Stuart v. University of Western Ontario, 2017 ONSC 6980

CITATION: Stuart v. University of Western Ontario, 2017 ONSC 6980

COURT FILE NO.: CV- 14-513849

DATE: 20171122

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: James Ian Stuart, Plaintiff

– AND –

The University of Western Ontario, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Michael Miller, for the Plaintiff

Sarah Jones and Ivana Bozinovic, for the Defendant

HEARD: October 11, 2017

Endorsement

[1] Can a disappointed student sue a university for putting on a sub-standard academic program that does not educate him sufficiently to obtain the professional license he expected?

I. The pleadings motions

[2] The Defendant brings this motion under Rule 21 to strike the Plaintiff’s claim without leave to amend. This is the third such motion brought by the Defendant, the first two having resulted in the claim being struck by Faieta J. and subsequently amended by the Plaintiff. Counsel for the Defendant submit that the claim still does not state a viable cause of action and that, in effect, three strikes and the Plaintiff is out.

[3] In their factum, counsel for the Defendant summarize the arguments against the Plaintiff’s pleading as follows:

First, the Fresh Claim fails to plead a proper and tenable claim in breach of contract, as directed by Justice Faieta. Second, the Fresh Claim fails to plead a proper and tenable claim in breach of fiduciary duty, as directed by Justice Faieta. Third, the Fresh Claim fails to plead that any of the actions by UWO went beyond the broad discretion afforded to a university in making academic decisions and judgments.

[4] In response, counsel for the Plaintiff submits that the deficiencies in the pleading that were identified by Faieta J. in his two previous rulings have now been addressed in the Fresh as Amended Statement of Claim. In his factum he indicates that Faieta J., in his ruling of July 14, 2016 in respect of the Defendant’s second motion to strike, set out a number of matters that are covered off in the new pleading:

The Plaintiff should identify the nature and source of an alleged implied term of a contract and the circumstances to support the conclusion that such term was an implied term of the contract…

In the event that the Defendant has further concerns regarding the sufficiency of the materials pleaded, it should consider making use of the more quick and efficient process provided by Rule 25.10 before bring a third motion to strike the Amended Claim;

The pleadings with respect to breach of fiduciary duty were struck on the basis that the Amended Claim does not alleged that a term of the contract imposes a fiduciary duty on the Defendant to act in the Plaintiff’s best interests, nor does it allege that the Defendant is under an obligation to prefer the Plaintiff’s interests to its own;

[5] Counsel for the Plaintiff also notes that Faieta J. held that, “It is not ‘plain and obvious’ that a result of the deference afforded to Western for academic decisions and that the claims for breach of contract and breach of fiduciary duty have no chance of success.” He submits that the Defendant’s repeating of this ground for the current motion to strike raises nothing new that was not already argued, addressed and dismissed in the previous motion.

II. The Plaintiff’s claim

[6] Taking the pleaded facts as true for the purposes of this motion, the Plaintiff obtained his MD in 2007 from the Defendant’s Schulich School of Medicine. This action alleges that the Defendant provided substandard education in its post-graduate medical training, thereby undermining the Plaintiff’s effort to become a certified specialist in medical microbiology.

[7] In short, to become licensed to practice medicine as a medical microbiologist, the Plaintiff was required to complete five years of post-graduate residency training at a university program accredited by the Royal College of Physicians and Surgeons of Canada (the “College”). Pursuant to regulations under the Medicine Act, 1991, S.O. 1991, c. 30, completing such a program and successfully passing a comprehensive examination are prerequisites to obtaining a specialist licence from the College of Physicians and Surgeons of Ontario (“COPSO”). When the Plaintiff successfully completed five years of medical residency he was entitled to attempt the specialist qualifying exam administered by COPSO.

[8] Unfortunately for the Plaintiff, he enrolled in the residency program at a time when it was in the process of deteriorating. He alleges that he was insufficiently supervised by the faculty, and that important faculty members left their employ with the Defendant during his five years as a post-graduate resident. The Fresh as Amended Statement of Claim also contends that he was only infrequently tested during his years in the Defendant’s residency program.

