CITATION: ABDOU v. Governing Council of UOT, 2023 ONSC 6868
DIVISIONAL COURT FILE NO.: DC-22-60
DATE: 2023 12 05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
YOUSUF ABDOU
Self-represented
Plaintiff (Respondent in Appeal)
- and -
THE GOVERNING COUNCIL OF
Jed Blackburn and Sophie
THE UNIVERSITY OF TORONTO
Defendant (Appellant in Appeal)
Teversham, for the Appellant
HEARD June 16, 2023, by videoconference
REASONS FOR JUDGMENT
Fowler Byrne J.
[1] This is an appeal by the Governing Counsel of the University of Toronto (“University”) of the decision of a Small Claims Court Deputy Judge released on July 20, 2022 (“the Trial Decision”), following a trial on the same day. This decision was followed by the judge’s cost decision, released on September 27, 2022 (“the Costs Decision”).
[2] In the Trial Decision, the Deputy Judge granted the Respondent Yousuf Abdou (“Mr. Abdou”) judgment in the sum of $710.27, plus prejudgment interest and punitive damages in the sum of $1,000. In the Costs Decision, he awarded Mr. Abdou a further $500 in costs.
[3] For the reasons set out herein, I grant the appeal in full, reversing both the Trial Decision and the Costs Decision, and dismiss the original claim of Mr. Abdou.
A. Issues
[4] The following issues must be determined:
a) Should I grant Mr. Abdou’s motion to admit fresh evidence on this appeal?
b) Should I allow the appeal of trial decision with respect to general damages and punitive damages? and
c) Should I grant leave to appeal the Costs Decision, and if so, should I allow that appeal?
B. Facts
[5] The following facts are uncontested.
[6] In September 2016, Mr. Abdou was a first year, full time student at the Mississauga campus of the University of Toronto. One of his courses was first year economics, which was a full year course, identified as a “Y” course. This Y course ran from September 2016 to April 2017 (“ECON100Y”).
[7] The provincial government requires that the University offer students the option of paying for a full year course in two installments. For this course, the first part, in the sum of $640 was due in or around September 2016, and the second part, also $640, was due in January 2017. Mr. Abdou paid the first installment.
I. Terms of Contract
[8] The contract which governs the relationship between the parties, for the purposes of this appeal, is described in the University 2016-2017 Calendar (“Calendar”). On page 5 of the Calendar, it states:
Regulations and Policies
As members of the University of Toronto community, students assume certain responsibilities and are guaranteed certain rights and freedoms. The University has several policies that are approved by the Governing Council and which apply to all students. Each student must become familiar with the policies. The University will assume that he or she has done so. The rules and regulations of the University are listed in this calendar. In applying to the University, the student assumes certain responsibilities to the University and, if admitted and registered, shall be subject to all rules, regulations and policies cited in the calendar, as amended from time to time.
University policies can be found at www.govemingcouncil.utoronto.ca/policies.
[9] Accordingly, when Mr. Abdou registered as a first year student at the University in 2016, Mr. Abdou was bound by the rules, regulations and policies cited in the Calendar. Several parts of the Calendar are relevant for this appeal:
5.2 Types of Tuition Fees
Course Fees
Course fees are assessed based on the number of credits in which a student is enrolled. When a course is added, the course fee is charged immediately, regardless of when the course begins. When a course is cancelled, the course fee is reversed in accordance with the refund schedule.
[10] The refund schedule referred to in the Calendar for the academic year 2016-2017 was produced at trial and made an exhibit (“Refund Schedule”). At the top of the Schedule, it states:
If you cancel a course, the course fee is adjusted or reversed in accordance with this schedule, using the course cancellation date recorded on ACORN/ROSI. …
[11] The Refund Schedule then contains a chart outlining the dates when a student can receive a full or part course charge reversal. It differentiates between full year “Y” courses, “F” courses, which only run in the fall term, and “S” courses, which only run in the spring term. The deadlines are different in each category. For a “Y” course, such as ECON100Y, a student has until October 11, 2016 to cancel and obtain a 75% course fee reversal. The student has until November 9, 2016 to cancel and receive a 50% course fee reversal. After November 9, 2016, the student is not entitled to any course fee reversal.
[12] At the side of the chart are a number of notes. Note 3 is relevant for this appeal:
Note 3: The last date to cancel a course or registration with no academic penalty is not the same as the last date to be eligible for a refund.
