Lam v. The University of Western Ontario Board of Governors
[Indexed as: Lam v. University of Western Ontario (Board of Governors)]
Ontario Reports
Court of Appeal for Ontario
Strathy C.J.O., Lauwers and Zarnett JJ.A.
February 6, 2019
144 O.R. (3d) 587 | 2019 ONCA 82
Case Summary
Actions — Jurisdiction — Plaintiff alleging that his Ph.D. supervisory committee pressured him to transfer out of Ph.D. program because members were unwilling to familiarize themselves with his area of research after his former supervisor died and that committee misled him about availability of funding — Plaintiff bringing action for damages for breach of contract and breach of fiduciary duty — Motion judge erring in granting summary judgment dismissing action solely on basis that plaintiff should have used university's internal complaints process — Court having jurisdiction to entertain claim by student against university for tort or breach of contract even where claim arises out of academic matter.
The plaintiff sued the defendant university for damages for breach of contract and breach of fiduciary duty, alleging that his Ph.D. supervisory committee pressured him to transfer out of the Ph.D. program because members were unwilling to familiarize themselves with his highly specialized area of research after his former supervisor died suddenly, and that members misled him about the availability of funding. The defendant moved successfully for summary judgment dismissing the action. The motion judge found that there were genuine issues of fact that would require a trial to resolve regarding the conduct and motivations of the supervisory committee members and what they knew and said about funding. However, the motion judge found that, as a matter of law, the plaintiff should have availed himself of the defendant's internal complaints procedure as his complaint arose out of an academic matter. The plaintiff appealed.
Held, the appeal should be allowed.
The court has jurisdiction to entertain a claim by a student against a university where the facts alleged constitute a cause of action based on tort or breach of contract even if the dispute stems from an academic or educational activity of the university. It is the remedy sought, not whether the claim falls on the academic or legal end of the spectrum, that is indicative of jurisdiction. A claim by a student against a university will fail if it is an indirect attempt to appeal an academic decision for which judicial review would be the remedy, or if insufficient detail is given in the pleadings to show that the university's actions go beyond the broad discretion it enjoys. The factual issues the motion judge found to exist could, if resolved in the plaintiff's favour at trial, make out a cause of action for breach of contract. Accordingly, the defendant's motion ought to have been dismissed.
Cases Considered
Gauthier c. Saint-Germain, [2010] O.J. No. 1771, 2010 ONCA 309, 325 D.L.R. (4th) 558, 264 O.A.C. 336, 190 A.C.W.S. (3d) 446 [Leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 257]; Jaffer v. York University, [2010] O.J. No. 4252, 2010 ONCA 654, 326 D.L.R. (4th) 148, 268 O.A.C. 338, [2010] I.L.R. ÂG-2351, 193 A.C.W.S. (3d) 1177 [Leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 402], consd
Other Cases Referred to
Bhasin v. Hrynew, [2014] 3 S.C.R. 494, [2014] S.C.J. No. 71, 2014 SCC 71, [2014] 11 W.W.R. 641, 27 B.L.R. (5th) 1, 379 D.L.R. (4th) 385, 4 Alta. L.R. (6th) 219, 464 N.R. 254, 20 C.C.E.L. (4th) 1, 2014EXP-3530, J.E. 2014-1992, EYB 2014-244256, 245 A.C.W.S. (3d) 832; Hashemi-Sabet Estate v. Mazzulla, [2016] O.J. No. 1938, 2016 ONCA 273, 27 C.C.L.T. (4th) 179, 265 A.C.W.S. (3d) 814; Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, EYB 2014-231951, 95 ET.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, 2014EXP-319, JE 2014-162; Khabouth v. Nuko Investments Ltd., [2013] O.J. No. 4995, 2013 ONCA 671; Lam v. University of Western Ontario Board of Governors, [2015] O.J. No. 1232, 2015 ONSC 1642, 251 A.C.W.S. (3d) 580 (S.C.J.); Lam v. University of Western Ontario Board of Governors, [2015] O.J. No. 4460, 2015 ONSC 5281 (S.C.J.); Young v. Bella, [2006] 1 S.C.R. 108, [2006] S.C.J. No. 2, 2006 SCC 3, 261 D.L.R. (4th) 516, 343 N.R. 360, J.E. 2006-290, 254 Nfld. & P.E.I.R. 26, 37 C.C.L.T. (3d) 161, 21 C.P.C. (6th) 1, 145 A.C.W.S. (3d) 343, EYB 2006-100404
Procedural History
APPEAL from the judgment of Koehnen J., [2017] O.J. No. 6305, 2017 ONSC 6933 (S.C.J.) dismissing the action.
