Court File and Parties

COURT FILE NO.: CV-17-586495-0000 DATE: 2019/04/29

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: UKO ABARA, and THE IMMEDIATE FAMILY MEMBERS OF UKO ABARA, Plaintiffs

AND:

UNIVERSITY OF WINDSOR, LANCER RECREATION aka CAMPUS RECREATION (UNIVERSITY OF WINDSOR), CAMPUS COMMUNITY POLICE (UNIVERSITY OF WINDSOR), ODETTE SCHOOL OF BUSINESS (UNIVERSITY OF WINDSOR), FACULTY OF GRADUATE STUDIES (UNIVERSITY OF WINDSOR), FINANCE DEPARTMENT (UNIVERSITY OF WINDSOR), PARKING SERVICES (UNIVERSITY OF WINDSOR), VINCENT GEORGIE, PETER VOYER, ALAN RICHARDSON, KENT WALKER, ZHENZHONG MA, KEVIN LI, PATRICIA WEIR, JAMES GAULD, DEBBIE KANE, ALISON SAMSON, BARBARA ZIMMERMAN, LISA TIMPERIO, CHRISTINE MAITRE, KIM MCQUEEN, LAURIE BUTLER-GRONDIN, LINDA INGRAM, JOHN MIHALO, RENEE TURNER, and JOHN DOE, Defendants

BEFORE: Justice Spies

COUNSEL: Uko Abara, Plaintiff, Self-Represented Josh R. Knox, Counsel for the Defendants/Moving Parties

HEARD: April 12, 2019

Endorsement

Overview

[1] This is a motion by the University of Windsor and the other defendants, save for John Doe, (collectively “UOW”), for an order striking the plaintiffs’ Fresh as Amended Statement of Claim (“Claim”) and dismissing the plaintiffs’ action against the UOW, without leave to amend, pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that it discloses no reasonable causes of action.

[2] Mr. Abara alleges that he is/was (he asserts both) enrolled in the Master of Business of Administration program (“MBA”) at the UOW since September 2015. The program was divided into five separate Modules. Modules 1 to 4 ran from September 2015 to August 2016. Module 5 ran from August or early September 2016 "onwards," and could be completed remotely.

[3] On October 8, 2015, Mr. Abara injured his knee while playing an intramural volleyball game. As a result of the injury, Mr. Abara missed the final three weeks of Module 1.

[4] In January 2016, Mr. Abara returned for Module 2. Upon his return, Mr. Abara met with his Module 1 professors to discuss making up for lost time. According to Mr. Abara, he successfully arranged for accommodations in three of the five courses, but was unable to come to an agreement with the professors for the remaining two courses: Marketing Management and Research Methods.

[5] By the end of Module 4 in August 2016, Mr. Abara allegedly completed two of his five Module 1 courses. Mr. Abara elected to take two of his remaining courses online, but failed to come to an agreement with the professor in Marketing Management. Mr. Abara does not plead when or if he completed the MBA program.

[6] The Claim is 51 pages long; 117 paragraphs and it is virtually impossible to discern what specific claims are asserted by Mr. Abara and the basis for those claims and the nature of damages claimed for any particular claim. Mr. Abara did a much better job in the factum that he filed at the outset of the hearing of the motion. He advised me that the claims he wants to pursue are set out in his factum. I have had regard to the Claim as well in an effort to understand his position better.

[7] As I understand the Claim, Mr. Abara seeks compensation for his knee injury and other issues arising from his time in the MBA program. In para. 1 of the Claim Mr. Abara seeks as against the defendants general damages in the amount of $5 million for “pain, suffering, and loss of enjoyment of life”, special damages, damages for breach of contract, damages for conduct contrary to the Human Rights Code, R.S.O. 1990, c. H. 19 (“HRC”), damages for conduct contrary to the Consumer Protection Act, 2002, S.O. 2002, c. 30, damages for loss of income, loss of competitive position in the employment market and other economic loss, and damages for past and future care costs, all in sums to be disclosed before trial. In addition he claims punitive damages in the amount of $2.5 million and aggravated damages in the amount of $2.5 million presumably for some or all of the following claims: infliction of personal injury; breach of contract, fraudulent and negligent misrepresentation; professional misconduct and (professional) negligence, breach of trust and fiduciary duty; infliction of mental suffering and nervous shock and vicarious liability of the corporate defendants.

