ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-50693
DATE: 2012-01-10

BETWEEN:

RUTH LOBO AND JOHN MCLEOD
Respondents/Plaintiffs

– and –

CARLETON UNIVERSITY, DR. ROSEANN RUNTE, DAVID STERRITT, RYAN FLANNAGAN and ALLAN BURNS
Moving Parties/Defendants

Albertos Polizogopoulos, for the Respondents/Plaintiffs

Richard G. Dearden/Ryan W. Kennedy, for the Moving Parties/Defendants

HEARD: December 13, 2011

REASONS FOR DECISION

Toscano Roccamo J.

Background

[ 1 ] On July 12 and 13, 2011, I heard argument on a Rule 21 and Rule 25 motion brought by the Defendants, Carleton University et al. (“CU”), to strike the Statement of Claim of the Plaintiffs, Lobo and McLeod (“Plaintiffs”) on the grounds that it disclosed no reasonable cause of action; and/or is scandalous, vexatious or frivolous; and/or is an abuse of court process.

[ 2 ] The motion was brought in respect of a number of allegations including those advancing a cause of action based on alleged breaches of ss. 2, 9, and 15 of the Charter of Rights and Freedoms (“ Charter ”); breach of university policies; breach of a fiduciary duty; damage to reputation; wrongful arrest; breach of contract; and claims in negligence both against CU and the individually named Defendants.

[ 3 ] In my Reasons released August 5, 2011, I dismissed the Defendants’ motion in respect of the wrongful arrest claim, struck the claim for breach of fiduciary duty without leave to amend, and struck the remaining claims with leave to amend within 30 days.

[ 4 ] The Plaintiffs’ Fresh As Amended Statement of Claim was filed on September 6, 2011.

[ 5 ] The Defendants now move to strike the amended pleading with respect to the Charter claims, the negligence claims both as they relate to CU and the individual Defendants, and the stand alone claims pertaining to the university policies.

The Charter Claims

[ 6 ] The Defendants maintain that, pursuant to s. 32 of the Charter , the Charter can only apply to an entity properly characterized as “government”. Alternatively, a private party such as CU will only be subject to the Charter if the particular activity in question may be ascribed to government, as in the case of implementation of a specific statutory scheme or government program. Subsidiary arguments are advanced that the Plaintiffs have failed to plead the necessary elements of a claim under s. 15 of the Charter , as well as material facts to fulfill the requirements for an award of Charter damages.

[ 7 ] The Plaintiffs admit that CU is not a government entity or agent of the government. However, they assert that the amended pleading establishes the necessary nexus between CU and the government by reason of the statutory authority granted to CU under the Carleton University Act , 1952 and the Post‑Secondary Education Choice and Excellence Act which allow CU to operate and maintain a university and to provide post‑secondary education services in Ontario. By exercise of such statutory powers, the Plaintiffs allege that CU regulates and prescribes what students may do and say on campus under threat of discipline.

[ 8 ] In addition, the Plaintiffs claim that consideration of the Charter claims involves matters of mixed law and fact which cannot be decided without a full record generated by a trial. See Canada (Director of Investigation and Research, Competition Act), v. Southam Inc. , 1997 385 (SCC) , [1997] 1 S.C.R. 748 and Mandeville v. Manufacturers Life Insurance Co. (2002), 2002 79684 (ON SC) , 40 C.P.C. (5 th ) 182 (Ont. S.C.). The Plaintiffs rely on Transamerica Life Inc. v. ING Canada Inc. (2003), 2003 9923 (ON CA) , 68 O.R. (3d) 457 (C.A.) in support of the proposition that a court should not dispose of important issues of public law in a summary fashion without a full record.

[ 9 ] In my opinion, the amended pleading does not cure the defects identified by my decision of August 5, 2011. The amended pleading does not disclose a reasonable cause of action because it fails to plead the material facts to establish that CU is implementing a specific government program or policy by CU’s failure to allocate space for the particular venue the Plaintiffs chose to advance its extra‑curricular objectives. Such objectives include the mounting of Pro‑Life exhibits, the Genocide Awareness Project, and Choice Chain, as a means to express their social, moral, religious or political views.

