COURT FILE NO.: CV-13-4 DATE: 20170630

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SASHA BETH STASKO Plaintiff – and – THE UNIVERSITY OF TORONTO, GEORGE K.B. SANDOR, CAMERON M.L. CLOKIE and HOWARD IAN HOLMES Defendants

Counsel: Myron W. Sholgan, Q.C., for the Plaintiff, Responding Party William E Pepall and Christopher T. Shorey for the Defendants, Moving Parties

Heard: March 30 and 31, 2017

L. A. Pattillo J.:

Introduction

[1] The defendants, the University of Toronto (the “University”), Cameron M.L. Clokie (“Dr. Clokie”) and Howard Ian Holmes (Dr. Holmes”), seek summary judgment dismissing the plaintiff’s, Sasha Beth Stasko (“Dr. Stasko”), action against them in its entirety. Dr. Stasko’s action against the defendant George K.B. Sandor (“Dr. Sandor”) was discontinued on October 24, 2012.

[2] Dr. Stasko’s action against the University and the individual defendants arises out her enrollment in the University’s Faculty of Dentistry’s Oral and Maxillofacial Surgery and Anaesthesia program in July 2007, her sub-standard performance in Year 1 of the program and the events that followed. Dr. Stasko claims damages for breach of contract, negligence and breach of fiduciary duty (the “Action”).

[3] For the reasons that follow, I allow the defendants’ summary judgment motion and dismiss Dr. Stasko’s claims and accordingly the Action in its entirety.

The Facts

[4] The following are my findings of fact from the Record filed. Most of the facts are not in dispute. To the extent there is a dispute, while I have noted it, I do not consider that it affects the issues I have to decide.

1) The Parties

[5] Dr. Stasko received her Doctor of Dental Surgery degree from the University of Detroit Mercy in 2003 and completed a two-year general practice residency at Harvard University in Cambridge, Massachusetts in 2004. Dr. Stasko has been practicing as a Periodontist in Windsor, Ontario, since the fall of 2012.

[6] Each of Drs. Clokie, Holmes and Sandor were members of the University’s Faculty of Dentistry (the “Faculty”) and professors in the Oral and Maxillofacial Surgery and Anaesthesia program (the “Program”) during the material times. Dr. Clokie was the head of the Program until June 2008 and was succeeded by Dr. Sandor. Dr. Holmes was the head of the Program prior to Dr. Clokie.

2) The Program

[7] The Program is a graduate program given by the Faculty which meets the CDA educational accreditation guidelines for eligibility for Specialty, Fellowship or Board Certification in Oral & Maxillofacial Surgery & Anaesthesia. As outlined in the Faculty’s 2007-2008 Resident Policy Manual for the Program, it is four years in length and involves a combination of clinics and classroom studies. It is comprised of three core courses which continue throughout each year of the Program, OMFS 1: The Physiological Basis for Disease; OMFS 2: Principles and Practice of Oral Maxillofacial Surgery; and OMFS 3: Evidence-based Literature Reviews in Oral and Maxillofacial Surgery.

[8] The Program’s academic year is divided into two semesters: July to December and January to June. Participants are evaluated weekly for participation and attendance at academic teaching rounds. Semi-annual examinations, which include both written and oral components, are held in December and in late spring.

[9] OMFS 1, 2 and 3 were evaluated according to weightings of the student’s weekly participation and presentation, performance on written and oral examinations, clinical progress which was evaluated semi-annually and recorded using the University’s In-Training Evaluation Report (“ITER”), and the student’s percentile score on the OMSSAT. Clinical performance is an important component of the Program.

[10] As stated in the Faculty’s 2007-2008 Calendar (the “Calendar”), any mark below 70%, a B-, was considered a failure in the Program and would receive the letter grade FZ. A failure of any course in the Program could lead to termination of registration in the Program. In order to advance to Year 2 of the Program, an overall grade average of 70% was required.

3) Dr. Stasko’s Performance in Year 1

[11] Although she began her first year in the Program in July 2007, Dr. Stasko was delayed in participating in clinics until August 2007, as she could not practice dentistry in Ontario until she received her certificate from the Royal College of Dental Surgeons for Ontario.

[12] In December 2007, Dr. Stasko performed poorly on her first semester written and oral examinations. On January 8, 2008, Dr. Stasko met with Drs. Clokie, Holmes and Sandor to discuss her mid-term performance. The parties have different recollections of what was discussed at the meeting. Briefly, Dr. Stasko says that she understood that she was being told she did not perform to the expectations of her past academic achievements. She says she was not told her marks or that if her performance didn’t improve, she would not be permitted to continue. Dr. Clokie’s evidence is that they discussed Dr. Stasko’s oral and written examination results at length. They told her where she should focus her efforts, and discussed the clinical issues she was having at length and told her that if she could improve her clinical result, she should not have a problem with the Program.

[13] In May 2008, while Dr. Stasko passed her final oral examinations, her marks were barely passing and were therefore not good enough to bring her overall grade to a pass. On May 12, 2008, following her exam on May 5, 2008, Dr. Stasko met with Drs. Clokie, Holmes and Sandor to discuss her performance in the Program. Once again, there is a dispute between Dr. Stasko and the defendants as to what was said at the meeting which I will address later in these reasons.

