CITATION: Sun, Gao, and Zhang v. Braemar College Inc., 2020 ONSC 1072
DIVISIONAL COURT FILE NOS.: 229/18, 230/18, and 231/18 DATE: 20200218
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
COURT FILE NO. 229/18
GUOLI SUN
No one appearing, for the Plaintiff/(Respondent)
Plaintiff/(Respondent)
– and –
BRAEMAR COLLEGE INC.
Paul Taylor, for the Defendant/(Appellant)
Defendant/(Appellant)
AND BETWEEN:
COURT FILE NO. 230/18
ZIWEN GAO
No one appearing for the Plaintiff/(Respondent)
Plaintiff/(Respondent)
– and –
BRAEMAR COLLEGE INC.
Paul Taylor, for the Defendant/(Appellant)
Defendant/(Appellant)
AND BETWEEN:
COURT FILE NO. 231/18
MAOXING ZHANG
No one appearing for the Plaintiff/(Respondent)
Plaintiff/(Respondent)
– and –
BRAEMAR COLLEGE INC.
Paul Taylor, for the Defendant/(Appellant)
Defendant/(Appellant)
HEARD at Toronto: February 18, 2020
PATTILLO J. (Orally)
[1] This is an appeal from the decision of Deputy Judge Ashby dated March 9, 2018. Deputy Judge Ashby’s decision was in respect of three separate actions that were tried before him on that day in which the plaintiffs claimed refunds of tuition from the defendant, Braemar College Inc. (“Braemar”).
[2] As Deputy Judge Ashby did, I too will provide these reasons in respect of the three appeals that are before me.
[3] The three plaintiffs are Ziwen Gao (“Gao”), Maoxing Zhang (“Zhang”) and Guoli Sun (“Sun”). All three of the plaintiffs came to Canada from China, their country of origin, in and around September 2014 to study for and obtain an Ontario Secondary School diploma from Braemar.
[4] They and their families were recruited by agents for Braemar in China. Application forms were submitted followed by Braemar provisional acceptance letter for the 2014/2015 study period. Upon payment of a commitment fee or the full tuition, Braemar then issued a letter of acceptance which was used by the students to obtain permission from the Chinese authorities to leave China and the Canadian immigration authorities to obtain a study permit to study in Canada for the year.
[5] The students did not do well academically in the 2014/2015 year. They failed some of the required courses which required them to enroll again for the 2015/2016 year. They (the students) were issued an invoice for the applicable tuition by Braemar and paid that amount.
[6] The plaintiffs began their studies in September 2015 but after a short while they advised Braemar that they were leaving and had enrolled in another school. As noted, their claims were for a refund of the tuition they had paid for the courses they had not taken during the school year.
[7] Braemar had a refund policy on which it relied to submit that the plaintiffs were not entitled to a refund. The refund policy that applies specifically refers to applicants who by law are required to obtain a study permit in order to attend a secondary school in Canada. It provides that they are entitled to a full refund (less any applicable administrative fees) provided the following conditions are met:
(1) The applicant’s application to obtain a study permit has been rejected by a Canadian embassy or consulate;
(2) The applicant provides the college with a letter provided issued by the Canadian embassy or consulate stating that the applicant’s application has been rejected;
(3) That the college is in receipt of tuition paid by or on behalf of the applicant for the purpose of subsequently attending credit courses at the college.
[8] The refund policy was published by Braemar on its website and was also published in a publication that was purportedly given to parents and/or the student at the time they were considering attending the school.
[9] Deputy Judge Ashby held that there was a contract between each of the plaintiffs and Braemar for the 2015/2016 study period and that none of the plaintiffs were aware of Braemar’s refund policy. Accordingly, he awarded refunds to the plaintiffs as follows: Gao, $9,000; Zhang, $9,390, and Sun $5,430.
[10] On this appeal, the standard of review is correctness. Braemar submits that the trial judge erred in law (1) in finding that the contract implied that refunds were available to students who transfer schools; and (2) in finding that the second tuition payment for the 2015/2016 study period was a new contract as opposed to an extension of an existing contract.
