SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-O8-363847 CP
DATE: 20120522
RE: Katrina Ramdath, Zsolt Kovessy & Ashish Singh, Plaintiffs/Respondents
The George Brown College of Applied Arts and Technology, Defendant/Moving Party
BEFORE: G.R. Strathy J.
COUNSEL:
Norman Mizobuchi , for the Plaintiffs/Respondents
Michael C. Smith & Court Peterson , for the Defendant/Moving Party
DATE HEARD: May 1, 2012
E N D O R S E M E N T
(Undertakings and Refusals)
[ 1 ] The defendant moves to compel answers to questions refused, taken under advisement or the subject of undertakings on the examinations for discovery of the three plaintiffs.
[ 2 ] To put the motion in context, some background is required.
The Certification Decision
[ 3 ] This action was certified as a class proceeding under the Class Proceedings Act, 2002 , S.O. 2002, c. 6 (the C.P.A. ) on April 8, 2010: Ramdath v. George Brown College of Applied Arts and Technology , 2010 ONSC 2019 , [2010] O.J. No. 1411.
[ 4 ] I case managed the action before that date and I have case managed it since.
[ 5 ] The material facts are set out in my reasons for certification. The plaintiffs are former students in the International Business Management Program (the "Program") at The George Brown College of Applied Arts and Technology ("George Brown"). They claim that the course calendar misrepresented the benefits of the Program and falsely stated that it would enable them to obtain three industry designations (the “Industry Designations”) in addition to a college certificate.
[ 6 ] As I noted in my reasons, the print and web version of George Brown’s calendar stated that:
The International Business Management post-graduate program provides students with the opportunity to complete three industry designations/certifications in addition to the George Brown College Graduate Certificate.
[ 7 ] The plaintiffs allege that this statement was untrue, because they could not obtain the Industry Designations without paying additional fees, completing further courses and/or submitting proof of work experience.
[ 8 ] The plaintiffs claim that they relied to their detriment on the description of the Program in the calendar and they assert a cause of action for negligent misrepresentation. They also claim that George Brown breached its contract to provide the Industry Designations as part of the educational services it agreed to supply to students in the Program. Finally, the plaintiffs claim that George Brown engaged in unfair practices prohibited by s. 14 and 15 of the Consumer Protection Act, 2002 , S.O. 2002, c. 30, Sched. A.
[ 9 ] I found that the action met the requirements of s. 5(1) of the C.P.A. In particular, I found that the proposed common issues of misrepresentation, breach of contract and breach of the Consumer Protection Act, 2002 were appropriate for certification and were capable of determination on a class-wide basis. I noted, in particular, at para. 101, that the plaintiffs relied on a single written representation in the course calendar. I found, at para. 104, that while George Brown asserted that some students may have obtained information about the Industry Designations from other sources, “including the Industry Associations, discussions with George Brown and information sessions that were held with students at the beginning of each session”, this did not detract from the commonality of the issue.
[ 10 ] The pertinent common issues that were certified were:
Negligent Misrepresentation
Was George Brown in a special relationship with the Class Members?
Did George Brown make representations to the Class Members that it would provide the Class Members with the opportunity to complete the three Industry Designations in addition to the George Brown College Graduate Certificate?
If such representations were made, were they untrue, inaccurate or misleading? If so, was George Brown negligent in making the representations?
Consumer Protection Act 2002
Did George Brown breach Part III of the Consumer Protection Act, 2002 , S.O. 2002, c. 30, Sched. A (the " Act ")?
If so, what remedy, if any, are the Class Members entitled to under the Act ?
Does the Class, or any portion thereof, require, and is it entitled to, a declaration waiving the notice provisions of section 18 of the Act ?
Breach of Contract
Was the relationship between George Brown and the Class Members a contractual relationship?
If the answer to question #6 is yes, did the contract include a term by which George Brown agreed to provide the Class Members with the opportunity to complete the three Industry Designations in addition to the George Brown College Graduate Certificate?
If the answer to question #7 is yes, did George Brown breach that contract?
