COURT OF APPEAL FOR ONTARIO
CITATION: Mortazavi v. University of Toronto, 2013 ONCA 66
DATE: 20130130
DOCKET: M41960 (C56058)
Laskin J.A. (In Chambers)
BETWEEN
Houman Mortazavi and Mojgan Yousefi
Plaintiffs (Appellants/Moving Parties)
and
The University of Toronto, Adonis Yatchew, Martin Osborne, Arthur Hosios, Jon Cohen, Berry Smith, Brian Corman, Heather Kelly, Elizabeth Smyth, Jane Alderdice, Ralph Scane, Edith Hillan, Jill Matus, Cheryl Misak, Ellen Hodnett, Angela Hildyard, Hamish Stewart, Joan Foley, and Isfahan Merali
Defendants (Respondents/Responding Parties)
Houman Mortazavi, acting in person
Mojgan Yousefi, acting in person
Robert A. Centa, for the responding parties, The University of Toronto, Adonis Yatchew, Martin Osborne, Arthur Hosios, Jon Cohen, Berry Smith, Brian Corman, Heather Kelly, Elizabeth Smyth, Jane Alderdice, Ralph Scane, Edith Hillan, Jill Matus, Cheryl Misak, Ellen Hodnett, Angela Hildyardm, Joan Foley, and Isfahan Merali
Eric S. Baum, for the responding party, Hamish Stewart
Heard: December 4, 2012
On appeal from the order of Justice Edward Belobaba of the Superior Court of Justice, dated August 27, 2012 and on a motion for an extension of time to perfect the appeal.
Laskin J.A.:
Overview
[1] The appellants, Houman Mortazavi and Mojgan Yousefi, were both doctoral students in the University of Toronto’s Department of Economics. They are married. Early in their studies, they sought accommodation from the University when Mortazavi’s father became ill and they returned to Iran to care for him. Though some accommodation was made, they received failing grades in five classes and were required to pay tuition for classes they did not attend.
[2] They appealed these decisions through three levels of internal academic appeals. Their final appeal was dismissed and they were left with two failing grades. They did not seek judicial review. Instead, on May 1, 2012, they filed a claim against the school and several of its administrators and employees. On August 27, 2012, the claim was struck by a motion judge under rules 25.06 and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, without leave to amend.
[3] On September 27, 2012, the appellants filed a notice of appeal of the motion judge’s decision. However, they have not yet perfected their appeal. They now seek an extension of time to do so. In this case, whether that extension should be granted depends on whether the appeal has any merit.
A. Facts
(1) Background
[4] The appellants were admitted to the Ph.D. program in Economics for the 2007-2008 academic year. Shortly after they were admitted, Mortazavi’s father, who lived in Iran, became seriously ill. They returned to Iran to care for him, and contacted the University to request a one-year deferral. The appellants say that their request was initially denied, and that they were told to re-apply to the program, without a guarantee of re-admission.
[5] The appellants then say that, after some back-and-forth with the University, only Yousefi’s deferral was approved. Mortazavi’s deferral was still declined. Finally, according to the appellants, they incurred approximately $5,000 to fly back to Canada to resolve the status of their registration. Upon attending at the graduate director’s office in person, they say they were granted a deferral “in less than 3 minutes.”
[6] In the fall of 2008, the appellants began their studies. According to the appellants, the financial terms of their new offer of admission were varied from the previous year. For example, they say that an entrance award due to each of the appellants in the amount of $5,000 had been retracted. Nonetheless, they attended classes throughout September.
[7] Then, in early October 2008, Mortazavi and Yousefi learned that Mortzavai’s father’s illness had suddenly progressed. They flew back to Iran to care for him. During October and November, they exchanged a series of emails with the graduate director about potential accommodations. The appellants eventually requested a leave of absence for the fall 2008 term.
[8] The University says there was confusion over what period of time the leave of absence would apply to, and the request was eventually cancelled; the appellants say it was arbitrarily refused. Ultimately, the appellants did not attend any more classes or take exams during the fall 2008 term. As a result, they received three failing grades.
[9] The appellants returned to the program for the winter 2009 term with a modified schedule to reflect the classes they had missed in the fall. They attended classes and completed some assignments. Then, in March 2009, Mortazavi’s father died. Both Mortazavi and Yousefi returned to Iran to make funeral arrangements.
