Court File and Parties

COURT FILE NO.: CV-19-627449

DATE: 20200511

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tahar Amrane

AND:

Attorney General of Ontario

BEFORE: Pollak J.

COUNSEL: Tahar Amrane, in person

Daniel Mayer, for the Respondent Attorney General of Ontario

HEARD: February 20, 2020

ENDORSEMENT

[1] This is a motion brought by the Attorney General of Ontario to strike out the Plaintiff’s Statement of Claim (the “Claim”), without leave to amend, and to dismiss the action.

[2] The Plaintiff’s Claim outlines numerous complaints about how he was treated while he was a student at York University. On this motion, the Plaintiff submits that the Claim must be read in its entirety, as this is a “collective cause of action” because he is not the only student of York University who has suffered the same type of damages that he has. He submits that the action is in the general interest of students who “seek intellectual training of the masses to cultivate common sense and to qualify and prepare these students to form sound practical judgments to be applied as necessary for the future well-being of the ‘labouring classes’”.

[3] The Plaintiff submits that he worked diligently through communication directed at the former Premier of Ontario, the Honourable Kathleen Wynne, and to the Ministry of Advanced Education and Skills Development regarding the mistreatment of innocent students by York University, including francophone minority students. No action was taken by them in response, but he submits that elected officials have the obligation to serve all citizens without exception. It is therefore logical that they should be held accountable, because they have to honour the social contract between themselves and the citizens of Ontario. He argues that the citizens of Ontario, including himself, are free to voice their opinions and to demand change. There are many professional bodies in Ontario for all of the professions, but there is no body governing university professors in Ontario.

[4] The Plaintiff claims that the Ontario government has an obligation to protect its citizens, including students, and that the government cannot allow York University to disregard their obligations. He submits that our universities have become autonomous entities that take the place of the rule of law.

[5] The Plaintiff believes in his cause very passionately and submits that he raises very important issues that are of great interest to the citizens of Ontario generally.

[6] This is a motion to strike the Statement of Claim and to dismiss the Plaintiff, Mr. Tahar Amrane’s action against the Attorney General of Ontario.

[7] I note that upon review of the entire Claim, Mr. Amrane claims unspecified damages against the Ontario Government for the harm he suffered while he attended York University’s Glendon College. He also claims punitive damages.

[8] In the Claim, the Plaintiff refers to specific examples of his mistreatment by certain professors and by York University. These include:

− Professor Carol Fraser “did not assign marks to adjust to assignments that he submitted”;

− Professor Courtney was not capable of correcting certain assignments;

− Professor Tanya Taylor did not hand back some of her students’ assignments;

− Professor Greeves never gave students a course outline or a schedule of his office hours;

− York University never responded to a petition that was signed by students; and

− Professor Upadhyay gave the Plaintiff a mark of C, notwithstanding the fact that the assignment “was full of valuable information”.

[9] As well, the Claim also alleges that Glendon College has never taught the course Global Geography in French and therefore violated the Constitution Act, 1867 and the Canadian Charter of Rights and Freedom Act (ss. 23 and 24). The Plaintiff pleads that he did try to take all possible action before the administrative bodies of York University. When he received no result, he also took action by making these complaints to Ministry officials.

[10] The Plaintiff alleges that the Government of Ontario should be held liable for the negligent acts or omissions of York University and that it should intervene to remedy these mistreatments and to repair the damage. The Ministry advised the Plaintiff that universities are autonomous and that it has no authority to remedy the wrongs that he alleges.

[11] The Plaintiff pleads that there is no governing body for professors in Ontario and that the Government of Ontario has an obligation to protect its students from the mistreatment of students by universities by implementing rules and policies that serve to protect the public interest.

[12] The issues on this motion are:

1. Is the Plaintiff’s action an abuse of process and/or frivolous and vexatious? If so, should the action be stayed or dismissed without leave to amend?

2. Alternatively, does the Claim disclose a cause of action? If not, should it be struck without leave to amend?

The Law

[13] The criteria to be applied on this motion has been well developed by our jurisprudence. Pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the question for determination is whether, assuming that the facts set out in the Statement of Claim can be proven, it is plain and obvious that the Statement of Claim discloses no reasonable cause of action. Rule 21.01(3)(d) also provides that if the claim is frivolous or vexatious or an abuse of process of this court, it may be struck out.

[14] Further, pursuant to Rule 25.11, all or part of a pleading can be struck out with leave to amend, or without leave to amend if it is scandalous, frivolous or vexatious or is an abuse of process. A motion may be brought before a Master pursuant to this Rule. An Ontario practice direction directs Judges not to hear Masters’ motions.

[15] The Plaintiff relies on the decision of the Ontario Superior Court in Robson v. Law Society of Upper Canada, 2016 ONSC 5579, 32 C.C.L.T. (4th) 290, wherein Justice Firestone concluded, at para. 22:

It is not determinative, on motion to strike, that the law has not yet recognized a particular claim. Rather, the court must ask whether it is plain and obvious that the claim has no reasonable prospect of success. The court must take the facts pleaded in the statement of claim as true, unless they are patently ridiculous or manifestly incapable of being proven, and the approach must be generous, erring on the side of allowing a novel, but arguable, claim to proceed. While no evidence is admissible on motion to strike, claimants must clearly plead all facts on which they intend to rely, as those facts are the basis on which the possibility of success will be evaluated. See Imperial Tobacco, at paras 17-22; and Frank v. Legate, at para. 36, and the cases cited therein. [See also Conway v. The Law Society of Upper Canada, 2016 ONCA 72, 395 DLR (4th) 100, at para. 7.]

