Lauzon v. Canadore College, 2015 ONSC 1790

COURT FILE NO.: CV-14-6042-SR

DATE: 2015/03/18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Canadore College, Defendant/Applicant

AND:

Julie Lauzon, Plaintiff/Respondent

BEFORE: Valin J.

COUNSEL: J. Kennedy, for the Plaintiff

A. Patenaude, for the Defendant

HEARD: March 18, 2015

ENDORSEMENT

[1] The plaintiff was a student in the practical nursing program offered at the defendant College. She expected to graduate in June 2015.

[2] On October 1, 2014, following a complaint from the Regional Health Center, the Dean withdrew the plaintiff from the program until September 2015. When the plaintiff spoke to the Dean about appealing that decision, the Dean implied that she would not win her appeal and that the hospital would not take her back.

[3] The plaintiff eventually appealed the Dean’s decision, but the college refused to hear the appeal because it had not been submitted within the prescribed time limit.

[4] Rather than pursuing relief by way of judicial review, the plaintiff chose to commence an action for damages against the defendant. The statement of claim in this action was issued on December 5, 2014 under the simplified procedure set out in Rule 76.

[5] This is a motion by the defendant under Rule 21 to strike out the statement of claim and dismiss the action.

[6] Counsel for the defendant argued that the statement of claim discloses no cause of action known in law. He argued that the statement of claim appears to be based on breaches of the duty of procedural fairness and on denial of natural justice, neither of which are recognized causes of action. Counsel argued that the plaintiffs remedy, if any, should have been pursued in the administrative law system.

[7] In Eliopoulos v. Ontario (Minister of Health & Long-Term Care), 2006 CanLII 37121 (ON CA), [2006] O.J. No. 4400 at para. 8 (C.A.), the Ontario Court of Appeal that the test for striking a statement of claim at the pleading stage is a stringent one with a difficult burden for defendants to meet. The allegations of fact in the statement of claim must be accepted as proven, unless they are patently ridiculous or incapable of proof. The onus is on the moving party to show that it is plain, obvious and beyond doubt that the plaintiff could not succeed.

[8] In Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959 at 980 (S.C.C.), the Supreme Court of Canada held that the claim must be read generously with allowance for inadequacies due to drafting deficiencies and that the claim should not be dismissed simply because it is novel.

[9] The statement of claim in this case is poorly drafted. However, the pleading does state that:

• the Dean told the plaintiff about complaints by the hospital regarding three tweets the plaintiff had posted on Twitter;

• the Dean informed the plaintiff that the tweets breached confidentiality and were unprofessional;

• the plaintiff pointed out the tweets did not make reference to any specific patient and she did not believe they breached confidentiality;

• the Dean told the plaintiff she could not continue in her program because the North Bay Regional Health Center would not allow her to finish her clinical placement there;

• the Dean withdrew the plaintiff from the program until September 2015;

• when the plaintiff asked the Dean whether she could return in September 2015, there was no commitment;

• the plaintiff spoke with the Dean about appealing his decision to withdraw her from the program;

• the Dean implied the plaintiff would not win an appeal and threatened that the hospital would not take the plaintiff back;

• relying on the Dean’s authority and position, the plaintiff did not proceed with an appeal expeditiously;

• when the plaintiff did file an appeal, the defendant refused to hear it because it had not been submitted within the prescribed time limit; and

• the defendant falsely advised the plaintiff that the North Bay Regional Health Center had banned her from completing her clinical studies.

[10] For the purposes of this motion, the jurisprudence is clear that those alleged facts are to be taken as proven.

[11] Those facts suggest that the plaintiff has a cause of action against the defendant in contract and/or tort. I find that the claim has some chance of success. It is not plain, obvious and beyond doubt that the plaintiff could not succeed.

[12] The motion is therefore dismissed.

[13] Counsel for the plaintiff did not provide a draft bill of costs. He invited me to award costs to his client on the partial indemnity scale in the amount of $5000. This motion was a result of poor drafting of the statement of claim. In those circumstances, I am not inclined to award costs.

The Honourable Mr. Justice G. Valin

Date: March 20, 2015