Citation: Jeyanathan v. The Governing Council of the University of Toronto Academic Appeals et al., 2025 ONSC 1376

DIVISIONAL COURT FILE NO.: 418/24

DATE: 20250324

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

JEGAN JEYANATHAN

Applicant

– and –

THE GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO ACADEMIC APPEALS and TORONTO SCHOOL OF THEOLOGY

Respondent

Jegan Jeyanathan on his own behalf

Lily Harmer and Catherine Fan, for the Respondent Toronto School of Theology

No one appearing for The Governing Council of the University of Toronto Academic Appeals

HEARD at Toronto: January 21, 2025

BEFORE: FAIETA J.

REASONS FOR DECISION

[1] The Respondent Toronto School of Theology (“TST”) brings this motion for an order quashing this application for judicial review on the grounds that it is premature and an abuse of process.

BACKGROUND

[2] Knox College is one of the member colleges within the TST. In 2017, the applicant, Jegan Jeyanathan, enrolled in Knox College’s Master of Theological Studies program which is a degree program offered by Knox College and the University of Toronto.

[3] There is a four-stage appeal process for TST students:

(a) Informal resolution with the faculty member responsible for the decision;

(b) An appeal to the student’s college implicated in the decision;

(c) An appeal to the TST’s Academic Appeals Committee (“AAC”);

(d) An appeal to the University of Toronto’s Academic Appeals Committee (“UTAAC”) which is a committee of the University of Toronto’s Governing Council.

[4] In March 2022, Knox College dismissed the applicant after he failed two courses in the same semester.

[5] The applicant appealed his two failing grades.

[6] On December 5, 2022, the AAC granted the applicant’s appeal in respect of one of this two courses and amended his grade to “Incomplete”. It dismissed the appeal regarding the grade for the second course.

[7] In July 2023, while awaiting the outcome of his second grade appeal, the applicant appealed Knox College’s decision to dismiss him from the Program on the ground that Knox College’s regulations authorizing students to be dismissed from the Program conflicted with those of TST.

[8] On August 8, 2023, the UTAAC granted the applicant’s appeal in respect of his second course. As a result of his successful grade appeals, the applicant received a grade of incomplete in each course.

[9] On August 15, 2023, the applicant filed an appeal under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”) with the Information and Privacy Commissioner (“IPC”). It references the TST as the “institution” and one of the boxes that are checked under the heading “Details of the Appeal” states “No jurisdiction – The institution indicated that the requested records are excluded from the Act and I disagree”. The applicant further states under the heading “Resolution of Appeal – how do you feel this appeal could be resolved”:

I appealed two failed courses successfully. Knox's dismissal, now under appeal, was flawed. Both TST and UofT acknowledged TST's delays and breaches. The June 10 reply is vital for my ongoing appeal. Stuart MacDonald, who wrote my dismissal note, chaired the TST Board; TST claims no communication with him—I disagree. Emails were sent to Pamela Couture (Pam). No written responses were given by her. By summer end 2021, Darren Dias replaced her. Pam had hinted at a resolution during summer. Her feedback on the dismissal was important for both my course appeals and the current Knox appeal, as she and Stuart were TST Board members. What resolution was proposed? What progress was made on my appeal during those four months under her watch?

[10] Section 10 of FIPPA establishes a right of access to records that are in the custody or control of an institution subject to various exclusions set out in FIPPA. An “institution” is defined as a body designated as an institution in the regulations. O. Reg. 460 sets out a list of academic bodies that are designated as institutions under FIPPA. The University of Toronto is on that list but Knox College and TST are not. Pursuant to section 50 of FIPPA, a person who has made a request for access to records may appeal any decision made by the head of the responding institution to the IPC. The IPC may hold an inquiry in respect of an appeal and, pursuant to section 52 of FIPPA, such inquiry is not subject to the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. After all evidence for an inquiry has been received, the Commissioner shall make an order disposing of the issues raised by the appeal: FIPPA, s. 54(1).

[11] On September 22, 2023, the IPC responded as follows:

This letter is in response to the appeal form you submitted to the Office of the Information and Privacy Commissioner (IPC) through the online appeal form.

Your appeal form states the Toronto School of Theology (TST) mishandled your appeals related to two failed courses. Your appeal form included multiple emails between yourself and various individuals within TST. Additionally, you provided email communications between yourself and Kelly Carmichael, FOI Coordinator for the University of Toronto (the university), wherein you raised a privacy concern. In response, Ms. Carmichael indicated that TST is independent and separate from the university. Should you have any access or privacy concerns to raise regarding TST, you would have to raise these with them directly.