[ 11 ] It is noteworthy that the three groups of common issues have a similar structure. All focus on the alleged contractual term or misrepresentation that by enrolling in the Program, Class Members would receive “the opportunity to complete the three Industry Designations in addition to the George Brown College Graduate Certificate”. The resolution of the three groups of issues will require the common issues judge to determine what, if anything, George Brown promised and what, if anything, George Brown delivered. The trial judge will then decide, as a matter of law, whether any gap between what was promised and what was delivered gives rise to an actionable claim for damages for breach of contract, misrepresentation or under the Consumer Protection Act, 2002 .
[ 12 ] In the preferability analysis, I rejected the submission of George Brown that individual issues of knowledge and reliance would make the case inappropriate for certification and that the negligent misrepresentation and breach of contract claims would essentially break down due to their individuality. I noted at para. 136:
In this case, the plaintiff relies on a single representation, made in the course calendar in printed form and on the George Brown website. The language used in both media was the same. The web version of the calendar was amended in July, 2008 but the printed calendar was not. The representation was clearly important to students wishing to enroll in the Program and the calendar is an important contractual document. George Brown has produced no other contractual document that might contradict the representation. It is a reasonable conclusion that the calendar would be read by every student before enrolling in the Program.
[ 13 ] I noted at para. 138 that the causes of action asserted by the plaintiffs all hinged on the legal effect of statements contained in the George Brown calendar:
The claims of negligent misrepresentation, breach of contract and breach of the Consumer Protection Act, 2002 all hinge on the legal effect of the statements made in the calendar and whether those statements were inaccurate or misleading. As in Hickey-Button, the resolution of those issues in favour of George Brown would likely put an end to the action. The resolution of one or more of those issues in favour of the plaintiffs will not put an end to the action, but it would substantially advance the claim of every Class Member.
[ 14 ] I concluded, at para. 141 and following, that the proposed class action met the preferability requirement and fulfilled the goals of the C.P.A. :
Looking at the preferability analysis having regard to the goals of the C.P.A., a class action will provide access to justice to a vulnerable group of students, many of whom are from different lands and cultures. Class Members may lack the individual resources, initiative and sophistication to pursue legal action on their own and may be intimidated by the legal process. Their claims are relatively modest, and while they might be individually pursued in the Small Claims Court or under the Simplified Procedure, they can be more efficiently managed in a single action case managed by a single judge. The prospect that the international students might pursue George Brown in their homelands, seems very remote and, from the evidence, such litigation would likely be unproductive and expensive.
A class proceeding would also fulfill the goal of judicial economy by addressing important aspects of George Brown's liability at the outset. A multiplicity of legal proceedings would be a drain on court resources. [paras. 141-2].
[ 15 ] I noted at the conclusion of my reasons that George Brown had proposed that the proceedings should be bifurcated and that there should be discovery and trial of individual liability issues before trial of the common issues. It argued that the action could not be resolved without the determination of numerous individual issues. I rejected this submission, concluding at para. 150:
George Brown is really trying to turn this action into an opt-in class action by requiring each Class Member to come forward and establish his or her entitlement to claim prior to the resolution of the common issues. This proposal stands class proceedings on their head and would result in a waste of judicial and private resources if the common issues were ultimately decided against the Class. It may be the case that, in an exceptional circumstance, the court's jurisdiction under s. 12 of the C.P.A. would permit the determination of some or all individual issues before the common issues, but I have some difficulty in contemplating what those circumstances might be. I see no reason to do so in this case.
[ 16 ] Having certified the action, with very narrow common issues, acknowledging that there were individual issues that would ultimately have to be addressed, it was my assumption that there would be a focused examination for discovery of the representative plaintiffs, if necessary, followed by a relatively short trial of the common issues. If the common issues were decided in favour of George Brown, that would be the end of the matter. If some or all common issues were answered in favour of the plaintiffs, the common issues judge would give further directions with respect to the resolution of the individual issues, including directions for further discovery, if necessary.
(Decision continues exactly as in the original text…)
G.R. Strathy J.
DATE: May 22, 2012