Counsel:
Selwyn A. Pieters and Christopher Stienburg, for appellant.
Sarah Jones, for respondent.
Judgment
The judgment of the court was delivered by
ZARNETT J.A.:
Introduction
[1] The appellant, Simon Lam, appeals from the decision of the motion judge granting summary judgment dismissing his action against the respondent, the University of Western Ontario Board of Governors (the "University"). The appellant's action claims damages for loss of income, pain and suffering, and out-of-pocket expenses resulting from his having been deprived of the opportunity to complete a Ph.D. degree.
[2] The appellant enrolled, in 2011, in a Ph.D. program at the University's faculty of science. His thesis research focused on a highly specialized area of biochemistry. He had funding for his research through a grant obtained by his thesis supervisor from the Canadian Institute of Health Research ("CIHR").
[3] In 2012, the appellant's thesis supervisor died. As a result, a new supervisory committee was formed. After various meetings and discussions with the new supervisory committee, the appellant transferred out of the Ph.D. program into a master's program.
[4] The appellant founds his action on the allegation that he was pressured by the new supervisory committee to transfer out of the Ph.D. program, in a manner that involved breaches of obligations the University owed to him. He says the members of the supervisory committee lacked, and were unwilling to acquire, the necessary expertise in his area of research, and misled and provided knowingly incorrect information to him about the availability and security of his funding.
[5] The motion judge, after carefully reviewing the evidence, found there were genuine issues of fact that would require a trial to resolve, including:
(a) whether the supervisory committee recommended the appellant's transfer out of the Ph.D. program because it genuinely believed there were problems with the appellant's work (as the University contended) or because the members of the committee were unwilling to familiarize themselves with his research (as the appellant contended); and
(b) what the appellant was told about funding by the supervisory committee and whether those statements were justified.
[6] The motion judge held, however, that it was not necessary for those issues to proceed to trial, because "as a matter of law" the appellant's action should have been brought as a complaint to the University and "should not be before [the] court to begin with". He granted summary judgment and dismissed the action.
[7] In my view, the motion judge erred in law. The genuine issues of fact he identified as requiring a trial could, if resolved in favour of the appellant, result in a legally cognizable claim. There was nothing in law that required the Superior Court to decline to deal with such a claim or to refuse remedies such as damages, in favour of an internal University complaint process in which such remedies would not be available.
[8] Accordingly, I would allow the appeal, set aside the judgment dismissing the action and direct that the matter proceed to trial.
The Facts
[9] The appellant received two bachelor of science degrees from the University of Alberta in 2005 and 2007, and another from the respondent University in 2009. Thereafter, he enrolled in a master's program in biochemistry at the University. In 2011, and before completing a master's degree, he was allowed to transfer to the Ph.D. program in biochemistry.
[10] At the time of his transfer to the Ph.D. program, the appellant's supervisor was Professor Megan Davey. According to the appellant, in June 2012 Professor Davey advised him that CIHR had approved a grant to fund her research and that of her doctoral students, including the appellant, and that he would receive funding from the CIHR grant until completion of his Ph.D.
[11] In August 2012, Professor Davey unexpectedly died. According to the appellant, this created uncertainties for him as to who would supervise his research, where the research would be done (it had been done at Professor Davey's lab) and about the continued availability of the CIHR grant, which had been funding the appellant's Ph.D.
[12] A new supervisory committee was then formed consisting of Professors Chris Brandl, David Edgell and Brian Shilton. They met formally with the appellant in November 2012, and April and May 2013.
[13] Although the supervisory committee noted in November 2012 that the appellant's work was satisfactory, in April 2013 it was critical of his work habits and of the pace of his work. The appellant deposed that at this meeting the committee told him it would be in his best interest to transfer out of the Ph.D. program to a master's program.
[14] At a further meeting in May 2013 (which was recorded by the appellant and later transcribed), there were discussions about whether the appellant should remain in the Ph.D. program or transfer to a master's program. The motion judge summarized his conclusion about this meeting as follows:
Mr. Lam submits that numerous passages of the latter portion of the transcript show the committee admitting that they did not have and were unwilling to acquire the required degree of expertise to supervise his Ph.D. Mr. Lam submits that the transcript also shows that the committee had made up its mind to transfer Mr. Lam to the Master's program immediately after his first supervisor passed away.
