A. emphasizes that “the material facts must be sufficient, if proved, to establish a cause of action.” He then lists, in the same paragraph, the material facts a plaintiff in a defamation case must plead:

In libel actions (defamatory statements in writing, as in this case), the material facts to be pleaded are: (i) particulars of the allegedly defamatory words; (ii) publication of the words by the defendant; (iii) to whom the words were published; and (iv) that the words were defamatory of the plaintiff in their plain and ordinary meaning or by innuendo.

[91] Ms. Obita’s allegations of defamation are found in the final, unnumbered paragraph of the Pleading. Ms. Obita therein alleges that she has been defamed by the College because of a description of her behaviour, as it appears in the College’s document in response to one of her student complaints.

[92] Taking into consideration the pleading requirements set out in both Grant and Catalyst Capital Group, I make the following findings. First, the particulars of the allegedly defamatory words are pleaded. Ms. Obita alleges that in its responding document, the College describes her as acting in an “obsessive, harassing and vexatious manner”. The Pleading satisfies the first of the four requirements listed in Catalyst Capital Group.

[93] Second, Ms. Obita alleges that the impugned words were published because, “Algonquin College has been pushing this narrative about me internally to the board of governors and employees”. Ms. Obita asserts that she has been defamed “internally to members of faculty and other employees as being unstable.” The Pleading does not include particulars as to how the impugned words were disseminated to one or more of the board of governors, faculty, and employees of the College. The Pleading does not satisfy the second of the four requirements listed in Catalyst Capital Group.

[94] Third, Ms. Obita does nothing more than provide a general description of the individuals to whom the impugned words were disseminated. It is questionable whether the Pleading satisfies the third of the four requirements listed in Catalyst Capital Group.

[95] Last, the Pleading is devoid of any allegations that the impugned words, by their ordinary meaning or innuendo, would tend to the lower the plaintiff’s reputation in the eyes of a reasonable person. The Pleading does not satisfy the fourth requirement listed in Catalyst Capital Group.

[96] It is plain and obvious that, as plead, the claim in defamation does not stand a reasonable chance of success.

iii) Intrusion on seclusion

[97] There are three elements to this cause of action. In Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 41, the Court of Appeal for Ontario concludes that a right of action for intrusion upon seclusion should be recognized in Ontario. At para. 71, the Court highlights the key features of this cause of action: “first, that the defendant’s conduct must be intentional, within which [the Court] would include reckless; second, that the defendant must have invaded, without lawful jurisdiction, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.”

[98] At para. 72 of Tsige, the Court emphasizes that “[a] claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy.” In the same paragraph, the Court provides a non-exhaustive list of the types of intrusions “that, viewed objectively on the reasonable person standard, can be described as highly offensive.” The non-exhaustive list consists of “matters such as one’s financial or health records, sexual practises and orientation, employment diary or private correspondence”.

[99] The Pleading includes general allegations about the College’s conduct in the monitoring of networks and in the management of students’ Brightspace accounts. The general allegations in that regard do not satisfy the requirements for the cause of action of intrusion upon seclusion. It is plain and obvious that the claim based in this cause of action has no reasonable chance of success.

iv) Breach of contract

[100] For several of the causes of action Ms. Obita is pursuing, the cause of action appears as a title to a section of the Pleading. That is not the case for Ms. Obita’s claim in breach of contract.

[101] During oral submissions, Ms. Obita informed the court that she relies on paras. 11a, 11b, and 12-14 of the Pleading in support of the claim in breach of contract. I find that those paragraphs consist primarily of evidence; they contain none of the particulars required to support a claim in breach of contract by an academic institution in relation to one of its students (see: Jaffer, at paras. 27, 28, and 45). For example, the Pleading does not identify (a) the specific contract Ms. Obita alleges was breached by the College; (b) the specific terms of the contract that were breached; and (c) how the terms of the contract were breached.

[102] It is plain and obvious that the claim in breach of contract has no reasonable chance of success.

v) Negligence

[103] In Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, at para. 3, McLachlin C.J. lists the four elements which a plaintiff must prove to succeed with a claim in negligence: “1) that the defendant owed [the plaintiff] a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.”

