Ramdath et al. v. The George Brown College of Applied Arts and Technology [Indexed as: Ramdath v. George Brown College of Applied Arts and Technology]

113 O.R. (3d) 531

2012 ONSC 6173

Ontario Superior Court of Justice,

Belobaba J.

November 16, 2012

Consumer protection -- Misrepresentation -- College course calendar stating that International Business Management post- graduate program would provide students with opportunity to complete three industry [page532] designations/certifications in addition to college certificate -- Plaintiffs enrolling in program solely to obtain industry designations -- Plaintiffs discovering that completion of program led only to college graduate certificate and that they would still have to pay for and complete course requirements for industry designations -- College breaching s. 14 of Consumer Protection Act ("CPA") -- Reasonable interpretation of representation being that completion of program would amount to completion of all requirements for three industry designations other than writing final exam and paying membership fees -- College students taking post-graduate business course being "consumers" for purposes of CPA -- Representation being untrue, inaccurate or misleading and college negligent in making it -- Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A, s. 14.

Torts -- Negligent misrepresentation -- College course calendar stating that International Business Management post- graduate program would provide students with opportunity to complete three industry designations/certifications in addition to college certificate -- Plaintiffs enrolling in program solely to obtain industry designations -- Plaintiffs discovering that completion of program led only to college graduate certificate and that they would still have to pay for and complete course requirements for industry designations -- Reasonable interpretation of representation being that completion of program would amount to completion of all requirements for three industry designations other than writing final exam and paying membership fees -- Representation being untrue, inaccurate or misleading and college negligent in making it.

The defendant's 2007-2008 and 2008-2009 course 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 defendant's graduate certificate. The plaintiffs enrolled in the program solely to obtain the industry designations. They discovered that completion of the program led only to the defendant's graduate certificate and that they would still have to pay for and complete the course requirements for the industry designations. The plaintiffs brought a class action on behalf of all students who registered in the program in September 2007, January 2008 and September 2008, seeking damages for negligent misrepresentation, breach of the Consumer Protection Act, 2002 and breach of contract. A trial of the common issues was held.

Held, the plaintiffs prevailed on the negligent misrepresentation and consumer protection issues.

The impugned representation could plausibly be interpreted as meaning that the program provided successful students with an opportunity to complete all of the requirements for the three industry designations, except that students would still be required to pay for and write the industry association's final exam and pay the annual membership fees.

"Consumer" is defined in s. 1 of the CPA as "an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes". College students taking business courses are "consumers" under the CPA. A college student taking a post-graduate business program is doing so for personal (educational) reasons and is not a person "acting for business purposes". An individual consumer's purchase of goods or services for [page533] "business purposes" excludes him or her from the CPA only in situations where the purchase was for an existing trade or business, not for future business purposes.

The defendant was in a special relationship with the class members. The class members' reliance on the representation in question was foreseeable on the part of the defendant and reasonable on the part of the class members. The representation was untrue, inaccurate or misleading, and the defendant was negligent in making it. The defendant knew at the time that the program description was published that it had no ability to confer any of the designations listed in the program description, it had no agreements in place to do so, and the program description had not been sent to the industry associations for comment or approval. The defendant breached s. 14 of the CPA by making a false, misleading or deceptive misrepresentation. Because rescission was no longer possible, the class members were entitled to monetary compensation.

COMMON ISSUES TRIAL of a class action.

Cases referred toMacDonald v. Thomas M. Cooley Law School, 2012 U.S. Dist. LEXIS 100785 (Mich. W. Dist. Ct.), not folld Other cases referred to Alsides v. Brown Institute, Ltd., 592 N.W. 2d 468 (Minn. C.A. 1999); Ashby v. EPI Environmental Products Inc., [2005] B.C.J. No. 1833, 2005 BCSC 1190, 43 C.C.E.L. (3d) 90, 141 A.C.W.S. (3d) 580; Bowen v. Parkrow Auto Sales Ltd., [2012] O.J. No. 1403 (S.C.J.); Cannon v. Funds for Canada Foundation, [2012] O.J. No. 168, 2012 ONSC 399, 13 C.P.C. (7th) 250, [2012] 3 C.T.C. 132 (S.C.J.); Chen v. Campbell, Douglas & Randall Associates, Inc., [2002] A.J. No. 1527, 2002 ABPC 166, 351 A.R. 1, 29 B.L.R. (3d) 243; Ellis v. Canada, [1994] T.C.J. No. 24, [1994] 1 C.T.C. 2349, 94 D.T.C. 1731 (T.C.C.); Fournier Leasing Co. v. Mercedes-Benz Canada Inc., [2012] O.J. No. 2184, 2012 ONSC 2752 (S.C.J.); Griffin v. Dell Canada Inc. (2010), 98 O.R. (3d) 481, [2010] O.J. No. 177, 2010 ONCA 29, 259 O.A.C. 108, 64 B.L.R. (4th) 199, 80 C.P.C. (6th) 154, 315 D.L.R. (4th) 723; Hercules Managements Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, [1997] S.C.J. 51, 146 D.L.R. (4th) 577, 211 N.R. 352, [1997] 8 W.W.R. 80, J.E. 97-1151, 115 Man. R. (2d) 241, 31 B.L.R. (2d) 147, 35 C.C.L.T. (2d) 115, 71 A.C.W.S. (3d) 169; Hickey-Button v. Loyalist College of Applied Arts & Technology, 2006 20079 (ON CA), [2006] O.J. No. 2393, 267 D.L.R. (4th) 601, 211 O.A.C. 301, 31 C.P.C. (6th) 390, 148 A.C.W.S. (3d) 853 (C.A.); Ibrahim v. Lakehead University, [2000] O.J. No. 199, [2000] O.T.C. 39 (S.C.J.); Liu v. Wantell Business Networks Corp., [2009] B.C.J. No. 1655, 2009 BCPC 252; M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., 1999 677 (SCC), [1999] 1 S.C.R. 619, [1999] S.C.J. No. 17, 170 D.L.R. (4th) 577, 237 N.R. 334, [1999] 7 W.W.R. 681, J.E. 99-859, 69 Alta. L.R. (3d) 341, 232 A.R. 360, 49 B.L.R. (2d) 1, 44 C.L.R. (2d) 163, 3 M.P.L.R. (3d) 165, REJB 1999-11937, 87 A.C.W.S. (3d) 681; Maldonado v. Collectibles International Inc., 969 F. Supp. 7, 1997 U.S. Dist. LEXIS 9629 (N.Y.S. Dist. Ct. 1997); Malone v. Academy of Court Reporting, 64 Ohio App. 3d 588 (C.A. 1990); Matoni v. C.B.S. Interactive Multimedia Inc., [2008] O.J. No. 197, 2008 1539, 163 A.C.W.S. (3d) 701 (S.C.J.); Olar v. Laurentian University, [2008] O.J. No. 4623, 2008 ONCA 699, affg [2007] O.J. No. 2211, 49 C.C.L.T. (3d) 257, 158 A.C.W.S. (3d) 849 (S.C.J.); Ramdath v. George Brown College of Applied Arts and Technology, [2010] O.J. No. 1411, 2010 ONSC 2019, 93 C.P.C. (6th) 106 (S.C.J.); Ramdath v. George Brown College of Applied Arts and Technology, [2012] O.J. No. 2475, 2012 ONSC 2747 (S.C.J.); Richard v. Time Inc., [2012] 1 S.C.R. 265, [2012] S.C.J. No. 8, 2012 SCC 8, 427 N.R. 203, 342 D.L.R. (4th) 1, 211 A.C.W.S. (3d) 321; Scott v. Association for Childbirth at Home, Int'l, 88 Ill. 2d 279, 430 N.E. 2d 1012, 1981 Ill LEXIS 411, 58 Ill. Dec. 761 (S.C. 1981); [page534] Seidel v. TELUS Communications Inc., [2011] 1 S.C.R. 531, [2011] S.C.J. No. 15, [2011] S.C.J. No. 15, 2011 SCC 15, 301 B.C.A.C. 1, 412 N.R. 195, 2011EXP-936, J.E. 2011-498, EYB 2011-187826, 329 D.L.R. (4th) 577, [2011] 6 W.W.R. 229, 16 B.C.L.R. (5th) 1, 82 B.L.R. (4th) 1, 1 C.P.C. (7th) 221; Sutcliffe v. Acadia University, 1978 2129 (NS CA), [1978] N.S.J. No. 680, 95 D.L.R. (3d) 95, 30 N.S.R. (2d) 423, 49 A.P.R. 423, [1979] 1 A.C.W.S. 108 (C.A.); Trutschel v. Kettering Medical Center, 2009 Ohio 3302 (C.A.); Vanezi v. Wilder (c.o.b. Ken Wilder Enterprises), [2009] O.J. No. 1147 (S.C.J.); Weller v. Reliance Home Comfort Limited Partnership (2012), 110 O.R. (3d) 743, [2012] O.J. No. 2415, 2012 ONCA 360, 291 O.A.C. 388, 350 D.L.R. (4th) 301, 215 A.C.W.S. (3d) 81, affg [2011] O.J. No. 2344, 2011 ONSC 3148, 335 D.L.R. (4th) 690, 202 A.C.W.S. (3d) 281 (S.C.J.); Wilson v. Semon, 2011 CarswellOnt 15953 (S.C.J.); Wong v. Lakehead University, [1991] O.J. No. 1901 (Gen. Div.) Statutes referred to Business Practices Act, R.S.O. 1990, c. B.18 [rep. by S.O. 2002, c. 30, Sch. E, s. 1], s. 1 Consumer Protection Act, R.S.Q., c. P-40.1, s. 1(e) Consumer Protection Act 1987 (U.K.), 1987, c. 43, s. 20(6) Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A [as am.], s. 1 [as am.], Part III [as am.], ss. 14(1), (2), 18, (1), (2) [as am.], (3), (15) Ontario Colleges of Applied Arts and Technology Act, 2002, S.O. 2002, c. 8, Sch. F, s. 2(2), (3) Authorities referred to Cartwright, Peter, Consumer Protection and the Criminal Law: Law, Theory and Policy in the UK (Cambridge, UK: Cambridge University Press, 2001) McCamus, John D., The Law of Contracts (Toronto: Irwin Law, 2005) Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 33 (September 26, 2002) at 1602-1603 (Tim Hudak) Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 49B (October 28, 2002) at 2531 (Wayne Wettlaufer) Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 52A (October 31, 2002) at 2696 (Brenda Elliott)Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 58A (November 19, 2002) at 3024 (Tim Hudak) Ziegel, Jacob, "Canadian Consumer Law and Policies 40 Years Later: A Mixed Report Card" (2011), 50 Can. Bus. L.J. 259

