CITATION: King v. Sly et al., 2015 ONSC 584

COURT FILE NO.: CV-14-497327

DATE: 20150220

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Justine King, Plaintiff

AND:

Timothy Sly and Ryerson University, Defendants

BEFORE: Carole J. Brown, J.

COUNSEL: Justine King, self-represented Plaintiff

Alexander Pettingil, for the Defendants

HEARD: January 27, 2015

ENDORSEMENT

[1] The defendants bring this motion to strike the plaintiff's Fresh as Amended Statement of Claim dated August 12, 2014, without leave to amend pursuant to Rules 21.01(1)(b), 25.06 and 25.11 of the Rules of Civil Procedure on the grounds that the claim does not comply with the rules of pleadings, does not disclose a reasonable cause of action, has not pled material facts in support of the allegations, and is frivolous and vexatious. Further, the defendants take the position that the claim is based on allegations of unfairness and lack of due process in the context of the university setting which should only be made in an application for judicial review.

[2] The action was commenced by Statement of Claim issued January 28, 2014, which was struck by Stinson J. on June 23, 2014 with leave to deliver a Fresh Statement of Claim on or before August 15, 2014, on the ground that it failed to disclose a reasonable cause of action.

[3] The plaintiffs Fresh as Amended Statement of Claim ("the plaintiff's Claim" or "the Claim") appears, from a thorough reading thereof, to make allegations, all related to an academic dispute. In essence, Ms. King alleges that she was the target of harassing verbal comments by Professor Sly, her biostatistics professor, and that he demonstrated "feelings of hate" toward her. She further complained of "an evil glare being directed at her" in the context of the course he taught such that she had to seek a desk directly behind the podium so he could not see her, that she was given a mismatched or misprinted exam for which she requested an explanation of "how her exam was mismatched, but not the person beside her alphabetically", and that she was administered an exam which was specifically timed "for maximum suffering for her career advancement". As regards the harassing verbal comments, she states these comments to be as follows. When she asked Professor Sly to give an example of a short, one-mark question which may be anticipated on the mid-term exam, he responded "there is a type of dog race where the dogs run around the track and they chase a smelly fish…" She indicates that she cannot remember anything more about this sentence other than that he explained that the questions would be short ones. She states that the "response was off-putting, unexpected and discriminatory" and that she was "stunned, embarrassed and shocked to be singled out in that way". As regards the exams of which she complained, she stated that in the mid-term exam which she wrote in her risk assessment course in February 2012, she received 6 of 20 , which caused her to have to make "an extra effort" in the class due to his failing grade and which placed additional pressure and time required for the course in addition to six other courses in which she was enrolled, and having to take care of her child. It appears that after her complaint, the mid-term exam was reviewed and she received a re-graded mark of 9 of 20. Her final grade in the course was a B-, and she ultimately passed the course and graduated.

[4] She claims that as a result of the actions of Professor Sly and Ryerson University, she experienced undue pressure, stress, mental anxiety and suffering, was unable to complete a practicum placement and oral exam in order to become a certified Public Health Inspector or to attain another comparable position, and has been "ineffective in finding an employer". She further alleges that "due to her age and lack of experience" she is in a disadvantaged employment position, having graduated at approximately the age of 40. Her claim indicates that she is a graduate of Ryerson University with a Certificate in Occupational Health and Safety (2011), an Applied Bachelors' of Science Degree in Occupational and Public Health (2012) and a Certificate in Project Management (2013). At the time of the complaints, she was enrolled in a program for Public Health Inspectors.

[5] The subject Fresh as Amended Statement of Claim is 50 paragraphs in length. Having read the Claim in its entirety, it appears devoid of any discernible cause of action with material facts pleaded in support thereof. Instead, contrary to the rules of pleading and particularly rules 21.01(1)(d) and 25.06(1), the Claim pleads extensive evidence throughout. This includes evidence about the plaintiff's attendance at Ryerson, her courses, her exams and complaints, but also irrelevant evidence about her failure to be able to obtain employment due to her age and experience, her being robbed by her landlord and other unrelated events.