[14] In a follow-up meeting shortly thereafter, Dr. Stasko advised Drs. Clokie and Sandor that she was having personal problems relating to her husband’s health that were affecting her performance in the Program. It was agreed that Dr. Stasko would take a month off from the Program. Upon her return, she would catch up on the clinical time she had missed due to both her late start in the Program and the month off, increase her clinical scores and re-take her final oral examinations in September 2008.

[15] In order to facilitate Dr. Stasko re-taking her final exams, Drs. Clokie, Holmes and Sandor refrained from submitting her failing clinical and oral examination scores to the Faculty administration but instead showed her scores as IPR, or “In Progress” and advised the administration that Dr. Stasko was taking time off for personal reasons.

[16] Dr. Stasko returned to the Program from her leave of absence on June 23, 2008. Unfortunately, her performance in the Program did not improve. Her clinical results remained poor. On September 3, 2008, she repeated her spring oral exams. She failed two of the four sections of her oral examinations. She was given the further opportunity of a final re-take on October 6, 2008 of the two sections that she failed in September, but her performance did not improve and she again failed. Although Dr. Stasko passed three ancillary courses, Anatomy, Oral Radiology and Oral Pathology, she failed her three core courses, OMFS 1, 2 and 3 with marks of 57%, 63.4% and 61% respectively.

4) Dr. Stasko Choses to Withdraw from the Program

[17] On October 9, 2008, Dr. Stasko met with Dr. Sandor, Ms. Lori Mockler, the Graduate and Postgraduate Programs Officer for the Faculty and Ms. Margaret Edgehill, the Registrar and Manager in the Student Services Office at the Faculty. At the meeting, Dr. Stasko was given several preliminary options about how to resolve the issues of her performance in the Program. She was given until October 20, 2008 to decide whether to:

a) appeal her failing grades in OMFS 1, 2 and 3; b) apply for a leave of absence and return to repeat her first year in June 2009; c) repeat her first year beginning in November, 2009; or d) withdraw from the Program.

[18] The next day, October 10, 2008, Ms. Mockler wrote an email to Dr. Stasko summarizing the options that were outlined to her and discussed at the October 9, 2008 meeting and also advising her that option (c), concerning repeating Year 1 in November, 2009, was not possible from a scheduling and logistical point of view.

[19] On October 20, 2008, Dr. Stasko wrote to Ms. Mockler and advised that she would be appealing her failing grades once she received a formal statement of them.

[20] On October 21, 2008, Dr. David Locker, the Associate Dean of Graduate/Postgraduate Studies, wrote to Dr. Stasko pursuant to the discussion which took place at the October 9, 2008 meeting, and informed her that she had received a grade of failure for OMFS 1, 2 and 3. The letter stated: “Failure of these courses constitutes a failure of Year 1 and based on your overall inadequate progress to date, you are not permitted to enter Year II of the M.Sc. (Oral and Maxillofacial Surgery & Anaesthesia) program.” The letter went on to list the four options discussed at the October 9 meeting (excluding option (c)) and requested a response by October 24, 2008.

[21] On October 22, 2008, Dr. Stasko sent an email to Dr. Locker invoking the Academic Appeals process of the University and requesting an informal meeting with Dr. Sandor, Dr. Locker and any other required faculty in order to resolve the issues surrounding her performance and resulting evaluations of the past academic year. She indicated that her husband’s health had become “vastly more stable” and she felt confident that if given another opportunity to defend her knowledge, she would be better capable of proving the merit of her progression to Year 2 of the Program.

[22] On October 31, 2008, Dr. Stasko met with Dr. David Mock, the Dean of the Faculty of Dentistry and Ms. Edgehill, as Dr. Sandor (now the head of the Program) and Dr. Locker were away. They discussed Dr. Stasko’s issues and rescheduled the meeting for November 14, 2008 to include Dr. Sandor.

[23] On November 14, 2008, Dr. Stasko met with Dean Mock, Dr. Locker, Dr. Sandor and Ms. Edgehill. Dr. Stasko stated that she no longer wanted another attempt at her final oral examinations, but wanted her failing grades reversed immediately, wanted to appeal her failing grades and wanted to proceed in her second year.

[24] Dr. Stasko was advised at that meeting that there were five options available to her which were being offered by the University:

Option 1: Appeal her failed grades to the Graduate Academic Appeals Board (GAAB) and petition to remain in second year pending the results of the appeal; Option 2: Apply for a leave of absence and return to complete her failed courses in July 2009 (retaining credit for her passed courses); Option 3: Request a retroactive withdrawal with guaranteed readmission into first year in July 2009. This would clear her academic record, for both her failed and passed courses; Option 4: Withdraw from the Program with guaranteed readmission in July, 2009. This would not clear her academic record, but she would retain credit for her passed courses; or Option 5: Withdraw from the Program.

[25] On November 20, 2008, Dr. Stasko had a further meeting with Dean Mock at her request during which it was explained to her that she could not have a retroactive withdrawal from the Program and still appeal her grades.