Won Kim, Victoria Paris and Aris Gyamfi, for plaintiffs. Robert B. Bell, Michael C. Smith and Court Peterson, for defendant.

[1] BELOBABA J.: -- This action stems from representations that were made in a college course calendar about a graduate business program. The students say the college failed to deliver what was promised. They commenced a class action. The action was certified as a class proceeding by Justice Strathy on April 8, 2010. [^1] Justice Strathy listed nine common issues for trial. [page535]

[2] This was the common issues trial. I was able to complete it in two days because all the evidence was via affidavits and read-ins. I am grateful to counsel for their co-operation in this regard. The common issues are set out in the Appendix. The first three issues focus on negligent misrepresentation, the second three on the Consumer Protection Act ("CPA") [^2] and the last three on breach of contract.

[3] At the conclusion of the trial, I advised counsel that the plaintiffs had prevailed on the negligent misrepresentation and consumer protection issues. I also advised counsel that my reasons would follow shortly.

[4] These are my reasons.

[5] My findings should not be taken out of context. They are certainly not intended to impugn the quality or integrity of George Brown College, its teaching faculty or its administration. George Brown College is highly regarded and deservedly so. But on this one occasion they were careless and made a mistake. And, they should be held accountable. Background

[6] The plaintiffs are former students in the International Business Management Program (the "program") at the George Brown College of Applied Arts and Technology ("GBC"). The eight-month program was first offered at GBC in September 2007. The class action was commenced on behalf of all students who registered in the program beginning in September 2007 (the first class), January 2008 (the second class) and September 2008 (the third class).

[7] There were about 40 students in each of the three classes, or about 120 in total. Two-thirds were foreign students -- from India, China, Japan, Turkey, Brazil, Russia, South Korea, Syria, Thailand and Mexico. The domestic students paid about $3,000 in tuition fees for the eight-month program, and the foreign students paid just under $11,000.

[8] The plaintiffs claim that the 2007-08 and 2008-09 course calendars misrepresented the benefits of the program and falsely stated that it would enable them to obtain three industry designations in addition to the college's certificate.

[9] The applicable course calendars described the program as follows: [page536]

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.

[10] The course calendars explained that the "three industry designations/certifications" included certificates in international trade, custom services and international freight forwarding. The calendars then listed the "required courses" for each of these industry designations under the following three headings: CITP Designation, Customs Courses and CIFFA Courses. [^3]

[11] The plaintiffs say it was plain and obvious from the language in the course calendars that upon successful completion of this post-graduate international business program, the students would obtain the three industry designations or certifications "in addition to" the GBC graduate certificate. Indeed, it was the opportunity to complete the three industry designations that attracted the plaintiffs to GBC in the first place, not the GBC certificate. None of them wanted or needed another college graduate certificate.

[12] Zsolt Kovessy represents the first class. He already had an undergraduate degree from Ryerson University and a post- graduate Business Management Certificate from GBC. He enrolled in the program in September 2007 because of the opportunity to obtain the industry designations. He completed the program in April 2008.

[13] Katrina Ramdath represents the second class. She had already completed the International Trade Certificate and the Advanced International Trade Certificate at GBC before registering in the program. She enrolled in the January 2008 class because of the opportunity to obtain the industry designations. Like Mr. Kovessy, she didn't need or want another college certificate. [page537]

[14] Hasish Singh, a member of the second class, represents the international students. He already had a Bachelors of Commerce degree from Punjab University in Chandigarh, India and an MBA in finance from the Institute of Professional Education and Research in Bhopal, India before registering in the program. His annual salary in India was about $6,500. He enrolled in the program and paid the almost $11,000 in tuition fees, and all related travel and living costs, because he thought the program would provide him with an opportunity to obtain the industry designations.

[15] The plaintiffs claim they would not have enrolled in the program but for the representation about the industry designations. For each of them, and for the students they represent, the value of the Program was the promised opportunity to complete the requirements for the CITP, the CCS and the CIFF "in addition to" the GBC graduate certificate.

