Dawson v. University of Toronto, 2007 ONCA 875

CITATION: Dawson v. University of Toronto, 2007 ONCA 875

DATE: 20071213

DOCKET: C46810

COURT OF APPEAL FOR ONTARIO

SIMMONS, MACFARLAND AND EPSTEIN JJ.A.

BETWEEN:

JULETH ROSE DAWSON

Plaintiff (Appellant)

And

GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO, FACULTY OF DENTISTRY OF THE UNIVERSITY OF TORONTO, AND SCHOOL OF GRADUATE STUDIES OF UNIVERSITY OF TORONTO

Defendants (Respondents)

COUNSEL:

Rod Byrnes and J. David Martin and Barry D. Reese for the plaintiff/appellant

Alexander Pettingill and Laurie Livingstone for the defendants/respondents

Heard and released orally: November 15, 2007

On appeal from the decision of Justice Paul Perell of the Superior Court of Justice dated February 20, 2007.

ENDORSEMENT

[1] The appellant appeals the order of Perell J. striking out the statement of claim without leave to amend, having concluded that the statement of claim disclosed no cause of action. The motion judge determined that all of the matters raised in the statement of claim were in pith and substance matters of an academic nature. The appellant argues that her claim against Dr. Ten Cate for negligent advice represents an independent tort for which the university should be liable for damages and which she should be able to pursue independently of her academic dispute with the university. We do not agree.

[2] In our view, the appellant’s claim against Dr. Ten Cate is part and parcel of her academic dispute with the university and the particulars of her “negligence” claim demonstrate that this is so. She sought out Dr. Ten Cate’s advice in his capacity as Chair of the Graduate Committee which oversaw her work as a Ph.D. student. Her claim is that he did not give her more fulsome advice. He told her one option open to her to enable her to complete her thesis was to deregister and then, when ready, apply to reregister. She says he did not tell her the downside of deregistration and the risk that she may not be readmitted. Dr. Ten Cate referred her to the calendar when they spoke which clearly set out the options available to her.

[3] The appellant further argues this court should transfer this proceeding to the Divisional Court so it may proceed as a request for judicial review and order that it proceed as a trial. Counsel’s request includes the negligence claim in the event the first ground of appeal fails.

[4] Assuming without deciding that we have jurisdiction to transfer this proceeding as requested, in our view, the claim as presently pleaded is not framed in a manner amenable to the judicial review process. Moreover, whether it should proceed is a matter for the Divisional Court.

[5] The appeal is therefore dismissed.

[6] As to the cross-appeal, the respondents argue that they were denied the opportunity to make submissions in relation to the second paragraph of the order of the motion judge. The terms of that paragraph in relation to the ability of the respondents to raise delay on any subsequent application for judicial review, came about as the result of the settlement of the order. In our view, this term of the order inappropriately fetters the discretion of the Divisional Court to consider any and all defences that may be available.

[7] In the result, paragraph 2 of the order of the motion judge will be amended accordingly.

[8] Costs of the appeal and the motions to this court are to the respondents fixed in the amount $10,500 inclusive of disbursements and GST.

“J. Simmons J.A.”

“J. MacFarland J.A.”

“G. Epstein J.A.”