Western points to other passages of the transcript which it says are consistent with the committee providing an adequate degree of supervision.
In my view, the transcript has portions that support both Mr. Lam's and Western's characterization of events.
[15] The appellant also gave evidence that, prior to the April and May 2013 meetings, he was told by a supervisory committee member that the CIHR grant could be cancelled due to Professor Davey's death, and that funding for his research was "somewhat up-in-the-air". He deposed that during the April and May 2013 meetings he was told "my funding was not available to complete my PhD research and that I should transfer back to the Master's program".
[16] The motion judge noted that when various statements were made to the appellant that funding was up in the air or might be cancelled, the funding had in fact already been extended, with one of the approved cost items being financial support for the appellant. He also noted that after the appellant transferred out of the Ph.D. program one of the supervisory committee members began to use the CIHR grant money that had been ascribed to the appellant, "for other purposes".
[17] The appellant applied to transfer back to a master's program on May 6, 2013. He deposed that he felt after his meetings with the supervisory committee that he had no alternative. He specifically stated that he relied on their statements about there being no funding available and that if he had known there was such funding he would not have transferred.
[18] In the formal request for the transfer, one of the supervisory committee members stated:
The advisory committee cannot provide the level of supervision necessary for Simon to complete a PhD. There is also no other faculty member in the Biochemistry or other program that can act as supervisor.
[19] The motion judge stated that it was unclear from the form whether the committee was unable to provide the level of supervision because the appellant required "too much handholding" (as the University alleged) or because the committee members did not have the necessary expertise and were unwilling to acquire it (as the appellant alleged). He noted that none of the committee members filed an affidavit on the motion.
[20] The appellant completed his master's thesis through a successful defence in August 2014, but alleges he was required during the master's program to take outside employment and has not been able to resume his studies toward a Ph.D. or obtain his desired lab-based research employment due to his treatment by the University.
The Action and the Summary Judgment Motion
[21] The appellant commenced his action in September 2014. The statement of claim was the subject of two motions by the University to strike it and was amended twice as a result of the disposition of those motions: see Lam v. University of Western Ontario Board of Governors, [2015] O.J. No. 1232, 2015 ONSC 1642 (S.C.J.) and Lam v. University of Western Ontario Board of Governors, [2015] O.J. No. 4460, 2015 ONSC 5281 (S.C.J.). As finally constituted, the appellant's second fresh as amended statement of claim alleges that the conduct of the University constituted breach of contract and breach of fiduciary duty. The particulars he alleges are the University's lack of good faith efforts to ensure an adequate alternate supervisor after Professor Davey died, the new supervisory committee members' lack of expertise and their unwillingness to acquire it, their failure to inform him accurately about funding and their pressuring him into transferring out of the Ph.D. program. He claims monetary relief -- damages and equitable compensation.
[22] The University defended the action denying the appellant's main allegations as well as the existence of any breach or damages. The University then moved for summary judgment. The principal basis for its motion was that the claim relates to decisions about teaching, mentoring, supervising and administering the Ph.D. program and thus to matters that are "purely academic" in nature, and therefore the claim fails to disclose a reasonable cause of action.
The Motion Judge's Decision
[23] As noted above, the motion judge granted summary judgment dismissing the action. He found there were genuine issues of fact requiring a trial regarding the conduct and motivations of the supervisory committee members, and regarding what they knew and said about funding. But, as a matter of law, he held the action should have been brought as a complaint to the University whose decision would have been subject to judicial review. According to the motion judge, academic and legal issues must be distinguished when reviewing a university's conduct; academic issues are to be resolved using a university's informal operational and formal appeal processes and thereafter by judicial review.