[13] Mr. Abdou also had the benefit of a Registration Guide for first year students for 2016-2017 (“Guide”). The Guide also contains helpful information that is relevant to this appeal. In particular, it provides a list of important dates. One such date is provided as follows:
2016-17 Fall-Winter Session: Important Dates
November 9, 2016: For student paying course fees: Last day to drop a Y course and receive a 50% course fee refund.
Adding and Cancelling Courses
If for any reason you decide that you do not want to be enrolled in a particular course, you must drop it as soon as possible. Staying enrolled in a course you do not want could prevent another student from gaining access to that course, and it can cost you money. It may also result in the course remaining on your permanent academic record. Use ACORN to drop a course.
You will be responsible for any fees and academic penalties incurred if you do not cancel courses by the appropriate deadline. Pay close attention to the difference between REFUND deadlines and ACADEMIC deadlines. They are listed in the Important Dates section at the front of this guide.
Fee Refunds
Dropping courses before deadlines will generate a full or partial refund of fees depending on when you drop your courses. A refund is determined by the date your course is cancelled on ACORN. Always "review" your courses after changing your schedule to ensure that you have done so correctly. An exception to the refund schedule is normally only considered if there is evidence of an error made on the part of the university.
Academic course drop deadlines are not the same as financial refund deadlines. In fact, the academic drop deadlines are much later than the refund deadlines and have no financial impact.
[14] It is uncontested that at the beginning of the school year, students receive a financial statement for their courses, which includes the full charge associated with a full year course. This is the case even if a full year course can be paid over two installments.
[15] Mr. Abdou dropped ECON100Y on January 2, 2017. The second installment for this course became payable in January 2017, in the sum of $640. The uncontradicted evidence was that Mr. Abdou was not aware of the November 9 deadline, and that it did not factor into his decision to drop ECON100Y in January 2017.
II. Mr. Abdou’s Efforts for Redress
[16] After seeing the second installment charge, Mr. Abdou went to the Office of the Registrar complaining that he should not have been charged the second installment given that he dropped the course. He was advised that he had to pay this installment as he had missed the November 9, 2016 deadline.
[17] Mr. Abdou was not satisfied with this response and the matter was brought to the Fee Consideration Committee, which is a committee run through the Office of the Registrar. This Committee released a decision on February 21, 2017, indicating that his request for a fee accommodation was refused.
[18] Mr. Abdou then contacted the Academic Integrity Office. He argued that he interpreted the Refund Policy as only applying to the fees he already paid, and not to those fees that were to be charged in the future. The Academic Integrity Office indicated that they could not assist him as they only dealt with issues that involved academic integrity, not financial matters.
[19] Undeterred, Mr. Abdou then appealed the matter to the Academic Appeals Committee. The appeal was scheduled to be heard on August 16, 2017. In response to his appeal, the Vice-Dean of Undergraduate Studies, Professor Michael Lettieri, filed the University’s written position. In this position, Profession Lettieri stated that there was no error on the part of the University, given that Mr. Abdou clearly dropped his course after November 9, 2016. He also stated:
[Mr. Abdou’s] request did not include any supporting documents or description of an extenuating circumstance. As a result, his request for a fee adjustment was not granted. In addition to email correspondence, Renu Kanga Fonesca (Assistant Registrar, Financial Aid and Scholarships) has meet with the student on two occasions (March 7 and March 23) to discuss his request, fee deadlines and policies, and reasons that his request could not be approved.
[20] On December 8, 2017, the Academic Appeals Committee released its decision. First of all, the Appeals Committee indicated that it only hears appeals with respect to decisions made by faculty, councils or committees in the application of academic regulations and requirements. It further stated that the decision of the Registrar’s Fee Consideration Committee is not related to academic regulations and thus declined to review the Fee Consideration Committee ruling.
[21] Nonetheless, in light of Mr. Abdou’s arguments, the Appeals Committee was willing to review the “fairness of the add/drop dates” issue and the Registrar’s underlying decision to apply the add/drop deadline to Mr. Abdou in the first place. The Committee accepted that a review of this regulation could trigger financial relief, but at most, they could only recommend a fee reversal.