[8] In para. 2 of the Claim damages are claimed on behalf of the Immediate Family of Uko Abara for Family Law Act, R.S.O. 1990, c. F3 (“FLA”) claims, negligent infliction of mental distress, special damages, aggravated and/or exemplary damages and punitive damages.

Preliminary Matters

[9] At the outset of the hearing of the motion I advised Mr. Abara that if his Claim was not struck out without leave to amend, as requested by the defendants, that in any further amended Claim he would need to set out all of the persons in his “immediate family” that intend to make claims as plaintiffs since "The Immediate Family Members of Uko Abara" is not a proper way to add plaintiffs to the action.

[10] In addition, Mr. Knox advised that Lancer Recreation aka Campus Recreation (University of Windsor), Campus Community Police (University of Windsor), Odette School of Business (University of Windsor), Faculty of Graduate Studies (University of Windsor), Finance Department (University of Windsor), and Parking Services (University of Windsor) all named as defendants in the action, are not proper legal entities. He did not assert that these groups did not exist at the UWO and in fact admitted that the UWO would be vicariously liable for the actions of these groups. On that basis, I suggested to Mr. Abara that if his claim proceeds he should remove these defendants from the action and simply refer to them by name in the Claim, and assert that the UWO is vicariously responsible for their actions.

[11] Finally Mr. Abara brought this Claim under the Simplified Procedure Rule 76 which is clearly not appropriate given the amount of damages claimed. That too will have to be rectified in any further amended Claim.

The Issues

[12] At the outset of the hearing of the motion I also advised Mr. Abara, that having read his Claim, I had no alternative but to strike it in its entirety as among other issues it does not contain a concise statement of material facts as required by Rule 25.06(1). Furthermore, the purpose of a pleading is to (a) define clearly and precisely the questions in controversy between the litigants; (b) give fair notice of the precise case which is required to be met and the precise remedies sought; and (c) assist the court in its investigations of the truth and of the allegations made; see Stead v Canada (Revenue Agency), 2011 ONSC 4081 at para. 7. This Claim falls far short of this purpose. It is a long and rambling statement which includes evidence setting out various grievances Mr. Abara has against the defendants without a clear statement of the causes of action claimed, the basis for those causes of action and the particular damages claimed. In fact, it was only with the benefit of Mr. Abara’s factum and his oral submissions, that I had a better understanding of what claims he seeks to assert against the UWO.

[13] Accordingly, the main issue on the motion is whether or not I should grant leave to amend and if so, with respect to which causes of action. For the reasons that follow I have decided that the Claim should be struck, with leave to amend to plead negligence with respect to the personal injury claim for his knee injury and breach of contract and negligent and/or fraudulent misrepresentations with respect to the alleged contract with Dr. Georgie. The claim of his family members will necessarily be limited to any FLA damages. I have determined that the other claims do not disclose reasonable causes of action.

The Test

[14] Rule 21.01(1)(b) provides that a judge may strike out a pleading that discloses no reasonable cause of action. On this motion, the UWO must show that it is “plain and obvious” or “beyond doubt” that the Claim cannot succeed and specifically that the Claim does not disclose any reasonable cause of action. Hunt v T & N plc, 1990 CarswellBC 216 at paras. 30, 33 and 36. This test will be met where: 1) the plaintiff pleads allegations that do not give rise to a recognized cause of action or 2) the plaintiff fails to plead a necessary element of a recognized cause of action; see Hunter v. Bravener et al. [2003] O.J. No 1613 (CA) at paras. 3-5, application for leave to appeal dismissed [2003] SCCA No 306. Where a statement of claim fails to disclose a reasonable cause of action, the appropriate remedy is to strike the pleading, without leave to amend; Knight v Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 17 to 20.

