COURT OF APPEAL FOR ONTARIO

CITATION: Mortazavi v. University of Toronto, 2013 ONCA 655

DATE: 20131029

DOCKET: C56058

MacPherson, Gillese and Hourigan JJ.A.

BETWEEN

Houman Mortazavi and Mojgan Yousefi

Plaintiffs (Appellants)

and

The University of Toronto, Adonis Yatchew, Arthur Hosios, Martin Osborne, Jon Cohen, Brian Corman, Berry Smith, Heather Kelly, Elizabeth Smyth, Jane Alderdice, Ralph Scane, Edith Hillan, Jill Matus, Cheryl Misak, Ellen Hodnett, Angela Hildyard, Hamish Stewart, Joan E. Foley and Isfahan Merali

Defendants (Respondents)

Houman Mortazavi, appearing in person and on behalf of Mojgan Yousefi

Robert A. Centa, for the respondents The University of Toronto, Adonis Yatchew, Arthur Hosios, Martin Osborne, Jon Cohen, Brian Corman, Berry Smith, Heather Kelly, Elizabeth Smyth, Jane Alderdice, Ralph Scane, Edith Hillan, Jill Matus, Cheryl Misak, Ellen Hodnett, Angela Hidyard, Joan E. Foley and Isfahan Merali

William E. Pepall, for the respondent Hamish Stewart

Heard and released orally: October 28, 2013

On appeal from the order of Justice Edward P. Belobaba of the Superior Court of Justice, dated August 27, 2012.

ENDORSEMENT

[1] The appellants Houman Mortazavi and Mojgan Yousefi, two former doctoral students at the respondent University of Toronto, appeal from the order of Belobaba J. of the Superior Court of Justice dated August 27, 2012, striking their 187 page Statement of Claim in its entirety without leave to amend.

[2] The appellants concede that the motion judge did not err by striking their Statement of Claim under Rule 25 as an abuse of process. However, they assert that he erred by not granting them leave to file an amended Statement of Claim, much narrower than their original Statement of Claim, in which they would plead the following causes of action: negligence, breach of contract, breach of the Ontario Human Rights Code, misfeasance in public office, and conspiracy.

[3] The starting point is recognition that the decision whether or not to grant leave to amend a pleading is a discretionary one. An appellate court should interfere with such a decision only if the motion judge erred in principle or acted unreasonably in the exercise of his discretion: see Grigonis v. Toronto Boardsailing Club, 2010 ONCA 651, at para. 5.

[4] We see no basis for interfering with the motion judge’s exercise of discretion in this case. The original Statement of Claim was long, convoluted, repetitive and confusing. Crucially, once the 187 pages is pruned to its essential core – not an easy task – what is left is an attack on a series of academic decisions relating to admission, enrolment, leave of absence, grades, and appeals. In these circumstances, the motion judge had ample justification to conclude, as he did, that “the lawsuit for the tort or the breach of contract is nothing more than an indirect attempt to appeal what is an internal academic decision when the proper procedure is judicial review.” This statement applies with equal force to the other substantive claims advanced by the appellants.

[5] The appellants also seek to set aside the motion judge’s costs awards of $15,000 for the respondent university and $10,000 for the respondent Professor Hamish Stewart. We decline to do this. In our view, the costs award was an entirely appropriate one which took explicit account of the appellants’ student status.

[6] The appeal is dismissed. Leave to appeal the costs award is refused.

[7] The respondents are entitled to their costs of the appeal fixed at $12,500 for the university and $7,500 for Professor Stewart, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”

“C.W. Hourigan J.A.”