[22] In their review of the fairness of the application of this regulation to Mr. Abdou, the Appeals Committee made the following statements:
The Student asserted that he was confused by UTM's use of the word "refund" arguing that common understanding of the word relates exclusively to money that has already been paid, and does not contemplate future payments. This Committee agrees that it would be clearer to expressly remind students who drop year-long courses that they will still be responsible for any future payments. We encourage the Registrar's Office to add that to their website for the sake of clarity. The Assistant Registrar pointed out that the Student was given a single invoice, and that the invoice showed both the Fall and Winter charges on that document. The Student had that invoice at the time he made his decision to drop the course after the last deadline for any fee reversals. She also read from the UTM website which uses the phrase "refund schedule" but also uses the terms "adjusted" and "reversed" to describe how they treat fees if a course is cancelled before the deadline. We find this phrasing to be better, but still believe a better practice would be to expressly point out that future charges are included in the course fee.
However the Student did not rely on this language when he missed the deadline—he told us that he was unaware of the add/drop deadline and the rules around refunding and reversing fees on November 9th (which would have been the last day to have the unpaid 50% of the fees reversed). He also told your Committee that even if he had been aware that he would be required to make his Winter term payment for Introduction to Economics when he dropped the course on January 2, he still would have dropped the course. He explained that he would not have remained in the course "because I would not attain the grade I needed to pass the course."
This panel has concluded that the policy was sufficiently communicated to the Student, and the University's use of the term "refund" did not cause the Student to take an action he otherwise would not have taken.
[23] Upon receiving this decision, Mr. Abdou then commenced this action, wherein he sought $25,000 for the course fee, interest and suffering he has experienced trying to be refunded the second installment for ECON100Y.
C. Trial Decision
[24] In the Trial Decision, the Deputy Judge made a finding that the Calendar was ambiguous. Since it is a document created by the University, he determined that any ambiguity must be found in favour of Mr. Abdou. Accordingly, he adopted Mr. Abdou’s interpretation of the Calendar, that the refund policy would apply only to the course fees he had already paid, but he was not to be charged for the second half, despite not withdrawing until after the last “drop” deadline for full year courses.
[25] The Deputy Judge also found that the University was wilfully blind to the Mr. Abdou’s plight and its obligation to follow its own policy. By that, he was referring to his finding that the University did not apply the five criteria that the Fees Consideration Committee should apply when considering whether to provide a fee accommodation. He found there was a power imbalance, and that it was constituted a lack of natural justice that there was no appeal process from the committee’s decision. He found that the calendar was “error-ridden”, confusing, and lacked clarity. He also relied on the comments made by the Academic Appeal Committee about preferable wording on the website. As a result, the Deputy Judge awarded punitive damages in the sum of $1,000.
D. Standard of Review
[26] The standard of review for issues of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, at para. 8. The standard of review for findings of fact is that the findings ought not to be reversed unless it can be established that the trial judge made a palpable and overriding error: Housen, at para. 10.
[27] The palpable and overriding error test can only be met if the findings are clearly wrong or can properly be characterized as unreasonable and unsupported by the evidence. See: H.L. v. Canada (A.G.), 2005 SCC 25, at paras. 55-56.
[28] Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence, and findings of fact drawn from primary facts that are the result of speculation rather than inference: Waxman v. Waxman, at para. 296.
[29] An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, [1996] 1 SCR 254, at para. 35; Waxman, at para. 297.
[30] The standard of review for findings of mixed fact and law is on a spectrum. If the issues of fact and law cannot be separated, the palpable and overriding error standard applies. However, the standard of correctness applies if the question of law is extricable from the factual matrix: Housen, at paras. 36-37.
[31] In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633, the Supreme Court of Canada stated that an appeal involving the interpretation of a contract is a question of mixed fact and law subject to deferential review on appeal. This was later clarified though, in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 SCR 23, at paras. 4, 24, where the court held that if the contract to be reviewed is a standard form contract, this interpretation is better characterized as a question of law subject to correctness review.