[26] On November 20, 2008, Dr. Locker wrote to Dr. Stasko in follow-up to the November 14, 2008 meeting and set out in detail the five options that were offered by the University and available to her.

[27] On November 25, 2008, Dr. Stasko wrote to Ms. Edgehill indicating that she accepted Option 3, to retroactively withdraw from the Program and have her academic record changed to a withdrawal from all courses. Dr. Stasko further advised that she would tell the University by January 5, 2009 whether she intended to return to the Program to re-do Year 1 beginning on July 1st 2009.

[28] On November 28, 2008, Dr. Stasko signed a School of Graduate Studies Program Withdrawal Form which indicated that she was retroactively withdrawing from the Program effective October 31, 2008. The reasons cited were “Personal/family”. On the same day, Dr. Stasko also signed a Course Add/Drop form indicating that the grade of “withdrawn” would be applied to all courses registered in two sessions in 2007 and one in 2008.

[29] On December 9, 2008, Dr. Stasko was accepted into the Graduate Periodontics Program at the University Of Detroit Mercy School Of Dentistry, beginning July 1, 2009. Dr. Stasko included in her application a letter from the University indicating that she had withdrawn from the Program at the University without any academic penalty.

[30] Contrary to her statement that she would tell the University if she was going to return to Year 1 of the Program by January 5, 2009, Dr. Stasko never advised the University of her intentions.

[31] Instead, on January 28, 2009, Dr. Stasko wrote to Ms. Edgehill in response to the latter’s letter attempting to resolve the remaining financial issues and advised that she was “dissatisfied” with how her issues had been handled, that she was in active discussions with legal counsel and to hold off proceeding with the financial matters until further notice.

[32] On February 6, 2009, legal counsel for Dr. Stasko wrote to the Chair of the GDAAC and requested leave to appeal Dr. Stasko’s three failing grades. On April 7, 2009, the GDAAC granted Dr. Stasko leave to appeal.

[33] On June 23, 2009, Dr. Stasko filed lengthy Appeal Submissions with the GAAB. Dr. Stasko requested that her retroactive withdrawal from the Program, which resulted in her transcript being erased, be set aside and that her grades for Year 1 be reinstated, including passing grades for the courses she failed. The Submissions stated, in part, that at no time prior to October 2008, had she been given any real feedback or concrete information that she might fail the three courses and be unable to continue in the Program (para. 7); that despite repeated requests, she never was provided with the written evaluations relevant to her academic year (para. 9); she was denied the opportunity to redress any concerns (para. 16); and she was not treated fairly nor was her performance objectively evaluated (para. 17).

[34] At some point, Dr. Stasko’s appeal was transferred from the GDAAC to the Graduate Academic Appeals Board (“GAAB”). On November 17, 2008, the Chair of the GAAB raised with counsel the question of whether there was an appeal to be heard given that Dr. Stasko had withdrawn from the Program and whether the GAAB had jurisdiction.

[35] Counsel for Dr. Stasko and the University subsequently agreed on a timetable to file written submissions and appear before the Chair of the GAAB to make submissions. While the University filed its written submissions, no written submissions were ever filed on behalf of Dr. Stasko nor were there ever any submissions before the GAAB on the issue. As a result, the Faculty considers and Dr. Stasko concurs that her appeal of her grades was abandoned.

[36] On September 22, 2011, Dr. Stasko commenced the Action by issuing a Statement of Claim.

[37] Dr. Stasko alleges in her Statement of Claim that the defendants breached obligations owing to her in contract, tort and as a fiduciary. In general, Dr. Stasko alleges that the defendants failed to advise her during the academic year that her level of performance was substandard to permit her to improve, failed to follow University policy or objectively evaluate her and failed to provide her with documentation on which she could pursue an appeal of the grades assigned to her. She claims damages as a result of the breaches.

Summary Judgment

[38] In a summary judgment motion pursuant to r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), the court is required to determine whether there is a genuine issue requiring a trial. There will be no genuine issue requiring a trail where the judge is able to reach a fair and just determination on the merits and where the material filed on the motion: (i) allows the judge to make the necessary findings of fact; (ii) allows the judge to apply the law to the facts; and (iii) is a proportionate, more expeditious and less expensive means of achieving a fair result: Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at paras. 32, 49-51; Fernandes v. Carleton University, 2016 ONCA 719 at para. 28.

[39] Where there appears to be a genuine issue for trial, it is necessary for the court to then determine whether the need for a trial can be avoided by using the powers granted under r. 20.04(2.1) (weighting evidence, evaluating credibility and drawing reasonable inferences) and r. 20.04(2.2) (hearing oral evidence), provided the use of such powers is not against the interest of justice.

[40] As noted at the outset, most of the facts in the record are not in dispute. The disputes relate primarily as to what Dr. Stasko was told by the Faculty during Year 1 and following both her December 2007 and May 2008 examinations. As will become apparent, those disputes are not material or necessary to decide to resolve the issues raised by the parties. That said, I will briefly provide my views in respect of the two main areas of dispute concerning the January 8, 2008 and May 12, 2008 meetings concerning her performance in Year 1 of the Program.