[15] On a Rule 21 motion, the allegations set out in the statement of claim are taken as being true or capable of being proven unless they are manifestly incapable of being proven; Knight, supra at para. 22. While evidence is usually inadmissible on such a motion, the court has developed some narrow exceptions to the restrictions on the use of evidence. The court will consider evidence on motions under rule 21.01(1)(b) where that evidence is incorporated into a statement of claim by reference. Mr. Abara filed a Motion Record that contained some documents at the outset of the hearing of the motion. The admissibility of those documents on this motion was not discussed. Although I appreciate that Mr. Knox had no advance notice of these documents, I decided to consider them where they might have some impact on my decision.

[16] Accordingly, the issue to be determined on this motion is whether the plaintiff’s Claim as against the UWO should be stuck out in its entirety without leave to amend, or in part, because it is plain and obvious that it fails to disclose a reasonable cause of action. I appreciate that this is not a motion for summary judgment but the Supreme Court of Canada stated in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 19 and 21 that the purpose of a motion to strike is to eliminate hopeless claims, and that it “is a tool that must be used with care”.

Analysis

[17] I will deal with the various claims in turn as follows.

The Claims Relating to an Academic Dispute

[18] Certain of the claims that Mr. Abara asserts are what Mr. Knox submits should be characterized as an academic dispute with his professors and/or UWO concerning his academic studies. The allegations in question are as follows:

a) the failure of one professor; Dr. Li, to meet teaching standards, namely his failure to teach a course adequately and his failure to address issues with lab computers;

b) the mistreatment, harassment and racially discriminatory, unethical and unfair grading by two other professors; Dr. Walker and Dr. Ma. This is also the subject of a human rights complaint;

c) the individual defendants who were employed as Dean, Associate Dean etc. failed to properly investigate Mr. Abara’s academic and non-academic concerns and instead imposed improper and inappropriate fees;

d) after his knee injury, Dr. Voyer and Dr. Richardson failed to accommodate Mr. Abara’s disability so that he could complete the MBA requirements upon his return to school. This is also the subject of his human rights complaint;

e) the Faculty of Graduate Studies barred Mr. Abara from registering for certain courses which resulted in him losing a graduate scholarship valued up to $15,000;

f) discrepancies between a grade Mr. Abara received for an accounting course from Schulich School of Business (“Schulich”) when entered on his UWO transcript;

g) various issues with faculty and staff beginning in the summer of 2017;

h) a delay in the reimbursement of expenses incurred by Mr. Abara as part of an MBA team competing in a case competition; and

i) issues with parking tickets issued on campus.

[19] Mr. Knox argues that these claims cannot be asserted in the Superior Court and he submits that the courts in Ontario have long recognized the broad discretion awarded to universities when it comes to matters of an academic nature, including "the organization and implementation of university programs" see Jaffer v. York University, 2010 ONCA 654 at para. 27, King v. Ryerson University, 2015 ONCA 648 at paras. 7 and 8. At para. 28 of Jaffer the Ontario Court of Appeal confirmed that claims arising from or involving academic disputes may be struck in the following circumstances:

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

[20] In King, the Ontario Court of Appeal dismissed a plaintiff's appeal of a decision to strike her claim without leave to amend on the basis that the issues raised therein related to the university's organization and administration of its examination, grading, complaints and oversight programs, policies and practices, which fell squarely within its discretion and its internal academic decision-making. The court held that “[in] the first instance, resort to the university’s internal processes, rather than the courts, is the proper procedure to be followed for the resolution of complaints or concerns regarding such matters. In other instances, complaints or concerns about such matters may properly form the subject-matter of a judicial review application” at para. 7 emphasis added.

[21] In Dawson v University of Toronto, CarswellOnt 882 at para. 19 (Ont. Sup. Ct.), aff'd 2007 ONCA 875, a dentistry student sued her university and a faculty member for various causes of action, including negligence, mental distress, breach of contract, and violations of natural justice. The plaintiff alleged that the faculty member in question had misled her by suggesting that she first complete her doctoral thesis away from the university before re-enrolling in the program. She reportedly followed the faculty member's instructions to her detriment as the university ultimately rejected her application for re-enrolment. Justice Perell characterized the claim as a disagreement of academic matters associated with the completion of her doctoral program and held that according to the authorities, these matters of university affairs are not the subject matter of breach of contract or tort claims, at para. 19. He struck the claim without leave to amend but also without prejudice to the plaintiff commencing a judicial review application. His decision was upheld on appeal although the Court of Appeal did not adopt all of his reasons. The Court of Appeal characterized the plaintiff’s claim against a professor and “part and parcel of her academic dispute with the university” at para. 2.

