Gyamfuaa v. Leblanc, 2015 ONSC 1422

Gyamfuaa v. Leblanc, 2015 ONSC 1422

CITATION: Gyamfuaa v. Leblanc, 2015 ONSC 1422

COURT FILE NO.: CV-13-495261

DATE: 20150828

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MAAME GYAMFUAA

Plaintiff

– and –

BARBARA LEBLANC, JUDITH LAFLEUR, KELLY KIDD, DAVE HOLMES, GISELE CARROLL, DENIS PRUD’HOMME, UNIVERSITY OF OTTAWA and ALGONQUIN COLLEGE

Defendants

Rita Gratsias and Frank Grande for the Plaintiff

Sarah Jones, for the Defendants Dave Holmes, Gisele Carroll, Denis Prud’Homme and The University of Ottawa

Shawn O’Connor, for the Defendants Barbara Leblanc, Judith Lafleur, Kelly Kidd and Algonquin College

HEARD: February 6, 2015

M. D. FAIETA, j

REASONS FOR DECISION

INTRODUCTION

1The plaintiff, a former nursing student at the University of Ottawa, alleges that the defendants wrongfully claimed that she cheated on an exam. A Committee of Inquiry found that the plaintiff had committed academic fraud. On appeal, that decision was upheld by the Executive Committee of the Faculty of Health Sciences. However, that decision was overturned by the Senate of the defendant University after exculpatory information was obtained from the University’s records. The plaintiff seeks damages for the resulting physical, psychological and financial losses as well as humiliation and embarrassment that she suffered.

2The defendants submit that the claim should be struck without leave to amend on the grounds that:

(1) the claim discloses no reasonable cause of action as the plaintiff has not pleaded facts to support any cause of action against the defendants;

(2) the claim discloses no reasonable cause of action as it relates to an academic matter; and,

(3) the claim is frivolous, vexatious, and/or an abuse of process of this court because it relates to an academic dispute that has been resolved in the plaintiff’s favour.

3For reasons given below, it is not “plain and obvious” at this stage of the proceeding that the Claim has no chance of success. Leave is granted to the plaintiff to amend the Claim to plead additional material facts to support the various causes of action.

BACKGROUND

4The Claim includes the following allegations.

5The plaintiff was, at all material times a nursing student at the Faculty of Health Sciences at the University which was acting in collaboration with Algonquin College for the teaching and administration of the Nursing Programme.

6The defendant Barbara LeBlanc was, at all material times to this claim a Professor of nursing and clinical instructor in the employment of the Faculty of Health Sciences at the College as well an instructor of the Plaintiff in NSG 3123 Community Health Nursing. In the alternative, LeBlanc was, at all material times to this claim, an employee of the University in the Faculty of Health Sciences in collaboration with the College for the instruction of the Plaintiff in NSG 3123. LeBlanc had also taught the Plaintiff in other courses in the Nursing program.

7The defendant Judith LaFleur was, at all material times to this claim, Professor of Nursing at the Faculty of Health Sciences at the College, the co-coordinator of fourth year students as well as an instructor of the Plaintiff in NSG 4330 Complex Nursing Care. In the alternative, LaFleur was, at all material times to this claim, an employee of the University in the Faculty of Health Sciences in collaboration with the College for the instruction University the Plaintiff in NSG 4330. LaFleur had also taught the Plaintiff in other courses in the Nursing program.

8The defendant Kelly Kidd was, at all material times to this claim, Professor of Nursing at the Faculty of Health Sciences at the College as well as acting chair of the Nursing Program. In the alternative, Kidd was, at all material times to this claim, an employee of the University in the Faculty of Health Sciences in collaboration with the College for the instruction of the Plaintiff. Kidd was also an instructor of the plaintiff in certain nursing courses.

9The defendant Dave Holmes was, at all material times to this claim, Professor of Nursing as well as Director and Associate Dean, School of Nursing at the Faculty of Health Sciences at the University.

10The defendant Gisele Carroll was, at all material times to this claim, the Vice Dean at the Faculty of Health Sciences at the University. Carroll was charged with investigating an academic fraud allegation against the Plaintiff.