E. Mr. Abdou’s Motion for the Admission of Fresh Evidence
[32] At the commencement of oral arguments, Mr. Abdou moved to have five new pieces of evidence admitted for the purposes of the appeal:
a) An audio recording of a meeting on September 19, 2018 between Mr. Abdou and Dr. Ulrich Krull (“Krull”), the Vice-President of the University of Toronto (“Krull Audio”).
b) An affidavit sworn by Mr. Abdou on April 20, 2023, summarizing the contents of the Krull Audio (“Krull Affidavit”).
c) An audio recording from a telephone conversation on July 20, 2022 between Mr. Abdou and Gabriel Latner. Mr. Latner was a lawyer that Mr. Abdou had consulted, but did not ultimately retain. Mr. Abdou maintains there is no solicitor and client relationship, but if there is, he expressly waived it (“Latner Audio”).
d) A one-page summary, created by Mr. Abdou on October 6, 2022, of the recorded conversation he had with Mr. Latner on July 20, 2022 (“Latner Written Summary”).
e) An affidavit, sworn by Mr. Abdou on April 20, 2023, where he summarizes the conversation contained in the Latner Audio (“Latner Affidavit”).
[33] In order to adduce new evidence on this appeal (relating to events occurring after the trial), or fresh evidence on this appeal (relating to events occurring prior to trial but that were not part of the trial), Mr. Abdou must be able to show that (a) the evidence could not, by the exercise of due diligence, have been obtained for the trial; (b) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (c) the evidence is credible in the sense that it is reasonably capable of belief; and (d) the evidence is such that, if believed, it could have affected the result at trial: Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775; Barendregt v. Grebliunas, 2022 SCC 22, at para. 55.
I. Krull Audio & Krull Affidavit
[34] The Krull Audio was available at the original trial. While originally objecting to its admission into evidence, the University then changed its position and made no objection. Mr. Abdou also prepared a written summary of that recording, which was submitted with his documents for trial. The summary was made an Exhibit at trial. For reasons that are not entirely clear, the Krull Audio was not made an exhibit at trial. The Krull Affidavit is Mr. Abdou’s sworn evidence of what was on the Krull Audio.
[35] I have listed to the Krull Audio. It is a recording (surreptitiously made) that records Mr. Abdou’s attempt to serve the University, and a polite conversation between Mr. Abdou and Krull about Mr. Abdou’s complaint. Krull indicates he would make a call about it—nothing more. Neither the Krull Audio nor the Krull Affidavit assists in the proper interpretation of the Calendar, nor does it assist Mr. Abdou’s claim for punitive damages. None of the evidence, even if admitted, would have affected the outcome of this appeal.
II. Latner Audio, Latner Written Summary & Latner Affidavit
[36] Clearly, none of this evidence was available for trial, as this conversation had not yet taken place.
[37] I have listened to this recording. The summary and the affidavit are reasonable summaries of what was discussed. It appears that the Latner Audio (also made surreptitiously) is not a recording of the entire conversation between Mr. Abdou and Latner. From these documents, it appears that Latner reviewed Mr. Abdou’s documents and called the University counsel on Mr. Abdou’s behalf. It records legal advice given by Latner to Mr. Abdou about the appeal and the possibility of success or resolution. It also records Mr. Abdou talking about why he wants to oppose the appeal.
[38] None of this evidence is admissible on this appeal. First of all, it records settlement discussions between the University and Mr. Abdou, which should not be considered. Although Mr. Abdou waived solicitor and client privilege, there is nothing in this conversation that would have any relevance to the issue that is before this court. Evidence of the University speaking to Mr. Latner, Mr. Latner giving his legal advice on the issues, the University’s reasons for appealing and Mr. Abdou’s motivation in opposing the appeal would have no bearing on the proper interpretation of the University Calendar. Also, the University’s settlement position, even if not subject to privilege, does not meet the bar for conduct that would warrant punitive damages. It is not relevant and would not assist in determining this appeal.
[39] Accordingly, Mr. Abdou’s motion for the admission of fresh and new evidence is dismissed.
F. Did the Deputy Judge Err in his Award of Damages?
I. General Damages
[40] In the case before me, the parties are bound by the Calendar, which adopts the Refund Policy. These documents become binding on Mr. Abdou upon registering at the University and accordingly, they are contracts of adhesion. Therefore, the issue of whether Mr. Abdou is entitled to a refund pursuant to the Calendar and Refund Policy, is subject to a standard of correctness.