[ 10 ] In R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42 , 335 D.L.R. (4 th ) 513, Chief Justice McLachlin observed at paras. 22 and 24, that the rules governing pleadings oblige a claimant to clearly plead the facts on which it relies in making a claim:

The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must . The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated. If they are not pleaded, the exercise cannot be properly conducted.

This is not unfair to the claimant. The presumption that the facts pleaded are true operates in the claimant’s favour. The claimant chooses what facts to plead, with a view to the cause of action it is asserting. [Emphasis added]

[ 11 ] Furthermore, I do not agree with the Plaintiffs that reference by the Defendants to statutory provisions in the Carleton University Act , 1952 in the Post‑Secondary Education Choice and Excellence Act as well as to the general by‑laws of CU does not comply with Rule 21.01 prohibiting the admission of evidence on the motion. It is common ground that the statutes themselves are law not evidence; however, if as the Plaintiffs assert, reference to the by‑laws may amount to admission of evidence, and I have not been so persuaded, I would add that the reasoning which follows requires no reliance on the by‑laws.

[ 12 ] The Plaintiffs agree that in Eldridge v. British Columbia (A.G.), 1997 327 (SCC) , [1997] 3 S.C.R. 624, the Supreme Court laid out the test by which to determine whether an Act or statutory scheme amounts to a government program within the meaning of s. 32 of the Charter .

[ 13 ] However, the Plaintiffs refer me to case law where it has already been found that some Acts of a university may be subject to the Charter . Clearly, McKinney v. University of Guelph , 1990 60 (SCC) , [1990] 3 S.C.R. 229, is the leading authority on the application of the Charter to universities. Chief Justice Dickson observed at p. 275:

My conclusion is not that universities cannot in any circumstances be found to be part of government for the purposes of the Charter , but rather that the appellant universities are not part of government given the manner in which they are presently organized and governed.

[ 14 ] The Plaintiffs’ reference to the outcome in Pridgen v. University of Calgary , 2010 ABQB 644 , 497 A.R. 219, under appeal, fails to recognize that the Court made specific reference to the governing structure of the university in that case which involved significant government involvement. On this basis, the Court found the university was delivering a specific government program in partnership with the government. By contrast, the Carleton University Act, 1952 created an autonomous entity whose structure and governance is in no way prescribed by the government. Subsequent enactment of the Post‑secondary Education Choice and Excellence Act in no way derogates from that autonomy.

[ 15 ] The Plaintiffs argue that the necessary connection to government programming or a specific statutory scheme has been recognized in cases where the entity in question is publicly funded and serves a public need, such as in the case of the delivery of post-secondary education by universities. However, in McKinney , supra , the Supreme Court cautioned at p. 269 that mere performance of a public service by a publicly funded entity may not be sufficient to engage the Charter .

There is nothing to indicate that in entering into these arrangements, the universities were in any way following the dictates of the government. They were acting purely on their own initiative. Unless, then, it can be established that they form part of government, the universities' action here cannot fall within the ambit of the Charter . That cannot be answered by the mere fact that they are incorporated and perform an important public service. Many institutions in our society perform functions that are undeniably of an important public nature, but are undoubtedly not part of the government.

[ 16 ] Consistent with that reasoning, Ross J. in Dobreff v. Davenport , 2008 Carswell Ont. 8244 (S.C.) at para. 22 , cited McKinney in holding that “the Charter was not intended to cover activities by non-governmental entities created by government for legally facilitating private individuals to do things of their own choosing without engaging governmental responsibility.” He went on to hold at para. 25 “the Charter does not apply to discriminatory acts by a private actor, rather, the Charter prohibits discrimination by the application or operation of law.”