[22] In Aba-Alkhail v University of Ottawa, 2013 ONSC 2127 at paras. 37, 43 and 46, Justice Minnema held that the plaintiffs, who had previously been denied an internal appeal by their university, could not then submit what was essentially the same complaint to the courts by basing their grievances in tort. He accepted the university's position that the plaintiffs' allegations were simply "window dressing" and an indirect attempt to appeal an internal academic position and, as such, he dismissed the claim in its entirety.

[23] More recently, in Tran v University of Western Ontario, 2016 ONSC 1781 at para. 80, Justice Dunphy struck parts of the plaintiff's claim on the basis that they sought to challenge matters of unreviewable academic discretion, stating:

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.

[24] Mr. Abara submits that even if these claims are of an academic nature, UWO staff have told him that they would not deal with his issues because he was not a student, and they have effectively rejected their discretion by doing so. He argues that in the cases of Dawson, King, Aba-Alkhail and Tran, the claims were dismissed because the issues raised in the civil actions had been tried in front of an academic committee or other tribunal and the plaintiffs in these cases attempted to use the Superior Court to challenge the decisions of other tribunals, instead of following due process and bringing their claims to Divisional Court.

[25] This submission of course begs the question of why Mr. Abara did not formally bring his complaints to the attention of the appropriate committee(s) of the UWO. There is no dispute that he was a student in the Master of Business of Administration program at the UOW. I agree with the submission of Mr. Knox that to the extent these are academic decisions, a challenge to those decisions can only come before the Divisional Court by way of a judicial review application once the UWO's internal dispute resolution procedures have been exhausted. Otherwise the application for judicial review would be premature. To hold otherwise would be to require the court to inquire into, or pass judgment upon, academic decisions rendered by a university with respect to the organization and implementation of its programs, which is a consideration that falls firmly within the discretion of the university and which the courts have consistently held to be outside their jurisdiction.

[26] I do have to deal more specifically with some of these claims. With respect to the claim at para. 18(g) above, Mr. Abara argued that he entered into a “secondary contract” with the UWO and York University so that he could complete credits through the Ontario Visiting Graduate Scholar program. As I understand the claim Mr. Abara asserts that the UWO suggested he take the accounting course at Schulich because the UWO only offers the course once per year. Schulich marks on a pass/fail basis and gave him a pass and but the UWO took the position his mark was a fail, which Mr. Abara alleges is a breach of the contract. Mr. Abara argued that in entering into this contract, the UWO released its discretionary powers with respect to grading, as it did not explicitly indicate its intent to do otherwise, as necessitated by the contract. He submits that because the UWO released its discretion, the defendants cannot argue that this claim falls within the academic discretion of the university.

[27] It does not appear that Mr. Abara is asserting a written contract because in his brief of documents he included only his application and an Ontario Visiting Graduate Student Plan (“Plan”), which sets out the responsibilities of the student, the Home University and the Host University. Although this Plan is not specifically referred to in the Claim I have considered it in fairness to Mr. Abara. One of the responsibilities of the Home University is to certify that the student will receive course credit “provided the necessary standing is obtained” and that to “avoid questions regarding standing arising from differing grading policies, the Home university is urged to specify the minimum passing grade which the student should obtain under the heading “internal recommendations.” I have no idea whether or not this was done by the UWO but this language suggests that contrary to Mr. Abara’s assertion, the UWO maintained discretion with respect to the grade he would be given by the UWO for this course.

[28] The problem I have with this claim is that I presume that there would have been options for Mr. Abara to challenge this grade decision at the UWO and there is no evidence that he took those steps. Had he done so and failed to succeed, he might be able to bring an application for judicial review to the Divisional Court but in my view a civil action is not a remedy he can pursue as the pith and substance of this claim is an academic decision.