11The defendant Denis Prud’Homme was, at all material times to this claim, the Dean at the Faculty of Health Sciences at the University. Prud’Homme was charged with investigating an academic fraud allegation against the plaintiff. He was also the chair of the Faculty of Health Sciences’ Executive Committee that further investigated the allegation of academic fraud after the decision of the Committee of Inquiry.

12The defendant University, is a statutory body with head office in the City of Ottawa, in the Province of Ontario, and was, at all material times the employer of the Defendants except for the College. The College is a statutory body with head office in the City of Ottawa, in the Province of Ontario. The defendant University and College jointly instructed the plaintiff in NSG 3123 and NSG 4330 and administer her progress in the Nursing Programme.

13During the fall semester of 2011, the plaintiff was a fourth year student in good standing at the University in the collaborative Bachelor of Science Nursing Program in the Faculty of Health Sciences (“BScN”) offered by the University.

14On December 12 and 14, 2011, the plaintiff wrote her final examinations, as a final year student, NSG 4330 and NSG 3123 respectively at the College. A successful completion of these examinations would enable her to progress to the consolidation experience in January 2012, after which time she would be eligible for a BScN degree offered by the University. Each examination consisted of 30% short answers and 70% multiple choice answers questions.

15On December 15, 2011, the plaintiff received a telephone call from LeBlanc. When LeBlanc called the plaintiff, there was another professor on the telephone who was asked to eavesdrop the conversation.

16During the telephone conversation, LeBlanc made an allegation against the plaintiff that she was assisted by another student during the examination, and as a result, the Plaintiff and the other student have had the same responses to answers on their scantrons. LeBlanc mentioned she watched the plaintiff being assisted by another student, and that it was her believe the plaintiff was being assisted because she had recently given birth to a baby. Accordingly, LeBlanc stated she would assign marks of zero for the plaintiff and other student. The plaintiff denied the allegation.

17Immediately after the plaintiff’s telephone conversation with LeBlanc, the plaintiff telephoned LaFleur, the fourth year coordinator for the Nursing Programme, to discuss the allegation made by LeBlanc. LaFleur expressed her surprised to the plaintiff about the allegation made by LeBlanc.

18On December 2, 2011, LaFleur sent an e-mail to the plaintiff stating that the plaintiff had cheated having copied many students’ scantrons during examination periods in NSG 3105 and NSG 4330. Specifically, LaFleur accused the Plaintiff that she had “stolen” the works of other students.

19On December 30, 2011, the plaintiff e-mailed Pru’Homme, and among other things, requested an investigation into the conduct of, among others, LeBlanc and LaFleur due to mistreatment at their hands.

20On or about December 30, 2011, the plaintiff wrote to LeBlanc, LaFleur and Pru’Homme for an immediate apology and retraction of the allegation of academic cheating. The plaintiff received no response.

21By an e-mail dated January 3, 2012, the plaintiff was informed by Carroll that an allegation of academic fraud has been made by LeBlanc as a result of a situation that occurred during the examination on December 14, 2011. This email was as a result of a letter sent to her by LeBlanc dated December 21, 2011. Among other things, the letter stated that “…we believe that [the plaintiff] has been systematically cheating on exams, when she could, by taking a scantron of a strong academic student and then copying the answers onto her own”.

22Despite the plaintiff’s strong opposition to the allegation, the University appointed a Committee of Inquiry to hear LeBlanc’s allegation. The meeting of the Committee took place on March 20, 2012.

23The decision of the Committee was rendered on April 18, 2012. The decision affirmed the allegation made by LeBlanc.

24Prior to the meeting of the Committee, the plaintiff, through her counsel made requests of the Faculty of Health Sciences for several productions, including but not limited to communications among LeBlanc, LaFleur and Holmes.

25Despite repeated requests, the Faculty of Health Sciences refused to produce several relevant documents prior to the meeting of the Committee.

26The plaintiff’s appeal of the decision of the Committee to the Faculty’s Executive Committee chaired by Prud’Homme was rejected by a decision dated May 15, 2012.

27Subsequently the Plaintiff, through her counsel had made a request, pursuant to Ontario’s Freedom of Information and Protection of Privacy Act (the “Act”), for the College to provide certain relevant information in relation to the allegation the plaintiff faced.