[10] The appellants did not return to classes, and they did not sit their exams in April 2009. As a result, they received two more failing grades. The appellants say that they gave notice of Mortazavi’s father’s death to the University. The University says the appellants did not communicate with the school until May 2009, when the appellants were informed that the Department would be seeking to terminate their registration.
[11] During the summer and fall of 2009, the appellants and the Department continued to negotiate about the terms of the appellants’ studies. The appellants were permitted to audit three courses in the fall 2009 term and to write two exams, despite not being formally registered and not having paid tuition. However, their exams were not graded.
[12] The appellants eventually appealed their academic record to the Graduate Department Academic Appeals Committee (GDAAC), which unanimously dismissed the appeal. They next appealed that decision to the Graduate Academic Appeals Board (GAAB), which directed that the three failing grades in the fall 2008 semester be marked as “withdrawals” and recommended that the fees attributable to that term be waived. The three grades were changed; however, the school declined to follow the GAAB’s recommendation on the fees.
[13] In early 2012, the appellants appealed the decision of the GAAB to the Academic Appeals Committee (AAC). They submitted, among other things, that the GAAB should have ordered that their two winter 2009 failing grades be marked withdrawn and that their two fall 2009 tests be graded. Those appeals were dismissed. The appellants were therefore left with two failing grades from the winter 2009 term.
[14] The record is unclear on which fees have been paid by the appellants to the University and which scholarships and disbursements have been paid by the University to the appellants. The appellants appear to owe the University arrears for unpaid tuition from the fall of 2008, plus accumulated interest. They say the University unfairly forwarded their debts to a collection agency during the appeals process. As a consequence of their lapsed status as students, the appellants have also lost their employment as teaching assistants.
(2) The Appellants’ Allegations
[15] As I said, instead of seeking judicial review, the appellants filed a statement of claim against the University of Toronto; the Dean of the School of Graduate Studies (SGS) (Brian Corman); two Vice-Deans of the SGS (Berry Smith and Elizabeth Smyth); two directors of the SGS (Jane Alderdice and Heather Kelly); three professors in the Department of Economics (Arthur Hosios, Adonis Yatchew, and Martin Osborne); two vice-provosts of the University (Edith Hillan and Jill Matus); two vice-presidents of the University (Cheryl Misak and Angela Hildyard); the chair of the Academic Board (Ellen Hodnett); the chair of the GDAAC (Jon Cohen); the chair of the GAAB (Ralph Scane); the chair of the AAC (Hamish Stewart); the University Ombudsperson (Jane Foley); and the manager of the Anti-Racism and Cultural Diversity Office at the University (Isfahan Merali).
[16] The statement of claim is 187 pages. The appellants seek approximately 80 million dollars. For the purpose of this motion, I rely on the appellants’ listed claims at p. 5 of their statement of claim. The allegations can be grouped in the following way:
Collective agreement claims arising from the appellants’ employment as teaching assistants (only against the University);
Breach of the appellants’ ss. 2(b), 2(d), 7, 12, and 15 rights under the Canadian Charter of Rights and Freedoms and breach of the appellants’ rights under the Canadian Human Rights Act and the Canada Labour Code;
Violations of procedural fairness and natural justice (including the creation of a “capricious and prejudicial complaint process, abuse of procedure”, and bias);
Conspiracy to injure;
Misfeasance in public office;
Breach of fiduciary duty;
Negligence;
Breach of contract;
Various intentional torts.
[17] The University defendants and Professor Hamish Stewart, who is represented by separate counsel, moved to strike the statement of claim under Rules 21 and 25.
(3) The Motion Judge’s Decision
[18] I agree with the respondents that the motion judge struck the claim under rules 25.06 and 25.11. However, he also declined to grant leave to amend. As he describes in the excerpt below, he declined to do so because he was confident that the claim should be struck anyway under Rule 21 as disclosing no reasonable cause of action:
Indeed I am more than satisfied that the defendant’s motion to strike without leave to amend should be granted in its entirety.