[16] Unfortunately, the plaintiffs discovered that they would not be provided with any such opportunity and that no such industry accreditations would be awarded. They learned further that GBC did not even have agreements in place with any of the three industry associations that could have led to such accreditations. All that the students received on graduation was the college certificate. Each of them, if they were financially able to do so, would still have had to complete the industry designations on their own -- they would have had to pay for and take the required courses, satisfy any work experience requirements and pay for and pass the final exams.

[17] The students were, to say the least, disappointed. Some were devastated. They had travelled from as far away as China and India and had paid hefty tuition fees. They had applied to the program because of the designations. With these professional designations, they would have had a much better chance of getting a job in international business management. Having paid a substantial tuition fee and related travel and living expenses, they could not afford the additional time or money needed to pursue the three accreditations on their own.

[18] The students banded together and presented their complaint to the program advisor in a well-attended meeting. GBC promptly changed the online version of the program description to read as follows (the changes are shown in italics):

The International Business Management post-graduate program can also prepare students to pursue three industry designations/certifications in addition to the George Brown College Graduate Certificate if they choose to do so. All of these industry designations/certifications require additional exams and/or related work experience to qualify. Please check out [page538] their official websites listed below to find out the detailed requirements set by the granting bodies of these designations/certifications[.]

Note: The qualification requirements for each designation/ certification are set by the granting body, not George Brown College. In order to qualify [sic] any of those designations/certifications, you need to follow the process listed on their website and meet all the requirements applicable to you.

[19] GBC made these changes to make clear that the requirements for the three industry designations could not be completed within the confines of the program. Additional courses and exams would still be required and work-experience requirements would still have to be satisfied. The most the program would do is "prepare students to pursue" these designations after graduation "if they choose to do so". The earlier listing of "required courses" under the CITP, Customs and CIFFA headings was removed.

[20] The online revision took effect on July 30, 2008. The hard-copy course calendar was not changed until the September 2009 printing. The certification judge included the third class of students that began the program in September 2009 because he reasonably assumed that at least some of the students in the third class would have relied on the unrevised hard-copy version when they applied in the spring and summer of 2009.

[21] After complaining to the program advisor, the students, led by Ms. Ramdath, delivered a written letter of complaint to the GBC administration. GBC rejected the students' complaint. It insisted, notwithstanding its revision of the program's description, that the original version was neither inaccurate nor misleading and took the position that the students got exactly what was promised -- a GBC graduate certificate and the opportunity to complete the industry accreditations in the future if they chose to do so. According to the director of the Centre for Business at GBC, "[t]here was nothing inaccurate in the original Program summary".

[22] In the discussions that followed, GBC reminded students about the February 2008 agreement with the Forum for International Trade Training ("FITT") that would allow students to obtain a FITT certificate upon completing equivalent courses in the program and paying a $75 transfer fee. The FITT certificate, however, was not the same as the CITP designation. To obtain the latter, the students still had to satisfy the one-year work requirement and write the CITP Professional exam at a cost of $195.

[23] GBC also scrambled to arrange a reduced-pricing arrangement with CIFFA. Under an agreement dated September 3, 2008 (executed after the students in the first and second classes had graduated), the students would be permitted to take the CIFFA [page539] courses for the reduced price of $1,000 rather than $2,968, provided they registered by October 31, 2008. The plaintiffs did not have the funds and did not do so.

[24] GBC continued to insist that "there was nothing inaccurate" in the original program summary and denied any liability for what was said in the 2007-08 and 2008-09 course calendars. The students, in turn, commenced this class action on behalf of the 118 students in the three classes that enrolled in the program before the impugned language in the hard-copy version of the course calendar was changed. The action seeks damages for misrepresentation, breach of the CPA and breach of contract. Key Findings

[25] Before turning to the common issues, it will be useful to explain two key findings that are important to the analysis that follows. I do this under a separate heading because a detailed explanation is warranted for each finding. (1) The meaning of "opportunity to complete"

[26] On a plain reading of the program's description in the two applicable course calendars, it seems obvious that the students' interpretation was completely reasonable. The calendars stated that the International Business Management post-graduate program would provide students "with the opportunity to complete three industry designations/ certifications in addition to the George Brown College Graduate Certificate". As well, as already noted, the program description went on to list the "required courses" directly under the three industry-specific headings: CITP Designation, Customs Courses and CIFFA Courses.

[27] I find that that the students were right to assume that if they completed the program, they would graduate not only with the GBC graduate certificate but also with the three industry designations/certifications "in addition to" the GBC graduate certificate. Or, at the very least (and this is a nuance that I will explain shortly), they were right to assume that they would graduate having completed the course requirements for each designation, that the work requirement would be waived [^4] and that only the final exams in each designation would remain. [page540]

[28] Counsel for GBC, however, argues that a reasonable student who diligently researched the industry websites would have understood that GBC was only providing a preparatory platform for the future completion of the three listed designations; that all that was being offered was "an opportunity", that is, "a chance to advance to complete" the designations; and that no reasonable student could have concluded that the three industry designations, each with its own requirements, could be completed within the confines of an eight-month program.

[29] In my view, this submission fails for the following reasons:

-- As already noted, on a plain and objective reading of the impugned representation, the reasonable interpretation is the one being advanced by the students. The program explicitly provided an "opportunity to complete", not an "opportunity to advance to complete".

-- If the program was only intended to provide students with "an opportunity to advance to [one day] complete" (i.e., a preparatory platform for the future completion of the industry designations), it could have said so. In other business programs offered in the same course calendar, GBC was careful to distinguish between preparation for future accreditation and actual completion of industry designations. For example:

-- The two-year Business Accounting Program description included this statement: "If you are seeking a professional designation, this program is a great starting point. With further study you can become a CGA within three to four years of graduation." [^5]

-- The eight-month Human Resources Management Program description added this: "All the courses necessary to prepare for the CHRP Knowledge Examination are included . . . This enables you to work toward obtaining the professional designation of CHRP." [^6]

-- On the other hand, where certain industry designations could be completed within the confines of the GBC degree or diploma, this was also made clear. See, for example, the [page541] following description of the eight-month Financial Planning Program (which combines "platform" language with "actual completion" language):

-- "This curriculum will prepare you for the Certified Financial Planner examination leading to the CFP designation . . . you will also have an opportunity to complete the Canadian Securities Course through the Canadian Securities Institute as part of your studies." [^7]

-- GBC submits that the "certification box" that appears at the top right-hand corner of every program description page is important, if not determinative. The box tells the reader what degree, diploma or certificate will be awarded if the program is successfully completed. With respect to the program herein, the calendar stated this in the "certification box": "Ontario College Graduate Certificate". Nothing was said about the three industry designations that were allegedly promised. GBC says this should have alerted reasonable students to the fact that the three designations would not be awarded upon completion of the program. I am not persuaded by this submission. There is no reason to conclude that the "certification box" should necessarily list the non-college accreditations. Recall that the Financial Planning Program, noted above, provided students with an "opportunity to complete" the CSC course as part of their studies. Yet the certification box for this program only notes the Ontario College Graduate Certificate and says nothing about the CSC designation, even though the wording signals that the CSC course would be completed as part of the program. The information contained in the certification box is not particularly probative.

