Court File and Parties
COURT FILE NO.: 066/16 DATE: 20160509 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Tahare Amrane, Plaintiff/Responding Party AND: York University, Defendant/Moving Party
BEFORE: Dambrot J.
COUNSEL: Ashley P. Richards, for the Defendant/Moving Party James Morton, for the Plaintiff/Responding Party
HEARD: In writing
Endorsement
Background
[1] York University (“York”) seeks leave to appeal from the order of Faieta J. dated January 15, 2016 dismissing York’s motion to strike the plaintiff’s claim on the basis that it was statute barred and that it did not assert a reasonable cause of action.
[2] The plaintiff pleads that he was an undergraduate student at York in the 2006-7 academic year and took a course called English 2510. He received a D for that course. As part of the course, he submitted written assignments. He sought the return of the assignments in order to understand the basis of his grade, and also sought to have the grade explained to him. He pleads that his requests were ignored or declined.
[3] The plaintiff pleads that he continued to pursue his requests from 2009 to 2015. Specifically, in 2010, he petitioned the English department and the principle of Glendon College, and thereafter, on unspecified dates, he reviewed the matter with the conflict resolution office/tribunal of York; he discussed the matter with the vice-principal of Glendon; he petitioned the academic vice-provost of York; he reviewed the matter with the Ombudsman of York; he discussed the matter with the Ministry of Training, Colleges and Universities; he discussed the matter with the York Chief of Staff; and he contacted the Board of Governors of York.
[4] The plaintiff pleads that he had a contractual relationship with York that included provisions that: grades and the grading process would be fair, explicable and transparent, and that there would be an effective and independent system of resolution of disputes with regard to grading issues. With respect to the specific course, he pleads that the contract included provisions that: graded papers be returned with comments and instructors would be available to discuss and explain grades. He pleads that these terms were breached.
[5] York argued:
- The claim was clearly beyond the two-year limitation period: as the limitation period for a breach of contract runs from the date of the breach, there is no issue of discoverability.
- The alleged misconduct falls within the broad margin of academic discretion and is insufficient to establish a cause of action.
[6] In his decision, the motions judge said:
- The limitation period for a claim based on an alleged breach of contract does not necessarily commence on the date of the breach, and it is not plain and obvious that no additional facts could be asserted to alter the conclusion that the limitation period has expired.
- This is not an indirect effort to appeal an internal academic decision instead of seeking judicial review, and the plaintiff has sufficiently pleaded contractual terms to show that the university went beyond the scope of its discretionary powers.
[7] As a result, he said York has not demonstrated that the Claim clearly has no merit, and dismissed the motion.
Test for Leave to Appeal
[8] The test for granting leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure is well-settled. Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.”
[9] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to very serious debate. In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice.
Analysis
[10] I am of the view that leave should be granted.
[11] I will deal first with the limitation period issue. The plaintiff’s sole complaint in this case relates to a grade he received in a single course in the 2006-7 academic year. The only breach of contract that he alleges is the failure to return his assignments and explain his grade during that academic year.
[12] The plaintiff commenced his claim approximately eight years after the conclusion of the 2006-7 academic year. Even if there is doubt about the precise date from which the two-year limitation period runs in this case, there is good reason to doubt that it can be perpetually extended by the simple expedient of repeated requests for redress. More specifically, there is good reason to doubt the correctness of the determination of the motions judge that it is not plain and obvious that no additional facts could be asserted to alter the conclusion that the limitation period has expired. This raises a significant issue with respect to limitation periods in breach of contract claims. Accordingly, the test in Rule 62.02(4)(b) is met with respect to this issue.
[13] Second, with respect to the academic dispute issue, the plaintiff has pleaded nothing more than bald assertions that he had a contractual relationship with York, that the contract includes the provisions I mentioned above, and that they were breached. He has failed to plead with specificity the nature of the contract, the source of the asserted terms of the contract, material facts to support the allegation that York breached those terms and how any breach was beyond the academic discretion of the university.
[14] There is good reason to doubt the correctness of the determination of the motions judge that the plaintiff has sufficiently pleaded contractual terms to show that the university went beyond the scope of its discretionary powers. This also raises a significant issue regarding the proper basis for contractual claims involving universities. Accordingly, the test in Rule 62.02(4)(b) is met with respect to this issue as well.
Costs
[15] I reserve the question of costs to the panel hearing the appeal.
M. DAMBROT J. Date: May 9, 2016