[29] Accordingly, in my view, the issues I have set out above, with the possible exception of the monetary claims set out in para. 18 (h) and (i) above, are akin to the issues raised in King, supra as they are related to the university's organization and administration of its grading, oversight of programs; in this case the MBA and the professors teaching in that program as well as its policies and practices and its internal decision-making. These issues fall squarely within the university’s discretion and its internal academic decision-making. As the Court of Appeal stated in King, Mr. Abara must first resort to the UWO’s internal processes, rather than the courts, and only if that does not resolve these issues, by way of a judicial review application to the Divisional Court.

[30] With respect to the claim for damages resulting from a delay in the reimbursement of expenses incurred as part of an MBA team competing in a case competition, having reviewed para. 80 of the Claim, this too appears to depend on internal academic policies. In my view it is caught by the principles in King.

[31] As for the parking tickets, that issue is set out in para. 81 of the Claim. In his factum Mr. Abara alleges that an additional contract exists with respect to parking that outlines the roles and responsibilities of the user and the UWO as a service provider. He states that the terms are briefly outlined in the UWO’s Parking Appeal Form (“Form”) but again there is no pleading of a written contract. Although this document is not specifically referred to in the Claim I have considered it in fairness to Mr. Abara.

[32] Mr. Abara alleges in his factum that the UWO issued tickets in contravention of its rules, did not process appeals, ignored communications with regards to appeals and refused to provide any contact person to correspond with appropriately. The Form however states that while all parking tickets are subject to “review”, all decisions are “final”.

[33] I accept that issuing parking tickets is not an academic decision. However, based on Mr. Abara’s pleading and the Form, there is clearly an appeal process for disputes about parking tickets at the UWO. His complaint appears to be that because of the way his appeal was handled he was not successful. In my view, if there is a remedy, which I doubt, it is by way of judicial review, not by way of civil action.

[34] I also considered whether or not Mr. Abara’s allegations that misrepresentations were made by Dr. Georgie that he would receive all or part of a $15,000 Graduate Scholarship University could be asserted as a monetary claim on the basis of breach of contract or misrepresentation. Mr. Abara details this claim in para. 79 of the Claim. It appears that all he needed to do to get the scholarship was to be registered at the UWO and he alleges that the Faculty of Graduate Studies refused to register him. This in my view is clearly an academic decision that Mr. Abara should appeal internally. If Mr. Abara wishes to plead, as he has alleged because he was in the law program at Osgoode Hall Law School (“Osgoode”), he was disqualified from receiving this scholarship, this can be pleaded since it is tied to a breach of contract claim that I will give him leave to amend and plead.

[35] Accordingly, for these reasons, subject possibly to the claim that Mr. Abara lost a graduate scholarship valued up to $15,000 because he was in the Osgoode law program, the allegations summarized above are struck from the Claim without leave to amend.

Infliction of Personal Injury

[36] Mr. Abara alleges infliction of personal injury, which is not a recognized cause of action. Mr. Abara supports this allegation in negligence claiming that he was injured on UWO property due, in part, to the UWO’s negligence; a reference to his alleged knee injury while playing volleyball during a UWO-run intramural game as set out in para. 5 of the Claim. In his factum Mr. Abara states that the UWO did not expressly release any liability, and failed to provide a safe venue and/or failed to have or follow appropriate safety, reporting, and injury record-keeping practices. He asserts that he is unable to identify John Doe; the player who injured him, due to the UWO’s negligence in recordkeeping.

[37] Mr. Abara relies on Peters v Peel District School Board, 2016 ONSC 4788 where Edwards J. dealt with a claim for damages against a high school and related parties. In that case there does not appear to have been any issue that a duty of care was owed to the student by the high school. In Jaffer, at para. 30 the Court of Appeal referred to Bella v. Young, 2006 SCC 3, [2006] 1 S.C.R. 108 at para. 31 and held that there is no dispute that the relationship between a student and a university has a contractual foundation, giving rise to duties in both contract and tort.