[9] The Plaintiff also states that during his time as a resident other students gradually abandoned the program, so that by the time he was in his third year as a resident he was the only one left in the medical microbiology specialist program. Despite the collapse of the Defendant’s program, the Plaintiff did manage to complete his fifth and final year, and the then head of the program completed the Plaintiff’s in-training evaluation report thus qualifying the Plaintiff to take the COPSO’s exam.

[10] After completing the residency program, the Plaintiff stayed on at the Defendant university as a clinical fellow. During this time, representatives of the Defendant assured him that he would continue to have educational supervision to make up for the shortfalls of the residency program he had completed. This further supervision, however, never actually materialized. In May 2012, May 2013, and May 2014 the Plaintiff attempted the COPSO examinations but failed each time.

[11] The Plaintiff contends that the reason for his failure is not that he was a poor student, but that the Defendant’s program did not provide the education necessary to pass the exam and become licensed as a medical microbiologist. The Plaintiff has never succeeded in obtaining a license to practice from COPSO.

[12] A review of the program was commissioned by London-area hospitals in 2013. Apparently, the medical microbiology program was considered unsalvageable by the hospitals as well as by the College. It is currently inactive, and has accepted no students and carried on no residency program since the Plaintiff’s completion of the program.

III. Breach of contract

[13] In his ruling on the Defendant’s second motion to strike, Faieta J. provided specific guidance on what, in his view, needed to be done in order for the breach of contract claim to be sustained as a pleading. Faieta J. noted that the pleading that was before him provided numerous examples of express or implied terms of the contract between the parties. He further noted that the pleading stated that these terms of the contract were either implied or expressly contained within “UWO’s Medical Microbiology Residency Training Handbook” or within one or more documents of the College. He went on to require the Plaintiff to identify the nature and source of each of the alleged implied terms of contract and to specifically plead the circumstances that support the conclusion that any such term was an implied contractual term.

[14] The Fresh as Amended Statement of Claim is a revised version of the Plaintiff’s pleading issued after the second ruling by Faieta J. It was amended to include the nature of the contract between the parties, and in paragraphs 8-12 and 42-44 contains specific facts upon which the Plaintiff relies in support of his claim for breach of contract. Each of those paragraphs was added or amended in the revised pleading. The amended paragraphs now contain specific references to the sources of the contract, and identify the several ways in which the Defendant breached these terms of contract with the Plaintiff.

[15] In Gauthier v. Saint-Germain, 2010 ONCA 309, the Court of Appeal considered the position of a student suing a university on contractual grounds. The Court, at para 48, stated that “[t]o establish a cause of action for a breach of contract, the student must show that the university failed to meet its express or implicit obligation to which the institution committed by approving the student’s registration.” Generally, such a breach of contract claim requires the Plaintiff to plead the existence of a contract between himself and the Defendant, to describe the nature of that contract, and to provide the basic facts upon which he claims the Defendant breached any of the contract’s terms. These matters are, of course, required to be pleaded with sufficient particulars and clarity to avoid bald assertions of liability: Lam v. University of Western Ontario, 2015 ONSC 5281, at para 21.

[16] The Fresh as Amended Statement of Claim pleads, at para 7, that in 2007 the Plaintiff applied and was accepted by the Defendant into the medical microbiology residency program. It goes on to state, at paras 10-11, that the contract was created at the point of acceptance for this post-graduate residency training program.

[17] The nature of that contract is described at para 5 of the pleading as one that would lead to the Plaintiff becoming licenced to practice medicine as a medical microbiologist. The Plaintiff further pleads that the contract entailed an understanding and agreement that those admitted to the program who successfully compete five years of residence are entitled to attempt the COPSO qualifying exam. The claim further provides, at para 8, that the Defendant’s syllabus and Handbook represented that the program was accredited by the College, and that it incorporated by reference various regulations, guidelines and other documents published by the College, including:

a. The General Standards Applicable to the University and Affiliated Sites;

b. The Specific Standards of Accreditation for Residency Programs in Medical Microbiology;

c. The Objectives of Training and Specialty Training Requirements in Medical Microbiology;

d. The Policies and Procedures of Certification and Fellowship; and

e. The General Standards Applicable to All Residency Programs;

[18] In summary of the contracts claim, the Fresh as Amended Statement of Claim provides, in para 11(d), that the Defendant would deliver to the Plaintiff an accredited program that would meet the College’s standards and the Defendant’s own set of standards appropriate for the Plaintiff’s education in the post-graduate medical residency program. In making this claim, the pleading sets out that the Defendant breached this contract by failing to provide training that satisfied the requirements of College accreditation, including the CanMEDS 2005 Physician Competency Framework established by the College.