[41] When reviewing the alleged errors of the Deputy Judge, the efforts Mr. Abdou made afterwards to obtain a refund are not relevant to the issue of general damages. I am bound by the rules of contract interpretation which have recently been summarized as follows:
a) Contractual interpretation is an exercise in discovering the objective intentions of the parties as expressed in the words of the contract;
b) The court is required to read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract;
c) When a contract is read as a whole, it should be interpreted in a manner that gives meaning to all of its terms and avoids an interpretation that would render one or more of its terms ineffective;
d) The exercise of interpretation should also reflect the factual matrix underlying the contract and accord with sound commercial principles and good business sense, while avoiding commercially absurd interpretations; and
e) If ambiguity in contract terms still remains after the above principles are applied, the rule of contra proferentem can be applied.
See Jakab v. Clean Harbors Canada Inc., 2023 ONCA 377, at paras. 11-12 (citations omitted).
[42] As can be seen, evidence of what happened afterwards cannot inform my interpretation of the Calendar and the Refund Policy. Indeed, the factual matrix is less relevant in a standard form contract because the parties do not negotiate terms and the contract is put to the receiving party as a take it or leave it proposition: Ledcor at para. 28; Trillium Mutual Insurance Company v. Emond, 2023 ONCA 729, at para. 38.
[43] The following can constitute a legal error in contract interpretation that justifies appellant intervention:
a) A failure to consider the contract as a whole, by focussing on one provision without giving proper consideration to other relevant provisions; and
b) A failure to apply the appropriate principles of contractual interpretation, especially when it results in an interpretation inconsistent with the wording of the relevant provisions.
See Fuller v Aphira Inc., 2020 ONCA 403, at paras. 49-50.
[44] Unfortunately, I find that the Deputy Judge did make a number of legal errors in interpretating Mr. Abdou’s right to a course fee refund. In particular,
a) He did not review the use of the terms “refund”, “reversal” or “course fee” within the entirety of the Calendar, or in the context of the Refund Policy in particular;
b) He failed to analyse the wording of Calendar at all, other than to repeat each party’s interpretation, find that it was ambiguous and resolve it in favour of Mr. Abdou;
c) He relied on the perceived failure of the Fee Consideration Committee to consider five particular factors, which is not a contractual term that binds the parties; and
d) He relied on the comments of the Academic Appeals Committee which, while determining that Mr. Abdou was fairly treated, opined that the Calendar could be clearer. The comments of the Academic Appeals Committee were not part of the contract which binds the parties.
[45] Having found a number of legal errors, I must consider the interpretation of the university document afresh and determine if Mr. Abdou is entitled to a refund applying the principles of contract interpretation.
[46] Read as a whole, giving the words their ordinary meaning, I find that Mr. Abdou is not entitled to a course refund because he withdrew from the course after the date of November 9, 2023.
[47] The Calendar is clear—the deadline to cancel a course with no academic penalty is not the same as the last date to be eligible for a refund for a course. That warning is contained in the Calendar and in the Guide. In the very definition of “course fee”, it states that a course fee is charged immediately as soon as the student registers for it. There is no dispute that Mr. Abdou registered for ECON100Y, and that it was a full year course. He received a statement with the fee for the entire course in September 2016. The ability to defer part of the payment to January does not mean he was not charged for the course and obligated to pay for it. The only exception was set out within the Refund Policy. Under the terms of the Refund Policy, he was not entitled to any course fee reversal.
[48] Mr. Abdou’s apparent confusion around the terms “refund” or “reversal” is his confusion alone. They add no ambiguity to the Calendar. If Mr. Abdou had dropped ECON100Y on or before November 9, 2016, he would have been entitled to a reduction of 50% of his course fee, or $640. When he did not drop the course by November 9, 2016, he could still drop the course with no academic penalty, but not without financial penalty. That is repeatedly highlighted in the Calendar and Refund Policy.
[49] It is not disputed that Mr. Abdou dropped ECON100Y almost two months after the clearly stated deadline for receiving any type of course fee rebate. In fact, Mr. Abdou’s clear evidence was that he was unaware of that deadline and it in any event, it would not have had an impact on his decision to drop the course.
[50] Accordingly, I find that Mr. Abdou is not entitled to any course fee reversal or refund for ECON100Y.
II. Punitive Damages
[51] With respect to the Deputy Judge’s award of punitive damages, this involves a mixed question of fact and law. In this case, I find not only palpable and overriding errors in the Deputy Judge’s findings of fact, but also the failure to apply the legal test which is applicable.
i. Errors of Fact
[52] In his reasons, the Deputy Judge listed the following reasons for the award of punitive damages:
a) The University was wilfully blind to Mr. Abdou’s plight;
b) There was a power imbalance between the parties;
c) There was a lack of natural justice in the appeal process;
d) The refund policy was “error-ridden”, confusing and lacked in clarity;
e) The conduct of the Vice-President Ulrich Krull;
f) The comments of the Academic Appeal; and
g) The failure of the Fee Consideration Committee to follow five factors when determining if Mr. Abdou was entitled to a fee accommodation.
