Court File and Parties

CITATION: Olar v. Laurentian University, 2008 ONCA 699

DATE: 20081010

C47343

COURT OF APPEAL FOR ONTARIO

DOHERTY, CRONK and MACFARLAND JJ.A.

BETWEEN:

Alvin Olar

Plaintiff (Respondent)

And

Laurentian University

Defendant (Appellant)

Counsel: Alexander D. Pettingill and Grace Kim, for the Appellant Raymond G. Colautti and Anita Landry, for the Respondent

Heard and released orally: September 29, 2008

On appeal from the judgment of the Honourable Mr. Justice Gates of the Superior Court of Justice dated June 6, 2007.

ENDORSEMENT

[1] The appellant’s factum advanced many grounds of appeal relating to liability for negligent misrepresentation, the assessment of damages and costs. In oral argument, counsel restricted his submissions to liability issues and to two aspects of the costs order. We propose to address only the arguments made by counsel in his oral submissions.

Liability

[2] The appellant’s submissions, stripped to their essentials, challenge factual findings made by the trial judge. Those findings attract deference in this court. With respect to the interpretation of the statements in the appellant’s promotional material, the trial judge found that those statements were misleading in that they suggested that transfer to another University Engineering Faculty after two years at Laurentian would be “routine and … devoid of any problem” (para.78). The trial judge found that on information known to the University at the time these statements were made to the respondent, the statements were a misleading description of the transfer process (para. 45). This finding supports the trial judge’s conclusions that misrepresentations were made by the University, and that they were in all of the circumstances negligently made. We see no basis upon which we can interfere with those findings of fact.

[3] There was ample evidence to support the conclusion that the representations as to the ability to transfer after second year were misleading in a material respect at the time the respondent accepted Laurentian’s offer of admission to its engineering program (Spring of 1994). Counsel for the appellant properly points out that the trial judge made a factual error in respect of certain events in the fall of 1995. In our view, that factual error was not material to his findings that the material contained misleading information, and that the misrepresentations were negligently made.

[4] The respondent testified that the misrepresentations in the promotional material were relevant to his decision to attend Laurentian University. The trial judge was entitled to accept that evidence and made no reversible error in doing so. We also see no basis upon which this Court could interfere with the trial judge’s assessment that, in all the circumstances, it was reasonable for the respondent, a high school senior, to rely on the representations made by Laurentian University in its promotional material. As indicated above, the trial judge found that that material represented that transfer to third year at another engineering school after second year at Laurentian was a routine matter. Crerar v. Grande Prairie Regional College, [2004] A.J. No. 1782 (Q.B.) was heavily relied on by the appellant to suggest that the respondent had an independent duty to enquire into matters relating to a possible transfer. Crerar is distinguishable on its facts as explained by the trial judge (para. 80). We agree with the distinctions pointed out by the trial judge. Crerar does not assist the appellant.

[5] The appellant also submits that even if the University’s promotional material contained material misrepresentations that induced the respondent to attend Laurentian University, the respondent could have avoided his damages (an extra year to obtain his engineering degree) by making reasonable enquiries and structuring his course load at Laurentian in the first two years so as to permit transfer to another university, such as Windsor, needing only to take one additional course rather than a full extra year.

[6] The trial judge found that the respondent took reasonable steps to facilitate his transfer to an engineering program at another university beginning in the fall of his second year at Laurentian. The respondent anticipated transferring at the end of the second year. The trial judge found that the respondent followed the course selection advice given to him by the Dean of Engineering at Laurentian. It was open to the trial judge to find that the respondent acted reasonably with respect to his anticipated transfer to another university at the end of second year. We would not interfere with that finding of fact.

[7] We also agree with counsel for the respondent’s submission that, on this record, it would be speculation to suggest that the respondent actually could have structured his course load in the first two years at Laurentian to avoid the requirement of an extra year after transferring to another university. In our view, the record does not permit that inference.

[8] While the appellant argues, for the reasons set out above, that there were no damages flowing from the negligent misrepresentations, he does not argue that the trial judge erred in his assessment of those damages assuming damages were caused. We have rejected the argument that no damages flowed from the negligent misrepresentations. We need not address the quantum of damages awarded given the position taken before us.

[9] The appeal from liability and the appeal with respect to the quantum of damages must be dismissed.

Costs

[10] We would grant leave to appeal costs. The parties agree that paragraph 8 of the trial judge’s judgment should be deleted in its entirety. The parties also agree that the reference to $30,000 in fees in paragraph 6 of the trial judge’s order should be deleted. We agree with both concessions made by counsel for the respondent. The judgment at trial in all other respects should stand.

[11] We have heard submissions on costs. Costs of the appeal should be on a partial indemnity basis. Given the numbers that have been provided to us by counsel and the position of the parties, we would fix costs at $20,000, inclusive of disbursements and GST.

“Doherty J.A.”

“E.A. Cronk J.A.”

“J. MacFarland J.A.”