Tran v. University of Western Ontario et al, 2016 ONSC 1781

COURT FILE NO.: CV-12-469874

DATE: 20160311

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Leanne Tran, Plaintiff/Responding Party

AND:

The University of Western Ontario, Justin Amann, Christopher Watling, Salvatore Spadafora, Steward Kribs, Roya Etemad-Rezai, David Bach and Terri Paul, Defendants/Moving Parties

BEFORE: S. F. Dunphy J.

COUNSEL: M. Fraleigh and M. Garland, for the Plaintiff/Responding Party

A. Richards and S. Murtha, for the Defendants/Moving Parties

HEARD: February 11, 2016

ENDORSEMENT

[1] It is sometimes said that the second time is a charm. The moving parties suggest not. The plaintiff’s Statement of Claim was previously struck out in large measure by Morgan J. whose decision was upheld by the Court of Appeal save only that the Court of Appeal granted the plaintiff leave to amend. The plaintiff has done so. Has she pleaded enough additional facts to resurrect causes of action struck out as being without hope once already?

[2] In my view she has not.

[3] All of the complaints she continues to assert against the individual defendants, all of them faculty members at the defendant University, continue to refer only to actions taken in their capacity as members of the faculty and thus employees of the University. The University can only act through its employees and their actions are those of the University. The amendments have added nothing but bare allegations advanced without particulars. Further allegations have been added that continue to seek to bring the court into the role of second-guessing academic assessments, a matter for which the court is singularly ill-suited. The plaintiff continues to have her claim against the University if she wishes to pursue it diligently and in good faith. The court’s duty to give novel or unusual actions sufficient breathing room to be tested and prove their merit does not extend to facilitating the abuse of the plaintiff’s prerogative to name defendants by retaining actions defendants advanced without hope of success for the evident purpose of applying litigation pressure on them or obtaining discovery rights. The individual defendants have a right to be imposed upon no further. The claims against them must be dismissed.

Background and Overview

[4] The plaintiff was formerly a graduate medical student who enrolled with the University as a resident in its Diagnostic Radiology Program. It is fair to say that her time in the program was tempestuous – the source(s) of the stormy weather, of course, being a matter of considerable dispute.

[5] She commenced her residency on July 1, 2005 at the start of the academic year. She was able to complete her first academic year without apparent incident. Her second year remained incomplete after five eventful years at the University and is the subject-matter of this litigation.

[6] Shortly after the start of her second year, a number of incidents occurred that she says caused stress and a difficult work and study environment. As well, she had other medical issues that prevented her from taking her required on-call shifts. She took a medical leave from December 2006 until August 2007, interrupting her second year of studies for the first time.

[7] Her return to the program in 2007 was a short one. Following an incident with one of her instructors, Dr. Lum, she filed an intimidation and harassment complaint. She claims to have been subjected to reprisals soon thereafter, resulting in a second medical leave from November 2007 until August 2008.

[8] Further difficulties ensued soon thereafter resulting in the University taking the step of placing her on leave in October, 2008. During this third absence, she completed a term at the University of Toronto and tried but was unable to secure a full time training position elsewhere.

[9] Her second year of residency was still incomplete. An arrangement was negotiated pursuant to which she was accepted back to the University in July 2010. Unfortunately, this attempt at completing her second year of residency proved no more successful than the previous ones.

[10] In November 2010 she sent a broad-circulation email outlining the grounds for various complaints that she been harbouring about her treatment. The email was not well-received. Disciplinary proceedings were initiated by the University resulting in her suspension in December 2010 and, following a disputed investigation, she was notified of her formal dismissal from the program effective July 2011.

[11] I have set forth a thumbnail chronology above since limitations issues have been raised on this motion making a chronological overview important.

[12] Ms. Tran commenced this proceeding by way of Notice of Action dated December 12, 2012 and Statement of Claim dated January 11, 2013. In addition to bringing suit against the University in whose program she was enrolled, she added as defendants:

a. Dr. Amann, a professor at the University and from July 2007 was also Program Director of the Radiology Resident Program in which she had been enrolled;

b. Dr. Etemad-Rezai, a professor who supervised her “CT rotation” in 2010 who provided negative reviews of her performance;

c. Dr. Bach, a professor who worked alongside Dr. Etemad-Rezai in her CT rotation in 2010 and is alleged to have provided negative reviews of her performance;

d. Dr. Kribs, the Program Director of the Radiology Resident Program until June 2007 and one of her supervisors in her CT rotation in 2010; and

e. Dr. Watling and Dr. Paul, associate deans of the University involved in the investigation of the disciplinary complaint in 2010-11 and her final dismissal in July 2011.