[ 17 ] In finding, as I have, that the pleadings fail to disclose how CU has effected a specific government program or statutory scheme, I am reminded of the result in Harrison v. University of British Columbia, 1990 61 (SCC) , [1990] 3 S.C.R. 451 where the Supreme Court found that the University of British Columbia was not under government control or influence notwithstanding that the university was fiscally accountable under four different statutes. Neither the Carleton University Act 1952 , nor the Post-secondary Education Choice and Excellence Act, 2000 , establish government control or influence over CU in any manner, let alone with respect to allocation of space or venues on campus property.

[ 18 ] It is unnecessary for me to specifically address the Plaintiffs’ allegations in the amended claim that s. 15 of the Charter has been breached, as I have concluded that all Charter claims should be struck without leave to amend. However, I would hold that the pleadings underpinning the s. 15 claim fail to plead that the Plaintiffs fall under any of the enumerated or analogous grounds of discrimination which have served “as a basis for unequal treatment based on stereotypical attributes ascribed to the group, rather than on the true worth and ability or circumstances of the individual”: see Miron v. Trudel , 1995 97 (SCC) , [1995] 2 S.C.R. 418; Law v. Canada, supra ; Corbiere v. Canada (Minister of Indian and Northern Affairs) , 1999 687 (SCC) , [1999] 2 S.C.R. 203; R. v. Kapp , 2008 SCC 41 () , [2008] 2 S.C.R. 483.

[ 19 ] I would also note that the Court of Appeal has already approved the striking of similar claims advanced under s. 15 where the court has held that the Plaintiff has failed to plead the enumerated or analogous ground of discrimination: see Rogers v. Faught (2002), 2002 19268 (ON CA) , 159 O.A.C. 79; Deep v. Ontario , [2005] O.J. No. 1294 (C.A.) .

[ 20 ] In answer to the Plaintiffs’ argument that Charter claims affecting the larger public interest should not be addressed without the benefit of a full record which can only be afforded at trial, I would observe that appeal courts in other cases of this kind have not been so restrained: see Galati v. McGuinty (1999), 1999 3129 (ON CA) , 127 O.A.C. 161; Rogers v. Faught , supra ; Deep v. Ontario, supra ; Dobreff v. Davenport , 2007 ONCA 902 , 88 O.R. (3d) 719.

[ 21 ] Finally, had I concluded that the Charter claims as pleaded should advance to trial, I would not have been swayed by the argument advanced by CU that the claim fails to fulfill requirements for an award of Charter damages in accordance with the test set down by the Supreme Court of Canada in Vancouver (City) v. Ward , 2010 SCC 27 , [2010] 2 S.C.R. 28. The requirements, as noted in Ward , are best achieved by evidence that would establish: (1) that a Charter right has been infringed; and (2) why damages are an appropriate and just remedy. These elements, as in the case of proof of any claim for damages, rest upon evidence as would be received during a trial of the issue.

The Negligence Claims

[ 22 ] In my opinion, the amended claim advanced in negligence against CU alone should not be foreclosed at this juncture. The amended pleading in negligence is now contained in 16 paragraphs, up from a previous 4, in addition to the prayer for relief.

[ 23 ] The amended pleading details the relationship between CU, its employees and the Plaintiffs, as full‑time fee paying students; the rights and obligations of the parties as described by reference to CU’s internal policies, namely the Human Rights Policies and Procedures (“HRPP”) and the Student Rights and Responsibilities Policy (“SRRP”); it quotes verbatim from the first and second paragraphs of the HRPP where CU acknowledges “a legal undertaking and responsibility to prevent discrimination”; the reasonable expectations of the Plaintiffs in relation to the policies; how CU fell short of its obligations; and the harm which flowed, including damage to reputation from CU’s use of its authority to engage the police and other measures against the Plaintiffs.

[ 24 ] The amended pleading no longer contains mere conclusory statements as I had observed in my previous Reasons. It now couples the allegations pertaining to the HRPP and SRRP with the claims advanced in negligence, as I had suggested.