[41] I do not consider the evidence of both parties regarding the January 8, 2008 meeting to be that different. The fact that Dr. Stasko did not do well in her December examinations and had to improve going forward was communicated to her in a manner, in my view, intended to encourage her to improve in the second term. What is important, however, is that I consider that she understood that it was necessary going forward that she improve her performance to pass Year 1.

[42] The evidence regarding the May 12, 2008 meeting is, however, more in dispute. Dr. Stasko’s evidence of the meeting is set out at paragraph 26 of her affidavit:

26. Later in May, 2008 I met with members of the faculty to review my performance. Again, I was not told the marks I had been assigned. I was not told that I had not performed to an acceptable level. I was not advised that I had not achieved passing grades. I do acknowledge that I was encouraged to redo my oral exams in September, 2008. But the reason for which I was encouraged to do so was to better prepare me for the manner in which I responded to questions when it came time for me to take oral exams administered by the Royal College of Dental Surgeons. I was not told that if I did not do better on the oral exams in September, 2008 I would not be permitted to progress to PGY2 status.

[43] At 2:01 a.m. on May 13, 2008, after the meeting, Dr. Stasko sent an email to Drs. Clokie, Sandor and Holmes with the subject line: Meeting. In the email, Dr. Stasko thanked the doctors for their honesty that evening. She stated she continued to want to be in the Program and eventually an oral surgeon. She said that she was unable to communicate what she really wanted to that evening due to a recent “family emergency” involving her husband. She indicated she hoped that one or all of the doctors would be available for a chat with her sometime later in the week so that she could enlighten them on her “most recent very personal events”. She indicated that they “may also find answers as to why you are disappointed that my performance does not match my resume.”

[44] Dr. Clokie discusses what took place at the May 12 meeting at paragraphs 39 to 43 of his affidavit:

39. On May 12, 2008, Dr. Holmes, Dr. Sandor and I had a meeting with Dr. Stasko to formally review her performance from January to May 2008, including her oral examination results, her clinical performance and research progress, her presentations and her OMSSAT score.

40. On a positive note, her OMSSAT score was very good. She ranked in the 84th percentile. She had also passed her oral exams, although, as noted above, it was a bare pass. We specifically gave her the marks, so she was aware that she had failed one of the four oral examination sessions. At that meeting, we told her that if we put her marks into the formula to calculate her overall results, she would probably fail because of the concerns with her clinical performance and her results from her first term examinations. We recommended that she retake the spring oral examinations to get a better grade. We were doing everything we could to assist her to pass her year. Our goal was to make her the best oral and maxillofacial surgeon she could become.

41. We also discussed with her that we had received numerous complaints from her co-residents that she was not meeting her responsibilities in the program. When a senior resident gave her a direction, she would ignore it and instead do what she thought was right. This is not appropriate in a teaching environment. The decision-making hierarchy that exists in a clinical teaching setting is necessary to preserve patient safety and care while also providing learning opportunities. By refusing to follow the directions of the senior residents, Dr. Stasko was putting patients at risk. This was particularly so given that her judgment about how best to manage a patient’s care was so often wrong.

42. We told her we felt her performance on the examinations demonstrated a lack of concentration, and a lack of the intellectual development that we expected her to have at that stage of her studies. In that meeting, either Dr. Holmes or I asked her if she really wanted to be an oral and maxillofacial surgeon. Frankly, we wondered if she was in the right discipline, given her poor clinical and academic performance.

43. We were also concerned that the issues in Dr. Stasko’s performance could be related to personal issues she was experiencing, although she did not share any with us at that time.

[45] I prefer Dr. Clokie’s version of what took place at the May 12, 2008 meeting to that of Dr. Stasko. In my view, her email shortly after the meeting betrays her now version of events. Specifically, I find that she was given her marks (orally); she was told she would not pass and she was encouraged to re-take her oral exams to better her marks, not to better prepare her for the Royal College orals.

[46] I also do not accept Dr. Stasko’s evidence that the first time she learned that she had not achieved a satisfactory level of performance in Year 1 was on October 9, 2008. She was aware both following the first semester exams in December 2007 and again following her May 2009 exams that her performance in Year 1 of the Program was not satisfactory. She also knew that she was being allowed to re-do her oral examinations to enable her to get her marks above a passing grade. She knew that had not happened at the September 2008 examinations. To say she was “shocked” to learn she had not achieved a passing grade following the October examinations (the second time she was allowed to re-do them) is simply not credible, in my view.

Position of the Parties

[47] The defendants submit that Dr. Stasko’s claims cannot succeed against them based on the following three defences which they have pleaded, any one of which, they further submit, provides a sufficient basis to grant summary judgment:

1. The court has no jurisdiction to hear Stasko’s claim. She has no cause of action because her claim is subject to the exclusive jurisdiction of the University’s Internal academic appeal provisions;

2. Dr. Stasko’s claim is an abuse of process as she already resolved this dispute by seeking and being granted a voluntary withdrawal from the Program. Dr. Stasko cannot retain the benefit of the agreement and at the same time pursue her claim; and

3. Dr. Stasko’s claim is statute barred by the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B (the “Act”).

[48] Dr. Stasko takes issue with all three defences put forward by the defendants. She submits that in accordance with the Court of Appeal’s decision in Gauthier v. Saint-Germain et al. 2010 ONCA 309, [2010] O.J. No. 1771 (C.A.) and cases that follow, the court has jurisdiction to entertain a claim for breach of contract even where the dispute stems from academic or educational activities in the university. Given the claims being asserted by her in the Action, Dr. Stasko submits this court has jurisdiction.