[13] The original Statement of Claim also named Dr. Spadafora but made no actual claim against him. The claim was subsequently discontinued as against him.

[14] The causes of action pleaded may be summarized as follows:

a. Against the University: breach of contract, negligence, breach of fiduciary duty, breach of duty of good faith, negligent misrepresentation, conspiracy and vicarious liability for the actions of the individual defendants with a claim for $15,000,000 in damages plus aggravated and punitive damages ($5,000,000) and damages for mental suffering ($100,000);

b. Against all of the individual defendants: inducing breach of her contract with the University, negligence, negligent misrepresentation, conspiracy and interference with economic and contractual relations with the same damages claimed.

[15] I do not propose to detail the facts as pleaded or the procedural history of this case further than to note that the individual defendants collectively moved before Morgan J. pursuant to Rule 21.01 of the Rules of Civil Procedure to strike the claim as against them in its entirety while the University moved solely to strike the pleaded tort of intimidation. In a decision released January 27, 2014 (2014 ONSC 617), Morgan J. granted the motion and dismissed all claims against the individuals as well as the intimidation claim against the University. He declined to grant leave to amend.

[16] The plaintiff appealed Morgan J.’s decision to the Court of Appeal whose decision, released on April 30, 2015 (2015 ONCA 295), upheld the dismissal of the claims by Morgan J. but granted the plaintiff leave to amend her claim.

[17] The plaintiff amended her claim on May 20, 2015 (the “Amended Claim”). She did not seek to revive the intimidation claim which remains struck but re-pleaded all of the other struck claims as against the individuals, adding by way of amendment certain additional details the sufficiency of which are the subject-matter of this motion.

[18] This motion has been brought by all of the defendants to strike the re-pleaded conspiracy claim and to strike certain individual paragraphs that are claimed to represent pleadings of unreviewable academic discretion and similar matters. In addition, the individual defendants move to dismiss all of the claims against them.

[19] If this motion is successful, the plaintiff’s claim would continue against the University alone on all of the matters pleaded as against it save and except the conspiracy claim and the allegations that are said to represent the exercise of unreviewable academic discretion.

Issues

[20] Is there a different standard of review for an amended pleading?

[21] Can any the conspiracy claim be struck on the basis of the Limitations Act, 2002, S.O, 2002 s. 24?

[22] Are the amended claims against Dr. Watling, Dr. Etema-Rezai, Dr. Bach and Dr. Paul sufficiently pleaded?

[23] Are the amended claims against Dr. Kribs and Dr. Amann sustainable?

[24] Is the tort of interference with economic relations properly pleaded in the Amended Claim?

[25] Is the tort of negligent misrepresentation properly pleaded in the Amended Claim?

[26] Does the Amended Claim seek to challenge matters of unreviewable academic discretion?

[27] Have sufficient additional facts been pleaded in the Amended Claim to preserve the tort claims against the individual defendants that were previously struck?

Analysis and Discussion

(i) Is there a different standard of review for an amended pleading?

[28] While I know of no case law suggesting that the standard of review in a second motion to strike pleadings is any different than that applicable to the first, some conclusions appear to me to impose themselves as a matter of common sense in such cases.

[29] There was no serious dispute between the parties on the standard of review applicable to motions under Rule 21.01 and Rule 25.11 of the Rules of Civil Procedure. The standard has been extensively commented upon by courts higher than this, including upon the previous trip the parties made to the Court of Appeal, and need not be repeated here.

[30] In my view, the plaintiff is as much entitled to a generous reading of her pleading on a second motion as on the first. I can see no reason why a plaintiff re-formulating a claim that has been struck once to cure defects in it should be held to a higher standard of sufficiency.

[31] That being said, common sense commends two approaches to me:

a. I am entitled to compare the two versions and consider only if sufficient new facts have been pleaded to cure the defect found to exist the first time – the original order creates an issue estoppel and the moving party does not need to re-argue or re-prove the basis of the original order striking some or all of the pleading; and

b. Should the motion succeed in whole or in part, I may have regard to the first grant of leave and the use made of that opportunity to assess whether leave to try yet again ought to be granted.