-- GBC also argues that by simply going online and checking each industry association's website, the students would have realized that GBC could not possibly provide three designations upon completion of an eight-month program when the three designations, standing alone, could take up to two years or more to complete, plus another two years to satisfy the work requirement. Here again, I am not persuaded. The fact that it could take up to two years to complete all three designations on a stand-alone basis [page542] does not mean that GBC's offering of said designations in an eight-month post-graduate program was inherently unreasonable and should not have been taken seriously. There was nothing unusual about GBC, or indeed any community college, providing a more integrated and expedited process for industry accreditation. GBC's mission, after all, was to graduate "job-ready" students. The college was statutorily encouraged to enter into partnerships with industry associations. [^8] To read in the course calendar that one could obtain industry designations "in addition to" the GBC graduate certificate is exactly what one would expect to find. It was not unreasonable for a student to assume that the three industry associations could readily alter and even eliminate some of their stand-alone requirements (as CCS did with its one-year work requirement in the agreements it made with Seneca College and Fleming College), where the rigour and quality of the college-level program met or exceeded the industry associations' standards.

-- In any event, I don't think students should be reasonably expected to conduct independent research to verify GBC's representations, after being told in the course calendar that they would receive the designations by taking the program.

-- The plaintiffs' (reasonable) interpretation of the program description was confirmed by one or more of their professors. Professor Jackson, who taught the freight forwarding courses, told his class that they would get the CIFFA certification if they passed the GBC courses; Professor Ahmed, who taught international marketing, told his class that they would receive the CITP if they passed the required GBC courses; and Professor Juzokonis, the customs teacher, confirmed to his class that if the students passed both custom courses, they would get the CCS designation. Mr. Kovessy adds in his affidavit that Professor Basztyk urged him to take the program because it offered the three industry designations in addition to the GBC certificate. None of this evidence was controverted.

-- I recognize that Professor Kohli in his affidavit said that whenever he discussed the designations with students, he explained that the designations would not be automatically [page543] awarded at graduation and that discussions with the industry associations were still ongoing. If Professor Kohli means that he told the students that they would still be required to take the industry association's final exam, I accept this. Indeed, this accords with my ultimate finding about what was actually promised on the facts herein -- a finding that I will explain shortly. If, however, Professor Kohli means that he told the students that no credit of any sort would be provided and students would still have to satisfy all of the industry's stand-alone requirements after graduation (courses, work experience and final examinations), then I have to reject this evidence. I much prefer Ms. Ramdath's evidence on this point. Her evidence is more credible because it is fully supported by the results of her mobilization efforts -- the student meeting with Professor Kohli on July 23, 2008 (attended by almost the entire second class) and the formal complaint letter that was delivered to GBC on August 1, 2008 (signed by almost the entire class). If GBC's interpretation of the impugned representation had been clearly communicated to the students, why then did so many of them attend the meeting and sign the complaint letter?

-- Finally, if the original program description was "not inaccurate" as GBC continues to maintain, why did GBC itself make immediate and extensive changes to the online version just days after the July 23 student meeting?

[30] In sum, I find that the impugned representation could plausibly be interpreted as meaning exactly what it said -- that upon the successful completion of the program, students would receive the three industry designations in addition to the GBC graduate certificate. On the evidence herein, however, I prefer a more nuanced interpretation. I find that the program provided successful students with an opportunity to complete all of the requirements for the three industry designations, except for the writing of the final examinations -- that is, the students would still be required to pay for and write the industry association's final exam and pay the annual membership fees. The one-year work requirement (for the CITP and CCS designations) would be waived as per similar arrangements that CCS had made with Seneca College and Fleming College.

[31] I am more comfortable making this nuanced finding on the evidence before me for the following reasons: one, in the students' complaint letter to GBC, they urged GBC, at a minimum, to arrange credit for the courses completed and they acknowledged that they would still be required to write the industry [page544] associations' final examinations; two, a similar theme is conveyed in para. 10 of the statement of claim; and three, the "admission requirements" page in the course calendar that relates to the program provides that "the tuition fees do not cover the cost of textbooks, association memberships or association examinations" [^9] suggesting that association exams would still have to be paid for and written and that the designations would not be awarded automatically upon graduation. (2) Whether students taking business courses are "consumers" under the CPA

[32] My second key finding is that college students, even those taking post-graduate business courses, are "consumers" under the definition in s. 1 of the CPA and are fully entitled to the protection of the CPA.

[33] "Consumer" is defined in s. 1 of the CPA as "an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes". In my view, a college student taking a post-graduate business program is doing so for personal (educational) reasons and is not a person "acting for business purposes" as that phrase should be interpreted.

[34] Counsel for GBC, however, disagrees. He argues that any college student who pursues a post-graduate business program, particularly a program that also purports to provide professional certifications, is doing so "for a business purpose" and therefore falls outside the CPA's definition of "consumer". This submission merits a detailed response if only to ensure that decades of consumer protection policy are not unwittingly turned on their head.

[35] GBC's argument is innovative but it does not succeed. It fails on four levels: first principles, statutory history, judicial interpretation and recent legislative intention.

First principles

[36] The main objective of consumer protection legislation, such as the CPA, is to protect consumers. [^10] As the Supreme Court noted when discussing the Quebec equivalent: [page545]

The C.P.A.'s first objective is to restore the balance in the contractual relationship between merchants and consumers . . . This rebalancing is necessary because the bargaining power of consumers is weaker than that of merchants both when they enter into contracts and when problems arise in the course of their contractual relationships. It is also necessary because of the risk of informational vulnerability consumers face at every step in their relations with merchants. In sum, the obligations imposed on merchants and the formal requirements for contracts to which the Act applies are intended to restore the balance between the respective contractual powers of merchants and consumers[.]

The C.P.A.'s second objective is to eliminate unfair and misleading practices that may distort the information available to consumers and prevent them from making informed choices[.]

The legislature's intention in pursuing these two objectives is to secure the existence of an efficient market in which consumers can participate confidently. [^11]

[37] As has been noted many times in the literature, there are good reasons to distinguish between people who purchase goods or services for personal or family use and those who do so in the course of carrying on a business. The distinction recognizes the well-documented disparities in knowledge, resources and bargaining power. [^12]

[38] A college student, even one taking a post-graduate business program, may well be taking the business or professional program to obtain job credentials that will allow her to get a better job after graduation or even run her own business. But at the point when she enrolls in the educational program, she is still a student and a "consumer" of educational services as defined in the CPA. She is entitled to the protection of the CPA on the basis of long-accepted first principles. As the New York judge noted in Maldonado:

It is axiomatic that people willing to pay money to acquire basic business skills lack those skills and are the sort of individuals that the Consumer Protection Act aims to protect. This analysis is consistent with the interpretation of similar provisions in other statutes, under which education has been regarded as a personal, family or household service. [^13]

[39] It cannot be seriously disputed that "purchasers of educational services may be as much in need of protection against unfair or deceptive practices in their advertising and sale as are [page546] purchasers of any other service". [^14] The view that accords with the first principles of consumer protection law and policy is that consumers of educational services, generally speaking, fall within the definition of "consumer". It is only if one is already established in business and purchases an educational service to further that business that he or she may fall outside the protection of the CPA.

Statutory history

[40] Anglo-Canadian consumer protection legislation has historically shared the following characteristic: the consumer is typically described as a private individual who acts in a private capacity for personal or family reasons, and the business person as someone who acts in the course of conducting a trade or business. [^15] In other words, the individual consumer's purchase of goods or services for "business purposes" would exclude him or her from the consumer protection statute only in situations where the purchase was for an existing trade or business, not for future business purposes.

