Court of Appeal for Ontario

Citation: Bounpraseuth v. York University, 2014 ONCA 390

Date: 20140513

Docket: C58221

Before: Doherty, Gillese and Hourigan JJ.A.

Between

Outhonesavan K. Bounpraseuth Plaintiff (Appellant)

and

York University Defendant (Respondent)

Counsel: Carlin McGoogan, for the plaintiff (appellant) Sarah Jones, for the defendant (respondent)

Heard and released orally: May 8, 2014

On appeal from the judgment of Justice E. Ria Tzimas of the Superior Court of Justice, dated February 13, 2013.

ENDORSEMENT

[1] Counsel for the appellant helpfully narrowed the issue on this appeal. He concedes that the claims as pleaded in the statement of claim cannot stand. He submits, however, that the motion judge erred in not giving the appellant leave to amend his pleading. Before addressing the merits of that submission, we note that the motion judge asked the appellant for “specifics” should she give him leave to amend his claim and the appellant declined to provide those specifics.

[2] Counsel before us suggests that in essence, the appellant’s claim is for breach of contract against the respondent University. He contends that the appellant has alleged, albeit in a confusing manner, that he was entitled to graduate from the University in 2004 and that the University failed, for no good reason, to graduate him until 2010, resulting in the damages as pleaded in the statement of claim.

[3] We cannot accept this characterization of the claim. Indeed, it is contrary to the claim as actually put forward by the appellant in his statement of claim. That claim was all about the marks the appellant received which prevented him from graduating and the unfair way he alleges he was treated by the respondent University in the course of his attempts to rectify those marks.

[4] The proposed amendment would, in our view, entirely recast the statement of claim. We would not interfere with the motion judge’s refusal to allow leave to amend the claim.

[5] The appeal is dismissed.

[6] Costs awarded to the respondent University in the amount of $2,700, inclusive of relevant taxes and disbursements.

“Doherty J.A.”

“E.E. Gillese J.A.”

“C.W. Hourigan J.A.”