[32] The latter point is simply an extension of the overarching principles that find their expression in Rule 1.04 of the Rules of Civil Procedure. Litigation is always and everywhere a balancing of competing interests – plaintiffs and defendants. Plaintiffs and defendants have a right to a just and least expensive determination of their rights on the merits. There comes a point where the philosophy of “if at first you don’t succeed” risks becoming a license to abuse the process of the court and unfairly to disregard the rights of defendants to be left in peace if a claim appears unable to clear the threshold needed to proceed. Where and when that point is reached will be a matter to be considered in the circumstances of each case, but there is no reason the court should be blind to the history of a proceeding when considering them.

(ii) Can any of the claims be struck on the basis of the Limitations Act?

[33] The moving parties claim that the conspiracy claim pleaded in the Amended Claim is still bound to fail by reason of falling outside the limitation period and should be thus struck on that basis. The plaintiff answers by saying the motion is premature. Even if some of the events apparently occurred outside of the limitation period, discoverability is a fact-intensive exercise the outcome of which should not be presumed at the pleadings stage.

[34] In my view the motion is not necessarily premature. The two year limitation period in s. 4 of the Limitations Act runs from the time of discovery. A claim under the Limitations Act is discovered when the plaintiff actually became aware of the four elements of her claim listed in s. 5(1)(a) or when a reasonable person in the position of the plaintiff ought to have known of them (s. 5(1)(b)). However, by s. 5(2) of the Limitations Act, each of those four elements are deemed to have been known the day they occurred unless the plaintiff can prove the contrary. As a result, if the pleading includes a claim that occurred outside of the applicable limitation period, the defendant can move to strike the claim unless the plaintiff has pleaded sufficient facts that, if proved, would discharge her onus under s. 5(2) of the Limitations Act and bring at least one discoverability element into the two-year time frame.

[35] This action was commenced by Notice of Action issued on December 12, 2012. Causes of action discovered within the meaning of s. 5 of the Limitations Act prior to December 12, 2010 are thus presumptively barred by s. 4 of the Act unless facts sufficient to discharge the burden imposed by s. 5(2) have been pleaded.

[36] Is this such a case? In my view, partly so.

[37] Paragraph 32 of the Amended Claim pleads that Dr. Amann and Dr. Kribs conspired to take actions that would “create or contribute to a hostile work environment for Dr. Tran in order to force her to resign, be removed or be dismissed from the Residence Radiology Program” and that they did so “upon her return to training” in 2007. Other defendants are alleged to have joined the pre-existing conspiracy. Dr. Bach and Dr. Etemad-Rezai are pleaded to have done so and committed a variety of acts in furtherance of the conspiracy between 2007 and December 10, 2010.

[38] Taken as a whole, all four elements for the discovery of the conspiracy claim required by s. 5 of the Limitations Act are pleaded by the plaintiff, regardless of whether the conspiracy claim itself is adequately pleaded. The fact of the agreement to conspire is pleaded. Actions taken in furtherance to the agreement and damages arising are all alleged to have occurred and to have occurred prior to December 10, 2010. It is not necessary that all of the evidence necessary to prove a claim be known. It is not necessary that legal advice be received to “connect the dots” to appreciate that a claim is the appropriate means to seek a remedy. In particular, it is not necessary that the full extent of resulting damages be appreciated so long as the existence of some damage related to the allegedly wrongful act has occurred. In my view, the four discoverability criteria of s. 5(1)(a) of the Limitations Act are alleged by the Amended Claim to have occurred prior to December 10, 2010. The onus therefore falls upon the plaintiff under to plead facts to discharge the onus contained in s. 5(2) of the Limitations Act. No such facts have been pleaded.

[39] I therefore find that the conspiracy claim is barred by the Limitations Act in respect of damages arising from all actions alleged to have been taken in furtherance of it prior to December 12, 2010.

[40] While I would thus strike the conspiracy allegation as regards actions taken in furtherance of it up until December 12, 2010 and damages arising therefrom, actions taken after that date in furtherance of a pre-existing conspiracy that caused additional damage would not be so barred.

