ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-512539

DATE: 20150825

BETWEEN:

SIMON LAM
Plaintiff

– and –

THE UNIVERSITY OF WESTERN ONTARIO BOARD OF GOVERNORS
Defendant

Selwyn A. Pieters, for the Plaintiff

Ashley Richards, for the Defendant

HEARD: August 21, 2015

ENDORSEMENT

Diamond j.:

[1] The defendant brings this motion to strike out the plaintiff’s Fresh As Amended Statement of Claim (“the new pleading”) without leave to amend. The defendant advances three grounds:

a) the new pleading fails to plead a known cause of action;\

b) the new pleading is frivolous, vexatious and otherwise an abuse of process; and

c) the new pleading is replete with evidence rather than a statement of material facts.

[2] This is the second such motion brought by the defendant in this proceeding. On March 13, 2015, Justice Dunphy granted the defendant’s first motion and struck out various causes of action from the plaintiff’s original Statement of Claim, albeit with leave to amend. Rather than formally amend his existing pleading, the plaintiff chose to deliver a Fresh As Amended Statement of Claim in accordance with Justice Dunphy’s suggestion.

[3] The new pleading was issued and served on or about April 4, 2015. It is the defendant’s position that the contents of the new pleading have not addressed the inherent defects and shortcomings as identified and found by Justice Dunphy, and that the new pleading should be struck out again.

[4] I have reviewed Justice Dunphy’s endorsement. It provides a concise and helpful summary of the contents of the original Statement of Claim. Based upon my review of both the original Statement of Claim and the new pleading, the factual matrix and narrative contained in both documents have essentially not changed. The plaintiff alleges that he was a former Ph.D. candidate at The University of Western Ontario, and as a result of a series of events which took place after the death of his graduate supervisor in August 2012, the plaintiff lost access to funding for his Ph.D. Program. The plaintiff further alleges that he switched out of the Masters Program and into the Ph.D. Program as a result of “pressures” put upon him, and seeks significant damages as a consequence of these alleged events.

[5] Justice Dunphy struck out the following causes of action in the original Statement of Claim: breach of fiduciary duty, breach of contract, negligent misrepresentation and infliction of emotional distress. In the new pleading, the plaintiff now only pursues two of those causes of action: breach of fiduciary duty and breach of contract.

[6] I am mindful of the legal principles to be applied by the Court when hearing a motion to strike. Given the remedy sought by the defendant, these principles bear repetition.

[7] Allegations of fact in a pleading must be accepted as proven unless those allegations are patently ridiculous or incapable of proof. Under Rule 21, a pleading should only be struck out where it is “plain and obvious” that the claim has no chance of success. Under Rule 25.11, a motion to strike should only be granted “in the clearest of cases”.

[8] For the reasons which follow, I grant the defendant’s motion to strike the new pleading.

The New Pleading is Replete with Evidence

[9] Rule 25.60(1) requires that every pleading contain a concise statement of material facts upon which a party relies for the claim or defence, but not the evidence by which those facts are to be proved.

[10] Justice Dunphy found that the original claim was “prolix, pleads a great amount of evidence but few facts, and raises matters that are manifestly irrelevant”. I come to the same conclusions with respect to the new pleading. There are several paragraphs which literally quote the contents of alleged conversations between various players in the extensive, chronological narrative.

[11] The new pleading is anything but concise, consisting of “scene by scene” accounts of various meetings and conversations which are mostly irrelevant for the purpose of the two causes of action sought to be advanced by the plaintiff.

[12] During argument, counsel for the plaintiff submitted that even when the contents of a claim are not organized in a linear fashion, that, in and of itself, will not necessarily result in an order striking out all or portions of the claim. While I agree with this submission, in my view the plaintiff’s failure to heed Justice Dunphy’s warnings and focus the contents of the new pleading upon the material facts has resulted in the new pleading running afoul, yet again, of Rule 25.06(1).

[13] For this reason alone, the new pleading ought to be struck out with leave to amend so that the factual matrix can be re-organized, and hopefully shortened, to contain only those material facts which are necessary for the plaintiff to advance his causes of action.

Breach of Fiduciary Duty

[14] In striking out the plaintiff’s original claim for breach of fiduciary duty, Justice Dunphy made, inter alia, two key observations:

(a) there is no inherent or intrinsic fiduciary nature to the university-student relationship; and

(b) in addition to the existence of power, and the presence of vulnerability, any fiduciary relationship requires the assumption by the more powerful fiduciary of a duty to prefer the interests of the vulnerable party over those of the more powerful party.

[15] As Justice Dunphy stated, “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 interest to their own”.

[16] The plaintiff is thus under a burden to plead, with sufficient particulars, the material facts from which a fiduciary relationship between a university and a graduate student can be inferred. While the new pleading does include many statements describing the plaintiff’s alleged vulnerable position, and the defendant’s corresponding position of power, it is difficult to ascertain where the new pleading establishes that the defendant undertook to prefer the interests of the plaintiff above the defendant’s own interests.

[17] In argument, the plaintiff relied upon paragraphs 30-33 of the new pleading in support of his position that the funding he was to receive from the Canadian Institute of Health Research (“CIHR”) was to be held “in trust” for the plaintiff’s benefit. No further particulars are provided, and the plaintiff’s claim that a trust agreement existed is materially deficient. As stated by Justice Pepall (as she then was) in Metropolitan Toronto Pension Plan (Trustee of) v. Toronto (City) (2012) 2002 49627 (ON SC), 213 D.L.R. (4th) 362 (Ont. S.C.J.), in order to create a trust there must be both a declaration of trust and a constitution of the trust. There are three characteristics (often known as “certainties”) for a declaration of trust:

(a) a certainty of intention to create the trust;

(b) the identification of the subject matter or property of the trust; and

(c) the ascertainability of the persons intended as beneficiaries.