[41] In both Canada and the U.K., the statutory definitions of "consumer" reflect this important distinction between an existing business and future aspirations. For example, "consumer" has generally been defined as a natural person acting for personal or family purposes, but not anyone "acting in the course of carrying on business", [^16] or "a natural person, except a merchant who obtains goods or services for the purposes of his business", [^17] or "any person who might wish to be provided [with goods or services] otherwise than for the purposes of any business of his". [^18] The definitional focus, sensibly, is on an existing trade or business and not one's goals or ambitions about a future business. In other words, based on statutory history, a college student taking business courses in order to get a better job or to start up his own business one day would still be a "consumer" and would not fall within the "business" exclusion. [page547]

Judicial interpretation in Canada

[42] The distinction between purchasing goods or services for an existing business, and purchasing goods or services for future business goals or ambitions has been applied in the case law. Courts have found that a person is acting for "business purposes" under the CPA if he purchases a product that will be used primarily in the course of carrying on business [^19] or for the purpose of trading in that product, [^20] even if he makes some personal use of the product. [^21] A business purpose will generally be found when the purchaser is acting in a professional or business capacity at the time of the transaction.

[43] Thus a person applying for a business program to one day further his career in business or, more pragmatically, to get a job once he graduates, is not acting in a professional or business capacity at the time of the transaction, that is, when he accepts the offer of admission and decides to enroll in the program. This accords with the case law. For example: an unemployed individual that pays for advice and assistance to help him find a job is a "consumer" and not someone acting for a "business purpose". [^22] However, if a professional real estate agent who purchases an educational seminar in connection with his existing real estate business, may well be acting for business purposes if he was taking the course to obtain educational credits required for his real estate licence. [^23]

[44] The meaning of "business purpose" has also been considered in the income tax and wrongful dismissal contexts. Courts have found, for example, that training and education costs cannot be regarded as a business expense. In Ellis v. Canada, [^24] a woman took classes in order to acquire the skills needed to open her own pottery and stained glass business. The cost of the tuition and materials for the classes was found not to be a business expense [page548] because the business did not yet exist. In Ashby v. EPI Environmental Products Inc., [^25] a lawyer suing for wrongful dismissal was not entitled to damages for the cost of "continuing legal education" courses that he attended after losing his job because they were for his own, personal benefit and not the benefit of his employer. Again, the acceptance of the "existing business" distinction.

Judicial interpretation in the United States

[45] American judges have also accepted and applied the "existing business" distinction. In Maldonado v. Collectibles International, Inc., [^26] the defendants offered training and sales leads to enable customers to start a sports collectibles business. The New York court found that the training and sales services were not being offered to a business but to individual consumers and noted the following:

[T]he New York City Consumer Protection Law is intended to distinguish between goods or services offered to businesses and those offered to at least certain types of individuals. The reason is plain. Business people are deemed sophisticated in their commercial dealings and thus to require less protection than others. [^27]

[46] Other U.S. cases similarly have held that consumer protection legislation extends to students in a physician assistant program, [^28] a computer program [^29] and a paralegal course, [^30] even though these programs were being pursued by these students for future employment or other business-related purposes.

[47] The only American case that has come to the opposite conclusion, and the one that is relied on by GBC, is the decision of a Michigan District Court judge in MacDonald v. Thomas M. Cooley Law School. [^31] The judge concluded that students pursuing a law degree were doing so for a business purpose rather than for a "personal, family, or household purpose". [page549] According to this judge, the plaintiffs intended to "better their personal circumstances . . . through their work as lawyers, i.e., a business". [^32]

[48] By this reasoning, anyone, even a high school student, who enrolls in a post-secondary program because he wants to get a better job after graduation and "better his personal circumstances" would not be entitled to the protection of the CPA. By this reasoning, the thoroughly fraudulent magazine ads that urge the reader to become "A Professional Artist" or "A Professional Model" by sending $500 and a pencil-sketch/ recent photograph for "a guaranteed job" would escape the reach of the CPA and its administrative and criminal enforcement regime, because readers who respond to this scam are trying to get a job and are therefore acting "for a business purpose".

[49] Needless to say, I am not persuaded by the reasoning in the Thomas M. Cooley decision. It does not accord with the first principles of consumer protection, the legislative history or the better-reasoned case law.

Recent legislative intention

[50] Counsel for GBC, however, says that the "existing business" distinction was abandoned in 2002 when six consumer protection statutes were consolidated into the new CPA. The business-exclusion language in the definition of "consumer" was changed from "acting in the course of carrying on business" in the Business Practices Act to "acting for business purposes" in the CPA. GBC argues that this is a much broader business- exclusion which now includes post-graduate college students who take business courses.

[51] This submission requires a careful review of what was intended in the 2002 consolidation.

[52] In my view, the legislature did not intend to re-write the core definition of "consumer" in the 2002 consolidation that resulted in the new CPA. Had this been the intention, one would have expected more explicit language in the statute to this effect and discussion and debate on the issue. This did not happen. If anything, the legislators' comments about Bill 180 as it made its way through first and second reading strongly suggest that the change in wording was not intended to be a policy change in either direction or design. [page550]

[53] According to the Minister of Consumer and Business Services, the new CPA was designed to "strengthen protections for the consumer", "strengthen disclosure rules so that consumers have clear and complete information to make informed decisions" and provide "teeth" to make the proposed protections more effective. [^33] It was also designed to broaden the protection for services. The minister noted that over the past 30 years, Ontario had witnessed "a rapid growth of the service economy, to the point where over half our transactions involve services, and a rise in consumer leasing. This proposed legislation would extend protections to services, whether it's cable, internet, or lawn care." [^34]

[54] Students were one group that was repeatedly mentioned in the debates as being vulnerable and in need of protection. [^35] The Minister of Community, Family and Children's Services noted that the CPA addressed the government's concern "about seniors and students". [^36] One of the MPP's talked about how the CPA would protect "high school and university students, particularly the females who have signed up for modeling programs" only to discover that they were being scammed. [^37]

[55] The Minister of Consumer and Business Services made clear that the new CPA was intended to apply to student loans. He noted that various members of the legislature were concerned about college students receiving fraudulent loans, and that the new Act would address those concerns:

[MPPs have encountered] a telemarketing operation that calls a student saying, "We can get you a loan at a very low rate, below the bank rate. We have some patient money that is coming in from overseas. Only if you give me $1,000 up front, if you write me a cheque, I'll get you this low-interest loan." You write the cheque, the money disappears and there is no loan as a result. I know many members of the assembly have encountered this on the part of their constituents and have done their best to try stamp out these operators. [^38] [page551]

[56] If obtaining a post-secondary or post-graduate business degree was intended to be caught by the phrase "for a business purpose", then securing a student loan to that end would also be caught by the same language. But the former was never mentioned while the latter was the subject of explicit discussion and reassurance. Clearly, neither college business courses nor student loans to take those courses are transactions that were meant to be ousted from the protection of the new CPA.

[57] There is no evidence in the enactment of the new CPA that the change in the definitional exclusion, from "acting in the course of carrying on a business" to "acting for business purposes", was intended to alter or modify the long-standing "existing business" exclusion. Indeed, the evidence just reviewed suggests the contrary.

[58] In short, I interpret the "acting for business purposes" exclusion as meaning the same as "acting in the course of carrying on a business". That is, one has to be carrying on an existing business before one loses the protection of the CPA.