[104] Although Ms. Obita is pursuing a claim in negligence, she does not identify, through the use of a title or heading in the Pleading, the allegations made in support of that claim. It is therefore necessary to attempt to parse from the Pleading allegations which address each of the four elements of the cause of action.

[105] That the court is required to carry out such an exercise supports a finding that the requirements for pleading a claim in negligence are not met. I would go a step beyond that general deficiency in the Pleading.

[106] The Pleading is deficient specifically regarding a claim in negligence advanced by a student or former student against an academic institution. At para. 49 of Gauthier, Rouleau J.A. emphasizes that to “establish that the [academic institution] breached its duty of care, the student must plead specific facts tending to show that the conduct of the [academic institution] constituted an intentional tort […] or was outside the broad margins of the discretion that the [academic institution enjoys]”.

[107] The Pleading falls far short of the requirements for a claim based in negligence. It is plain and obvious that Ms. Obita’s claim in negligence stands no reasonable chance of success.

vi) Deceit and Fraudulent Misrepresentation

[108] Ms. Obita refers to “the tort of deceit” and to “fraudulent misrepresentation” as two separate causes of action. Justice Vermette reviewed the two causes of action in Filler Depot v. Copart Canada Inc., 2024 ONSC 466. At paras. 40 and 41, Vermette J. discusses the pleading requirements for civil fraud, deceit, and fraudulent misrepresentation:

[40] Courts use the same test for civil fraud, deceit and fraudulent misrepresentation. The five elements of the test are as follows: (a) a false representation of fact by the defendant to the plaintiff; (b) knowledge that the representation is false, absence of belief in its truth, or recklessness as to its truth; (c) an intention that the plaintiff act in reliance on the representation; (d) the plaintiff acting on the representation; and (e) the plaintiff suffering a loss in doing so. See Paulus v. Fleury, 2018 ONCA 1072 at paras. 8-9.

[41] A pleading of deceit, fraudulent misrepresentation and civil fraud must contain full particulars: see Rule 25.06(8). This means that the pleading must set out the following with careful particularity:

a. the alleged misrepresentation itself; b. when, where, how, by whom and to whom it was made; c. its falsity; d. the inducement; e. the intention that the plaintiff should rely on it; f. the alteration by the plaintiff of their position relying on the misrepresentation; and g. the resulting loss or damage to the plaintiff.

See Hamilton v. Osborne, 2009 ONCA 684 at paras. 34-35.

[109] For the purpose of the motion before the court, I consider Ms. Obita’s claims in deceit and in fraudulent misrepresentation collectively. To the extent that any of the allegations in the Pleading can be said to relate to either deceit or misrepresentation, the allegations address the College’s treatment of the student body as a whole. There are no allegations of either deceit or fraudulent misrepresentation, specific to Ms. Obita, that come anywhere close to addressing the particulars listed in para. 41, items a-g, of Filler Depot.

[110] It is plain and obvious that the claims in deceit and in fraudulent misrepresentation stand no reasonable chance of success.

c) Conclusion – Issue No. 2

[111] The answer to the question posed as Issue No. 2 is, “yes”: it is plain and obvious that all of the causes of action that Ms. Obita is pursuing stand no reasonable chance of success. On that basis, they are all struck. It remains to be determined whether the causes of action are dismissed outright or with leave to amend (i.e., Issue No. 3).

d) The College also Relies on r. 25.11

[112] Before leaving Issue No. 2, I will briefly address the College’s reliance on r. 25.11. Pursuant to that rule, the court has the discretion to “strike out or expunge all or part of a pleading or other document, without leave to amend” on one of three grounds listed therein. One of the listed grounds is that the pleading or document is “scandalous, frivolous, or vexatious”.

[113] At the hearing, the College acknowledged that because Ms. Obita is self-represented, it is incumbent on the College to limit what it alleges in the Pleading constitutes “scandalous” content. The College submits that approximately ten paragraphs in the Pleading include scandalous allegations.