[41] Paragraphs 114 and 142 add allegations concerning the actions of Dr. Paul and Dr. Watling in performing their investigation of the December 13, 2010 misconduct complaint made against the plaintiff. It would appear that only Dr. Paul and Dr. Watling are expressly alleged to have taken any acts in furtherance of the conspiracy in paragraph 114 of the Amended Claim.

[42] The tort of conspiracy has this in common with an Alexandre Dumas novel: it is one for all and all for one. The actions of two new members of the conspiracy – if proved to be the product of an actual agreement to join the same common enterprise - would potentially engage the joint liability of all to respond for any resulting damages.

[43] I therefore find that I cannot dismiss the claim of conspiracy contained in paragraphs 114 and 142 of the Amended Claim under the Limitations Act, although all other allegations of conspiracy in the Amended Claim must be struck on that basis as being out of time. These paragraphs are however struck for different reasons expanded upon below.

(iii) Are the claims against Dr. Watling, Dr. Etema-Rezai, Dr. Bach and Dr. Paul sufficiently pleaded?

[44] The original pleading was struck as against the individuals in its entirety. Morgan J. found (at 2014 ONSC 617, para. 22):

“What is clear from the list of allegations is that the acts of the Individual Defendants – teaching, mentoring, supervising, designing an educational program, administering an educational program – are indistinguishable from those of UWO. The attempt by the Plaintiff to separate out personal actions by the Individual Defendants is, much as described in Lobo, little more than “window dressing”.

[45] In order to plead a claim against employees such as the Individual Defendants, the pleading must allege acts such as fraud, deceit or dishonesty that are themselves tortious and must allege that the actions of the employees exhibit a separate identity or interest from that of the corporation or employer so as to make the act or conduct complained of their own: ScotiaMcLeod Inc. v. Peoples Jewellers Ltd., 1995 CanLII 1301 (ON CA).

[46] In Lobo v. Carleton University, 2012 ONSC 254 a claim was brought against Carleton University and certain employees alleging, among other things, a duty not to discriminate. As here, the claim against the individuals had been struck out a first time. On its second iteration, the plaintiff’s claim alleged that the individuals took the decisions they took based on their individual political bias, attempting thereby to plead a separate identify of action. Toscano Roccamo J. dismissed the (amended) pleading finding the allegations in pith and substance related to decisions made within the employees’ ostensible authority as university employees and concluded that “the amended pleading before me does little more than “window dress” the suggestion of a separate identity or interest of the named Defendants from that of CU” (at para. 35). Toscano Roccamo J.’s decision was upheld by the Court of Appeal (at 2012 ONCA 498).

[47] Applying this guidance to the amended pleading, I shall proceed to examine the amended allegations against the four named individuals.

[48] Dr. Watling and Dr. Paul are brought into the pleading as a pair commencing at paragraph 103 with the December 13, 2010 unprofessional conduct complaint made against the plaintiff. Their conduct of the subsequent investigation – which resulted in a recommendation of dismissal on which the University acted – is the object of the plaintiff’s claim against them. Such a claim is would by its very nature have a very high hurdle to cross to satisfy the requirements laid out in Peoples Jewellers and Lobo.

[49] After reciting the chronology of the investigation phase, the Amended Claim alleges (para. 113) that Dr. Paul and Dr. Watling “failed to perform an independent investigation” and that their actions were “malicious, threatening and abusive”.

[50] It is not pleaded that these two doctors actually reached an agreement with the other alleged members of the conspiracy. Rather, paragraph 114 while simply concludes that they conspired with the others while paragraph 142 adds that they colluded with the others in the drafting of the report.

[51] In my view, the five amended paragraphs (para. 113-115, para. 141-142) fail to satisfy the minimum threshold for pleading a cause of action against these employees. The tortious conduct complained of appears to amount to no more than a bare conspiracy pleading in paragraphs 114 and 142. Alleging collusion in the drafting of reasons for a decision in a report does not amount to pleading a positive agreement to join a four year old conspiracy.