[ 25 ] The amended pleading reflects the necessary elements for a cause of action in negligence. It pleads the facts that give rise to the duty of care, and does not reflect the same concerns expressed in Aba‑Alkhail v. University of Ottawa , 2010 ONSC 2385 at para. 55 :

The pleadings do not plead the reason why the alleged duty of care is owed to the plaintiff. The pleadings are not required to do that but they are required to plead facts that could give rise to the duty. There is no allegation in the pleadings that the University acted in such a way as to give an undertaking to assume such a duty to the plaintiff, except the untenable pleading as to the University Contract. So, the relevant facts must be simply the facts that the plaintiff was a student at the University and the University had the alleged policies.

[ 26 ] It is now apparent from a plain reading of the amended pleading how the Plaintiffs allege CU departed from the undertaking and legal responsibility acknowledged by CU in the HRPP. The fresh allegations refer to intentional conduct on the part of CU and the alleged damage which flowed from this conduct. Accordingly, the amended pleading alleges intentional conduct which potentially falls outside the broad margin of discretion enjoyed by the university: see Gauthier c. Saint‑Germain (2010), 2010 ONCA 309 () , 264 O.A.C. 336.

[ 27 ] The Defendants claim that the pleading describes a novel duty of care. I am no longer convinced that this is the case. The Supreme Court of Canada has already recognized in Young v. Bella , 2006 SCC 3 () , [2006] 1 S.C.R. 108, that a claim for damages to reputation may be brought within an action for negligence, although I also recognize that the circumstances in Young v. Bella arose from the conduct of university professors engaged in a close and direct relationship to the Plaintiff. I will address this further below.

[ 28 ] The Defendants argue further that, although departure from written policy may in isolated circumstances give rise to a breach of a duty of care as in Heaslip Estate v. Mansfield Ski Club Inc. (2009), 2009 ONCA 594 () , 96 O.R. (3d) 401, in the circumstances before me it is not foreseeable that failure to interpret the policy in the Plaintiffs’ favour would result in harm. The Defendants say that a duty should only be recognized where a sufficiently close and direct relationship of some proximity is found to exist. The Defendants refer me to Cooper v. Hobart , 2001 SCC 79 () , [2001] 3 S.C.R. 537, where the Supreme Court of Canada adopted at para. 30 the two-part test in Anns v. Merton London Borough Council , [1978] A.C. 728 (H.L.) , for recognition of a new or novel duty of care:

In brief compass, we suggest that at this stage in the evolution of the law, both in Canada and abroad, the Anns analysis is best understood as follows. At [page551] the first stage of the Anns test, two questions arise: (1) was the harm that occurred the reasonably foreseeable consequence of the defendant's act? and (2) are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here? The proximity analysis involved at the first stage of the Anns test focuses on factors arising from the relationship between the plaintiff and the defendant. These factors include questions of policy, in the broad sense of that word. If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care.

[ 29 ] The Defendants finally assert that there would be sound policy reasons not to recognize a duty in the circumstances of this case, having regard to the floodgate of claims that would result if every policy statement gave rise to tortious conduct.

[ 30 ] In my opinion, a prima facie duty of care is not foreclosed, and arguably foreseeable risk of harm arises where CU rejects its own recognized legal responsibility to students, presuming as I must on a Rule 21 motion that the Plaintiffs can prove CU and its employees orchestrated their arrest, harassment and intimidation, and consequent damage to reputation.

[ 31 ] I am sensitive to the potential that there may be good policy reasons for refusing to recognize a duty in the circumstances before me; however, each case justifies a contextual analysis. At a trial, a full record would more carefully examine the context, including the policy implications of recognizing a duty of care where the university has pointedly recognized a legal responsibility, as it has in this case through the HRRP.