I say this primarily because at root I agree with Mr. Centa that this is a genuine but misguided attempt by two very upset former graduate students to re-package and re-litigate the very claims (about leave of absence and failing grades) that were advanced and considered and argued and reasons given before several appeal boards as provided in the university system, namely internal appeals to various graduate boards and overarching appeal tribunals. I note that neither plaintiff decided to seek judicial review of the university’s decisions with regard to any of their complaints or concerns.
[19] The motion judge also specifically struck the allegations pleaded against Professors Scane and Cohen on the principle of adjudicative immunity, and found that the court had no jurisdiction over disputes arising under the appellants’ collective agreement as teaching assistants for the University. Finally, the motion judge struck the claims against all individual defendants as an abuse of process.
(4) The Appeal
[20] The appellants argue that the motion judge erred in dismissing the action because the claim, or parts of it, disclosed reasonable causes of action falling within the jurisdiction of the Superior Court of Justice. They further submit that, once the claim was struck, the motion judge erred in declining to grant the appellants leave to amend. The appellants also suggest that the motion judge exhibited bias against them during the motion hearing.
B. Principles and analysis
[21] The overriding principle the court must consider in deciding whether to grant a party an extension of time to perfect an appeal is whether the justice of the case requires it. In applying this principle, the court typically takes into account the following four factors:
Whether the appellant formed an intention to appeal within the relevant period;
The length of the delay and explanation for the delay;
Any prejudice to the respondent;
The merits of the appeal.
See Issasi v. Rosenzweig, 2011 ONCA 112, at para. 4.
[22] The respondents acknowledge that the appellants had a timely intention to appeal, the length of the delay is short, and a brief extension would cause them no actual prejudice. However, they argue that the justice of the case does not require an extension, because the appellants have not provided a reasonable explanation for the delay and because the underlying appeal has no merit.
(a) Explanation for the Delay
[23] The appellants say they were erroneously advised by their counsel at the time that they would have sixty days to perfect the appeal from the date they received the motion transcript. Emails in the motion record confirm their belief that they were not subject to the thirty-day timeframe. I accept the appellants’ statements. They provide a reasonable explanation for the delay.
(b) Merits of the Appeal
[24] I must consider whether the appellants’ case has so little merit that this court could reasonably deny the important right of an appeal: Issasi v. Rosenzweig, at para. 10.
[25] As a preliminary matter, I reject the appellants’ contention that the motion judge exhibited bias towards them. Nothing in the transcript of the proceedings before the motion judge supports this contention.
[26] I also see no merit to the appeal of the striking of the claim under Rule 25. Rule 25.06 requires that every pleading “shall contain a concise statement of the material facts on which the party relies for the claim or defence…” Rule 25.11 allows a judge to strike out a pleading, with or without leave to amend, if the pleading “(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of process of the court.” The appellants’ statement of claim was 187 pages long and, in the words of the motion judge, “replete with evidence being repeated over and over again.” Without doubt it violated Rule 25 and was properly struck.
[27] The only serious question is whether the motion judge was justified in refusing to grant leave to amend. His reason for doing so was his confidence that the claim should be struck anyway under Rule 21 because it disclosed no reasonable cause of action. The legal benchmark for striking a claim for failing to disclose a reasonable cause of action is whether it is plain and obvious that the claim will fail: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959. Therefore, in determining whether the appeal of the motion judge’s decision not to grant leave to amend has any merit, I must consider whether there is any force in the appellants’ argument that it was not plain and obvious that their claims would fail.
[28] Largely for the reasons set out by the motion judge, I believe that the following claims were bound to fail: all claims relating to the appellants’ employment as teaching assistants; all claims alleging breaches of the appellants’ rights under the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act, the Canada Labour Code; all claims relating to violations of procedural fairness, natural justice, or the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, including those made personally against Professors Scane, Cohen, and Stewart as chairs of the internal appeals bodies; all claims alleging misfeasance in public office, conspiracy to injure, and other miscellaneous intentional torts; and all claims alleging breach of fiduciary duties. If these were the only claims set out in the appellants’ statement of claim, I would decline to grant an extension of time.