[49] In respect of the alleged agreement to withdraw, Dr. Stasko submits that there was no agreement. She submits there was no consideration given and the University’s offer was, in effect, a gratuitous offer with no conditions attached.

[50] Finally, she submits that she did not learn of the breaches by the University until after she commenced the Action in November 2009 and accordingly the Action was commenced well within the limitation period and is not statute barred.

Discussion

I. Jurisdiction

[51] It is well settled that upon being accepted into a university and paying the tuition, a contract is formed between the student and the university, the terms of which are governed by the university’s calendar. The relationship also gives rise to duties in tort. Bella v. Young, 2006 SCC 3, [2006] 1 S.C.R. 108 (S.C.C.) at para. 31; Wong v. University of Toronto, [1989] O.J. No. 970 (Ont. D.C.) at para. 18; affirmed [1992] O.J. No. 3608 (C.A.).

[52] In Wong, Justice Lang, as she then was, stayed Wong’s action against the University pursuant to r. 21.03 on the ground, among others, that the internal procedures of the University must first be exhausted before a claim may be made to the court. It was only if the University failed to exercise its jurisdiction fairly that he could have recourse to the courts.

[53] In Dawson v. University of Toronto, [2007] O.J. No. 591 (S.C.J.), aff’d 2007 ONCA 875, [2007] O.J. No. 4861, Perell J. dealt with a motion to dismiss the action under r. 21.01 (1) (b) and (c) on the grounds that it was plain and obvious that the plaintiff’s claims for damages could not succeed.

[54] Ms. Dawson, a Ph.D. student, was pursuing a degree in Dentistry with the University. She had difficulties in the program and was advised by a member of the faculty to allow her registration to lapse, finish her doctoral thesis outside the program, and then apply for reinstatement. After finishing her thesis, she applied for reinstatement but was denied. The denial was reviewed but ultimately upheld. She then sued the University for damages of $3 million for negligence, mental distress and breach of contract.

[55] After reviewing the complaint as set out in the statement of claim, Perell J. stated at pars. 17 to 19:

17 Having described the nature of her complaints, I agree with the defendants' submission that Ms. Dawson's grievances arise out of academic decisions or concern the academic procedures of the university.

18 Authorities such are Wong v. University of Toronto, [1989] O.J. No. 979 (Div. Ct.), affd. [1992] O.J. No. 3608 (C.A.); Zabo v. University of Ottawa, [2004] O.J. No. 1499 (S.C.J), affd. , [2005] O.J. No. 2664 (C.A.); Warraich v. University of Manitoba, 2003 MBCA 58, [2003] M.J. No. 138 (C.A.); Re Polton and Governing Council of the University of Toronto (1976), 8 O.R. (2d) 749 (Div.Ct.); Derakhshan v. University of Toronto, [2000] O.J. No. 1463 (Sm. Clm. Ct.) establish that apart from a judicial review function about procedural fairness and natural justice, the court does not have jurisdiction over matters of an academic nature. Where the essential character of the dispute is of an academic nature, the dispute remains exclusively a matter to be dealt with by the school's own procedures provided that the school does not breach the principles of natural justice.

19 I appreciate that not all conduct by a university is of an academic nature. The example of non-academic conduct, which I posed during argument, was a university that failed to maintain its premises and to perform its obligations as an occupier. If a person were injured, the university would be subject to a tort claim and perhaps a breach of contract claim. However, I have no doubt that Ms. Dawson's complaints are about academic matters. Her essential complaints are that her thesis work was insufficiently assisted and unfairly and incorrectly evaluated and that the procedure adopted by the university to determine whether she should have an opportunity to defend her thesis and complete her doctorate was contrary to the principles of natural justice. Her dispute is a disagreement about academic matters associated with the completion of her doctoral program and according to the authorities, these matters of university affairs are not the subject matter of breach of contract or tort claims.

[56] Gauthier, supra, was an appeal from an order striking the statement of claim pursuant to r. 21.01(3)(a) on the ground that the court lacked jurisdiction to hear and determine the subject matter of the action. Gauthier, who was a graduate student at the University of Ottawa, alleged that her studies were interfered with by her initial supervisor harassing and intimidating her and then delayed by his replacement who was inexperienced and incompetent. She claimed damages based on breach of contract, negligent misrepresentation, breach of duty of care, deliberate mental distress and intimidation.

[57] On the appeal, the respondents submitted, relying on Wong, Dawson and Zabo v. University of Ottawa, [2005] O.J. No. 2664 (C.A.), leave to appeal to the S.C.C. refused, [2005] S.C.C.A. No.354, that the Superior Court does not have jurisdiction to hear a case against a university if it involves questions of an academic nature. If the basic nature of the dispute is academic, they submitted that the court has no jurisdiction, even if the underlying action is based on torts or breach of contract and the redresses claimed aims to collect damages.