The IPC has oversight over the Freedom of Information and Protection of Privacy Act (FIPPA), the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and the Personal Health Information Protection Act (PHIPA).

FIPPA/MFIPPA apply to records in the custody or control of provincial and municipal government institutions. PHIPA applies to personal health information in the custody or control of health information custodians.

As such, it appears the TST is not a provincial institution or municipal institution as defined by either FIPPA or MFIPPA. More specifically, the issues you raised regarding the handling of your appeals before TST regarding educational matters are outside of the jurisdiction of the IPC.

Although some of the attachments you have provided reflect your attempts to access records and information, it does not appear TST is subject to the access provisions of either FIPPA or MFIPPA as they are not an institution as defined by those Acts. …

Therefore, the IPC does not have the jurisdiction to address the concerns raised in your correspondence.

As we will not be proceeding with this appeal, I have requested that the appeal fee you have paid be refunded to your directly.

[12] On November 28, 2023, Knox College advised the applicant that it had withdrawn his dismissal from the Program given that, with the amendment to his grades, his grades fell within the required range to continue in the program.

[13] On November 29, 2023, Knox College asked TST to request that the AAC dismiss the applicant’s dismissal appeal as moot given that the applicant had been reinstated to the Program.

[14] On January 15, 2024, the AAC granted TST’s motion to dismiss the applicant’s dismissal appeal as being moot.

[15] On May 3, 2024, the applicant filed a notice of appeal with the UTAAC in respect of AAC’s dismissal decision. In his notice of appeal, the applicant not only challenged the AAC’s finding that the dismissal appeal was moot but also sought the following relief:

I request that the Committee enforce the application of FIPPA for academic appeals and programs of study. The Memorandum of Agreement specifies that the University holds jurisdiction over these matters. Despite this, FIPPA has not been applied, rendering TST students unequal to their peers at the University of Toronto. This omission constitutes a violation of the Memorandum of Agreement and contrary to the reasoning of Report 418. [Emphasis added]

[16] On June 21, 2024, the TST sought directions from the UTAAC concerning the scope of the applicant’s appeal.

[17] On July 10, 2024, the UTAAC released an Interim Decision which ruled that the scope of the appeal would be limited to the question of whether AAC’s determination that the applicant’s appeal should be dismissed for mootness was reasonable and the UTAAC would not consider making an order that FIPPA applied to the TST. In concluding that the applicant’s request for relief related to FIPPA was beyond its jurisdiction, the UTAAC stated, at page 5:

Finally, your Committee has no jurisdiction to “enforce the application of FIPPA”. The Freedom of Information and Protection of Privacy Act, R.S.O. 1990 c. F.31, does not grant your Committee any power to make orders. Moreover, TST is not subject to FIPPA. The Student recognizes this point, but argues that the principles of FIPPA and of natural justice “dictate that the aggrieved party should have access to information critical to their appeal” (p. 187). The Senior Chair rejects this argument. There is nothing in your Committee’s Terms of Reference to suggest that it or its Chairs have any powers that are analogous to those granted by FIPPA to the Information and Privacy Commissioner. It is highly doubtful that your Committee even has the more modest power to compel production of relevant documents from University divisions in the context of a particular academic appeal (see, for example, Report 359-1).

[18] On July 18, 2024, the applicant commenced this Notice of Application for Judicial Review for the following relief:

(a) An order quashing the 10 July 2024 motion decision of the UTAAC, which concluded that the FIPPA does not apply to the TST for academic appeals and program of study.

(b) An order declaring that FIPPA applies to the TST academic appeals and program of study in light of the Memorandum of Agreement between the University of Toronto and TST, which states that TST students are considered University of Toronto students and that the University has jurisdiction over academic appeals and programs of study.

(c) In the alternative, an order remanding the matter back to the University of Toronto for reconsideration, directing the UTAAC to determine whether FIPPA should be applied to the TST and to implement FIPPA accordingly for academic appeals and program of study.

[19] In his Factum on the main application for judicial review, the applicant has abandoned his alternative request to quash the Interim order and return it to the UTAAC to decide afresh. Instead, he asks that the Court grant a remedy that allows the University of Toronto to compel the TST to disclose evidence through their own FOI office or alternatively to apply FIPPA itself for these purposes.

[20] The TST brings this motion for an Order quashing the application for judicial review as an abuse of process and as being premature.

Should this Application for Judicial Review be Dismissed as an Abuse of Process?