[6] While the plaintiff has pled breach of contract, alleging breach of the Ryerson University Statement of Student Rights and Responsibilities, and all rights and freedoms recognized by law, she has failed to plead the requisite elements for breach of contract. As regards her broad allegations of negligence, she has also failed to plead the requisite elements of negligence. Such bald allegations of liability do not sufficiently indicate the case that the defendant has to meet. Further, there is no asserted causal link between the alleged negligence and the damages claimed.

[7] As regards her allegations concerning her inability to now obtain employment, I note the case of Bounpreseuth v York University (February 13, 2013), Brampton CV-12-2029, aff’d 2014 ONCA 390, relied on by the defendants, in which Tzimas J. stated that "there is no cause of action in law as damages to life or career. Universities offer their students an education. They are not obliged to secure a career, a lifestyle… or other wishes or aspirations that a student may have. That is simply frivolous and vexatious". And see Jaffer v York University, 2010 ONCA 654.

[8] As regards her allegations concerning intentional infliction of emotional distress, again, the constituent elements of this cause of action have not been pled. In this regard, I have considered Prinzo v Baycrest Center for Geriatric Care, (2002), 2002 ONCA 45005 (ON CA), 60 O.R. (3d) 474 (CA) and Mustapha v Culligan of Canada Ltd., 2008 SCC 27.

[9] As regards claims for discrimination under the common law, these are to be brought within the context of the Ontario Human Rights Code, which provides a comprehensive scheme for treatment of claims of discrimination, and not in the context of a civil claim in this Court. It appears that she did, in fact, make a complaint of discrimination under the Ontario Human Rights Code.

[10] As regards her claim for damages relating to an academic dispute, these appear to relate to improperly administered exams and failure to respond to questions regarding essay exams, which, pursuant to the jurisprudence, the courts have repeatedly declined to inquire into and pass judgment upon. I have considered the case of Jaffer v York University, supra, relied upon by the defendants. In that case, the court recognized that universities have broad discretion with respect to academic matters, including "the organization and implementation of university programs". The court stated as follows:

[The court] may strike a claim under Rule 21.01(1), or in exceptional circumstances Rule 25.11, where it appears that the cause of action is untenable or unlikely to succeed. This will occur if, for example, an action is simply an indirect attempt to appeal an academic decision and the appropriate remedy would be judicial review, or if the pleadings do not disclose details necessary to establish that the University's actions go beyond the broad discretion that it enjoys.

[11] In the present case, the plaintiff’s claim would require the court to inquire into and assess the correctness of academic decisions made by the defendants regarding the administration of an exam, the plaintiff's grades and Ryerson's conduct in handling the plaintiff's complaints about her grades. In other words, the court would be asked to assess decisions made by the defendants surrounding the "organization and implementation of university programs", a matter clearly within the discretion of the University and not appropriate for a tort or a breach of contract claim.

[12] Based on the pleadings, the plaintiff did complain to the University regarding the above, her exam was reconsidered and re-graded and indeed, she passed the course. Any further consideration of the University's actions is properly made in the context of a judicial review and not in the context of a new claim in tort and/or breach of contract.

[13] As regards any claim against Professor Sly personally, there is no allegation that Professor Sly acted in a tortious manner outside the scope of his academic responsibilities with Ryerson University. There is no properly pleaded allegation of independent tortious conduct as against Professor Sly such that an action against him personally could succeed. All allegations are with respect to his professional and academic duties with Ryerson University.

[14] Having considered all of the submissions of the defendants and all of the materials before me, and having assumed the facts as stated in the Statement of Claim can be proved, as I must, I am satisfied that the Fresh as Amended Statement of Claim sets forth no reasonable cause of action. It is plain and obvious on the face of the pleading that no reasonable cause of action is disclosed and that the action cannot succeed. Further, the plaintiff has brought her complaint in the wrong forum. Any complaint should have been brought within the context of a judicial review.

[15] Based on all of the foregoing, and the fact that this complaint should have been brought within the context of judicial review, I do not grant leave to further amend the Fresh as Amended Statement of Claim.

[16] Accordingly, I grant the defendants' motion for an Order that the plaintiff’s Fresh as Amended Statement of Claim, Ct. File number CV-14-497327, be struck without leave to amend, and so order.

Costs

[17] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown, J

Date: February 20, 2015