[38] In his factum Mr. Abara also asserts that the UWO assumed the role and duty of an occupier under the Occupiers’ Liability Act, R.S.O. 1990, c.O.2, and in particular he relies on ss. 2, 3, 5(1) and 5(3), which includes a duty to ensure that the premises are safe and that persons on the premises are reasonably safe. He argued that the UWO also has a duty to bring any restriction, modification or exclusion of the duty to the attention of the person to whom the duty is owed and that the Occupiers’ Liability Act supersedes any common law duty of care.

[39] Mr. Knox argued that in this case as the claim is against a university and/or its employees that to establish a breach by the UWO of its duty of care Mr. Abara is also required to plead "specific facts that could demonstrate that the conduct constituted an intentional tort or fell outside the broad margin of discretion enjoyed by the university;" relying on Jaffer, supra at para. 56.

[40] In my view however Mr. Knox has taken this statement, which in fact comes from the earlier Court of Appeal’s decision in Gauthier c. Saint-Germain, 2010 ONCA 309 at para. 49, out of context. In Gauthier, at para. 24 the court held that “[w]hile there may be contractual or tortious issues within the broader claim, if the pith and substance of the impugned conduct is academic in nature, the action cannot be continued in the courts” (emphasis added). Both Gauthier and Jaffer dealt with the basis upon which a university may be sued in relation to academic matters.

[41] In my view any claim Mr. Abara has resulting from his injury playing volleyball during a UWO-run intramural game is tenable, provided it is properly pleaded. It is not a claim that results from an academic decision or policy. He has not properly pleaded this claim in that the Claim does not plead that the defendants owed Mr. Abara a duty of care and does not specify the basis for any such duty or provide any particulars concerning the breach. Nor does it outline whether and how Mr. Abara sustained any damages as a result of said breach although I assume the Claim is for the injury that he suffered to his knee. However, for the reasons already stated, in the further amended Claim, Mr. Abara does not have to allege specific facts to demonstrate that the defendants' alleged conduct fell outside of the broad margin of discretion that is afforded to universities and their staff.

[42] Accordingly, since Mr. Abara alleges that in October 2015, he injured his knee while playing an intramural volleyball game and that as a result of that injury, he missed the final three weeks of Module 1 and suffered other damages, I will give him leave to amend and make a claim in negligence for this injury and if he wishes he can plead the Occupiers’ Liability Act as well.

Breach of Contract and/or Fraudulent and Negligent Misrepresentation

[43] As I understand these claims, based on Mr. Abara’s factum and oral submissions, he alleges that he left gainful employment and deferred his attendance at Osgoode to enter into the MBA program at the UWO because one of the UWO professors; Dr. Georgie, who was at the time the Program Director for the MBA program approached him and gave him a guarantee that he would be able to pursue both his MBA at the UWO and a JD at Osgoode concurrently. Mr. Abara alleges that he would not have attended the UWO but for this representation and that this constituted a collateral contract and induced him to enter into the main academic contract with the UWO and to register for the MBA program. Mr. Abara alleges that Dr. Georgie and other staff breached this collateral contract, leading to significant economic and other damages.

[44] In my view this may be a tenable claim if properly pleaded and so leave to amend will be granted. It is different than the other claims asserted by Mr. Abara that an academic result is wrong or a professor is incompetent. He will of course have to properly plead the elements of a breach of contract claim and specify with sufficient clarity the terms of the alleged contract that were allegedly breached and by whom. The same is true if he amends to include a claim for fraudulent and or negligent misrepresentation with respect to this alleged contract, provided he properly pleads what specific statements were made that were untrue, inaccurate or misleading, that Dr. Georgie acted negligently in making such statements or that Dr. Georgie knowingly made false representations of fact with the intention that they would be acted upon by Mr. Abara. See for example Wong v Lakehead University, [1991] O.J. No. 1901 (OCJ –Gen. Div.) and Ramdath v George Brown College, 2012 ONSC 6173 where Belobaba J. found the university liable on the basis of negligent misrepresentation for representations made in a college course calendar about a graduate business program. In that case Belobaba J. also found that the college students were “consumers” under the definition in s. 1 of the Consumer Protection Act (at para. 32). Accordingly, provided that the Claim links the provisions of the Consumer Protection Act that Mr. Abara relies upon to this particular alleged collateral contract, this too can be pleaded.

