Court of Appeal for Ontario

ONCA 398 Date: 2016-05-26 Docket: C56816

Before: MacPherson, Lauwers and Hourigan JJ.A.

Between

Kris Rana Appellant

and

Her Majesty the Queen in Right of the Province of Ontario (Ministry of Training Colleges and Universities Student Support Branch) Respondent

Counsel: Kris Rana, on her own behalf Abel Fok, for the respondent

Heard: May 19, 2016

On appeal from the order of Justice Andra Pollak of the Superior Court of Justice, dated February 27, 2013.

ENDORSEMENT

[1] In 2008, the appellant enrolled in the law clerk program at Canadian Business College (the “College”), which is a private career college registered under the Private Career Colleges Act, 2005, S.O. 2005, c. 28, Sched. L (the “PCCA”). The College found that the appellant had plagiarized an assignment. She denied having done so and, in 2009, launched a complaint against the College with the Superintendent of Private Career Colleges (the “Superintendent”), alleging that the College was discriminating against her. That same year, she left the College and then, shortly thereafter, attempted to return to her program, but the College refused to allow her to do so.

[2] The appellant corresponded with staff at the Ministry of Training, Colleges and Universities (the “MTCU”) regarding her complaint, who informed her via email that the MTCU did not have the jurisdiction to force the College to allow her back into the program and that there had been no breach of the PCCA or its regulations.

[3] The appellant then issued a statement of claim alleging that Ontario, through the Superintendent and staff at the MTCU, was negligent in its investigation of and response to her complaint with respect to the College’s finding that she had plagiarized an assignment, as well as the College’s refusal to allow her back into her program.

[4] Ontario brought a motion pursuant to r. 21.01(1)(b) of the of the Rules of Civil Procedure to strike the statement of claim for failing to disclose a reasonable cause of action. The motion judge concluded that Ontario does not owe a private law duty of care to an individual student of a private career college. Consequently, the motion was granted and the appellant’s statement of claim was struck.

[5] On appeal, the appellant submits that once an individual complains to the MTCU about a college’s misconduct, a private law duty of care arises. She submits that the duty of care was breached by the MTCU employees and the Superintendent because they failed to perform a diligent investigation into her complaint.

[6] We are not persuaded that the motion judge erred in striking the statement of claim.

[7] In our view, the motion judge correctly applied the test in Anns v. Merton London Borough Council, [1978] AC 728 (HL) to find that the Superintendent cannot owe a private law duty of care toward an individual student complainant, as the PCCA does not expressly or by implication establish a relationship of proximity between the Superintendent and a student complainant. Rather, the Superintendent’s role in reviewing student complaints is limited to ensuring that private colleges comply with the PCCA. The Superintendent does not act as an advocate for student complainants.

[8] In addition, the appellant did not plead any material facts that, if assumed to be true, would create a “special relationship” between her and the staff at the MTCU or the Superintendent. The fact that the appellant wrote a number of letters to MTCU staff complaining about the College’s alleged discrimination does not create a “close and direct” relationship. No Crown servant undertook or represented to her to expect any particular outcome as a result of her complaint.

[9] In any event, the MTCU did conduct an investigation pursuant to its powers under s. 36(2) of O. Reg. 415/06 and determined that there was no basis to intervene.

[10] The appeal is dismissed. In the circumstances, we make no order as to costs.

“J.C. MacPherson J.A.”

“P. Lauwers J.A.”

“C.W. Hourigan J.A”