[59] There is no evidence that any of the students pursuing the certificate in International Business Management at GBC were business people seeking training for existing business activities. They were typical students who obviously hoped that their education would one day lead to employment. They were, compared to GBC, relatively unsophisticated, less powerful and more vulnerable. This was particularly true of the many international students whose first language was not English. It may be useful to remember that the CPA was "designed for the protection of the public -- it is remedial legislation and should be liberally construed in order to give effect to its objects". [^39]

[60] For all of these reasons, the class members were not acting for business purposes and are therefore "consumers" under the CPA. Analysis: The Common Issues

[61] I can now turn to the nine common issues. [page552]

Negligent misrepresentation (1) Was George Brown in a special relationship with the class members?

[62] The answer, in my view, is yes. As a general proposition, a "special relationship" will be established if the reliance of the representee on the representor's statement was both foreseeable by the representor and reasonable on the part of the representee. [^40] In my view, the relationship between GBC and its student applicants falls easily within the parameters of this proposition. The student applicant's reliance was foreseeable on the part of the college and reasonable on the part of the applicant.

[63] As Justice Strathy noted in his certification reasons, "the obvious purpose of the calendar was to provide information to prospective students about how George Brown's courses would equip them to find employment in the international business management industry. Students could reasonably expect such information to be accurate and would have little need to confirm it from other sources. The onus will be on George Brown to show, in any particular case, that the student knew or ought to have known of information that would contradict or qualify the representation made by George Brown." [^41] GBC has not satisfied this onus.

[64] Indeed, during her examination for discovery, GBC's academic director for the Centre for Business was asked about the students' ability to rely on the statements in the course calendars. She noted that the course calendars made clear that the courses were subject to change without notice. But, she continued, apart from any course changes that may occur, the students were "entitled to rely on the accuracy of the material that George Brown puts in its calendar". [^42] [page553]

[65] A special relationship (and consequent duty of care) has been found to exist between post-secondary institutions and their students. [^43] In Olar v. Laurentian University, [^44] Justice Gates explored the role played by the course calendar in the creation of this special relationship:

[Laurentian University] owed a duty of care to Mr. Olar. The [university] ought reasonably to have foreseen that students would rely on the statements included with the Student Guide and Calendar. These promotional materials were published with the intention that students would read them and rely upon the information included in order to become informed about the academic programs offered and to assist them in their decision about the academic program that they wanted to pursue. Because of this, it was reasonable for a student like Mr. Olar to have relied on these statements.

. . . The University published these statements with the intention and knowledge that the students would read them and the plaintiff relied upon the statements for the very purpose for which they were published. [^45]

[66] I have no difficulty concluding that GBC was in a special relationship with the class members. (2) 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?

[67] The answer is yes. The representations were made at p. 53 of the 2007-08 course calendar and p. 59 of the 2008-09 course calendar. This is not disputed. (3) If such representations were made, were they untrue, inaccurate or misleading? If so, was George Brown negligent in making the representations?

[68] The answer to both questions is yes. I have already found that GBC represented in the applicable course calendars that [page554] students in the program would be able to complete the CITP, CCS and CIFF designations in addition to the GBC graduate certificate. I have found, on the facts herein, that GBC represented at the very least that the successful completion of the program would mean that the students could proceed directly to write the final examinations in each of the designations.

[69] A determination of whether a representation was untrue, inaccurate or misleading must be made on an objective basis. [^46] On the evidence herein, I have no difficulty concluding on a fair-minded and objective basis that the impugned representation was inaccurate, misleading and untrue for the following reasons.

[70] GBC has admitted that it had no ability to confer CITP, CCS or CIFF designations. Indeed, it had no agreements in place with either the Canadian Society of Customs Brokers or the Canadian International Freight Forwarders Association. The latter association warned Professors Kohli and Simpson in an e- mail on July 24, 2008 that the program description may be misleading:

As you know, CIFFA and George Brown College do NOT currently have an agreement in place. We have discussed the possibility of an agreement, but we have not agreed to the terms as of yet.

CIFFA feels that this may be a misrepresentation of the facts, which may be misleading to George Brown students. We suggest you clarify the meaning of these statements with your students immediately . . .

In any case, I strongly suggest you have discussions with your students, to clarify the issue and to avoid escalation. We also request you change your web site, and remove the reference to CIFFA designation/certification, until an agreement is formalized.

We have also contacted the Canadian Society of Customs Brokers, regarding the apparent agreement for their CCS designation. They have responded to us that they do not have an agreement in place with George Brown College either.

[71] GBC knew at the time that the program description was published that it had no ability to confer any of the designations listed in the program description, it had no agreements in place to do so, and the program description had not been sent to the industry associations for comment or approval. I thus have no [page555] difficulty concluding that GBC was negligent in making the representations at issue herein.

Consumer Protection Act (4) Did George Brown breach Part III of the Consumer Protection Act 2002, S.O. 2002, c. 30, Sch. A (the "Act" or the "CPA")?

[72] The answer is yes.

[73] I have already found that the students were not acting "for a business purpose" when they enrolled in this post- graduate program. At the time they accepted the offer of admission, paid the tuition fee and purchased these educational services, they were "consumers" as defined by the CPA. They are therefore entitled to the protection provided by this statute.

[74] Part III of the CPA prohibits "unfair practices" in the course of consumer transactions. Section 14(1) provides that it is an "unfair practice for a person to make a false, misleading or deceptive representation". Section 14(2) of the CPA lists some examples of unfair practices, one of which is:

14(2) A representation that the person who is to supply the goods or services has sponsorship, approval, status, affiliation or connection the person does not have.

[75] GBC engaged in an unfair practice in at least two ways when it represented in its course calendar that the International Business Management Program provided the opportunity to complete the three designations in addition to the GBC graduate certificate. One, at a very basic level, the representation was false and misleading, and two, it breached the s. 14(2) provision just noted. The college had no agreements in place that would have allowed the college to award the CITP, CCS or CIFF designation upon completion of the program, or even award course credits in that regard. [^47] GBC thus represented that it had "approval . . . affiliation or connection" with industry associations when this was not the case. The representation was inaccurate, misleading and untrue.

[76] GBC therefore breached Part III of the CPA. [page556] (5) If so, what remedy, if any, are the class members entitled to under the Act?

[77] Because rescission is no longer possible, the class members are entitled to recover the amount by which the student's payment under the agreement with GBC exceeded the value of the program provided, or to recover damages, or both. Let me explain.

[78] Section 18 of the CPA sets out the possible remedies for breach of Part III:

Rescinding agreement

18(1) Any agreement, whether written, oral or implied, entered into by a consumer after or while a person has engaged in an unfair practice may be rescinded by the consumer and the consumer is entitled to any remedy that is available in law, including damages.

Remedy if rescission not possible

(2) A consumer is entitled to recover the amount by which the consumer's payment under the agreement exceeds the value that the goods or services have to the consumer or to recover damages, or both, if rescission of the agreement under subsection (1) is not possible, (a) because the return or restitution of the goods or services is no longer possible; or (b) because rescission would deprive a third party of a right in the subject-matter of the agreement that the third party has acquired in good faith and for value.

[79] The Act does not require that the students prove that they relied on the representation constituting the unfair practice or that the representation induced the consumer to enter into the agreement. [^48] It is sufficient under s. 18(1) that the students entered into the "consumer transaction" after the unfair practice occurred.