Human Rights Claims

[45] As already stated, Mr. Abara alleges that after his knee injury, UWO faculty and in particular Dr. Voyer and Dr. Richardson discriminated against him on the basis of his disability and failed to accommodate Mr. Abara’s disability upon his return to school and that their conduct amounted to discrimination as defined in the HRC. He also alleges that Dr. Walker and Dr. Ma racially discriminated against him.

[46] In Seneca College of Applied Arts & Technology v Bhadauria, 1981 CarswellOnt 117 at para. 27, the Supreme Court of Canada rejected the recognition of an independent tort of discrimination and held that any claim that is grounded in a breach of the HRC or invokes the public policy expressed therein, ought to proceed before the Ontario Human Rights Commission as opposed to the courts. Similarly in Keays v. Honda Canada Inc., 2008 SCC 39, [2008] 2 S.C.R. 362 at para. 63, the Supreme Court of Canada concluded that a breach of the HRC is neither an actionable tort, nor an independently actionable wrong for the purposes of awarding punitive damages. This issue is also discussed in Jaffer commencing at para. 32.

[47] In this case, the Claim on a number of occasions alleges that Mr. Abara was the subject of discriminatory behaviour and a failure to accommodate his injuries. Given the binding authority from the Supreme Court of Canada and the absence of a specific contractual term, this is not a tenable claim. I considered whether or not the alleged breach of the HRC might be relevant to the breach of contract claim with respect to the alleged guarantee by Dr. Georgie in light of the comments in Jaffer at paras. 41 - 44 but Mr. Abara did not plead that Dr. Georgie discriminated against him or failed to accommodate his disability. Those allegations were made against other professors.

[48] For these reasons, no allegations of discrimination on account of his injuries, or racial discrimination or failure to accommodate Mr. Abara’s injuries may be made in the further amended Claim.

Professional Misconduct and (Professional) Negligence, Breach of Trust and Fiduciary Duty

[49] This part of Mr. Abara’s claim is set out starting at para. 95 of his Claim. There he alleges that the relationship between him and faculty and staff was one of trust, that he was in a position of vulnerability, that the defendants owed him a fiduciary duty and that they engaged in a variety of professional misconduct and professional negligence. He does not specify the alleged misconduct or negligence but clearly this pleading is related to his other academic disputes that I have already addressed.

[50] Mr. Abara relies on Stuart v University of Western Ontario, 2017 ONSC 6980, a decision of Morgan J., who was also faced with a motion to strike a statement of claim. In that case Morgan J. dealt with the defence argument that was made in this case as well; that the plaintiff’s claim was in effect an attempt to revisit an academic decision and that as such it was within the university’s scope of internal discretion; relying on Jaffer, supra at para. 28. Justice Morgan went on to explain however, at paras. 29-20, relying on Gauthier, supra, at paras. 4 and 29, that this plaintiff’s claim was not about how the program prepared students but rather that the university did not meet its obligation to prepare him by putting on a program at all. In Stuart, the allegation was that the entire course of study disappeared, which Morgan J. noted at para. 31 is different that the appeal of a single grade.

[51] In the case at bar, such a distinction cannot be made. As explained under the heading “The Claims Relating to an Academic Dispute” above, Mr. Abara’s claims all relate to how the MBA program related to him-issues such as the competence of professors, failure to accommodate and in one case his grade. As the Court of Appeal stated in Gauthier, supra, at para. 24, even though there may be contractual or tortious issues within the broader claim, given that the pith and substance of the impugned conduct is academic in nature this claim cannot proceed in this Court.

[52] Accordingly for the reasons already expressed, I find that Mr. Abara should not be permitted to amend his Claim to plead professional misconduct or negligence or breach of fiduciary duty.

