Divisional Court File No. 572/06 & 577/06

Court File No. 05-CV-291116PD3

DATE: 20070607

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

ANICA VISIC

Plaintiff

(Respondent)

and

UNIVERSITY OF WINDSOR, MARY GOLD, ROSS PAUL, BRIAN MAZER

Defendants

(Appellants)

HEARD: June 5, 2007 at Toronto

BEFORE: Lane, Swinton and Bryant JJ.

COUNSEL: Marilee Marcotte and Marnie Setterington-Goens, for the Defendants,

Appellants,

Plaintiff, Respondent, in person.

R E A S O N S F O R J U D G M E N T

LANE J.:

[1] The appellants appeal from that part of the decision of Wilson J. dated September 19, 2006, by which the learned judge ordered that the transfer of this action from Toronto to Windsor be conditional upon the defendants undertaking, in any event of the cause, to pay the plaintiff’s reasonable transportation and accommodation expenses if her presence is required in Windsor for the court proceeding or for discovery. The respondent cross-appeals against the transfer order.

[2] The action arises from a dispute over whether the official transcript of Ms. Visic’s academic record at the Faculty of Law should record her 1999-2000 results. That was her first year at the Faculty and she did not do well. She was suffering from a medical condition which adversely affected her ability to succeed academically. After the winter examinations, she consulted with the faculty and informed her professor of her condition. The University investigated, confirmed her medical disability and made accommodation for it. Nevertheless, after her poor start, the overall result was that she did not qualify to continue in her studies. Ms. Visic petitioned to be allowed to re-register in the first year and was permitted to do so. After deferring the resumption of her studies for two years, she successfully completed the course and received her LL.B in May 2005.

[3] On receiving her transcript following her completion of her renewed first year in May 2003, she noticed that her 1999-2000 grades were shown on it. She sought to have them removed, but the University advised that it could not do so as the transcript is an official record of a student’s academic achievement. She commenced this action in Toronto, where she resides, in June 2005 seeking to have the transcript amended and damages. She named Toronto as the place of trial.

[4] The University moved to have the action transferred to Windsor and the trial held there. Wilson J. heard the motion on September 16, 2006 and released her reasons on September 19th, moving the action to Windsor subject to the undertaking as to expenses. She also ordered that there be no costs. Leave to appeal was granted to both parties on the merits and as to the costs order.

[5] The standard of review on appeal from the decision of a judge has been addressed by the Supreme Court in Housen v Nikolaisen[^1] and may be summarized as follows:

On a pure question of law, the appellate court is free to replace the opinion of the judge with its own opinion; thus the standard is correctness.

As to findings of fact, they are not to be reversed unless it can be established that the judge made a palpable and overriding error.[^2]

Where the matter being reviewed involves the application of a legal standard to a set of facts, and so is a question of mixed law and fact, the standard is more stringent than for facts and the closer one moves from fact towards law, the closer to correctness one comes.[^3]

[6] In her reasons, the motion judge carefully reviewed the factors set out in Rule 13.1.02, the law which governs such motions. It was argued that she erred in referring to the impecuniosity of the plaintiff, but I am of the view that the reference to “any other relevant matter” in Rule 13.1.02 (2)(b)(ix) is broad enough to include the financial abilities of the various parties to bear any additional costs to be incurred as a result of the transfer, if the point is not already encompassed in items (v) “convenience” or (vii) “advantages/disadvantages”.

[7] It was also submitted that there was no support in law for imposing any conditions on a transfer ordered under the Rule, as it was silent on the subject. However, I am satisfied that Rule 1.05 authorizes conditions:

1.05 When making an order under these rules the court may impose such terms and give such directions as are just.

[8] The motion judge continued by applying the facts as shown in the evidence to the criteria established by the Rule. The plaintiff submitted that the judge should have given greater weight to the fact that she resided, sought work and suffered her damages (inability to get work) in Toronto. The judge referenced these concerns, but clearly considered that on balance the factors favoured Windsor. The plaintiff submitted that the motion judge had misconstrued the essence of her claim. The claim did not revolve around the events in Windsor, but rather focussed on the damaging results of the unrevised transcript in Toronto where she sought employment. But the plaintiff’s claim contains numerous references to the events that occurred in Windsor in her first year, 1999-2000, including allegations that the accommodation provided to her as a result of her disability was inadequate. These allegations will no doubt call for witnesses from the Windsor area, so that the judge’s finding on convenience is supported in the evidence. This analysis is a mixed question of law and fact and the motion judge is entitled to deference from us so long as the law part is correct and there is evidence in the record to support the factual portion.

[9] The University submitted that there was inadequate evidence to support the finding that the plaintiff was impecunious. She was employed, albeit at a low rate of pay not commensurate with her education, and the evidence as to her loans was insufficient. But that evidence showed that the plaintiff had over $85,000 in outstanding loans, which she was unable to service satisfactorily. It appeared that she had recently been evicted for non-payment of rent. There was certainly a foundation in the evidence for the judge’s finding.

[10] On the above analysis, I can find neither an error of law nor factual findings unsupported by evidence. Therefore I would sustain the motion judge’s transfer of the action to Windsor.

[11] The legal basis for the condition has been noted above. The imposition of such a condition is a matter of discretion and the motion judge is entitled to deference from us as long as she came to her conclusions based on correct principles of law. I can find no error in requiring the University to advance the funds to the plaintiff for her travel and accommodation as required by the motion judge. I am of the opinion, however, that in making the order “in any event of the cause”, and in making the individual defendants responsible, the motion judge erred in fettering the discretion of the trial judge or a subsequent motion judge who will have a superior basis on which to determine the fair and just result as to costs after all the evidence is in. I would alter the condition to require a written undertaking from the University that it will pay the plaintiff’s reasonable transportation and accommodation costs, [for her attendances in Windsor] subject to any further order of a judge as to reimbursement.

[12] The final matter is the appeal as to the costs order made by the motion judge: that there would be no costs of the motion. The parties agree that they were not asked for any submissions as to costs. For that reason, the appeal as to costs should be allowed and the costs issue remitted to the motion judge to receive submissions.

[13] Costs of the appeal may be the subject of written submissions within 15 days.

Lane J.

Swinton J.

Bryant J.

DATE: June 7, 2007

[^1]: (2002) 2002 SCC 33, 211 D.L.R. (4th) 577, (S.C.C.)

[^2]: Stein v. The Ship “Kathy K.” 1975 146 (SCC), [1976] 2 S.C.R. 802 and Housen at paragraph 10.

[^3]: Housen, supra, at paragraphs 28 ff.