[18] A constitution of a trust occurs where a declaration of trust is combined with a conveyance of property to trustee.

[19] None of these required elements are set out in the new pleading. At most, the plaintiff pleads that admission letters (which he received in 2009 and 2011) referenced the plaintiff’s eligibility for financial support such as CIHR. The plaintiff alleges that these admission letters, along with some additional documents (more fully canvassed in the following section), created a contractual obligation upon the defendant to fund the plaintiff’s lab research.

[20] In my view, these allegations do not meet the requirements to plead the elements of a trust. As such, there is nothing in the new pleading which establishes the defendant’s undertaking to forsake its own interest in favour of the plaintiff. In the absence of this requirement, the claim for breach of fiduciary duty must be struck out.

Breach of contract

[21] A breach of contract claim requires a plaintiff to plead the existence of a contract between him/herself and the defendant, the nature of that contract, and the facts upon which the plaintiff claims the defendant breached any term(s) of that contract. These requirements are to be pleaded with sufficient particulars and clarity to avoid bald and untenable assertions of liability.

[22] To my reading, the terms of the alleged contract between the plaintiff and the defendant are raised and summarized in paragraph 46 of the new pleading, the contents of which are as follows:

“The Plaintiff pleads that the Defendant The University of Western Ontario entered into a contract with the Plaintiff as follows: (a) the offer consisted of the University offering to admit the Plaintiff to its Ph.D. Program of Studies; (b) the acceptance consists of the student accepting the offer of admission; (c) the consideration includes the student performing his research activities and complying with the terms and conditions found in a series of documents including but not confined to the UWO Graduate Student Handbook, the University’s Statutes and the Letters of Offer made to the Plaintiff. The University defendant was also bound by the terms and conditions in the aforementioned documents and, in this case, the Canadian Institutes of Health Research (CIHR) funding agreement for the Plaintiff’s research, during all the relevant times. The Plaintiff pleads that it was his expectation that the University would act honestly and in good faith in contractual dealings with him.”

[23] There is no one “contractual document” upon which the plaintiff relies in support of this claim. It appears that the terms of the contract are lifted from various documents, including admission letters, policy books and funding agreements.

[24] Although certain excerpts from the UWO Graduate Student Handbook are included in paragraph 35 of the new pleading, those excerpts do not seem to relate or explain any contractual terms, and more importantly how the defendant allegedly breached those terms.

[25] It is quite difficult to understand if and how the defendant breached the various terms of the alleged contract, including the admission letters which pre-date his transfer from the Masters Program to the Ph.D. Program.

[26] There is no dispute that the plaintiff is not privy to the CIHR funding agreement, but seeks to incorporate that funding agreement by reference into his alleged contract with the defendant. None of the terms of the CIHR funding agreement have been pleaded and thus the pleading does not explain what terms of the CIHR funding agreement would apply to the plaintiff and his lab research, and how the defendant breached those terms.

[27] I echo Justice Dunphy’s conclusions. There are insufficient particulars of the contractual relationship between the plaintiff and the defendant, and as a result the plaintiff’s claim for breach of contract is also struck out.

Concerns re: Leave to Amend

[28] The new pleading, like the original claim, is in substance an academic dispute over funding and supervision of the plaintiff’s Ph.D. studies and research with the defendant. In Jaffer v. York University 2010 ONSC 654 (C.A.), the Court of Appeal for Ontario made it clear that disputes arising out of academic activities may be struck out due to the court lacking jurisdiction.

[29] As stated in Jaffer, if an action is simply an indirect attempt to appeal an academic decision, the appropriate remedy would be judicial review.

[30] It may be that upon the plaintiff’s third attempt to rectify the deficiencies in his Statement of Claim, he will successfully demonstrate that the defendant was party to a contract and/or did owe the plaintiff a fiduciary duty, thus conferring jurisdiction upon this Court to entertain the dispute between the parties. On the current state of the new pleading, I believe that Jaffer would preclude this Court from having jurisdiction over what remains, essentially, an academic dispute.

[31] That said, I am prepared to grant the plaintiff a second opportunity to amend his Statement of Claim, and attempt to cure the various defects as found in this and Justice Dunphy’s endorsements. Perhaps the plaintiff can plead the necessary material facts to both avoid the Jaffer concerns and satisfy the necessary elements of breach of fiduciary duty and breach of contract, although I would think a third failure to do so would likely result in an order striking out this proceeding once and for all.

[32] I therefore grant the plaintiff leave to amend the new pleading. As held by Justice Dunphy, I also believe it preferable that the plaintiff deliver a Second Fresh as Amended Statement of Claim rather than attempt to amend the new pleading directly. The plaintiff shall have until September 25, 2015 to serve and file a Second Fresh as Amended Statement of Claim. This deadline may be extended by agreement between the parties or further court order.

Costs

[33] At the conclusion of the hearing, the parties agreed that the successful party would be entitled to costs of the motion fixed in the all-inclusive amount of $3,500.00.

[34] I therefore order the plaintiff to pay the defendant its costs of this motion fixed in the amount of $3,500.00 and payable forthwith.

Diamond J.

Released: August 25, 2015

COURT FILE NO.: CV-14-512539

DATE: 20150825

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

SIMON LAM
Plaintiff

– and –

THE UNIVERSITY OF WESTERN ONTARIO BOARD OF GOVERNORS
Defendant

ENDORSEMENT

Diamond J.

Released: August 25, 2015