The Individual Defendants

[ 32 ] I remain of the view that the allegations as pleaded against the individual Defendants do not give rise to personal liability. All Defendants are identified as employees of CU. The allegations made against each in pith and substance relate to decisions made within their ostensible authority as CU employees.

[ 33 ] With the possible exception of the Defendant Burns, who at all material times was employed as Director of Safety for CU, and the Defendant Flannagan, who was at the same time employed as Director of CU’s Student Affairs, and whom the Plaintiffs allege had resort to threats of police intervention and disciplinary action, the Plaintiffs’ attempt to ascribe personal liability against all Defendants is really founded upon the allegation that these Defendants acted to advance their own religious, moral, social and political agendas, ahead of their professional obligations in the circumstances. However, by making the decision they did, it cannot be said that they acted outside the bounds of the authority with which they were vested. The decisions themselves, including those exercised by the Defendants Burns and Flannagan, were clearly of the kind they were entrusted to make, whether or not they advanced coincidentally or by design, their own personal views.

[ 34 ] ScotiaMcLeod Inc. v. Peoples Jewellers Limited (1995), 1995 1301 (ON CA) , 26 O.R. (3d) 481 (C.A.), leave to appeal refused, [1996] S.C.C.A. No. 40, remains the seminal case cited for the criteria that need to be met to apportion personal liability. The criteria that must be shown are that: (1) the actions of the employees are themselves tortious, or (2) the actions of employees exhibit a separate identity or interest from that of the corporation, or employer, so as to make the act of the conduct complained of their own. The holding in ScotiaMcLeod departs from a long line of cases in which the conduct of employees and officers of companies have been examined for personal liability for conduct ostensibly carried out under the corporate name. All of these cases are fact specific. However, in the absence of findings of fraud, deceit, dishonesty or want of authority on the part of employees or officers, the instances in which personal liability is found are rare.

[ 35 ] In my opinion, the amended pleading before me does little more than “window dress” the suggestion of a separate identity or interest of the named Defendants from that of CU. There is no allegation of fraud, deceit, dishonesty or true want of authority. The new allegations do not cross into the category of rare cases where personal liability would be found. These claims are, therefore, struck without leave to amend.

Conclusion

[ 36 ] In the result, the allegations in the Fresh As Amended Statement of Claim pertaining to the Charter breaches, and the claim of negligence against the individual Defendants shall be struck without leave to amend. The claim of negligence against CU alone survives attack.

Costs

[ 37 ] The Defendants have provided me with a Costs Outline claiming partial indemnity costs, including fees and disbursements of $17,924.71, for preparation and attendance on a one-day hearing of this motion.

[ 38 ] The Plaintiffs’ Costs Outline claims partial indemnity costs including fees and disbursements of $11,331.47.

[ 39 ] In addressing the factors under Rule 57.01 that may affect the exercise of my discretion under s. 131 of the Courts of Justice Act , both parties emphasize the complexity and public importance of the issues addressed by this motion, particularly as they relate to the scope of rights arising from the relationship between students and universities. I am also reminded that the Plaintiffs are impecunious and that an award of costs could effectively bar access to justice in this action.

[ 40 ] I would invite counsel to consider the divided success on this motion, and the fact that the issues argued were to a large extent previously addressed by two days of argument and detailed facta and submissions on the first motion. Additionally, this motion focused on only three of the eight previously considered issues and required only one day of argument.

[ 41 ] I have already concluded that this case fails to meet the criteria identified in Harris v. Canada (TD) , 1998 9114 (FC) , [1999] 2 F.C. 392, for the reasons set out in my Decision on Costs released October 3, 2011. Moreover, I would not expect any new facts of relevance to assist me in the determination of whether or not this case involves public interest litigation.

[ 42 ] If the parties are unable to agree to costs within 30 days, I will receive written submissions of no more than five pages in length from the parties. Any reply submissions should be delivered within seven days thereafter and shall be limited to two pages in length.

Madam Justice Toscano Roccamo

Released: January 10, 2012