[24] Citing this court's decisions in Gauthier c. Saint-Germain, [2010] O.J. No. 1771, 2010 ONCA 309, 264 O.A.C. 336, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 257, and Jaffer v. York University, [2010] O.J. No. 4252, 2010 ONCA 654, 268 O.A.C. 338, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 402, the motion judge referred to the very broad discretion a university has and that a student, by enrolling, subjects him or herself to for the resolution of academic issues including evaluation of the student's work, the structure of programs and the competence of thesis supervisors, and that a court should be reluctant to interfere in the internal affairs of universities. He acknowledged that in those cases this court held that the court has jurisdiction to entertain a claim by a student against a university where the facts alleged constitute a cause of action based on tort or breach of contract even if the dispute stems from an academic or educational activity of the university. But, in his view, if the "pith and substance of the impugned conduct is academic, it does not belong in the courts even if characterized as a breach of contract or tort claim". He held that if the impugned conduct could be interpreted as academic, the court should take a deferential approach to the university, and following such an approach find that the impugned conduct is not outside the university's broad discretion. He equated the requirement articulated in Jaffer, that a plaintiff must establish that the university's actions go beyond its broad discretion, with what he termed the "general rule" that courts ought not to assume jurisdiction that others are better equipped to assume.
[25] To apply those concepts, the motion judge asked to what degree a court or the University would be better able to deal with the issues that concerned the appellant by reason of expertise, policy and practicality. He reviewed the University's internal complaint processes, including the opportunity for the appellant to have raised his concerns with the deans, provosts or their deputies at the University, or its ombudsman, and then to have sought judicial review if he remained dissatisfied.
[26] Applying this approach, the motion judge concluded that the appellant's complaints would have been more appropriately resolved within the University, subject to judicial review. He held that the subject matter of the claim involved academic advancement and administration of a university program within the sphere of the University's discretion, and in areas where the University has more expertise and could have given faster and more direct remedies (even if they were not the remedies the appellant now seeks). He therefore held that as a matter of law the appellant's claim should be dismissed.
The Standard of Review
[27] Where, on a motion for summary judgment, the motion judge applies an incorrect principle of law, or errs with respect to a purely legal question, such as the elements that must be proved to make out a cause of action, the decision will be reviewed on a standard of correctness: Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, at para. 84.
[28] The motion judge proceeded on a purely legal basis, applying principles of law to dismiss a claim that he held would, absent those principles, be a claim "that would require a trial to resolve", given "the conflict in the factual record underlying the claim". In order to reach the result he did, the motion judge was required to be correct about the legal principles. The applicable standard of review is therefore correctness.
Analysis
[29] In my view, the result in this case is controlled by this court's decisions in Gauthier and Jaffer. In both of those cases, which involved claims of breach of contract by students against universities, this court held that if a plaintiff alleges the constituent elements of a cause of action based in tort or breach of contract, while claiming damages, the court will have jurisdiction even if the dispute stems from the scholastic or academic activities of the university in question. The question to be addressed was therefore whether the factual issues the motion judge found to exist could, if resolved in the appellant's favour at trial, make out a cause of action for breach of contract. Because they could, the University's motion ought to have been dismissed.
[30] The perceived advantages of the University's internal complaint processes were not germane to the issue.
A. Gauthier and Jaffer
[31] Although the motion judge referred to Gauthier and Jaffer, properly understood they do not support and in fact contradict his approach. The following propositions from those cases demonstrate this:
(a) The relationship between a student and a university has a contractual foundation, giving rise to duties in contract and tort: Jaffer, at para. 30. This is important here because one of the causes of action asserted by the appellant is breach of contract. The terms of the contract and the organizing principles of contract law are important to determine whether a breach of contract by the University (a legal cause of action) would be made out if the facts determined at trial favoured the appellant. The motion judge did not analyze this.
(b) A student who enrolls at a university agrees to be subject to the institution's discretion in resolving academic matters, including the assessment of the quality of the student's work and the organization and implementation of university programs: Gauthier, at para. 47; and Jaffer, at para. 27. The motion judge referred to this, but not in the proper context. Given the contractual basis of the relationship between student and university, this proposition is best understood as an implied term of the contract between student and university. The implied term is relevant because it goes to whether what the appellant complains of is a breach of contract, that is, whether there is a viable cause of action because the impugned conduct falls outside the broad discretion of the University. As with any implied term, it must be considered in light of the contract's express terms and the legal obligations any contract entails. The motion judge failed to consider the matter this way.
(c) It is not accurate to say the court is without jurisdiction to deal with a claim for breach of contract or tort because it arises out of a dispute of an academic nature. It is the remedy sought that is indicative of jurisdiction. Where the claim by the student is for damages for a breach of contract or tort, jurisdiction exists to deal with the claim "even if the dispute arises out of an academic matter" (emphasis added): Jaffer, at para. 26. This is in contradistinction to a claim to reverse an internal academic decision, which would be pursued by judicial review: Gauthier, at para. 46; and Jaffer, at para. 26. The motion judge failed to approach the matter this way. He did not treat the remedy sought as indicative of the court's jurisdiction even though damages, not reversal of an academic decision, were sought. And without considering whether the facts that might be found at trial would show a breach of contract, he examined whether the dispute arose out of an academic matter and concluded the court could and should not deal with it.