[58] In delivering the decision for the Court, Rouleau J.A. stated at para. 34 that in his opinion, the above cases did not establish such a broad principle. After discussing each of the three cases, the Learned Judge stated at paras. 46 and 47:

46. In my opinion, to determine if the court has jurisdiction, it is more telling to look at the redress claimed by the plaintiff. When one party seeks to reverse an internal academic decision rendered by a university, the appropriate action is a judicial review. However, if the plaintiff alleges factors that constitute a cause of action based on torts or a breach of contract, while claiming damages. The court has jurisdiction, even if the dispute stems from academic or educational activities of the university in question.

47. On the other hand, by registering at a university, it is understood that the student is subject to the discretion of that institution for the resolution of academic issues, namely for the evaluation of the quality of the student’s work, the structure and implementation of the university programs, as well as the identification of qualifications to act in the office of a professor or thesis supervisor. This discretion is very broad. Thus, simply claiming that an academic result is erroneous, or that a professor is incompetent will usually be insufficient to establish a cause of action based on a breach of contract or on the law of torts.

[59] Further, at para. 50, Rouleau J.A. sets out the circumstances where a court may exercise its jurisdiction to strike a cause of action either under r. 21.01(1) or r. 25.11.

[60] Dr. Stasko submits that Gauthier establishes that the court has jurisdiction to entertain a claim for breach of contract even where the dispute stems from academic or educational activities in the university.

[61] In Jaffer v. York University, 2010 ONCA 654, [2010] O.J. No. 4252 (C.A.), at para. 22, Karakatsanis J.A. (as she then was) described the ratio in Gauthier as follows:

22. …. Gauthier has clarified that the decisions of this court upholding the dismissal of claims relating to academic matters did not do so on the basis that the court lacked jurisdiction pursuant to r. 21.01(3)(a), but rather under r. 21.01(1) because the pleadings did not disclose a reasonable cause of action based upon contract, tort, or negligence or under r. 25.11 because the cause of action was untenable in law.

[62] What Gauthier does not do, in my view, is interfere with the principle, long established, that if the true character of the complaint is of an academic nature, that is a compliant that has or should have been dealt with through the university’s internal appeal process, the appropriate forum for resolution is not the court. The only resort to the court is via judicial review after the university procedures have been exhausted.

[63] Subsequent decisions of the Court of Appeal have not derogated from that principle. See: Jaffer; Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, [2013] O.J. No. 4709; Mortazavi v. University of Toronto, 2013 ONCA 655; King v. Ryerson University, 2015 ONCA 648, [2015] O.J. No. 4954; Fernandes v. Carleton University, 2016 ONCA 719.

[64] Gauthier was a pleadings motion to dismiss a claim in contract or tort pursuant to r. 21(1) or r. 25.11. In fact, all of the cases which have considered the issue of the court’s jurisdiction in respect of university matters have been pleading motions with the exception of Wong. In contrast, the motion before the court is a summary judgment motion. Accordingly, I am not confined to accepting the facts as pleaded in the statement of claim. Rather, the jurisdictional issue raised by the defendants must be considered, in my view, in the context of their summary judgment motion and based on the record before the court.

[65] The question is whether, based on the record, Dr. Stasko has a genuine issue for trial against the defendants in either contract, tort or breach of fiduciary duty or whether the essential character of her claim involves matters more appropriately dealt with by the University’s internal appeal process.

[66] In paragraph 50 of the Fresh as Amended Statement of Claim, Dr. Stasko sets out 24 subparagraphs which she pleads constitute breaches of contract obligations, the duty of care the defendants owed to her and the fiduciary duties the defendants owed to her. In her affidavit filed in defence of the motion, she repeats the 24 subparagraphs at paragraph 48.

[67] Upon review, the 24 subparagraphs can be grouped into three main categories: 1. Failures concerning the University’s appeal process, including failure to advise re: the procedures; failure to adhere to policies and procedures; and failure to afford due process and procedural fairness. 2. Failures concerning evaluation of performance, including failure to adhere to University policies; failures in the grading process (subjective and arbitrary); and changes in the manner of evaluation without notification. 3. Failure to keep or provide documentation concerning grading, including failure to maintain records and failure to provide documentation.

[68] In paragraph 42 of her affidavit, Dr. Stasko sets out information she has not obtained concerning her academic performance in OMFS 1, 2 and 3 in Year 1. In paragraph 43, she sets out what documentation concerning her academic performance she has subsequently learned is not available. In paragraph 44, she states that she subsequently learned that the grade obtained in OMFS 2 was more important in determining the final grade than the grades in OMFS 1 and 3. In paragraph 45 she states that she subsequently learned that a significant criteria that influenced her grade was “examsmenship” which related to the style in which she conducted herself in the examinations.

[69] Following on the above paragraphs, in paragraph 47 of her affidavit, Dr. Stasko states that she believed that the marks assigned to her for her classroom participation, clinical performance and for oral examinations are based on the subjective view of the person who observed her performance in those settings.

