COURT OF APPEAL FOR ONTARIO

CITATION: Ramdath v. George Brown College of Applied Arts and Technology, 2013 ONCA 468

DATE: 20130709

DOCKET: C56389

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Katrina Ramdath, Zsolt Kovessy and Ashish Singh

Plaintiffs (Respondents)

and

The George Brown College of Applied Arts and Technology

Defendant (Appellant)

Robert B. Bell, Michael C. Smith and C. Peterson, for the appellant

Won J. Kim and Aris Gyamfi, for the respondents

Heard: July 2, 2013

On appeal from the judgment of Justice Edward P. Belobaba of the Superior Court of Justice, dated November 16, 2012, with reasons reported at 2012 ONSC 6173, 113 O.R. (3d) 531.

By the Court:

[1] The appeal was dismissed with reasons to follow. These are those reasons.

A. Introduction and factual Background

[2] The appellant appeals the judgment that the trial judge rendered on the common issues certified in this class proceeding. The trial judge found that the program description published by the appellant in its course calendar negligently misrepresented the benefits of its graduate international business management program and thereby breached the unfair practices provisions of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A (the “CPA”). The program description stated that the program provided students “with the opportunity to complete three industry designations/certifications in addition to the George Brown College Graduate Certificate”.

[3] The promise of these industry designations made the program very attractive to prospective students. Upon graduating, however, the respondents did not automatically receive the designations and, moreover, were not automatically eligible to write the industry exams necessary to obtain the designations. This is because the appellant had no agreements in place with the industry associations with respect to awarding the designations. Students would have to apply separately to each industry association and, in addition to writing the exam and paying the sometimes hefty fee, they would be required to take additional courses and/or submit proof of work experience.

[4] Based on the representations made by the appellant to prospective and actual students, the trial judge found that graduates of the program reasonably expected that they fulfilled the necessary qualifications to obtain the promised industry designations by completing the program. He found, however, that they also reasonably understood that they still had to write the industry exams and pay the requisite fees in order to obtain the designations.

B. Analysis

(1) The Appellant’s Duty of Care

[5] First, the appellant argues that the trial judge erred in finding that it owed a duty of care to its students. In the appellant’s submission, a special relationship giving rise to a duty of care would only be created if the respondents acted reasonably in relying on the program description. The respondents could have obtained all of the relevant information from the various industry association websites. Had they done so, they would have known what was required in order to receive the designations. Further, no special relationship was created, in the appellant’s submission, because the respondents’ interpretation of the program description was unreasonable. The trial judge found that students reading the program description would reasonably expect to have to write an examination and pay a fee in order to obtain the industry designations. The evidence of the representative plaintiffs, however, was that they neither expected to write the examinations or pay any fees, nor would they be prepared to do so if that were a requirement. In addition, the appellant notes that the vast majority of the class members took no steps to obtain the designations. As a result, the appellant argues that the test for reasonable reliance was not made out.

[6] We disagree. As confirmed in Olar v. Laurentian University (2007), 49 C.C.L.T. (3d) 257 (Ont. S.C.), at paras. 70-71, aff’d 2008 ONCA 699, it is reasonable for students to rely on statements contained in course calendars, because these calendars are published with the intention that students read them and rely on the information contained therein in order to decide which academic program to pursue. We see no error in the trial judge’s conclusion that a special relationship existed between the appellant and the respondent class members.

[7] With respect to the appellant’s submission that the record establishes that the respondents were not, and are not now, prepared to pay the necessary fees and write the required examinations for the industry designations, we do not view the respondents’ statements as having gone as far as the appellant suggests. They do not show that reliance on the program description was unreasonable.

[8] The appellant’s concerns are primarily directed at whether each of the class members reasonably relied on the representations and can prove damages. The issue of damages was not certified as a common issue and will be determined, with evidence, at the individual issues phase of the trial.

(2) The CPA Claims

[9] Second, the appellant takes issue with the trial judge’s holding that the respondents have made out a claim under the CPA. The appellant argues that: a) the students are not consumers as defined in the CPA; b) each class member ought to have been required to prove reliance before being entitled to an award of damages under s. 18 of the CPA; and c) the requirement for timely notice of the claim ought not to have been waived by the trial judge.

[10] We will address each of these submissions in turn.

(a) Are students consumers under the CPA?

[11] “Consumer” is defined in s. 1 of the CPA as “an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes”. The appellant argues that postgraduate students seeking to obtain a business certificate are acting for a business purpose.

[12] We would not give effect to this submission. Before reaching his conclusion that the respondents came within the definition of “consumer” under the CPA, the trial judge carried out a careful and thorough review of the legislation’s underlying principles, its statutory history, judicial interpretation of the enactment, and the legislative intent behind it. The trial judge then considered the uncontroverted evidence tendered by the respondents and concluded that they were “typical students who obviously hoped that their education would one day lead to employment.” He did not, as the appellant suggests, reverse the burden of proof and place it on the appellant. The trial judge’s finding that the respondents were consumers within the meaning of the CPA was reasonable in the circumstances.

(b) Did each class member have to prove reasonable reliance on the misrepresentation?

[13] The appellant argues that the promise contained in the program description was only that the students would have an opportunity to obtain the designations. This did not amount to an unfair practice, as there was ample information available on the Internet and elsewhere that students could access with respect to the requirements for industry association designations. Further, even if it could be considered an unfair practice, each individual member of the class must prove that he or she relied on the misrepresentation contained in the course calendar before being entitled to a remedy under the CPA.

[14] We reject the submission that the program description did not amount to an unfair practice. The trial judge found as a fact that the representation was misleading and that it would be unreasonable to expect students to conduct independent research to verify its accuracy. This finding is entitled to deference and we see no error in the trial judge’s conclusion in this regard.

[15] As to the reliance issue, we do not view the CPA as requiring proof of reliance in order to establish that there has been an unfair practice and that there is entitlement to a remedy under the Act. Section 18(1) of the CPA clearly provides that a consumer who enters into an agreement "after or while a person has engaged in an unfair practice” is entitled to any remedy that is available in law, including damages. Proof of reliance is not a prerequisite. In any event, as noted by the trial judge, the individual damage awards are to be determined in the next phase of the litigation and individual circumstances will be considered.

(c) Did the trial judge err in waiving the timely notice requirement?

[16] Section 18(3) of the CPA provides that consumers must give notice of a claim within one year after entering into the agreement. The appellant argues that some class members did not comply with this timely notice requirement and that the trial judge erred in law by waiving it.

[17] We disagree. Assuming that waiver of the timely notice requirement was in fact necessary, the trial judge’s exercise of discretion in this regard is entitled to deference. The delay, if any, was minimal and we see no basis to interfere in the circumstances of this case.

(3) Class Composition

[18] The appellant lastly argues that there was no evidence at trial to support various class members remaining in the class: for example, nothing in the record justifies a claim advanced by those who withdrew from the program before graduating or those who ultimately obtained the relevant industry designations. As the respondents correctly note, however, the issues of damages and individual reliance were not certified as common issues and remain to be determined. In the circumstances, such individual inquiries would be better addressed at that stage. To the extent that the appellant seeks to raise new issues on appeal regarding the class composition, we decline to entertain them, as it would not be fair to the respondents and the necessary factual findings were not made by the trial judge.

C. Disposition

[19] For these reasons, the appeal is dismissed. Costs to the respondents are fixed at $17,500, inclusive of disbursements and applicable taxes.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”

Released: July 09, 2013