(d) A claim by a student against a university will fail if it is an indirect attempt to appeal an academic decision for which judicial review would be the remedy, or if insufficient detail is given in the pleadings to show that the university's actions go beyond the broad discretion it enjoys: Gauthier, at para. 50; and Jaffer, at para. 28. These points do not invite a court to decline to entertain a legal claim for damages for breach of contract in favour of an internal university complaint process. Rather, they flow from the points above. A claim that does not allege conduct outside of the university's broad discretion does not allege a breach of contract. It alleges conduct the university may engage in without breaching its contract, because it has been given a discretion by the agreement between the parties to act as it has. A claim that is an indirect appeal of an academic decision suffers the same fate. It is not really a claim that the university breached its agreement, but rather a claim that it should have exercised its discretion differently.
[32] Therefore, the correct approach is not to ask whether the complaint falls on the academic or legal end of a spectrum and then determine the answer by considering which, as between a court and an internal university process, is the more desirable forum from the standpoint of efficiency, policy and practicality. Rather, the correct approach flowing from Gauthier and Jaffer is to ask whether the complaint is one for damages for breach of contract or tort, as opposed to an assertion that what the university did was something it had a discretion to do.
[33] The divergence between the motion judge's approach and that required by Gauthier and Jaffer is made clear by the following passages from Jaffer (at paras. 29 and 31):
The Superior Court's jurisdiction over the action in this case is thus not ousted by the raising of issues relating to the university's academic function. As in Gauthier, the action is not simply an indirect attempt at judicial review, as the appellant does not seek to reverse decisions with respect to his grades or compel the university to readmit him. His claim is that the university owed him various obligations in both contract and in tort, and that its failure to meet those obligations has caused him pecuniary and non-pecuniary damages. Such claims fall within the jurisdiction of the Superior Court and may proceed if they are properly pleaded and tenable in law and disclose a reasonable cause of action.
The real issue in this case is not whether the dispute is academic in nature, but rather whether the pleadings support a cause of action in either contract or tort.
[34] What was said in Jaffer can be said of this case, notwithstanding that Jaffer involved a pleadings motion in which the facts alleged were taken to be true, and this case was a summary judgment motion in which factual issues were found to exist that require a trial to resolve. The real issue the motion judge should have addressed was not whether the dispute was academic in nature but whether the genuine issues of fact he found existed would, if resolved at trial as the appellant claims they should be, make out a cause of action in contract for which damages were claimed.
[35] In my view, the resolution of this issue yields the opposite result to that reached below. The following section explains why this is so.
B. Application of the principles to the factual result contended for by the appellant
[36] When a motion judge finds that genuine issues of fact exist that require a trial to resolve, an action may still be dismissed as a matter of law. But that can only be done when, no matter how those issues of fact might be resolved at trial, a fatal legal impediment to the claim exists. It is not sufficient that a legal impediment to the claim will exist in some factual scenarios that may be found at trial. It must exist in all factual scenarios. The legal impediment must bar the claim even if the plaintiff's best case on the genuine issues requiring a trial were made out. This follows from the motion judge's duty to take the plaintiff's claim at its highest when considering a summary judgment motion: see Hashemi-Sabet Estate v. Mazzulla, [2016] O.J. No. 1938, 2016 ONCA 273, at para. 10; and Khabouth v. Nuko Investments Ltd., [2013] O.J. No. 4995, 2013 ONCA 671, at para. 6.
[37] The motion judge did not properly undertake that analysis. For example, although the motion judge said that the impugned conduct does not go beyond the broad discretion the University enjoys, he did not consider that proposition in all factual scenarios, including that contended for by the appellant. When that analysis is performed, it is clear that the impugned conduct does not fall within the University's broad discretion.
[38] As noted above, in law, the relationship between the appellant and the University had a basis in contract: Jaffer, at para. 30; see, also, Young v. Bella, [2006] 1 S.C.R. 108, [2006] S.C.J. No. 2, 2006 SCC 3, at para. 31. The contract is alleged by the appellant to consist of a number of documents including the University's Graduate Student Handbook (the "Handbook"). The motion judge referred to the Handbook as something seemingly with contractual force and made no finding that the contract excluded those terms. However, he did not apply its terms in his analysis.