[29] I am not prepared, however, to say the statement of claim does not disclose a reasonable cause of action for negligence or breach of contract. In particular, I am not persuaded that the appellants’ claims arising from the University’s conduct in relation to the following events – subject, as they may be, to statutory time limitations – are bound to fail:
• The appellants’ deferral in 2007 – specifically, the University’s allegedly arbitrary delay in granting each party a deferral, and resulting damages;
• The appellants’ requests for accommodation in the fall 2008 academic term – specifically, the University’s alleged mismanagement of the appellants’ request for a leave of absence, and resulting damages;
• The appellants’ dispute with the University over unpaid tuition and fees – specifically, the University’s failure to adopt the GAAB’s recommendation that the school waive the fall 2008 tuition owing and the University’s alleged management of the arrears during the appeals process, and resulting damages.
[30] This court has held that judicial review is the appropriate option when the desired legal remedy aims to reverse an internal academic decision made by university authorities. However, the court has also held that where “the plaintiff alleges factors that constitute a cause of action based on torts or a breach of contract, while claiming damages, the court has jurisdiction, even if the dispute stems from academic or educational activities of the university in question”: Gauthier v. Saint-Germain, 2010 ONCA 309, 325 D.L.R. (4th) 558, at para. 46.
[31] Even where a court is found to have jurisdiction, a plaintiff must still plead the requisite elements of the cause of action. In Gauthier, at paras. 47-49, Rouleau J.A. discussed the limited ways in which a student can establish a cause of action against a university in relation to academic decisions:
…[B]y registering at a university, it is understood that the student is subject to the discretion of that institution for the resolution of academic issues, namely for the evaluation of the quality of the student’s work, the structure and implementation of the university programs…This discretion is very broad…
To establish a cause of action for a breach of contract, the student must show that the university failed to meet its express or implicit obligation to which the institution committed by approving the student’s registration…
…[I]n order to establish a cause of action based on negligence…the student must submit specific facts to show that the behaviour of the university, or the professor in question, constituted an intentional tort…or was outside the discretionary scope granted to the university and its professors.
[32] Rouleau J.A. also discussed the two circumstances in which a court may strike a cause of action in cases of this nature, at para. 50:
First, if the lawsuit for a tort or a breach of contract is but an indirect attempt to appeal an internal academic decision when the proper procedure is a judicial review (for instance, the decision to yield a specific result, to require a specific task, to refuse admission to a program, or to fail to grant a diploma), the option to strike will be available to the court. Second, if the submission does not provide the necessary details to show that the university or its employees went beyond the scope of their discretionary power, the court may strike the cause of action.
[33] The appellants are not asking the court to reverse an internal academic decision – they are not asking for their grades to be changed or to be readmitted to the program. They are asking for damages arising from the University’s alleged failure to comply with its contractual obligations and the duty of care it owed to the appellants as students.
[34] Further, a judge considering a motion under Rule 21 must assume that all facts in the statement of claim are proven. Taking the appellants’ allegations as true, I cannot say that it is plain and obvious that the university did not breach its implied obligations or exceed its discretionary power in dealing with the appellants’ requests for accommodation – specifically with respect to the 2007 deferral, the fall 2008 academic term, and the appellants’ unpaid tuition (over which the internal appeals bodies appear to have lacked jurisdiction).
[35] This court has also recently granted student-plaintiffs in similar circumstances an opportunity to revise their statements of claim to pinpoint an implied or express contractual term or applicable standard of care from which the university or its employee deviated: see Gauthier v. Saint-Germain; Jaffer v. York University, 2010 ONCA 654, 268 O.A.C. 338, leave to appeal refused, [2010] S.C.C.A. No. 402. I am therefore unwilling at this juncture to deny the appellants’ their right of appeal of the motion judge’s decision. The justice of the case entitles the appellants to an extension of time to perfect their appeal.
C. Conclusion
[36] The appellants also seek leave to file the transcript of the submissions made before the motion judge and an interim decision made by the Ontario Human Rights Tribunal in relation to this case. The respondents do not oppose this request, and neither do I.
[37] I grant the appellants thirty days from the release of this decision to perfect their appeal. If the appeal is not perfected within this thirty-day period, the respondents may bring a motion without notice before the registrar to have the appeal dismissed. As the appellants obtained only limited success on the motion and were asking for an indulgence from the court, I order that there be no costs of the motion.
Released: Jan 30, 2013 “John Laskin J.A.”
“JL”