[114] The following are examples of the allegations the College submits are scandalous:

Para. 1 - “However, underneath this polished veneer is a cruel organization motivated by greed.” Para. 15 - “The faculty at Algonquin College are trained to think as robots.” Para. 46 - “Algonquin College has attempted to defraud me out of a fair civil proceeding by employing […] under handed tactics.” Para. 48 - “Algonquin College is illegally collecting and using people’s information for research and profit with ‘business partners’.”

[115] The College relies on r. 25.11 as an alternative to r. 21.01(1)(b). Given that all of the claims are struck because it is plain and obvious that they stand no reasonable chance of success, it is not necessary for the court to consider r. 25.11 in relation to the merits of the claims per se.

[116] At the hearing, the College requested that the court consider r. 25.11 in the context of Issue No. 3—meaning that, if leave to amend the Pleading is granted, the College asks the court to strike the scandalous allegations from the Pleading before it is amended.

[117] I turn then to the issue of leave to amend the Pleading and consideration, if required, of the allegedly scandalous portions of the Pleading.

Issue No. 3 - If the answer to Issue No. 2 is “yes”, is Ms. Obita entitled to leave to amend the Pleading?

[118] For the reasons which follow, Ms. Obita is not entitled to leave to amend the Pleading.

[119] First, Ms. Obita has already been given one opportunity to amend her pleading. The Pleading is Ms. Obita’s second attempt at setting out her claims against the College. The court recognizes that Ms. Obita is a self-represented litigant. Ms. Obita’s status in that regard does not, however, entitle her to repeated indulgences from the court while she educates herself as may be required to prepare a pleading that complies with the Rules of Civil Procedure and includes the particulars required for the claims made.

[120] In 2006, the Canadian Judicial Council released a document titled, “Statement of Principles on Self-represented Litigants and Accused Persons” (“the Statement”). One of the goals identified in the Statement is the promotion of “access to the justice system for all persons on an equal basis, regardless of representation.” The Statement identifies the responsibilities of participants in the justice system, including self-represented litigants.

[121] Included in the responsibilities which self-represented litigants have is that they are “expected to familiarize themselves with the relevant legal practices and procedures pertaining to their case.” Another responsibility with which self-represented litigants are tasked is the preparation of their own case.

[122] Based on the form and content of the Pleading, I draw an inference and find that after drafting the statement of claim in its original form and prior to drafting the Pleading, Ms. Obita made minimal effort to familiarize herself with the legal practices and the Rules of Civil Procedure relevant to the preparation of a statement of claim.

[123] Second, I consider Ms. Obita’s litigation conduct in relation to the Obita affidavit. That affidavit was not the first affidavit Ms. Obita prepared for the purpose of a motion in the proceeding. She prepared an affidavit in support of her 2023 motion for interim substantive relief (“the first Obita affidavit”).

[124] In 2023, the College brought a motion for an order striking 26 paragraphs from the first Obita affidavit. The College was successful on the motion, with two of the paragraphs struck in their entirety and a portion of each of the other 24 paragraphs struck: Obita v. Algonquin College, 2023 ONSC 4661 (“Ruling No. 1”), at paras. 43, 45. Justice Doyle heard the 2023 motion to strike and concluded that the offending portions of the paragraphs contained argument and/or inflammatory rhetoric.

[125] The Obita affidavit, upon which Ms. Obita relies in the motion now before the court, was also the subject of the interim motion to strike. As noted in an earlier section of this ruling, the College was successful in having a part of all of more than 60 paragraphs in the 180-paragraph Obita affidavit struck.

[126] Based on the outcome of the interim motion to strike related to the Obita affidavit, I draw an inference and find that, despite having faced a motion to strike portions of the first Obita affidavit, and despite having the benefit of Doyle J.’s ruling, Ms. Obita made minimal effort to familiarize herself with the legal practices and the Rules of Civil Procedure relevant to the preparation of an affidavit.

[127] Third, and regarding all causes of action other than defamation, I agree with the College’s submission that no further amendments to the Pleading would address the fact that Ms. Obita’s claims are fatally flawed; and the Pleading does not disclose any of those causes of action.

[128] For those reasons, the claims in all causes of action, other than defamation, are struck, without leave to amend.