28An application was also made to the Information and Privacy Commissioner of Ontario to compel the Faculty of Health Sciences and/or the University to provide certain relevant information in relation to the allegation advanced by the Faculty of Health Sciences.

29By an e-mail dated November 30, 2012, the plaintiff through her counsel received responsive records pursuant to the Act from the College. The records contained exculpatory information, in relation to communications between LeBlanc and LaFleur.

30By a letter dated September 6, 2012, the University sent further productions to counsel for the plaintiff received on September 9, 2013. The records contained in the letter from the University were as a result of an Order PO-3216 by an adjudicator of the office of the Information and Privacy Commissioner of Ontario. The said records contained information that exculpates the plaintiff as to the allegation made against her.

31A further appeal to Senate of the University, pursuant to the Regulation on Academic Fraud promulgated by the Senate on September 13, 2009, was successful. A meeting of the Senate took place on December 14, 2012.

32By an e-mail dated January 3, 2013, the original decision of the Committee was quashed by the Senate.

33The allegation made against the plaintiff was disseminated in a widespread basis, it became known to the community of students and many members of the teaching staff at the University and the College.

ANALYSIS

34The following causes of action are asserted in the Claim: negligence, negligent investigation, breach of fiduciary duty, defamation, bad faith and malice, privacy and confidentiality breach, bad faith conduct.

35The defendants ask this Court to strike or dismiss the claim under Rules 21.01(1)(b), 21.01(3)(d), 25.06(1) and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”).

No Reasonable Cause of Action

36Under Rule 21.01(1)(b) a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action.

37In R. v. Imperial Tobacco Canada Ltd.¹ the Supreme Court of Canada explained the test to be applied on a motion to strike a claim as follows:

A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial …”

The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial. …

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (H.L.) introduced a general duty of care to one's neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners, Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven: … No evidence is admissible on such a motion: r. 19(27) of the Supreme Court Rules (now r. 9-5(2) of the Supreme Court Civil Rules). It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. 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.

The facts pleaded are taken as true. Whether the evidence substantiates the pleaded facts, now or at some future date, is irrelevant to the motion to strike. The judge on the motion to strike cannot consider what evidence adduced in the future might or might not show. To require the judge to do so would be to gut the motion to strike of its logic and ultimately render it useless. …

Related to the issue of whether the motion should be refused because of the possibility of unknown evidence appearing at a future date is the issue of speculation. The judge on a motion to strike asks if the claim has any reasonable prospect of success. In the world of abstract speculation, there is a mathematical chance that any number of things might happen. That is not what the test on a motion to strike seeks to determine. Rather, it operates on the assumption that the claim will proceed through the court system in the usual way - in an adversarial system where judges are under a duty to apply the law as set out in (and as it may develop from) statutes and precedent. The question is whether, considered in the context of the law and the litigation process, the claim has no reasonable chance of succeeding. [emphasis added]

38The following principles, taken largely from the Ontario Court of Appeal’s decision in MacCreight v. Canada, 2013 ONCA 483, 116 O.R. (3d) 429, at para. 39, apply on a motion to strike a claim under Rule 21:

• In the interests of efficiency and correct results, there is a need to weed out hopeless claims – this housekeeping amendment dimension underlies Rule 21;

• If the cause of action pleaded has been recognized, all of its essential elements must be pleaded;

• If the cause of action has not been recognized, this is not necessarily fatal. One must ask whether there is a reasonable prospect that the claim will succeed;

• The claim should not be struck merely because it is novel or complex, nor because the defendant presents a potentially strong defence to the claim;²

• The facts pleaded are accepted as being true for the purposes of the motion unless they are manifestly incapable of being proven, patently ridiculous or bald conclusory statements;³

• No evidence is admissible on such a motion, however a judge may consider any document incorporated by reference into the pleading and that forms an integral part of the factual matrix of the statement of claim;

• The pleading must be reading generously in favour of the plaintiff, with allowances for drafting deficiencies;

• A motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose and different rules relating to evidence;

• If a claim has a chance of success, it should be determined with the benefit of a full factual record. Only when an action is certain to fail because it contains a radical defect should the claim be struck. Accordingly, the moving party has a high threshold on a motion to strike under Rule 21;⁴

• If a claim is found to have no reasonable chance of success, then it should not be struck without leave to amend except in the clearest of cases, for instance when the deficiencies in the pleading cannot be cured amendment.⁵

Frivolous, Vexatious & Abuse of Process

39The defendants submit that the Claim should be dismissed or stayed pursuant to Rule 21.01(3)(d) on the basis that it is frivolous, vexatious or an abuse of process. A frivolous action is an action that is clearly without legal merit. A vexatious action is one that cannot succeed, would not lead to any relief, or is brought for an improper purpose. An action is an abuse of process if it would bring the administration of justice into disrepute.⁶ This rule is commonly used where a plaintiff seeks to re-litigate issues that have been previously resolved.⁷

40The defendants also rely upon Rule 25.11 which overlaps with Rule 21.01(3)(d) as it allows the court to strike out all or part of a pleading, including a claim, or other document. Facts that are immaterial or irrelevant to the issues in the action will be struck. Portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous. Facts may be pleaded but not the evidence by which those facts are to be proved.⁸

41A Court only invokes the authority under Rule 21.01(3)(d) and Rule 25.11 in the clearest of cases.

Academic Discretion

42The University submits that “courts have repeatedly rejected invitations to inquire into, and pass judgment upon, academic decisions made by universities” and thus, in its view, the Claim relates to an academic dispute and should the Claim should be dismissed as disclosing no reasonable cause of action under Rule 21.01(1)(b).

43The law related to this issue has been recently considered by the Ontario Court of Appeal in Gauthier⁹, Jaffer¹⁰, and Mortazavi¹¹ .

44The common law limits the civil liability of universities and colleges for decisions made in the exercise of their “academic discretion”. The following principles are applicable:

• The relationship between a student and a university has a contractual foundation that gives rise to duties in both contract and tort;¹²

• By enrolling at a university, a student agrees to be subject to the university’s very broad discretion in resolving academic matters;¹³

• The rationale for the deference given to universities in respect of “academic matters” was explained by the Quebec Court of Appeal in Blasser v. Royal Institution for the Advancement of Learning¹⁴ as follows:

In any university, … there are certain internal matters and disputes that are best decided within the academic community rather than by the Courts. This is so, not only because the Courts are not as well equipped as the universities to decide matters such as academic qualifications, grades, the conferring of degrees and so on, but also because these matters ought to be able to be more quickly, more economically and at least as accurately by those who are specialized in educational questions of that kind. In addition, of course, there is very good reason not to risk compromising the essential independence of universities by undue interference in their academic affairs.

• More recently, the Ontario Court of Appeal has described decisions regarding “academic matters” to mean the “… evaluation of the quality of the student’s work, the structure and implementation of the university programs, as well as the identification of qualifications to act in the office of a professor or thesis supervisor.”¹⁵

• When a student seeks to dispute a university’s academic decision, the appropriate course is judicial review, nevertheless an action for damages based in contract or tort is also available unless the claim is an indirect attempt to appeal an academic decision;¹⁶

• It will be insufficient for a student who commences an action in contract or negligence in respect of a university’s academic decision to merely show that the academic result is wrong or that the professor is incompetent;¹⁷

• To establish a cause of action for a breach of contract in relation to an academic decision, the student must show that the university failed to meet its express or implicit obligation to which the institution committed by approving the student’s registration;¹⁸

• To establish a cause of action in negligence in relation to an academic decision, the student must show that the behavior of the university, or the professor in question, constituted an intentional tort or was outside the discretionary scope granted to the university and its professors;¹⁹

ISSUE #1: Does the claim in negligence and negligent investigation disclose a reasonable cause of action or should it be struck as frivolous, vexatious or an abuse of process ?

45An action in negligence requires that the plaintiff demonstrate that: (1) the defendant owed the plaintiff a duty of care; (2) that the defendant’s behavior breached the standard of care; (3) that the plaintiff sustained damages; (4) that the damages were caused, in fact and in law, by the defendant’s breach; and (5) the damages are not too remote in law.²⁰

46The plaintiff alleges that the defendants LeBlanc and LaFleur, as professors, owed her a duty of care to provide her with the benefits of enrollment to completion of a course before a grade is assigned. The plaintiff alleges these defendants breached that duty when: (1) they wilfully and recklessly accused the plaintiff of cheating; (2) they withheld grades without affording the plaintiff with the right to compete and without a final evaluation; (3) they failed to observe the rules, policies and by-law of the University and the College; (4) they failed to use due care in the performance of their duties as instructors; (5) they made a false allegation that the plaintiff was a thief which was calculated to produce harm to provide her with the benefits of enrollment to completion of a course before a grade is assigned.

47The plaintiff alleges that the defendants, other than LeBlanc and LaFleur, were negligent in that: (1) they knew or ought to have known of the existence of the information that exonerated the plaintiff from the allegation but were determined to hide it until forced by the Order of an adjudicator to produce it; (2) they knew or ought to have known that the allegations of academic misconduct would cause harm; (3) they knew or ought to have known that the defendants LeBlanc and LaFleur had not taken “all necessary care to get their facts straight before taking a potential career-ending action as they did”;

48The plaintiff also relies on Hill v. Hamilton-Wentworth Regional Police Services Board²¹ [2007] 3 S.C.R. 129, 2007 SCC 41, where the Supreme Court of Canada found that the tort of negligent investigation in relation to police practices exists in Canada. The court found that the police owe a duty of care to suspects. This duty requires police to meet the standard of care of a reasonable officer in similar circumstances.

49The plaintiff alleges the defendants owed her a duty of careful investigation which they breached. However the plaintiff only provides the following particulars of such breach alleged by the defendants Kidd, Holmes, Carroll, Prud’Homme and Dean of the College: (1) they failed to investigate the circumstances of the issuance of the complaint letter from the defendant LeBlanc; (2) they failed to investigate the complaint letter before ordering the plaintiff to appear before the Committee; (3) they failed to investigate that the seating arrangement in the classroom where the cheating is alleged to have occurred made it impossible for the plaintiff to have committed the alleged act; (4) they failed to seek instruction and/or authority from their superiors to determinate the validity of the complaint before embarking on a career-ending action. No particulars are provided in respect of the other defendants, and accordingly the action for negligent investigation is struck against all of the other defendants other than Kidd, Holmes, Carroll, Prud’Homme, and the Dean of the College.

50The defendants also submit that the plaintiff failed to plead specific facts to show that the defendants’ conduct fell outside the discretion of the University.

51In my view the broad discretion enjoyed by a university for decisions in respect of academic matters does not extend to its allegedly negligent performance of the internal investigation and prosecution of an allegation of academic fraud. This is not a situation where the plaintiff seeks to use a damages claim as an indirect means to appeal an academic decision. The plaintiff pursued the University’s internal appeals process and was ultimately successful. This claim does not seek to review the outcome of the internal discipline process, but rather seeks damages for how that investigation and prosecution was allegedly conducted. In my view it is not plain and obvious that these allegations in negligence have no chance of success as an extension in principle of the Supreme Court of Canada’s decision in Hill.

52The defendants submit that the plaintiff does not plead the material facts to support the claim against all defendants for negligence and the claim against LeBlanc and LaFleur for negligent investigation. For instance, there are no material facts alleged in respect of the applicable standard of care. Reference is made to the breach of “rules, policies and by-laws” without any particulars. Accordingly, I strike the Claim in negligence and negligent investigation and grant the plaintiff leave to amend the Claim.

Issue #2: Does the claim for breach of fiduciary duty disclose a reasonable cause of action or should it be struck as frivolous, vexatious or an abuse of process?

53While certain categories of fiduciary relationships are recognized, the law has not recognized a fiduciary relationship between a university (or its staff) and their student. However the categories of fiduciary relationships are not closed, and in any event a fiduciary relationship may be found to arise from the specific circumstances of a relationship.²²

54The allegations of breach of fiduciary duty are confusing. The Claim does not specify the basis for the relationship and baldly asserts that a fiduciary relationship exists. It also baldly asserts a breach of the plaintiff’s “academic freedom” without any basis given. Not only are material facts are required, full particulars of the alleged breach of fiduciary duty are also required under Rule 25.06(8).

55I strike out the claim for breach of fiduciary duty with leave to amend.

Issue #3: Does the claim for defamation disclose a reasonable cause of action or should it be struck as frivolous, vexatious or an abuse of process?

56The material facts required to prove defamation are that: (1) the defendant spoke or wrote the words in issue; (2) the defendant published those words to one or more third parties; (3) the words refer to the plaintiff; (4) the words were defamatory of the plaintiff.²³

57The allegations related to the claim for defamation are rambling and interspersed throughout the Claim with the result that the material facts are not clearly specified. For instance, paragraph 43 of the Claim pleads that “the allegation made by LeBlanc and LaFleur is defamatory”. The “allegation” is not specified. It could refer to the statement found at paragraph 24 of the Claim. Nor does it indicate to whom LeBlanc and LaFleur published these words.

58Accordingly, I strike out the claim for defamation with leave to amend.

59Further, the defendants submit that the allegations made by LeBlanc and LaFleur relate to the academic discipline process that was a judicial or quasi-judicial proceeding, and as a result are not actionable as a result of being protected by the doctrine of absolute privilege.

60In my view it quite unlikely that the University’s Committee, the Executive Committee or Senate hearing constituted a judicial or a quasi-judicial proceeding. Accordingly, it is doubtful that the doctrine of absolute privilege has any application. In any event, it is my view that it is pre-mature, in these circumstances given the absence of an evidentiary record, to determine that the doctrine of absolute privilege has any application at this stage of the proceeding.

Issue #5: Does the claim in bad faith and malice disclose a reasonable cause of action or should it be struck as frivolous, vexatious or an abuse of process?

61The plaintiff claims that LeBlanc and LaFleur acted in bad faith and with malice in that they engaged in deliberate and unlawful conduct: (1) in their capacity as instructors when they falsely accused the plaintiff; (2) when they withheld grades to the plaintiff in the courses; (3) when they failed to report the grades of the plaintiff after properly completing the courses; (4) when they threatened or intimated the plaintiff for a meeting after the completion of her examinations; (5) when they prepared an untruthful complaints letter to Ottawa; (6) when they acted on the instructions of Holmes and all other defendants to coerce the plaintiff to agree to a meeting in order to obtain fabricated information to justify the complaint and file falsehood and untruthful documents or information in order to justify the allegation; (7) when they labelled the plaintiff as a thief.

62There is no cause of action for bad faith or malice. Accordingly these allegations are struck out as they plead evidence and not material facts.

63Given that the plaintiff’s submissions relied upon Kefeli v. Centennial College of Applied Arts and Technology²⁴ it appears that the plaintiff may have intended to assert the tort of malicious prosecution and/or the tort of intentionally inflicting harm. Leave is granted to the plaintiff to amend its Claim to plead the material facts, if they are available, to support one or both of those causes of action.

Issue #6: Does the claim in privacy and confidentiality breach disclose a reasonable cause of action or should it be struck as frivolous, vexatious or an abuse of process?

64The Claim pleads that the tort of breach of privacy and confidentiality. Given that the plaintiff’s submissions relied upon Jones v. Tsige²⁵ it appears that the plaintiff is asserting the tort of invasion of personal privacy. The elements of that cause of action are: (1) the defendant’s conduct must be intentional or reckless; (2) the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; (3) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

65The plaintiff alleges that the defendants committed the tort of invasion of personal privacy by not keeping her records or information private. However, the plaintiff does not plead any material facts related to the defendants’ invasion of the plaintiff’s privacy. The claim for breach of privacy is struck with leave to amend.

Academic Matters

66The torts of defamation, malicious prosecution, intentionally inflicting harm and invasion of personal privacy are intentional torts. As indicated in Jaffer, the defendants are not protected from civil liability for decisions made in respect of academic matters that constitute an intentional tort. Similarly, it is my view that a claim for breach of fiduciary duty, if established, would be outside the academic discretion afforded to a university and thus actionable.

Conclusion

67For the reasons given, I order that the claims in negligence and negligent investigation (paragraphs 40-41), breach of fiduciary duty (paragraph 42), defamation (paragraph 43), bad faith and malice (paragraphs 44-49) and privacy and confidentiality (paragraph 50) are struck out. I grant the plaintiff leave to amend the Claim to support the asserted causes of action.

68The defendants represented by Ms. Jones seek $5,063.55 in costs on a partial indemnity basis. The defendants represented by Mr. O’Connor seek $4,587.29 in costs on a partial indemnity basis. The plaintiff seeks its costs of $24,349.24 on a partial indemnity basis. Given the divided success, I make no order as to costs.

Footnotes

1. 12011 SCC 42, [2011] 3 S.C.R. 45, paras. 17-25.
2. 2Hunt v. Carey Canada Inc. 1990 90 (SCC), [1990] 2 S.C.R. 959, at para. 33; Amato v. Welsh, [2013] O.J. No. 1857, 2013 ONCA 258, para. 32.
3. 3Gaur v. Datta, [2015] O.J. No. 1190, 2015 ONCA 151, at para. 5; Trillium Wind Power v. Ontario (Ministry of Natural Resources), [2013] O.J. No. 5117, 2013 ONCA 683, at para. 31.
4. 4Amato v. Welsh, 2013 ONCA 258, 362 D.L.R. (4th) 38, at para. 31-33 (C.A.)
5. 5Tran v. University of Western Ontario, 2015 ONCA 295, [2015] O.J. No. 2185, paras. 25-27 (C.A.)
6. 6Desjardins v. Society of Obstetricians and Gynecologists of Canada, [2012] O.J. No. 6098, 2012 ONSC 7294, paras. 51-53.
7. 7Salasel v. Cuthbertson, [2015] O.J. No. 772, 2015 ONCA 115, para. 8; Gao v. Ontario (Workplace Safety and Insurance Board), [2014] O.J. No. 5307, 2014 ONSC 6497, para. 9.
8. 8Air Canada v. WestJet Airlines Ltd. (2004), 2004 66339 (ON SC), 72 O.R. (3d) 669, para. 6. Also see Cerqueira v. Ontario, [2010] O.J. No. 3037, 2010 ONSC 3954, paras. 11-13.
9. 9Gauthier v. Saint-Germain, 2010 ONCA 309, 325 D.L.R. (4th) 558
10. 10Jaffer v. York University, 2010 ONCA 654, 268 O.A.C. 338, leave to appeal refused, [2010] S.C.C.A. No. 402.
11. 11Mortazavi v. University of Toronto, 2013 ONCA 655, 302 O.A.C. 95, leave to appeal refused [2014] S.C.C.A. No. 190 (“Mortazavi #2). Also see Mortazavi v. University of Toronto, 2013 ONCA 66, 302 O.A.C. 95 (“Mortazavi #1” - motion to perfect appeal allowed)
12. 12Young v. Bella, 2006 SCC 3, [2006] 1 S.C.R. 108, para. 31.
13. 13Gauthier, para. 47; Jaffer, para.27 ; Mortazavi #1, para. 31.
14. 14(1985), 1985 3061 (QC CA), 24 D.L.R. (4th) 507, para. 38.
15. 15Gauthier, para. 47; Jaffer, para. 27; Mortazavi #1, para. 31.
16. 16Gauthier, para. 46, 50; Jaffer, paras. 28, 50; Mortazavi #1, para. 30; Mortazavi #2, para. 4.
17. 17Gauthier, para. 47; Jaffer, para. 27.
18. 18Gauthier, para. 48; Jaffer, para. 45; Mortazavi #1, para.31.
19. 19Gauthier, para. 49; Jaffer, para. 56; Mortazavi #1, para.31.
20. 20Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, 2008 SCC 27, para. 3.
21. 212007 SCC 41, [2007] 3 S.C.R. 129.
22. 22Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99; R. v. Guerin, 1984 25 (SCC), [1984] 2 S.C.R. 335; Lam v. University of Western Ontario Board of Governors, [2015] O.J. No. 1232, 2015 ONSC 1642, at paras.14-18.
23. 23Foulidis v. Ford, 2014 ONCA 530, para.14.
24. 24[2002] O.J. No. 3023 (C.A.)
25. 25(2012), 2012 ONCA 32, 108 O.R. (3d) 241; 2012 ONCA 32