[80] On the facts of this case, rescission of the agreement is no longer possible because the educational program, whatever its value to the students, has been consumed and cannot be returned. The remedy is thus monetary compensation. Under s. 18(2), the students are entitled to recover "the amount by which the consumer's payment under the agreement exceeds the value that the goods or services have to the consumer or to recover damages, or both". [^49] The question of comparative value [page557] and/or the appropriate damages award are issues that will determined in the next phase of this litigation. (6) Does the class, or any portion thereof, require, and is it entitled to, a declaration waiving the notice provisions of s. 18 of the Act?

[81] In my view, the class does not require any such declaration. If I am wrong about this and a judicial waiver of the s. 18 notice requirement is needed, I am prepared on the facts herein to provide such a waiver.

[82] Section 18(3) of the CPA imposes a one-year notice period for the remedies being sought herein. I find on the evidence before me that GBC had ample notice of the plaintiffs' claim when it received, within the one-year time period, the written letter of complaint dated August 1, 2008.

[83] This letter set out the students' complaint, how they were "mislead" by the course calendar and the range of remedies being sought -- from industry credit, at least for the course requirements completed at GBC to full payment by GBC of the industry certification programs to a full refund of tuition fees and all related costs, including travel and accommodation. Thus, by early August 2008, GBC was fully aware of the scope and content of the students' complaint and of the possibility of legal action. If the agreement with GBC was completed upon payment of the tuition (a point accepted by both sides) and the evidence suggests that the tuition was generally paid in August or September 2007, then the August 1 complaint letter was well within the one-year limitation and afforded adequate notice under the CPA.

[84] I also note that on September 5, 2008, counsel for the plaintiffs wrote to the dean and gave notice of the claim on behalf of "all students in the course". The statement of claim was issued on October 7, 2008. By any measure of what's fair and reasonable, the plaintiffs have complied with the notice requirement in s. 18(3).

[85] If I am wrong in this analysis (for example, if I am wrong about when the students in the first class actually paid their tuition), and the one-year time period had actually expired by the date of the complaint letter, I would readily waive the s. 18(3) notice requirement on the evidence herein. Section 18(15) provides that "a court may disregard the requirement to give the notice or any requirement relating to the notice if it is in the interest of justice to do so".

[86] Here, the students called a meeting with Professor Kohli as soon as Ms. Ramdath learned, following a chance encounter with an industry official at a trade conference, that the industry [page558] designations would not be awarded. Within a week of this meeting, the students filed their formal complaint letter with the administration. There was no delay or bad faith on the part of the students. There was no unfair surprise to the college. If the one-year time period was breached, it was only breached by a matter of days. I have therefore no difficulty concluding under s. 18(15) that the notice requirement should be disregarded because on the evidence before me it is in the interest of justice to do so.

Breach of contract (7) Was the relationship between George Brown and the class members a contractual relationship?

[87] The answer is yes. This was not a matter of any dispute. In my view, the contract was formed when the offer of admission was accepted and communicated by the student. In this case, however, as already noted, counsel have agreed that the contract was made when the tuition was paid. Either way, GBC was in a contractual relationship with the class members. (8) If the answer to question #7 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?

[88] The answer here, strictly speaking, is no. The plaintiffs' complaint is about a pre-contractual misrepresentation in the course calendar that induced students to accept the offer of admission and enter into the main educational contract with GBC. The plaintiffs could have based their action on negligent misrepresentation or collateral warranty (collateral contract). They decided on negligent misrepresentation. Collateral contract was not pleaded.

[89] Counsel for the plaintiffs did not really press the breach of contract argument. They acknowledged that the representations in the course calendar were not an express term of the main educational contract. Course calendars may well be "contractual documents" [^50] and, on the right facts, may be added to the educational agreement as an "implied term", whereby the [page559] college impliedly undertakes to use its best efforts to provide the courses and programs described in the course calendar. [^51]

[90] Here, however, the parties disagreed about the meaning or interpretation of what was said in the course calendar. A disputed term cannot be implied. As the Supreme Court noted in M.J.B. Enterprises: [^52]

A court, when dealing with terms implied in fact, must be careful not to slide into determining the intentions of reasonable parties. This is why the implication of the term must have a certain degree of obviousness to it, and why, if there is evidence of a contrary intention, on the part of either party, an implied term may not be found on this basis. [^53]

[91] Thus, my conclusion that the impugned representation is neither an express nor an implied term of the educational agreement with GBC. Counsel for the plaintiffs agrees that the better liability platforms are negligent misrepresentation and breach of the CPA. (9) If the answer to question #8 is yes, did George Brown breach that contract?

[92] The answer to question 8 was no. Therefore, this last question need not be answered. Disposition

[93] The plaintiffs have prevailed on negligent misrepresentation and the CPA.

[94] Further evidence may still be needed to establish legal liability for negligent misrepresentation, namely, evidence of individual reliance. This question will no doubt be addressed in the next phase of this litigation. However, legal liability has been established under the CPA because, as already noted, under this statute, evidence of actual reliance is not required. [^54]

[95] The common issues trial has now been concluded. The next step in this class proceeding is to schedule a case conference to discuss the "damages" phase of this lawsuit. Counsel [page560] should contact my office to arrange a convenient date for the case conference.

[96] I thank counsel for their co-operation and assistance.

Order accordingly. Appendix: The Common Issues Negligent Misrepresentation (1) Was George Brown in a special relationship with the class members? (2) 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? (3) If such representations were made, were they untrue, inaccurate or misleading? If so, was George Brown negligent in making the representations? Consumer Protection Act (4) Did George Brown breach Part III of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A (the "Act")? (5) If so, what remedy, if any, are the class members entitled to under the Act? (6) Does the class, or any portion thereof, require, and is it entitled to, a declaration waiving the notice provisions of s. 18 of the Act? Breach of Contract (7) Was the relationship between George Brown and the class members a contractual relationship? (8) If the answer to question #7 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? (9) If the answer to question #8 is yes, did George Brown breach that contract?

Notes

[^1]: Ramdath v. George Brown College of Applied Arts and Technology, [2010] O.J. No. 1411, 2010 ONSC 2019 (S.C.J.).

[^2]: Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A.

[^3]: The Certified International Trade Professional ("CITP") designation is awarded by the Forum for International Trade Training; the Certified Customs Specialist ("CCS") designation is awarded by the Canadian Society of Customs Brokers; and the Certificate in International Freight Forwarding ("CIFF") designation is awarded by the Canadian International Freight Forwarders Association. The respective websites set out the contents and costs of the required courses, any work experience requirements and the costs of the final exam and annual membership fees. On a stand-alone basis, the CITP certification would take 20 weeks to complete, has a one-year work experience requirement and costs $4,025, plus a further $195 for the final exam. The CCS designation involves a one-year online course, also has a one-year work experience requirement and a final exam, and costs around $1,300; the CCS will waive the one-year work requirement if the required courses are taken at Seneca College or Fleming College. The CIFF certification is a one-year program that costs $2,968; there is no work experience requirement.

[^4]: The students were right to assume that the one-year work requirement for the CITP and CCS designations would be waived, just as CCS waived its one-year work requirement for students enrolled at Seneca College and Fleming College.

[^5]: 2007û08 George Brown College Course Calendar, at 36.

[^6]: Ibid., at 50.

[^7]: Ibid., at 37 (emphasis added).

[^8]: Ontario Colleges of Applied Arts and Technology Act, 2002, S.O. 2002, c. 8, Sch. F, s. 2(2) and (3).

[^9]: Supra, note 5 at 59. See, also, the 2008û09 George Brown College Course Calendar, at 63.