Intentional Infliction of Mental Suffering and Nervous Shock

[53] This part of Mr. Abara’s claim is set out starting at para. 104 of his Claim. There he refers to all of the causes of action that he wishes to plead and he asserts that the defendants’ conduct was a “wanton and reckless disregard for the plaintiffs’ interests and well-being,” that it was foreseeable that he would suffer from mental harm and shock “upon experiencing and/or learning about the extent of physical and injuries, in experiencing the systemic and institutional failure of the University including its failure to accommodate Mr. Abara’s disabilities and the further discrimination, and the ineptitudes of its staff, faculties, and departments, and in experiencing academic limbo”.

[54] Setting aside Mr. Knox’s argument that this is not a proper pleading, it is clear that this claim is related to Mr. Abara’s other academic concerns that I have already addressed and found cannot be asserted in this Court. Accordingly this claim is struck from the Claim without leave to amend.

Vicarious Liability of the Corporate Defendants

[55] Mr. Knox argued that the UWO is not vicariously liable for the actions of its employees in this case. I do not agree. To the extent I have permitted Mr. Abara to bring a claim for damages for personal injury and for breach of contract, fraudulent and/or negligent misrepresentation, he is at liberty to plead that the UWO is vicariously responsible for the actions of staff and Dr. Georgie.

Is the Claim Frivolous, Vexatious and an Abuse of Process?

[56] Mr. Knox also sought to have the Claim struck on the basis that the action is frivolous or vexatious or is otherwise an abuse of the process of the Court.

[57] In 876502 Ontario Inc. v I.F. Propco Holdings (Ontario) 10 Ltd., 1997 CarswellOnt 4721 at para. 18, Justice Dambrot of the Ontario Divisional Court defined a frivolous action as one which, on its face, is so unreal that no reasonable or sensible person could bring it. To that effect, he defined a frivolous and vexatious pleading as one which is "hopeless factually," and that it is "plain and obvious… [that it] cannot succeed."

[58] In this case, I haves given reasons for why certain claims cannot be asserted in this Court and for why others can be provided they are properly pleaded. My reasoning has not been on the basis that any claim is "hopeless factually." Rather I have applied the law to determine whether or not there might be a tenable cause of action if the claim was properly pleaded. I therefore do not find that the Claim should be struck in its entirety, without leave to amend, for being frivolous and vexatious, or that it is an abuse of process of this Court.

Disposition

[59] For all of these reasons, I find that if properly pleaded, Mr. Abara can sue the UWO and Dr. Georgie and the staff he asserts contributed to his knee injury for personal injury, breach of contract, and fraudulent and or negligent misrepresentation as set out above. I have found that the other claims that he wishes to assert, even if properly pleaded, do not disclose any reasonable cause of action against the defendants. For that reason I have stated that those claims cannot be asserted in any fresh as amended Claim - in other words those claims are struck without leave to amend.

[60] Mr. Knox argued that since Mr. Abara has already amended his Claim once that in any event I should not permit him to amend with respect to those claims I have found that he can assert. I disagree. Although if Mr. Abara fails to get his pleading right the next time, a judge could come to that conclusion, in my view that is not a conclusion that I should come to at this time. Mr. Abara’s amendments were minor and made without any direction from this Court. Although Mr. Abara is in his final year of law school, I will not preclude a further amended Claim.

[61] For all of the reasons set out above, I order that the plaintiffs’ claim against the UWO is struck, with leave to amend to plead negligence with respect to the personal injury claim and breach of contract and negligent and/or fraudulent misrepresentations with respect to the alleged contract with Dr. Georgie and that Dr. Georgie and any specific staff who are part of this claim may be named as defendants. The claim of Mr. Abara’s family members will necessarily be limited to any FLA damages resulting from his knee injury.

[62] With respect to costs, Mr. Knox did not file a Costs Outline or request a specific sum for costs. He submitted that costs be left to my discretion. In my view there was mixed success on the motion and in the circumstances I will not make any order for costs.

[63] To avoid the need for any further pleadings motions, I urge Mr. Abara to pay careful attention to this Endorsement and the law provided on the motion by Mr. Knox. If Mr. Knox is not satisfied with the next version of the Claim, I strongly urge him to sit down with Mr. Abara and try to sort out the issues without bringing a further motion.

SPIES J. Date: April 29, 2019