[52] In my view, the conspiracy pleading as against these two is utterly deficient. The fact of an agreement with each of the alleged co-conspirators is not pleaded; particulars of the agreement reached and the additional acts in furtherance taken after their adherence to the conspiracy are not pleaded (the claim for damages caused by earlier actions being statute-barred). The rote repetition in paragraph 103 of the allegation of conspiring to create a “hostile work environment” is on its face irrelevant since the plaintiff had already been suspended. Nothing is alleged to establish actions exhibiting an identity separate and apart from their professional identify as employees of the University. The amended allegations are, in my view, mere attempts to “window dress” claims against the University as claims against the individuals. There is nothing in the amendments that can be looked to as reviving claims already struck.

[53] The plaintiff has also folded Dr. Watling and Dr. Paul into the “inducing breach of contract” allegation in paragraph 124. That allegation is made against the individual defendants “en bloc” and contains no particulars of any of the actions of any of the individual defendants. I shall re-visit that paragraph below. It is sufficient to say in relation to Dr. Watling and Dr. Paul that there are no allegations that rise above the “window dressing” comment to establish actions undertaken personally and separately from their duties as employees.

[54] I would strike the claims in their entirety as against Dr. Paul and Dr. Watling, including specifically paragraphs 113-115 and 142. Since the only vestige of the conspiracy claim that survived the Limitations Act attack was paragraphs 114 and 142, the remainder of the conspiracy claim falls as well.

[55] The other two individual defendants named in paragraph (b) of the notice of motion – Dr. Bach and Dr. Etemad-Rezai are alleged to have participated in the conspiracy (entirely dismissed for the reasons expressed above) and to have attracted liability for inducing breach of contract, negligence and negligent misrepresentation.

[56] The defendant says that all of these claims are advanced based on bald allegations. I shall examine each in turn.

[57] The inducing breach of contract claim is contained in paragraph 124 of the Amended Claim. As I have held above in relation to Dr. Watling and Dr. Paul, this paragraph contains no particulars of the actions of any individual defendant, apparently relying on the conspiracy claim for its particulars. Knowledge of the particular terms of the contract alleged must also be pleaded and is not.

[58] In my view, paragraph 124 must be struck from the Amended Claim. It is on its face a bald allegation and utterly fails to satisfy the second aspect of the Peoples Jewellers test of providing particulars of how the actions were undertaken in the personal capacity of any of the individuals.

[59] The negligence allegation is found in (amended) paragraph 127. This paragraph suffers from the same infirmities as paragraph 124 and must be struck for the same reasons.

(iv) Are the claims against Dr. Kribs and Dr. Amann sustainable?

[60] The conspiracy claims against Dr. Kribs and Dr. Amann have been dealt with already in these reasons. In my view the defects found above in relation to the negligence and inducing breach of contract allegations against the other individual defendants apply with equal force in the case of Dr. Kribs and Dr. Amann. I would strike those claims as against both for the same reasons.

(v) Is the tort of interference with economic relations properly pleaded?

[61] The moving party alleges the Amended Claim fails to plead the tort of interference with economic relations properly. The plaintiff’s Amended Claim (para. 146) seeks to shoe-horn an interference claim into this action by alleging that the defendants’ actions in failing to train her, failing to address her complaints, etc. were all contrary to University policy and undertaken for the “predominant purpose” of causing injury to her.

[62] In my view, the plaintiff’s allegation of breach of policy is not sufficient. The Supreme Court of Canada has found this tort is one to be confined to “narrow bounds”: A.I. Enterprises Ltd. v. Bram Enterprises Ltd., [2014] 1 SCR 177, 2014 SCC 12 at para. 5. The wrongful act against the third party (i.e. the University) must rise to the level of being something that “would be actionable by the third party or would have been actionable if the third party had suffered loss as a result of it” (Bram Enterprises Ltd, at para. 5). Paragraph 146 fails to satisfy these requirements and should be struck.

(vi) Is the tort of negligent misrepresentation properly pleaded?

[63] The Amended Claim alleges the tort of negligent misrepresentation against the individual defendants only. In my view, the claim as pleaded is deficient and must be struck. The amended allegations are contained in paragraphs 136-137.

[64] The well-known components of the tort of negligent misrepresentation are (i) a special relationship; (ii) an untrue, inaccurate or misleading representation; (iii) negligence in the making of it; and (iv) reasonable reliance upon it resulting in damages by the plaintiff.

[65] The first aspect – special relationship – is attempted to be covered off with a blanket statement that each of the defendants owed her a duty by virtue of her “trust, confidence, reliance, dependence and vulnerability” to them with respect to her training and her medical career.