[11] Dealing with the second issue first, I am satisfied that the trial judge did not err in finding a new contract. There was ample evidence before him to support that finding. It is not clear from the evidence who the initial contract was with for the first year, but it was likely the parents of the plaintiffs. The students were just signed up for grade 12. The fact that they did not pass grade 12 and required further study necessitated in my view, a new contract. Further, the invoices from Braemar for the second year are addressed to the students and the evidence is that they paid for them themselves.
[12] On Braemar’s primary ground of appeal dealing with the implied contract, Braemar argues that the contract was for a year study and the transfer to another school during the term constitutes a breach of contract by the student. In order therefore be entitled to a refund, the trial judge effectively implied a term in the contract that gave them the right to that refund.
[13] In support of that argument, Braemar relies on the decision of Deputy Judge Granovsky in Xiyu Zhang v Braemar dated July 4, 2018 (Court File SC-16-10442-00) which was also a refund case. In Xiyu Zhang, D.J. Granovsky dismissed the plaintiff’s claim for a refund of the tuition from Braemar. The facts are somewhat similar to this case in that the plaintiff left after a few months into the school year although she was in her first year of study at Braemar. Unlike this case, however, D.J. Granovsky held that the plaintiff “knew or ought to have known” of Braemar’s refund policy. She based that finding on not accepting the plaintiff’s evidence to the contrary.
[14] Based on her findings of fact, D.J. Granovsky held that given that the plaintiff knew or out to have known of the refund policy which did not provide for a refund, the plaintiff was not entitled to a refund.
[15] The last or penultimate paragraph of her reasoning was as follows:
I find that Braemar College’s agreement with Ms. Zhang did not contemplate tuition refunds for students who chose to transfer to another school. Under the terms of the agreement between Ms. Zhang and Braemar College, I find that Ms. Zhang is not entitled to a refund.
[16] Here, the facts are very different. As I noted, Deputy Judge Ashby accepted the plaintiffs’ evidence that they were not aware of the refund policy. There was ample evidence to support that finding. The only document that was sent to them with respect to the second term was an invoice. The trial judge rejected evidence of what may have been said or given to the parents and/or student in China on the basis that it was hearsay and not direct evidence.
[17] In my view, there is no issue of an implied term concerning the refunds where in circumstances such as this, Braemar has an actual refund policy. The real issue was whether the refund policy was part of the contract or not and Deputy Judge Ashby held that it was not. Accordingly, I see no legal error in the trial judge’s conclusion in such circumstances. The plaintiffs were entitled to a refund.
[18] Braemar argues that there was a contract for the whole term and therefore, if the students leave during the term it was an implied term that there was no refund. First of all, that argument was not put to the trial judge so I cannot entertain it at this stage. Secondly, I again say that I do not think it’s a question of an implied term where there is provision for a refund policy and the real issue is whether it was known or not by the plaintiffs. Accordingly, for those reasons, the appeal is dismissed.
[19] I have endorsed the Appeal Book and Compendium on File No. 229/18 as follows: “For reasons given orally, appeal dismissed. In light of the significant amount of time the appellant has incurred in trying to serve the respondents and provide him with notice of the hearing. Costs are
awarded to the appellant of $5,000 in total to be divided as the appellant determines over the three appeals and set-off against the trial judgment.” I have also written similar endorsement on the Appeal Book and Compendiums in Files No. 230/18 and 231/18.
___________________________ L.A. PATTILLO J.
Date of Oral Reasons for Judgment: February 18, 2020
Date of Release:
CITATION: Sun, Gao, and Zhang v. Braemar College Inc., 2020 ONSC 1072
DIVISIONAL COURT FILE NOS.: 229/18, 230/18, and 231/18 DATE: 20200218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
COURT FILE NO. 229/18
GUOLI SUN
Plaintiff/(Respondent)
– and –
BRAEMAR COLLEGE INC.
Defendant/(Appellant)
AND BETWEEN:
COURT FILE NO. 230/18
ZIWEN GAO
Plaintiff/(Respondent)
– and –
BRAEMAR COLLEGE INC.
Defendant/(Appellant)
AND BETWEEN:
COURT FILE NO. 231/18
MAOXING ZHANG
Plaintiff/(Respondent)
– and –
BRAEMAR COLLEGE INC.
Defendant/(Appellant)
ORAL REASONS FOR JUDGMENT
PATTILLO J.
Date of Oral Reasons for Judgment: February 18, 2020
Date of Release: