ONSC 1642

Court File and Parties

COURT FILE NO.: CV-14-512539

DATE: 20150313

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Simon Lam, Plaintiff

AND:

The University of Western Ontario Board of Governors,

Dr. David Edgell, Dr. Brian Shilton and Dr. Chris Brandl, Defendants

BEFORE: Sean F. Dunphy

COUNSEL: Selwyn A. Pieters, for the Plaintiff

Sarah Jones, for the Defendants

HEARD: March 12, 2015

ENDORSEMENT

[1] This is a motion brought by the defendants under Rule 21.01(1)(b) to strike out the Statement of Claim as disclosing no reasonable cause of action; under Rule 21.01(3)(a) to strike out the Statement of Claim as the court lacks subject-matter jurisdiction; under Rule 21.01(3)(d) and Rule 25.11 to strike out the Statement of Claim as frivolous and vexatious and an abuse of process, in each case without leave to amend.

[2] The plaintiff Simon Lam was formerly a PhD candidate at the University of Western Ontario. As a result of a series of events which transpired after the death of his graduate supervisor in August, 2012 immediately prior to the start of the 2012-2013 academic year, the plaintiff ultimately lost access to funding for his PhD program and alleges that he submitted to pressure to switch from the PhD program to the Master’s program at the University. He claims that significant damages to him resulted from these events.

[3] The three individual defendants were members of an internal University committee which assumed the task of supervising the plaintiff’s candidacy for his PhD following the death of his prior supervisor. It is alleged that this committee collectively and individually pressured the plaintiff to change programs (from PhD to Master’s) through a number of meetings in April and May, 2013.

[4] There was considerable confusion as to precisely what wrongful conduct was being alleged. The pleading suggests that meetings held in April and early May following the end of the 2012-2013 academic year introduced three elements that led to the allegedly wrongful pressure placed upon the plaintiff to change programs to his detriment: (i) suggestions that a new academic plan was required to lead to the plaintiff’s graduation with a lesser level of supervision than he had previously enjoyed with his prior academic advisor who had passed away; (ii) suggestions that his performance was not leading to success and that he might fail; and (iii) suggestions that his funding would not continue beyond the fifth year of his program (he was then completing his third year).

[5] The confusion in the pleading and at argument concerned the third point. The pleading suggests that after the plaintiff had succumbed to the allegedly wrongful pressure to switch programs in May, 2013, he was advised in July that his existing funding would terminate in August, 2013 as the funding was not available for a student enrolled in the Master’s program. Given that the central thesis of the Statement of Claim was the consequences of having pressured the plaintiff into the Master’s program to his detriment, the obvious objection to pleading the subsequent cessation of funding was relevance: the die was already cast as regards the existence if any of a legal wrong – the cessation of funding might be relevant thereafter to a damages calculation, but not to liability. I was advised in argument that what the plaintiff had intended to plead (although the document as it now stands does not say it) was that he had been threatened with early termination of his funding (i.e. immediately and not at the end of year five) and that he had not been warned that following the suggestion of changing into the Master’s program would result in the cessation of his funding prior to the start of the next academic year since his funding was not available to students in the Master’s program.

[6] It is to be recalled that evidence is not admissible on motions pursuant to Rule 21(1)(b) and indeed none was tendered in this case. It was argued solely based upon the pleading being attacked. Has the plaintiff met the threshold of establishing that this claim should be struck and, if so, that it should also be struck without possibility of revival?

[7] I should start by noting that the Statement of Claim does indeed violate quite a number of rules regarding proper pleading. It is prolix, it pleads a great amount of evidence but few facts and it pleads matters that are manifestly irrelevant (especially as regards the alleged differential treatment of other students).

[8] The decision of Nordheimer J. in Air Canada v. WestJet Airlines Ltd. (2004), 2004 66339 (ON SC), 72 O.R. (3d) 669 (S.C.J.), contains a useful summary of the principles to be gleaned from the Rules of Civil Procedure applicable to motions under Rule 25.11 (at para. 6):

[9] Those principles include:

a. motions under rule 25.11 should only be granted in the "clearest of cases" -- see Wernikowski v. Kirkland, Murphy & Ain (1999), 1999 3822 (ON CA), 50 O.R. (3d) 124, 181 D.L.R. (4th) 625 (C.A.);

b. any fact which can effect the determination of the rights of the parties can be pleaded but the court will not allow facts to be alleged that are immaterial or irrelevant to the issues in the action -- see Duryea v. Kaufman (1910), 21 O.L.R. 161, [1910] O.J. No. 118 (C.J.);

c. portions of a pleading that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations should be struck out as scandalous -- see George v. Harris, [2000] O.J. No. 1762 (S.C.J.);

d. facts may be pleaded but not the evidence by which those facts are to be proved -- rule 25.06(1) of the Rules of Civil Procedure;

e. similar facts may be pleaded as long as the added complexity arising from their pleading does not outweigh their potential probative value -- see Garwood Financial Ltd. v. Wallace (1997), 1997 12276 (ON SC), 35 O.R. (3d) 280, 14 C.P.C. (4th) 277 (Gen. Div.).

[10] A paragraph by paragraph review of such an inadequate pleading as this would be lengthy and not particularly helpful: the “bad” paragraphs would seem to be outnumbered by the “good”. The remedy for such a pleading, however, would not normally be to strike the pleading without leave to amend as asked for here. Such a remedy should only be resorted to where it is plain and obvious that the pleading is an abuse of process or if the facts as alleged simply cannot be repaired so as to state a cause of action that has some chance of success. If this motion is to succeed in striking the Statement of Claim without leave to amend I must be satisfied that the plaintiff could not repair this deficient pleading by starting afresh, resisting the temptation to empty the kitchen sink on to paper without editorial discretion. In short, the facts to be distilled from the pleading must disclose no viable cause of action or any cause of action stated must on its face be frivolous, vexatious or an abuse of process.

[11] After the moving party’s submissions, the parties asked for a brief adjournment to narrow the issues in this case. It was time well spent. Upon returning, I was advised that the parties had agreed as follows in relation to this motion:

(a) The motion will be without costs;

(b) The defendant consents to withdraw the action as against the individual defendants, continuing against the University alone; and

(c) The pleaded claims of conspiracy and fraudulent misrepresentation will be withdrawn.

[12] Based upon this agreement between the parties, the claims of (i) breach of contract; (ii) breach of fiduciary duty; (iii) negligent misrepresentation; and (iv) intentional infliction of emotional distress alone remain to be dealt with by this motion.

(i) Breach of Fiduciary Duty

[13] At the outset of Mr. Pieter’s (revised) submissions, I advised him that having regard to the agreement of the parties and after considering the moving parties’ submissions in chief, I was not inclined to entertain the suggestion that the remaining pleadings would be struck without leave to amend. I advised him that I would hear his submissions on the remaining causes of action and render my decision but suggested that the simplest and neatest course of action might be to file a Fresh as Amended Statement of Claim, in particular clarifying the nature of the wrongful actions in relation to funding. As I am composing these reasons, I note that there is some possibility that a limitations argument may arise given that the second anniversary of most of the meetings and conversations said to give rise to the claims is approaching within a few weeks. I shall endeavor to release these reasons as soon as practicable with that in mind.

[14] Paragraphs 53 and following of the Statement of Claim allege that the defendants had a position of power and owed the plaintiff a fiduciary duty. Various breaches of the alleged duty are claimed in the following paragraphs. The Statement of Claim appears to assume that the mere recitation of vulnerability and the existence of a position of power is sufficient to create a fiduciary relationship with the associated panoply of fiduciary rights and remedies associated with it.

[15] While the categories of fiduciary relationship are certainly not closed, it is in my view significant that the plaintiff has not cited a single case where a court has found the university-student to be per se fiduciary. That is not to say that the relationship precludes a fiduciary arrangement, merely that it is not inherent or intrinsic to the relationship generally.

[16] In my view a fiduciary relationship requires, in addition to the existence of power and the presence of vulnerability the assumption by the more powerful fiduciary of a duty to act in the best interests of the vulnerable claimed beneficiary. That assumption may arise from a number of sources: it can be an express or implied agreement, it can be a duty imposed by law. However, the relationship arises from more than the mere fact that the actions of X may affect Y in some important way. The example I suggested to Mr. Pieters will serve: a person standing before me in line to purchase airplane tickets where only two tickets remain unsold may have the power to affect my interest by purchasing all of the remaining tickets leaving none for me. I may therefore be said to be “vulnerable” to that person’s exercise of discretion to purchase one or two tickets, but I cannot claim that my “vulnerability” in the posited situation creates a fiduciary relationship. The person ahead of me in line owes me no duty to prefer my interests to his or her own. An examination of the nature of the relationship or evidence of the voluntary assumption of an obligation must be found to create the additional element of the trustee to being under obligation to prefer the beneficiary’s interests to their own.

[17] Based upon the pleading and my review of the applicable law, I cannot conclude that there is a fiduciary relationship generally existing between a university and its graduate students nor can I conclude from the facts pleaded that the plaintiff has alleged any facts constituting a special relationship such as would impose upon the University in this case a fiduciary duty of care. A pleading that is seeking to impose a fiduciary framework upon a relationship that falls outside of the recognized categories of fiduciary relationships in the cases has a burden to plead with sufficient particularity the facts of the case from which the relationship can be inferred. That has not been done here. A bald assertion of a fiduciary duty will not make it so.

[18] Without adequate particulars of what features of this relationship in this case permit the court to find or infer an agreement of the University to assume not only duties to the plaintiff under contract, but also duties to prefer the plaintiff’s interests to their own, I am compelled to strike the breach of fiduciary obligation claim as disclosing no cause of action.

(ii) Breach of Contract

[19] As noted above, the “real” breach of contract that the plaintiff is apparently relying upon is not what is pleaded in this case. If the plaintiff is alleging a term of the contract, it must plead both the term alleged and the source of the term (oral agreement, written agreement, implied agreement etc.). In the case of implied or oral agreements, sufficient particulars are required to understand what conversation is being relied upon. The core of this allegation – at least as explained in court by the plaintiff’s counsel if not actually pleaded in the claim – is the idea that the plaintiff had rights in the funding from CIHR administered by the University and that the University acted improperly in threatening to withhold the funds if a change in program was not agreed to by the plaintiff.

[20] While I indicated to the plaintiff in argument that my reasons would strike these provisions of the Statement of Claim with leave to amend, I would caution the plaintiff that much of the breach of contract claim as currently drafted is clearly alleging that the enrollment contract between the University and this student contained terms whereby the University will be alleged to have surrendered or modified in the plaintiff’s particular favour the broad discretion the Court of Appeal in Jaffer v York University (2010) 2010 ONCA 654, 326 D.L.R. (4th) 148 otherwise would recognize that universities such as the defendant possess implicit in the normal enrollment contract. That may be true in the unique circumstances of this case, but there is an onus upon the plaintiff to plead those unique terms applicable to this student as well as the source of the terms if the defendant is to be put in a position to respond.

[21] In Jaffer, Karakatsanis J.A. (as she then was) considered a claim made by an individual with Down’s Syndrome for accommodation of his disability at the university. Paragraphs 45 and 46 of the Jaffer case cannot be meaningfully distinguished from the present case:

45. In Gauthier, Rouleau J.A. cautioned at para. 48 that in a claim for breach of contract, a student will have to demonstrate that the university breached an implied or express term of the contract to which it became a party in accepting the student’s enrolment. By enrolling in the university, the student agrees to be subject to the institution’s discretion in resolving academic matters, including the assessment of the quality of the student’s work and the organization and carrying out of university programs: para. 47. He also stressed at paras. 47-48 that simply asserting that a mark was incorrect or a professor was incompetent will not normally be sufficient to establish a cause of action, but that a plaintiff must plead specific facts to demonstrate the terms of the contract and how they were breached.

46. The pleadings in the present case contain a bald statement that it was an implied term of the contract between the parties that the university would accommodate Jaffer’s disability. It does not identify the nature or source of the term requiring accommodation in the contract between Jaffer and York, nor does it plead the circumstances to support such a conclusion.”

[22] The breach of contract claims advanced in the present Statement of Claim are every bit as bald and devoid of particulars as to the source of the terms allegedly applying to the particular enrollment agreement of the plaintiff that sets him apart from the common lot of students whose terms of enrollment are described in Gauthier and Jaffer.

(iii) Negligent Misrepresentation

[23] I find myself somewhat confused by this pleading as it currently stands. If the plaintiff intends to amend the pleading to include pleading of a contract including entitlements to the funding of CIHR, then it is not clear to me how the University could be misrepresenting access to funding which the plaintiff claims a contractual right to access.

[24] This portion of the claim is similarly short of particulars sufficient to enable me to distinguish it from the breach of contract claim particularly in light of the fact that the breach of contract claim itself is in need of re-formulation. I am striking this portion of the claim as well, although in this case I do so with at least some anticipation that it may be re-filed in substantially similar terms once the balance of the claim is reformulated in a less prolix fashion with a focus on facts and not evidence and with particulars regarding the contractual relationship to be pleaded in relation to the funding of CIHR. In the context of the claim as drafted, I cannot see how this claim could succeed – were a different relationship with CIHR (one in which the plaintiff had rights and one in which the defendant did not have discretion to assess the plaintiff’s progress in administering access to the funding) to be pleaded, it may be that this negligent misrepresentation allegation might pass pleadings review.

(iv) Infliction of Emotional Distress

[25] For the reasons set forth in the defendant’s factum, I concur that there is simply no pleading of the special facts necessary to support a claim of intentional or even negligent infliction of emotional distress.

[26] The pleading as stated is devoid of particulars on this matter. It is not sufficient to plead that the plaintiff was “denied the opportunity of completing his PhD and was forced to settle for a Masters due to a lack of funding causing him extreme emotional distress”. The conduct complained of is not self-evidently outrageous or extreme. The “whistle-blower” allegations were, with all due respect, incomprehensible and insufficiently tied to any pleaded facts to permit an intelligent analysis.

[27] I have no alternative but to strike a pleading as bald and devoid of particulars as this section of the Statement of Claim is.

(v) Conclusion

[28] The pleading appears to circle round and round the single and sole source of the plaintiff’s complaint: he alleges he was pressured into changing programs and that a wrongful decision to remove or curtail his funding played a role in that decision along with certain other subjective assessments of the plaintiff’s progress. The allegation is repeated numerous times and asked to assume the guise variously of breach of contract, breach of fiduciary duty, negligent misrepresentation and intentional infliction of emotional distress.

[29] As noted, the “pressure” that the Statement of Claim recites as having motivated the change of programs included subjective assessment matters which appear to me to fall squarely within the ambit of the discretion to be afforded a university as noted by the court in Jaffer. A negative assessment of the plaintiff’s performance in the academic year, a requirement for production of a “game plan” to carry his academic and research program to completion, the assignment of new supervisors following the death of a faculty member, a request for new ideas: all of these subjective and discretionary matters are well within the zone of discretion that the University possesses as recognized by the Court of Appeal in Jaffer.

[30] It is the plaintiff’s allegation that he had a contractual right to the CIHR funding administered by the University coupled with the allegation that the University either in bad faith or bad judgment exceeded the bounds of their discretion or authority in threatening to withhold or withdraw that funding in order to secure the agreement of the plaintiff to switch programs that potentially takes this case outside of the Jaffer-protected realm of discretion. I cannot now say whether that allegation is justified or indeed has any reasonable chance of being proved. This is a pleadings motion and not a motion for summary judgment on tested evidence.

[31] While I have determined that the plaintiff shall be granted leave to amend – prefereably with a fresh as amended statement of claim – in order to plead the four causes of action the plaintiff has indicated he intends to pursue (breach of fiduciary duty, breach of contract, negligent misrepresentation and intentional infliction of emotional distress), I should not be taken as encouraging the plaintiff to do so if his assessment of any of these causes of action in light of these reasons and in light of a sober and careful review of the facts as known best to him reveals that some or all of these claims may be impossible to sustain or may detract from his main focus. The Jaffer case has given the courts considerable guidance as to where to draw the line between protected discretion and unprotected violation of a student’s rights under contract or in tort.

[32] In the result, I am ordering that:

(a) paragraphs 53-55 (breach of fiduciary duty); paragraphs 60-68 (breach of contract); paragraphs 76-79 (negligent misrepresentation); and paragraphs 80-84 shall be struck with leave to the plaintiff to amend;

(b) paragraphs 56-59 (conspiracy to injure); paragraphs 69-75 (fraudulent misrepresentation) are withdrawn on consent (without leave to amend);

(c) the claim as against the individual defendants (Edgell, Shilton and Brandl) is withdrawn on consent (without leave to amend); the plaintiff is authorized but not required to comply with this order by filing a fresh as amended Statement of Claim;

(d) Amendments to the Statement of Claim if any are to be filed within four weeks of the release of these reasons unless the time therefor is extended on consent or with leave of the court; and

(e) There shall be no costs in respect of this motion.

Sean F. Dunphy

Date: March 13, 2015