[66] While evidence is not required in a pleading, particulars are. There are six individual defendants who played vastly different roles during the course of the plaintiff’s sojourn at the University. It is not the case that virtually every University employee in any way connected with a student’s career owes a personal duty of care to the student while undertaking their duties. If a special relationship is to be found, facts particular to each individual defendant must be pleaded establishing why, for each of them, it was reasonably foreseeable that the plaintiff would rely upon representations made by them and that such reliance would be reasonable: Hercules Managements Ltd. v. Ernst & Young, [1997] 2 SCR 165, 1997 CanLII 345 (SCC). If there is to be an individual duty of care, it must arise from facts peculiar to the relationship of each individual with the plaintiff and not simply an attribute of their employment (which would engage the liability of the University but not the individuals). Paragraph 135 of the Amended Claim does not pass this test.

[67] The second requirement is that the representations be untrue, inaccurate or misleading. The representations are listed in amended paragraph 136: that she would be provided “an optimized training environment”; that she would be treated the same as other residents; that her training would be fair and unbiased; and that she would receive “regular and constructive feedback throughout her rotations”.

[68] The pleading contains no particulars of which defendant made which representation to her and when. Was it before she became a resident in 2006? Was it when she came back under the July 2010 agreement? It is impossible for any one defendant to know what they are alleged to have said and when. The pleading is obviously bald and deficient.

[69] The third requirement is that the representations be made negligently. The allegations made (at para. 137) are that the representations were “false” and that the defendants were “malicious and high handed”. Such allegations go well outside the scope of negligence and enter the realm of deceit without mentioning it by name. The pleading contains insufficient particulars for either cause of action, the requirement for particulars being especially acute in the case of actions for deceit. A bare statement of negligence or malice will not survive challenge if not bounded by sufficient pleaded facts to support them. Allegations of dishonesty and deceit are not to be casually tossed off as a mere pleading formality –allegations of this sort that prove baseless may attract very severe consequences for the maker.

[70] Finally, the pleading must establish reasonable reliance to the detriment of the plaintiff. It may be hard to imagine a claim failing on this basis, but this case does. The plaintiff has failed to plead how she relied upon any of these representations. To the contrary, the pleading suggests that she tried to find another school to take her and only came back to the University when she failed to find any other that would accept her.

[71] The negligent misrepresentation allegations continue to suffer from the obvious impediment of making allegations about representations made in a professional capacity. The Amended Claim seeks to skirt this impediment by claiming (in para. 139) that, “in the alternative, if it is determined that the Individual Defendants were acting within the scope of their authority” that the University is vicariously liable. This alternative pleading, repeated for the same purpose in paragraph 128 (negligence) and 145 (conspiracy) is tacit recognition of the failure of the pleading to clear the hurdle of pleading facts that would establish a separate identify of interest.

[72] The requirement to plead a separate interest that the courts in Lobo and Peoples Jewellers referred to is not satisfied by a bare pleading that the employee acted outside the scope of his or her authority. The pleading adds nothing because no employees are given license by their employers to engage in tortious behaviour. The scope of actual authority fixes neither the limits of vicarious liability (c.f. Bazley v. Curry, [1999] 2 SCR 534, 1999 CanLII 692 (SCC)) nor the bounds of the separate identity that must be established to impose liability upon employees for actions undertaken while acting as such: Peoples Jewellers and Lobo.

[73] The strong inference to be drawn from representations made in the context of the professional relationship between the plaintiff student and the defendant employees of the University is that the defendants were each acting in that capacity. That inference will only be displaced by the pleading of very specific facts to establish a separate identity of interest.

[74] No adequate pleading to establish such a separate identity is to be found here. There is instead a bald allegation that the individuals acted “outside the scope of their authority” and that they were “malicious and high handed”. In my view this perfunctory amendment does not satisfy the requirements of Peoples Jewellers or Lobo and I would dismiss the negligent misrepresentation claim for that reason as well.

[75] For these reasons, the negligent misrepresentation claim (paragraphs 135-139) must be struck.