[129] I consider the claim in defamation separately from the other causes of action. In McIntosh v. Shore, 2023 ONSC 3124, at para. 61, this court refers to the challenges that a self-represented litigant can face when “attempting to navigate the complexities of a claim based in defamation.” The quality of Mr. McIntosh’s pleading was at issue before the court in the context of a request, pursuant to r. 2.1.01, for an order dismissing Mr. McIntosh’s claim in defamation.

[130] I distinguish between a self-represented plaintiff facing dismissal of a defamation claim in the context of a r. 2.1.01 request and a self-represented plaintiff who has had an opportunity to amend their pleading and thereafter faces a motion to strike their pleading for failure to disclose a reasonable cause of action. Plaintiffs who fall into the former category may, like Mr. McIntosh, be given the benefit of the doubt: McIntosh, at para. 61.

[131] Ms. Obita falls into the latter category. Based on her litigation conduct to date, I find that Ms. Obita is not entitled to the benefit of the doubt. Ms. Obita has not demonstrated to the court that, despite being a self-represented litigant, she has made and will, in the future, make efforts to familiarize herself with the legal practices and principles and be in a position to prepare a pleading, even if restricted to a claim in defamation, that is Rules-compliant and satisfies the requirements for a pleading in defamation.

[132] It would be unfair to, and unreasonable for, the College to have to respond to a motion for leave to amend the Pleading, even if the proposed amendments relate only to the claim in defamation. Striking the claim in defamation, without leave to amend, is just and an expeditious and cost-effective method by which to deal with that specific claim on its merits (see: r. 1.04(1)).

Disposition

[133] For the reasons given in this ruling, Ms. Obita’s claims in harassment, breach of fiduciary duty, and breach of confidentiality are dismissed, as abandoned; the balance of the claims are struck, without leave to amend. The overall effect of the court’s ruling is that Ms. Obita’s action is dismissed, in its entirety and without leave to amend.

[134] The College is successful on the motion. As the successful party, the College is presumptively entitled to its costs of the motion and of the action. If the College intends to seek costs from Ms. Obita, and the parties are unable to resolve the issue of costs, then written costs submissions shall be made pursuant to the following timetable and requirements:

1. The College shall, no later than 4:00 p.m. on the 30th day from the date on which this endorsement is released, deliver a bill of costs and written costs submissions. The latter document shall not exceed five pages, exclusive of any cover or back pages;
2. Ms. Obita shall, no later than 4:00 p.m. on the 21st day from the date on which she is served with the College’s bill of costs and written costs submissions, deliver written costs submissions. Ms. Obita’s costs submissions shall not exceed five pages, exclusive of any cover or back pages.
3. The College shall, no later than 4:00 p.m. on the 10th day from the date on which it is served with Ms. Obita’s responding costs submissions, deliver reply submissions. The reply submissions shall not exceed three pages, exclusive of any cover or back pages.
4. The parties shall, in their respective written costs submissions, provide hyperlinks for any case or other authorities cited and, if necessary, include as an attachment to the written costs submissions copies of any case or other authorities not available by hyperlinking.
5. For the purpose of sub-paras. 1-3 above, to “deliver” a document means to (a) serve the document on the opposing party, (b) file the document, together with the related affidavit of service, with the court electronically, and (c) upload the document, together with the related affidavit of service, to Case Center.
6. The written submissions shall comply with the requirements of r. 4.01 of the Rules of Civil Procedure regarding the format of court documents.

[135] If the parties are able to resolve the issue of costs, then counsel for the College shall send an email to the SCJ Assistants generic email account, copied to Ms. Obita, and to my attention, informing the court of the resolution of the costs issue.

[136] If the College does not deliver costs submissions by the deadline stipulated in para. 133, item 1, above, then there shall be no costs of the motion or the action.

The Order to be Taken Out

[137] The order which flows from this ruling is straightforward. Given that Ms. Obita has not familiarized herself with the Rules of Civil Procedure, the court dispenses with the requirement for the College to obtain Ms. Obita’s approval of the form and content of the draft order.

[138] The draft order, in an editable Word format, shall be filed with the court in the ordinary manner and to my attention. The College shall provide Ms. Obita with a copy of the draft order and confirm to her when it has been filed with the court.

Released: November 26, 2024 Justice S. Corthorn