[53] There is no evidence to support the finding that the University was “wilfully blind” to Mr. Abdou’s plight. Mr. Abdou availed himself of every available avenue to seek a fee accommodation. He also approached the Academic Integrity Office, the Academic Appeals Committee and Krull himself, all of whom had no authority to help him, but did their best anyway.
[54] The Deputy Judge’s finding that the refund policy was “error-ridden” and confusing is not supported by the evidence, as indicated above. The Calendar was consistent throughout.
[55] Also, the Deputy Judge relied on the finding that Krull indicated he would investigate the matter and he did not. Again, this finding is not supported by the evidence. At most, we have Mr. Abdou’s typed summary that Krull said he would inquire about the matter. This is not a promise to investigate. Also and more importantly, there was no evidence at trial about whether Krull did or not did actually make any inquiries.
[56] A careful review of the transcript shows that there was no evidence that the Fee Consideration Committee did not consider the “five factors” listed on their review sheet. The five factors refer to five “filters” set out in the Fee Consideration Committee’s written review of the case. This summary contains a “notes” section that lists the student’s issues. Then, it requires the writer to determine if the University made an error. In this case, the “no” box was checked. It then states that if there was no University error, then the Committee was to apply the filters below. The five filters are then listed, with a place to check a box, either “yes” or “no”. No filter boxes were checked on Mr. Abdou’s sheet. The filters are as follows:
• Is request due to (documented) extenuating circumstances?
• Is there something about the application of the policy that seems unfair?
• Was this an honest mistake (eg. first year, day after, now app)?
• Would upholding the policy create undue hardship or too high a penalty?
• Would upholding the policy have a significant negative impact on the University?
[57] The only viva voce evidence at trial was from the representative of the Registrar’s Office who acknowledged that the boxes were not ticked off but does not know anything further. Also in evidence at the trial was the written argument on behalf of the University that was submitted in response to Mr. Abdou’s appeal before the Academic Appeals Committee. It states that when considering Mr. Abdou’s request, The Fees Consideration Committee noted that Mr. Abdou submitted no supporting documentation or description of extenuating circumstances. As a result, his request was not granted. “Extenuating circumstances” is specifically one of the five factors. Documentation would also be necessary to argue undue hardship. In the “Notes” section, it states that Mr. Abdou’s only reason for requesting the fee accommodation was because he didn’t understand the refund deadline or policy. Accordingly, while the boxes are not ticked, the evidence does not support the Deputy Judge’s finding that the five factors were not considered. In fact, it appears that the Fee Consideration Committee considered the filters when it found a lack of supporting documentation from Mr. Abdou.
[58] With respect to the comments of the Academic Appeal Committee, the comments highlighted by the Deputy Judge were not considered in the light of the totality of the Committee’s decision. The Committee started by indicating that it had no authority to review the fee issue. Nonetheless, they decided to review whether the Refund Policy, as applied to Mr. Abdou, was fair. While they did acknowledge some issues with clarity, the Committee was still satisfied that Mr. Abdou was treated fairly in the circumstances of his case. The Committee’s efforts to consider all of Mr. Abdou’s arguments, despite their lack of jurisdiction, cannot be seen as conduct that would warrant punitive damages.
[59] With respect to the Deputy Judge’s comments about the lack of natural justice, the evidence does not support that finding. The concept of natural justice is often addressed in the field of administrative law. It requires the court to assess whether rules of procedural fairness have been adhered to in the particular circumstances of the case, and whether the appropriate procedures and safeguards required to comply with the principles of natural justice were in place: Newcastle Salvage Inv. v. 2270739 Ont. Ltd., 2019 ONSC 2810 (Div. Crt.), at para. 52. Setting aside that this appeal is not a request for administrative review, the evidence does not support the conclusion that Mr. Abdou was without options to address his perceived wrong. In fact, the Academic Appeals Committee addressed that factor and found that Mr. Abdou was treated fairly. It determined that Mr. Abdou missed the appropriate deadline and was treated just as any other student was in that regard. Even acknowledging the power imbalance in place, the avenues of recourse available to Mr. Abdou show that he had multiple avenues to address the perceived wrong.