[76] In my view, this claim not only fails to satisfy the minimum requirements of pleading this tort, but also demonstrates the truth of Morgan J.’s observation that the plaintiff has gone to considerable lengths to “window dress” this claim to preserve claims against the individual defendants as well as the University. The claim is so weak and implausibly expressed as to strongly imply an intent to abuse the process of the court by trying to bring the defendants into the action under any pretext. The court is under no duty to be an auxiliary in that quest.

[77] Clearly meritless claims such as this should be struck before they have inflicted more harm on the plaintiff vainly pursuing them instead of focusing her efforts on claims with some chance of success, on the defendants constrained by law to respond to them and on the justice system devoting limited resources to assess them: R. v. Imperial Tobacco Canada Ltd., [2011] 3 SCR 45, 2011 SCC 42 at paras. 19-20.

(vii) Does the Amended Statement of Claim seek to challenge matters of unreviewable academic discretion?

[78] The moving parties contend that paragraphs 26, 35, 51, 53, 60, 92, 98, 99, 115, 127, 129 and 133 of the Amended Claim relate directly to the unreviewable exercises of academic discretion and disclose no reasonable cause of action.

[79] The plaintiff complains – with some justification – that this was not raised on the first motion. Given that the plaintiff has returned to the well with a comprehensive set of amendments that is being challenged, I can see no prejudice to allowing the defendants the indulgence of expanding the scope of this motion by adding this additional challenge that might have been more timely if advanced at the first motion before Morgan J. Further, at least some of the impugned paragraphs have been the object of amendment in any event.

[80] Universities fulfill a number of functions. Two prime functions of a university include providing a community to foster and advance academic research and the instruction of students. These two functions create numerous opportunities for conflict to emerge. Academic freedom to pursue research does not always co-habit happily with the demands for instruction and evaluation of students. Some students seek no more than to pursue knowledge for its own sake, others to put in place the building blocks of a career. While universities are not as such immune from civil suit, it is also true that the civil court system is singularly ill-suited to act as an all-purpose appellate tribunal of its actions.

[81] If the pith and substance of the complaint is academic decision, the claim cannot proceed in the civil court system: Jaffer v. York University, 2010 ONCA 654; Gauthier c. Saint-Germain, 2010 ONCA 309. While both of those cases concerned claims that directly or indirectly sought to reverse academic decisions even if couched in the language of tort or contract, I do not interpret the principles established by those cases to be so narrow as to permit academic decisions to be indirectly appealed to the court by the simple device of limiting the claim to damages. In Jaffer, Karakatsanis J.A. (as she then was) found (at para. 28) that Rule 21.01(1)(a) or Rule 25.11 might be resorted to “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” (emphasis added).

[82] In reviewing the 12 paragraphs attacked, I perceive my task as being to determine whether facts have been pleaded that may take the issue beyond the unreviewable “broad discretion” that university actions enjoy. The label “academic discretion” cannot be applied as a simplistic guillotine to chop off any cause of action, whether in tort or in contract, that might seem somehow related to the world of academe. There is a continuum on which “academic” decisions can be placed. Some, such as what students to admit or what grade to give a particular paper, for example, will clearly fall outside of the realm of actionable decisions. Others may be closer to the line and must be examined.

[83] As well, a distinction between judicial review and tort and contract claims must be made. We are here concerned only with tort and contract claims – a determination that a given claim is within the realm of protected academic discretion does not imply that the process by which the decision is made is immune from review for such matters as procedural fairness. The matter of judicial review is simply not before me.

[84] I turn now to a consideration of each of the paragraphs.

[85] Paragraph 22 pleads that certain actions of Dr. Lum in 2006 during a rotation at Victoria Hospital were “difficult interactions” and resulted in daily belittling and berating comments by Dr. Lum. Dr. Lum is the individual whose actions first moved her to file a complaint that year which she claims resulted in reprisals. Paragraph 26 pleads that these actions exacerbated her medical condition and were a breach of fiduciary duty as well as a breach of an express or implied contractual duty to provide “mentoring, supervision, training and education”.

[86] This is not a human rights complaint. The claim is that Dr. Lum’s actions were a breach of the universities contractual duties to provide her with mentoring and training. Even if the contractual duty were established, the scope and operation of those functions fall well within the scope of non-reviewable academic discretion described by Karakatsanis J.A. (as she then was) in Jaffer. I would strike this claim.

[87] Virtually the same allegation is repeated in paragraph 35 and I would strike it for the same reasons.