[21] The TST submits that this application for judicial review of the UAC’s Interim Decision is an abuse of process for the following reasons:

(a) Asking this Court to grant a declaration that FIPPA applies to TST records is a direct challenge to the IPC’s decision. It asks this Court to reverse the IPC’s decision through a judicial review not of the IPC’s decision but through a judicial review of a second proceeding before the UAC.

(b) Seeking an order quashing the UAC’s decision and remitting the decision to it to decide afresh is an indirect challenge to the IPC’s decision. The sole purpose of quashing and remitting is to allow the applicant to continue a collateral attack on the IPC’s decision before the UAC and seek a different result before it, notwithstanding that the UAC has no jurisdiction to adjudicate his request much less overturn the decision of the IPC.

[22] In Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (Ont. C.A.), Goudge J.A., in his dissenting opinion (approved by the Supreme Court on appeal: 2002 SCC 63, [2002] 3 S.C.R. 307), stated, at para. 55:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. …

[23] One aspect of the doctrine of abuse is the rule against collateral attacks. In Jones v. Quinn, 2024 ONCA 315, Coroza J.A. stated at para 96:

The rule against collateral attacks applies to insulate court orders that dispose of a request for relief on a substantive basis. The rule is generally invoked when a party attempts to circumvent the effect of an order rendered against it by challenging its validity in the wrong forum: see Yan v. Hutchison, 2023 ONCA 97, at para. 16, leave to appeal refused [2023] S.C.C.A. No. 203 (S.C.C.) ; Garland v. Consumers' Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, at paras. 71-72; R. v. Sarson, 1996 200 (SCC), [1996] 2 S.C.R. 223, at para. 23. The discretionary rule is intended to promote the orderly administration of justice and is a particular application of the broader abuse of process doctrine

[24] The applicant submits that he did not ask the IPC to determine whether FIPPA applies to the TST but rather “simply requested a piece of evidence”. This request turns on whether the TST is subject to FIPPA and thus, by necessity, the applicant’s appeal for records also raised this issue.

[25] The applicant further submits that he was not afforded a hearing by the IPC unlike the case where a member of the IPC determined that Knox College and TST were not an “institution” under FIPPA: See University of Toronto (Re), 2021 75429 (ON IPC). The applicant further submits that the IPC did not consider section 15 of the Canadian Charter of Rights and Freedoms.

[26] The IPC’s letter dated September 22, 2023 states that the IPC has no jurisdiction to provide the access to records sought by the applicant. If the applicant wanted to challenge the IPC’s decision, whether on the grounds that he did not receive a hearing or that the IPC made a jurisdictional error, the appropriate next step would have been for the applicant to commence an application for judicial review of the IPC’s decision wherein the applicant could have advanced the legal arguments he now seeks to advance, including his Charter argument, in support of his position that the TST is an institution within the meaning of FIPPA. Having failed to file an application for judicial review within the 30-day deadline imposed by s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c J.1, the applicant about one year later asks the UTAAC to find that the FIPPA applies to the TST records even though the UTAAC had no authority under FIPPA to hear appeals from a denial by an institution to a request to access a record as such determinations are made by the IPC: See FIPPA, ss. 24, 50.

[27] I agree with the respondents’ submission that:

(a) The applicant’s request that this court grant a declaration that FIPPA applies to the TST’s records on a judicial review of the UTAAC’s interim decision is a direct challenge of the IPC’s decision in respect of an application for judicial review has not been commenced. Abuse of process applies to matters that could have been determined in prior proceedings: The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, para. 67.

(b) The applicant’s request that this court quash the UTAAC’s interim decision and remit it back to the UTAAC to decide afresh is an indirect challenge to the IPC’s decision and a collateral attack on the IPC’s decision.

[28] For the reasons described above, I find that this application for judicial review is an abuse of process and order that it be dismissed. As a result, there is no need to address whether the application for judicial review should be dismissed as premature.

Conclusion

[29] The respondents’ motion is granted. This application for judicial review is dismissed. The applicant shall pay costs of $5,000.00, inclusive of disbursements and HST, to the respondents.

Faieta J.

Released: March 24, 2025

CITATION: Jeyanathan v. The Governing Council of the University of Toronto Academic Appeals et al., 2025 ONSC 1376

DIVISIONAL COURT FILE NO.: 418/24 (DC-24-00000418-0000)

DATE: 20250324

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

JEGAN JEYANATHAN

Appellant

– and –

THE GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO ACADEMIC APPEALS and TORONTO SCHOOL OF THEOLOGY

Respondent

REASONS FOR DECISION

FAIETA, J.

Released: March 24, 2025