[^10]: Richard v. Time Inc., [2012] 1 S.C.R. 265, [2012] S.C.J. No. 8, 2012 SCC 8, at para. 50; Weller v. Reliance Home Comfort Limited Partnership (2012), 2012 ONCA 360, 110 O.R. (3d) 743, [2012] O.J. No. 2415 (C.A.), at para. 15; see, also, Wilson v. Semon, 2011 CarswellOnt 15953 (S.C.J.), at paras. 10, 14.

[^11]: Richard, ibid., at paras. 160-62.

[^12]: See, e.g., Ziegel, "Canadian Consumer Law and Policies 40 Years Later: A Mixed Report Card" (2011), 50 Can. Bus. L.J. 259, at 269-70.

[^13]: Maldonado v. Collectibles International Inc., 969 F. Supp. 7 (N.Y.S. Dist. Ct. 1997), at 9 F. Supp.

[^14]: Scott v. Association for Childbirth at Home, Int'l, 88 Ill. 2d 279, 430 N.E. 2d 1012 (S.C. 1981), at 285 Ill. 2d.

[^15]: Cartwright, Consumer Protection and the Criminal Law: Law, Theory and Policy in the UK (Cambridge, UK: Cambride University Press, 2001), at 2-3.

[^16]: Business Practices Act, R.S.O. 1990, c. B.18, s. 1.

[^17]: Consumer Protection Act, R.S.Q., c. P-40.1, s. 1(e).

[^18]: Consumer Protection Act 1987 (U.K.), 1987, c. 43, s. 20(6).

[^19]: Griffin v. Dell Canada Inc. (2010), 2010 ONCA 29, 98 O.R. (3d) 481, [2010] O.J. No. 177 (C.A.), at para. 15.

[^20]: Fournier Leasing Co. v. Mercedes-Benz Canada Inc., [2012] O.J. No. 2184, 2012 ONSC 2752 (S.C.J.), at para. 109.

[^21]: Bowen v. Parkrow Auto Sales Ltd., [2012] O.J. No. 1403 (S.C.J.), at paras. 31-32.

[^22]: Chen v. Campbell, Douglas & Randall Associates, Inc., [2002] A.J. No. 1527, 2002 ABPC 166, at paras. 1-2, 5.

[^23]: Vanezi v. Wilder (c.o.b. Ken Wilder Enterprises), [2009] O.J. No. 1147 (S.C.J.), at paras. 4-5.

[^24]: Ellis v. Canada, [1994] T.C.J. No. 24, 94 D.T.C. 1731 (T.C.C.), at para. 13.

[^25]: Ashby v. EPI Environmental Products Inc., [2005] B.C.J. No. 1833, 2005 BCSC 1190, at para. 42.

[^26]: Supra, note 13.

[^27]: Ibid., at 9 F. Supp.

[^28]: Trutschel v. Kettering Medical Center, 2009 Ohio 3302 (C.A.), at para. 29.

[^29]: Alsides v. Brown Institute, Ltd., 592 N.W. 2d 468 (Minn. C.A. 1999), at 473-74 N.W. 2d.

[^30]: Malone v. Academy of Court Reporting, 64 Ohio App. 3d 588 (C.A. 1990), at 592-93 Ohio App. 3d.

[^31]: MacDonald v. Thomas M. Cooley Law School, 2012 U.S. Dist. LEXIS 100785 (Mich. W. Dist. Ct.).

[^32]: Ibid., at para. 21.

[^33]: Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 33 (September 26, 2002), at 1602-1603 (Tim Hudak).

[^34]: Ibid., at 1602.

[^35]: Ibid., at 1602-1603, 1608.

[^36]: Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 52A (October 31, 2002), at 2696 (Brenda Elliott).

[^37]: Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 49B (October 28, 2002), at 2531 (Wayne Wettlaufer).

[^38]: Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 58A (November 19, 2002), at 3024 (Tim Hudak).

[^39]: Cannon v. Funds for Canada Foundation, [2012] O.J. No. 168, 2012 ONSC 399 (S.C.J.), at para. 236; Weller v. Reliance Home Comfort Limited Partnership, [2011] O.J. No. 2344, 2011 ONSC 3148 (S.C.J.), at para. 38; and Seidel v. TELUS Communications Inc., [2011] 1 S.C.R. 531, [2011] S.C.J. No. 15, 2011 SCC 15, at para. 37.

[^40]: McCamus, The Law of Contracts (Toronto: Irwin Law, 2005), at p. 351, citing the Supreme Court's decision in Hercules Managements Ltd. v. Ernst & Young, 1997 345 (SCC), [1997] 2 S.C.R. 165, [1997] S.C.J. No. 51, at para. 24.

[^41]: Ramdath, supra, note 1, at para. 139.

[^42]: Printed at the bottom of every page of a program's description was the following: "Due to ongoing program improvements, courses are subject to change without notice." To its credit, GBC did not try to argue that its extensive revision of the online version of the course calendar on July 30, 2008, that was triggered by the students' complaints of July 23, 2008, was a revision that came within the language of this disclaimer. First, the very core of the Program was changed, not just one of the courses; and second, the total removal of three expected industry designations was not prompted by a genuine concern about "ongoing program improvements" but by the need to correct an obvious and glaring error.

[^43]: See, e.g., Olar v. Laurentian University, [2007] O.J. No. 2211, 49 C.C.L.T. (3d) 257 (S.C.J.), at paras. 70-71, affd [2008] O.J. No. 4623, 2008 ONCA 699; Ibrahim v. Lakehead University, [2000] O.J. No. 199, [2000] O.T.C. 39 (S.C.J.), at paras. 78-79; and Liu v. Wantell Business Networks Corp., [2009] B.C.J. No. 1655, 2009 BCPC 252, at para. 81.

[^44]: Olar, supra, note 44.

[^45]: Ibid., at paras. 70-71.

[^46]: Matoni v. C.B.S. Interactive Multimedia Inc., [2008] O.J. No. 197, 2008 1539 (S.C.J.), at para. 149. The certification judge also noted in his "undertaking and refusals" ruling that the "[t]he common issues judge will have the responsibility of determining, on an objective basis, whether the representation is true": Ramdath v. George Brown College of Applied Arts and Technology, [2012] O.J. No. 2475, 2012 ONSC 2747 (S.C.J.), at para. 61.

[^47]: As I have already noted, GBC had a "course credit" agreement with FITT but not with either CCS or CIFFA.

[^48]: Matoni, supra, note 46, at para. 45.

[^49]: CPA, supra, note 2, s. 18(2).

[^50]: See Hickey-Button v. Loyalist College of Applied Arts & Technology, 2006 20079 (ON CA), [2006] O.J. No. 2393, 267 D.L.R. (4th) 601 (C.A.), at para. 47; and Sutcliffe v. Acadia University, 1978 2129 (NS CA), [1978] N.S.J. No. 680, 95 D.L.R. (3d) 95 (C.A.), at paras. 13-14.

[^51]: See Wong v. Lakehead University, [1991] O.J. No. 1901 (Gen. Div.), at para. 18, where the court found that the university "undertook to provide the courses outlined in the Lakehead University Calendar".

[^52]: M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd., 1999 677 (SCC), [1999] 1 S.C.R. 619, [1999] S.C.J. No. 17.

[^53]: Ibid., at para. 29.

[^54]: Matoni, supra, note 46, at para. 45.