[60] It was the accumulation of these findings that led to his decision that punitive damages are warranted. These findings had an impact on his decision. These findings were without basis in the evidence. Accordingly, they are both palpable and overriding.
ii. Errors of Law
[61] In addition, I find that the Deputy Judge made an error in law by granting punitive damages in that he failed to consider the proper legal test in which an award of punitive damages is appropriate.
[62] Punitive damages are awarded against a defendant in exceptional cases only for malicious, oppressive, and high-handed misconduct that offends the sense of decency of the court. The test thus limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 SCR 595, at paras. 36, 94.
[63] There is no discussion in the Trial Reasons of the legal test for the award of punitive damages. Also, there is no finding that the University’s conduct was malicious, oppressive, or high-handed. At most, a finding was made that the University was wilfully blind or its conduct was egregious. There is no finding that the University conducted itself in a manner that was outside the realm of decency.
[64] Accordingly, the Deputy Judge erred in law by failing to apply the proper legal test for the award of punitive damages.
[65] Upon finding these legal errors, I must now review the facts anew as against the proper legal test for punitive damages. I have already reviewed the facts surrounding Mr. Abdou’s efforts to address his perceived wrong. I have found that the University’s refusal to grand a fee accommodation was reasonable. I see no conduct on the part of the University that is malicious, oppressive or high-handed.
[66] Accordingly, the appeal on this issue is allowed.
III. Costs of Trial
[67] The University sought leave to appeal the Costs Cecision of the Deputy Judge and asks that the Costs Decision be set aside.
[68] Given my decision with respect to general and punitive damage, the costs award is not supported. Accordingly, leave is granted and the appeal of the Costs Decision is allowed as well.
G. New Issues Raised by Mr. Abdou
[69] In his factum and submissions, Mr. Abdou also raises new issues not previously raised at trial. He argues that there has been a violation of the Consumer Protection Act, 2002, S.O. c.30, Sched. A. He also argues that his contract or agreement with the University is unconscionable and that the University breached its duty of good faith.
[70] New arguments, not raised at trial, can only be raised with leave of the court. This is a discretionary decision to be guided by the balancing of the interests of justice as they affect all parties. The appellate courts will not generally entertain entirely new issues on appeal because it would be unfair to spring a new argument upon a party at the appeal when evidence might have been led at trial, had these issues been live and may have been an issue on appeal: Kaiman v. Graham, 2009 ONCA 77 at para. 18; Bodnar v. Boban Estate, 2021 ONCA 746, at para. 13.
[71] Mr. Abdou did not expressly seek leave. Nonetheless, with concessions given to Mr. Abdou as a self-represented litigant, I will grant leave to raise these new arguments.
[72] Given the nature of these new arguments, I am not sure the University would have led any other evidence to address these issues. These new arguments are grounded again, in the alleged poor practices or conduct on the part of the University.
[73] That being said, I have found no such poor or malicious conduct on the part of the University. I have found that the Deputy Judge’s findings of “wilful blindness’ and “egregiousness” are not founded in the evidence. Accordingly, these new arguments do not assist Mr. Abdou in his response to this appeal.
H. Conclusion
[74] Accordingly, and for the foregoing reasons,
a) Mr. Abdou’s motion to admit fresh evidence, is dismissed;
b) The University’s appeal is allowed in full; and
c) The parties are encouraged to resolve the issue of costs themselves. If they are not able, the University is to serve and file its Bill of Costs, written costs submissions (limited to 2 pages) and any Offers to Settle, on or before December 11, 2023; Mr. Abdou shall serve and file his Bill of Costs, written costs submissions (limited to 2 pages) and any Offers to Settle, on or before December 18, 2023; and any reply submissions by the University (limited to one page) shall be served and filed on or before January 5, 2024.
Fowler Byrne J.
Released: December 5, 2023
CITATION: ABDOU v. Governing Council of UOT, 2023 ONSC 6868
DIVISIONAL COURT FILE NO.: DC-22-60
DATE: 2023 12 05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
YOUSUF ABDOU
Plaintiff (Respondent in Appeal)
- and -
THE GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO
Defendant (Appellant in Appeal)
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: December 5, 2023