[19] In so pleading, the Plaintiff has set forth facts necessary to support a claim for breach of contract. The Fresh as Amended Statement of Claim identifies the nature and source of the express and implied terms of the contract, and sets out circumstances to support a conclusion that such terms were indeed contained in the contract and were breached.

IV. Breach of fiduciary duty

[20] Generally speaking, and in the context of this action, a fiduciary relationship requires the existence of power on one hand and vulnerability on the other, along with an assumption by the more powerful party of a duty to act in the best interests of the vulnerable claimed beneficiary. This assumption may arise from a number of sources, including an express or implied agreement or a duty imposed by law: Lam, supra, at para 16.

[21] The Fresh as Amended Statement of Claim pleads at para 46 that the Plaintiff as a graduate student was inherently vulnerable and at the mercy of the Defendant’s power to create and provide a medical microbiology training program that would provide him with the educational opportunities necessary to become certified as a specialist by COPSO. The Plaintiff relied on and trusted the Defendant to protect his interests and act for his benefit by providing a program of studies and laboratory work that would enable him to acquire the skills and competencies needed to satisfy the licensing requirements.

[22] As a follow-up, the pleading sets out at para 47 that it was inherent in the relationship between the Defendant, as an educational institution, and the Plaintiff, as a student, that the Defendant would have the Plaintiff’s best interests in mind. Also embedded in this relationship was the obligation placed on the Defendant not to exercise its control over the Plaintiff by failing to disclose material facts with regard to the program in which he was registered.

[23] The Fresh as Amended Statement of Claim reiterates at para 50 that pursuant to the fiduciary and contractual relationship between the parties it was an obligation of the Defendant to act in good faith and not conceal or fail to disclose materials facts about the medical microbiology residency program. The pleading makes it clear that this includes the Defendant’s commitment to and management of the program, such that the Plaintiff had a right to know if the Defendant was planning to shut the program down or if the College had cast doubts on its accreditability. This claim is supported at paras 51-56 of the pleading, which elaborates on facts regarding the numerous reviews and reports the Defendant had regarding the medical microbiology residency program and the failure of the Defendant to disclosure those reviews and reports to the Plaintiff.

[24] The Defendant appears to be of the view that the relationship between a university and its student is not impressed with a trust and has never given rise to fiduciary duties on the part of the university. This view, however, represents a misapprehension of the law as it applies to the university-student relationship.

[25] In the first place, the categories of fiduciary relationships remain open for expansion: Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 SCR 99, at para 57. As the Supreme Court of Canada put it in Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 SCR 335, at 384, “It is the nature of the relationship, not the specific category of actor involved that gives rise to the fiduciary duty. The categories of fiduciary, like those of negligence, should not be considered closed.”

[26] In Creppin v University of Ottawa, 2015 ONSC 4449, at para 29, the court found that “as fee-paying university students could be said to represent a defined class of persons vulnerable to the control of the defendants as the university’s leaders.” While it is true that universities “are not obliged to secure a career, a lifestyle, a position, or other wishes and aspirations that a student might have, Bounpraseuth v York University, CV-12-2029, Feb. 13, 2013, aff’d 2014 ONCA 390, it is equally true that a properly pled action in contract and/or tort that transcends an academic dispute may appropriately be advanced in a superior court: Al-Bakkal v. de Vries, 2016 MBQB 45, at para 57 (Man QB).

[27] Moreover, a university can owe a broad duty of care to its students, which entails mutual rights and obligations: Young v. Bella, 2006 SCC 3, [2006] 1 SCR 108. Thus, for example, in Hozaima v. Perry, 2008 CarswellMan 398 (Man QB), a dental student sued her university for failure to teach her enough to achieve a passing grade. On a motion to dismiss, the Court refused to strike the claim, holding that the student’s claims were capable of forming the basis of causes of action in contract and tort – including claims based on breach of fiduciary duty.