[39] The Handbook provided, as to supervision, that thesis supervisors:
[S]hould have sufficient familiarity with the field of research to provide appropriate guidance and supervision, or indicate a willingness to gain that familiarity before agreeing to act as supervisor.
[40] As to funding, the Handbook provided:
The supervisor should make the student aware, very early on, of . . . various sources of funding. . . . The nature of any financial support provided by the supervisor should be communicated clearly to the student, in writing, including such details as the amount of financial support, the length of time of such support, and any specific conditions pertaining to this financial support.
[41] The contract between the appellant and the University would also be subject to general provisions of the law, including the "general duty of honesty in contractual performance": see Bhasin v. Hrynew, [2014] 3 S.C.R. 494, [2014] S.C.J. No. 71, 2014 SCC 71, at para. 73. As Cromwell J. put it, this "common law duty . . . applies to all contracts to act honestly in the performance of contractual obligations" and "means simply that parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract": Bhasin, at paras. 33, 73. The motion judge did not consider this duty.
[42] The broad discretion of the University that the motion judge referred to must be understood in light of these provisions and the general duty of honest performance. As Rouleau J.A. noted in Gauthier, the broad discretion would be an answer to a claim that did not allege more than that an academic result is wrong or a professor is incompetent: at para. 47. Here, more is alleged and there are genuine issues requiring a trial as to whether more occurred.
[43] The appellant's allegations could result in a finding that the appellant was knowingly misled as to the details, amount and duration of his financial support, in breach of the Handbook's requirement to communicate those matters to the appellant and in violation of the duty of honest performance. If that were the resolution of the genuine issue requiring a trial regarding funding, the appellant's claim could not be rebutted by reference to the University's broad discretion. The University did not argue that it had a discretion to depart from contractual terms or from the duty of honest performance -- nor could it have so argued.
[44] Similarly, the appellant's allegation regarding the supervisory committee is not that its members were incompetent. It is that, contrary to the Handbook, they agreed to be supervisors without sufficient familiarity with the appellant's field of research or a willingness to gain it, and used their positions as supervisors to pressure the appellant out of the Ph.D. program. If that were the finding arising from a trial, the appellant's claim could not be rebutted by reference to the University's broad discretion.
[45] To be sure, there are other possible outcomes of the genuine issues of fact requiring a trial, including factual findings of conduct that would be protected by the University's broad discretion such that no breach of contract occurred. But unless all outcomes would result in the failure of the appellant's claims, his action cannot be dismissed as a matter of law. As shown above, not all outcomes are amenable to that result.
[46] The resolution of the genuine issues of fact the motion judge found to exist could thus result in findings of breach of contract. The appellant has claimed damages for such a breach. That is a legal claim for a remedy over which the court has jurisdiction. The existence of damages and the necessary causal link between any breach and those damages were not in issue on the motion or this appeal. The claim cannot be properly characterized as one that never should have been in court to begin with, at least from a legal point of view. Nor is it a claim that the court may decline jurisdiction to address on the basis that others may be better equipped to resolve it.
C. The University's internal complaint processes
[47] The parties disagreed before us as to whether there was any internal complaint process to which the appellant could have had resort and whether that matter was even properly before the motion judge. It is not necessary to resolve those issues. Given my analysis above, whether an internal process at the University existed with advantages from an expertise, policy and practicality standpoint to resolve the appellant's complaints -- albeit with remedies other than what the appellant is seeking -- is not germane. It was not suggested that the parties had agreed that claims for damages for breach of contract would be heard in a forum other than the court.
Conclusion
[48] For the reasons above, I would allow the appeal, set aside the decision of the motion judge and substitute an order dismissing the University's motion for summary judgment and directing that the matter proceed to trial.
[49] I would award costs of the appeal to the appellant in the amount of $12,500, inclusive of disbursements and HST. The parties did not address costs of the motion below in the event the appeal was allowed. If the parties cannot resolve that issue, they may make brief written submissions, of no more than two pages, within 15 days of the release of these reasons.
Appeal allowed.
Notes
1 In my view, this appeal may be disposed of on the basis of the appellant's breach of contract claim alone. It is not necessary to address the appellant's claim for breach of fiduciary duty, as partial summary judgment was not sought nor would it be appropriate.
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