[88] Paragraph 51 alleges that the University breached its duties by failing to address the refusal of Drs. Lum and Zaleski to train her, thereby failing to provide her with proper supervision, training and education. This claim is even more directly one challenging non-reviewable academic discretion and I would strike it for the reasons applicable to paragraphs 26 and 35.

[89] Paragraph 53 pleads that Dr. Amann restored to her academic record a previously removed failed evaluation and added further comments relating to her health status “that were supposed to remain confidential” with the effect of causing her distress and increasing her distrust of the program. The maintenance of academic records by the University is clearly a matter of unreviewable academic discretion. I would strike this paragraph.

[90] Paragraphs 60 and 92 repeat similar allegations of failing to provide proper training, supervision and education by reason of failing to address the “hostile work environment” pleaded or failing to respond to an emailed complaint made by the plaintiff. The scope of proper supervision, training and education are matters that fall within the broad discretion of the University described in Jaffer, I would strike both paragraphs.

[91] Paragraphs 98 and 99 alleges that three of the individual defendants “pressured and forced” other residents in the Radiology Residency Program to submit negative reviews of the plaintiff. Such reviews go to the core of the process of evaluating a student. I would find the process to fall within the scope of protected academic discretion and strike those two paragraphs.

[92] Paragraph 115 faults the University for failing to have conducted an independent investigation of the complaints made against her that resulted in her dismissal. I would find that the conduct of an internal investigation and complaints process to be within the realm of academic discretion that is protected from suit. What administrative law remedies are or were available to her in respect of that investigation is an entirely different matter. I would strike paragraph 115.

[93] Paragraphs 127 and 129 contain broad allegations of negligence against the individual defendants and the University. These allegations are all focused on matters such as mentoring, supervision or assessment – all matters that might be the object of administrative law proceedings but which cannot give rise to civil claims in negligence. I would strike both paragraphs.

(viii) Leave to Amend

[94] I am quite conscious that leave to amend should be denied in only the clearest of cases.

[95] In my view, this is such a case where leave should be denied as regards the claims against the individual defendants in particular.

[96] The bald and utterly insufficient nature of the allegations made against the individuals suggests other motives are at work and the effort may in fact be directed at tactical and other goals. This second attempt to insert the individuals into the case was not only unsuccessful but appeared to me to have been quite contrived. Given leave to amend, I have no doubt the plaintiff will make further allegations that will be further and further divorced from any evidence that she actually possesses or reasonably believes can be obtained.

[97] Drafting or amending a claim is not intended to bring out the plaintiff’s inner novelist. Litigation is serious stuff and should only be pursued seriously. If this cycle is not ended here and pleadings closed, it will repeat over and over again until someone runs out of time, money or patience. It is not in the interest of any party – including that of the plaintiff – to go down that road.

[98] This plaintiff has now had two chances to frame a credible case against the individuals she seems determined to subject to this litigation. She has failed both times. The justice system has been fair to her, it is time she was fair to it. She may have her day in court to air her substantive complaints against a substantive party who stands ready, willing and able to come to grips with them. The University has not sought to strike the contractual, fiduciary duty or negligence cases made against it. I would therefore deny the plaintiff leave to amend as regards the claims against the individuals. The claims against all of them are dismissed.

[99] I would grant the plaintiff leave to amend her claims against the University relating to academic discretion only. I am not suggesting that she do so, merely recognizing that the arguments for denying leave apply with less force in the case of those claims that I have struck.

Disposition

[100] The motion is granted in the terms of paragraphs (a)-(g) of the Amended Notice of Motion and the claim is dismissed as against the individual defendants.

[101] Leave to amend is denied with the exception of paragraph (g) of the Amended Notice of Motion for which leave to amend is granted solely as regard claims against the University.

[102] The moving parties are entitled to their costs. The parties provided me with their outlines of costs at the conclusion of argument. The successful defendants sought $5,833.55. The unsuccessful plaintiff sought $8,873.67, in both cases on a partial indemnity basis and inclusive of disbursements and HST. I find the defendants submission to be fair and reasonable having regard to the criteria in Rule 57.01. I therefore order the plaintiff to pay the costs of the moving parties fixed in the amount of $5,833.55 forthwith.

S. F. Dunphy J.

Date: March 11, 2016