17. Likewise, in Mohl v. University of British Columbia, 2006 BCCA 70, a student who received a failing grade appealed that result to the university’s review committee, following which he re-packaged the claim as a court action. The British Columbia Court of Appeal held that the while the student was barred from raising issues in court that related to procedural fairness as those had been considered by the review committee, the causes of action for breach of contract, negligence and breach of fiduciary duty were not barred and could proceed.

V. The Defendant’s discretion

[28] Counsel for the Defendant submits rather forcefully that the Plaintiff’s claim is, in effect, an attempt to revisit an academic decision, and that those types of decisions are within a university’s scope of internal discretion to fashion its education program: Jaffer v. York University, 2010 ONCA 654, at para 28.

[29] As noted in Jaffer, however, a challenge to a program is not the same as a challenge to a specific grade. Rather, “[h]is claim is that the university owed him various obligations in both contract and in tort, and that its failure to meet those obligations has caused him pecuniary and non-pecuniary damages. Such claims fall within the jurisdiction of the Superior Court and may proceed…”: Ibid., at para 29. The case law to date demonstrates that where a Plaintiff claims damages and alleges the constituent elements of a cause of action in tort or breach of contract, the claim may proceed even if it stems from the academic activities of the university: Gauthier, supra, at para 29.

[30] As the Court of Appeal stated in Gauthier, at para 4, the discretion afforded a university concerns academic issues such as “evaluation of the quality of the student’s work, the structure and implementation of university programs, or the identification of the skills required to serve as a professor or thesis supervisor.” A claim would arguably be within this zone of discretionary decision-making if it purported to address how the program went about preparing its student for a specialization in medical microbiology; but the gist of the Plaintiff’s claim here is that the Defendant did not meet its obligation to prepare him by putting on a program at all.

[31] In this respect, the claim is a relatively novel one for a novel situation. The Defendant’s program was in the process of falling apart around the Plaintiff, and the action alleges that what remained was really no educational program whatsoever. As counsel for the Plaintiff put it in oral argument, no one signs up for a residency in medical microbiology for any reason other than to prepare themselves to become a licensed medical microbiologist – achieving a COPSO license to practice is the very raison d’êtra for the program. The failure and ultimate disappearance of an entire course of study is, with all due respect to the Defendant and its counsel, in a qualitatively different category than the appeal of a single failing grade.

[32] It is by now trite law that, “The fact that a pleading reveals ‘an arguable, difficult or important point of law’ cannot justify striking out part of the statement of claim”: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 SCR 959, at para 55. Thus, in a Rule 21 motion the novelty of the cause of action is generally of no concern and the claim must be allowed to proceed if it has some chance of success: Doe v. Metropolitan Toronto (Municipality) (Commissioners of Police) (1990), 1990 CanLII 6611 (ON SC), 74 OR (2d) 225 (Gen Div) at para 11.

[33] For these reasons, the Court of Appeal has admonished that, “The power to strike out proceedings should be exercised with great care and reluctance”: Rex ex rel. Tolfree v. Clark, 1943 CanLII 90 (ON CA), [1943] OR 501, at para 38 (Ont CA).

VI. Disposition

[34] The Fresh as Amended Statement of Claim adequately addresses the shortcomings noted by Faieta J. in the July 2016 ruling. It identifies and supports with sufficient detail causes of action in contract and tort, including allegations of breach of fiduciary duty. As a somewhat novel claim, it is incumbent on the court at this stage to read the pleading in a light that is generous to the Plaintiff; this preliminary stage is not the time to cut short a claim of this nature.

[35] The Defendant’s motion is dismissed.

[36] The parties may make written submissions on costs. I would ask that Plaintiff’s counsel send their submissions by email to my assistant within one week of today and that these contain a Costs Outline and a maximum of two pages of submissions. Defendant’s counsel should likewise submit a maximum of two pages in response within one week of receiving Plaintiff’s counsel’s submissions.

Morgan J.

Date: November 22, 2017