[70] In my view, when Dr. Stasko’s claims in the action are considered in the light of the entire record, they relate entirely to matters that are completely within the prevue of the University’s appeal process as set out in the Calendar. As noted, they involve allegations of failure to follow grading policies; failure to keep or provide documentation concerning her academic performance; and a failure to evaluate her performance on an objective basis. At their heart, Dr. Stasko’s claims involve matters dealing with the evaluation of her academic performance in Year 1 of the Program. As such, they are all matters that should have been first raised in the University’s internal process.

[71] The appeal process regarding the School of Graduate Studies Courses and Programs is set out at p. 107 of the Calendar. It states, in part:

Graduate students may dispute substantive or procedural academic matters, including grades, evaluation of comprehensive examinations and other program requirements; decisions about the student’s continuation in any program or concerning any other decision with respect to the application of academic regulations and requirements to a student.

[72] Nor does it matter that she does not seek any relief of an academic nature in the action. Her claim for damages does not change the essential nature of her action, the pith and substance of which clearly relates to issues concerning her academic performance.

[73] Further, Dr. Stasko’s actions confirm that she was aware, prior to commencing the Action, that the proper course to determine her issues concerning her evaluation in Year 1 was by invoking the University’s appeal process and not the court. When she decided to take action in early 2009, with the advice and assistance of counsel, she did not commence an action. Rather, she sought leave to appeal from the GDAAC and when leave was granted, filed an appeal raising essentially the same issues that she has raised in the Action (lack of documentation, failure to follow policies, not treated fairly or objectively). It was only after she abandoned her appeal that she commenced the Action.

[74] Nor is it any answer for Dr. Stasko to say that given the GAAB’s position concerning jurisdiction, she had no appeal route in the University. In the first instance, she never filed submissions with the GAAB concerning jurisdiction resulting in no ruling from the GAAB on the issue. Further, the jurisdictional issue raised by the GAAB arose from her decision to withdraw from the Program with no academic penalty.

[75] For the above reasons, I conclude that Dr. Stasko’s claims in the Action should not be allowed to proceed in this court. The Action is therefore dismissed.

[76] Although the above is sufficient to determine the defendants’ summary judgment motion, I will briefly deal with the defendants’ two other submissions.

The Withdrawal

[77] The defendants submit that the discussions with Dr. Stasko which culminated on November 25, 2008 with her acceptance of the University’s offer to allow her to withdraw from the Program without academic penalty and repeat Year 1, resulted in an agreement with the University to resolve her dispute concerning her academic performance in Year 1. Accordingly, she should not be allowed to resile from the agreement and bring an action against them relating to her academic performance.

[78] Dr. Stasko submits that her acceptance of the option to withdraw from the Program did not create a contract. It was but one of several options extended to her but those options simply describe the various alternatives that were available to her. It was a gratuitous offer with no conditions attached by the University. There was no consideration given by Dr. Stasko.

[79] The circumstances behind the University’s presentation of the five options clearly arose out of the dispute between Dr. Stasko and the University concerning her academic performance in Year 1 of the Program and the University’s attempt to resolve it. Dr. Stasko admits that by October 9, 2008, she knew she had not passed Year 1 and would not be able to advance to Year 2. She indicated to Ms. Mockler on October 20, 2008 that she intended to appeal her grades. On October 22, 2008 she advised Dr. Locker that she was invoking the Academic Appeals process. The options provided to Dr. Stasko by the University were clearly made in order to resolve her academic dispute with the University.

[80] I do not consider that the offer which the University made to be gratuitous. While there is no question that options 1 and 5 were otherwise available to Dr. Stasko, the other three were not otherwise available and could only be carried out with the University’s agreement.

[81] In my view, Dr. Stasko’s acceptance of the University’s offer to withdraw without academic penalty and repeat Year 1 resulted in an agreement between her and the University, a term of which was that she would not appeal her academic issues arising out of her Year 1 performance (the “Agreement”). There clearly was consideration from both parties. By agreeing to allow Dr. Stasko to withdraw from the Program without academic penalty and repeat Year 1, the University was avoiding having to participate in an appeal hearing. On Dr. Stasko’s part, she understood from her meeting with Dean Mock on November 20, 2008 that if she chose withdrawal, she could not appeal her grades. By subsequently choosing to withdraw, Dr. Stasko gave up her right of appeal. In return, she avoided the costs, time commitments and uncertainty of an appeal. She also obtained a clean academic transcript (which she used, in part, in her subsequent application to the Periodontics Program at the University Of Detroit Mercy School Of Dentistry) and was allowed to repeat Year 1.

[82] The fact that the GDAAC subsequently granted Dr. Stasko leave to appeal does not alter my view that there was an agreement not to appeal. Part of the relief Dr. Stasko sought on the appeal was to set aside her withdrawal. The issue of the Agreement was a matter that would have been considered and dealt with as part of the appeal had it proceeded.

[83] While the Agreement does not prevent Dr. Stasko from bringing an action against the University for claims not related to academic issues, in my view it operates as a bar to the bringing of an action which, as here, asserts such claims. Simply put, Dr. Stasko should not be permitted to do indirectly that which she agreed not to do directly.

[84] I would therefore also dismiss the Action based on the Agreement.

The Limitation Defence

[85] The defendants submit that Dr. Stasko’s action was commenced well outside the two-year limitation period provided by the Act and is therefore statute barred.

[86] Dr. Stasko submits that as at November 17, 2009 when the issue of the GAAB’s jurisdiction to deal with her appeal was first raised, she had still not received any of the documentation she sought to enable her to pursue her appeal. She states in her affidavit that she abandoned her appeal because she recognized that she couldn’t pursue it without being able to refer to the documents to enable her to challenge the grades that were assigned to her.

[87] Dr. Stasko further submits that the fact that she was not being evaluated in compliance with the University’s grading policies was not something she learned until after the Action had been commenced.

[88] In paragraph 49, the last paragraph of her affidavit, Dr. Stasko states:

49. The absence of the existence of the documentation by which my performance was to be evaluated and the fact that my performance was not evaluated in a manner that complied with the grading policies by which each of the defendants was obligated to assess my performance only came to my knowledge after November 2011.

[89] The Act provides in s. 5(1) that the limitation period begins to run on the day that the claim is actually discovered by the plaintiff or when a reasonable person in similar circumstances ought to have discovered the claim.

[90] In Lawless v. Anderson, 2011 ONCA 102, [2011] O.J. No. 519 (C.A.), Rouleau J.A., in discussing the principle of discoverability, stated at para. 23:

23. Determining whether a person has discovered a claim is a fact-based analysis. The question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant. If the plaintiff does, then the claim has been “discovered”, and the limitation begins to run: see Soper v. Southcott (1998), 39 O.R. (3d) 737 (Ont. C.A.) and McSween v. Louis (2000), 132 O.A.C. 304 (Ont. C.A.).

[91] As noted, in paragraph 50 of the Fresh as Amended Statement of Claim, Dr. Stasko pleads 24 acts or omissions which ground her claims of breach of contract, negligence and breach of fiduciary duty. All of the acts or omissions alleged were discoverable by Dr. Stasko either during her time in the Program or upon being notified that she had failed Year 1 on October 9, 2008 or, at the very latest by June 23, 2009 when she filed her appeal submissions with the GAAB.

[92] Dr. Stasko knew, by October 9, 2008 that she had failed Year 1. During her discussions with the Faculty in October and November of 2009, she was given information concerning the issues with her performance both in the clinics and oral examinations. Further, she requested and subsequently received documentation concerning the evaluation of her academic performance. On March 4, 2009, she was provided with a summary of the written clinical evaluations (her ITERS) that she had received from December 2007 to October 2008, together with a breakdown of the compilation of the grades she had received in OMFS 1, 2 and 3 and a copy of her written examinations.

[93] As noted, on June 23, 2009, Dr. Stasko, who was represented by counsel, filed detailed written appeal submissions with the GDAAC. Many of her submissions in that document are repeated in the Fresh as Amended Statement of Claim. They include lack of feedback as to her performance prior to October 2008; failure to provide written evaluations, copies of her failed examinations, evaluations of her oral examinations, and copies of her ITERS; failure to objectively and fairly grade her in the courses she took; failure to follow University policies; failure to disclose that different sections were weighted differently; and denial of procedural fairness.

[94] The appeal submissions also allege identical damages to those claimed in the Fresh as Amended Statement of Claim. The appeal submissions identify the “financial consequences” of the lost “potential future income of a career in OMFS”. Similarly, in the Statement of Claim, Dr. Stasko pleads that damages are being “denied the opportunity to earn the income she otherwise would have enjoyed once she successfully completed the … Program.”

[95] Dr. Stasko says that it was not until after November 2011 that she discovered that certain documentation did not exist. In fact, she learned that from reading the examination for discovery of Dr. Clokie, which occurred well after the Action had been commenced. It is obvious, therefore, that the discovery of that information was not a bar to her commencing the action.

[96] For the above reasons, I am unable to accept Dr. Stasko’s position as to when she had knowledge of sufficient facts to know she had a claim. From the facts which are not disputed, I am satisfied that Dr. Stasko had knowledge of sufficient facts to commence her claim by November 2008 and at the very latest by June 23, 2009. In either case, the Action, which was commenced on September 22, 2011, is outside of the two-year limitation period.

[97] The Action is therefore also dismissed as being statute barred.

Conclusion

[98] For the above reasons, the defendants’ summary judgment motion is allowed. The Action is dismissed in its entirety.

[99] At the conclusion of the argument, I asked counsel for their Cost Outlines. Counsel indicated that they would each provide Cost Outlines which I have subsequently received.

[100] Counsel for Dr. Stasko requested that he be allowed to make submissions on costs following my decision. I am prepared to honour that request, on the condition that counsel first discuss the issue of costs in order to see if they can be resolved.

[101] In the absence of a resolution of the costs, counsel are directed to contact my assistant to arrange a mutually convenient time for brief cost submissions.

L. A. Pattillo J.

Date Released: June 30, 2017