[16] The Ministry of Advanced Education and Skills Development is not a legal entity. It is a department of the Attorney General of Ontario (the “Crown”); therefore, an action against the Ministry cannot proceed.

[17] Notwithstanding the lack of legal status of the named defendant in this matter, the Moving Party, the Crown, submits that the action is an abuse of process and must therefore be dismissed on that basis.

[18] The Crown submits that in this action, the Plaintiff raises issues that have already been judicially considered and rejected in the case of Amrane v. York University, 2016 ONSC 7847, by the Divisional Court. In that case, the Plaintiff Mr. Tahar Amrane— the same as the one in this case — brought an action against York University because he was given a mark of D in English during the 2006-2007 academic year, notwithstanding his efforts, which included a petition to the English department to review and overturn his mark. The action was dismissed on a Rule 21 motion, wherein the Divisional Court held that the matters and complaints raised in the Statement of Claim fell exclusively within the jurisdiction of York University and that the court did not have any jurisdiction to intervene. Further, the court found that it was plain and obvious that the action was not brought within the relevant limitation period. The Crown submits that although there are many other complaints raised in this action, they too fall within the exclusive jurisdiction of York University as they are academic and administrative matters, with this court having no jurisdiction to review or interfere with these decisions of York University.

[19] The Crown submits that in this case, it is an abuse of process to raise administrative and academic complaints that are similar to those raised in the Divisional Court decision in Amrane v. York University. This action, it is submitted, is an impermissible collateral attack on that decision, and further, the Plaintiff has not exhausted all of his remedies, such as judicial review of the administrative decisions of York University.

[20] The Crown also raises many alternate arguments. It alleges that the Claim does not disclose any cause of action as the Crown cannot be held liable in tort, since there is no duty of care between the Crown and the Plaintiff. Further, the Crown has statutory and common law immunity, which also results in the need for dismissal of the action. The Crown relies on the recent Supreme Court of Canada decision in Canada v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184, which held that Crown immunity is so deeply entrenched that to override the immunity, clear and unequivocal legislative language is required. Further, the Plaintiff has not, in his action, made any allegations of a specific wrongdoing by a person, which again results in application of common law immunity. The action must therefore be dismissed. Most importantly, the jurisprudence in Ontario is well-established that the Crown does not have any duty of care to students at post-secondary institutions. This was affirmed by our Court of Appeal in Rana v. Ontario (Training Colleges and Universities), 2016 ONCA 398.

[21] In Ontario, our universities are legally autonomous, as they are governed pursuant to their enabling statuses. Ontario universities are liable for their own acts or omissions.

[22] Although the Plaintiff believes that the Crown should be responsible for — and therefore should take appropriate action to stop — the alleged wrongdoings by York University, the Crown Liability and Proceedings Act, 2019, S.O. 2019, c. 7, Sch. 17, does prohibit such a claim.

[23] Upon my review of the Claim and having heard the submissions of the Plaintiff on this motion, it is clear that the Plaintiff’s action is based on his objection to the fact that York University is autonomous. This is a policy decision of the Ontario Government and is not subject to challenge in our courts. The Plaintiff’s claims regarding the lack of the degree of supervision or control of universities by the Ontario Government cannot form the basis of a valid cause of action.

[24] Notably, the Plaintiff has not made any allegations of bad faith against the Crown. However, the Plaintiff pleads in his Claim that the Crown unfairly grants funding to York University and criticizes the fact that certain courses were not available in French. The Plaintiff submits that as a result, there has been a violation of s. 23 of the Charter. Various courts have held that s. 23 is applicable to primary and secondary school institutions but not post-secondary institutions (see, e.g., CA Yellowknife, (Northwest Territories (A.G.) v. Association des parents ayants droit de Yellowknife, 2015 NWTCA 2, leave to appeal dismissed, 2015 CanLII 69437 (SCC), at para. 81).

[25] Alternatively, the Crown also submits that it cannot be held liable for any Charter violations that York University may have caused.

[26] I agree with all of the Crown’s submissions. Finally, the Crown submits that by reason of all of the deficiencies in the Claim noted above, there should not be any right given to the Plaintiff to amend the Claim.

[27] The law with respect to whether or not amendments should be granted for a deficient Statement of Claim is generally that leave should be granted unless it is clear that the defects cannot be remedied. Although this is a very heavy burden for the Crown, in this case, I find that the defects in the Claim are so numerous and significant that leave to amend should not be granted. It is clear, in my view, that there is no proper cause of action asserted against the Defendant. Further, this action is an abuse of process, as similar allegations made with respect to the court’s lack of jurisdiction to review the decisions made by York University have already been decided in the Amrane case, which I have referred to above.

[28] The Defendant’s request for an order to strike out the Statement of Claim, without leave to amend, and to dismiss the action is therefore granted.

[29] The court may strike out an originating process and dismiss an action under Rule 21.01(1)(b) if it discloses no cause of action, or under Rule 21.01(3), if it is frivolous or vexatious or is otherwise an abuse of process of the court. As a result of my order, it is not necessary for the Court to rule on the Master’s motion on Rule 25.

Costs

[30] The parties have reached an agreement on costs to be awarded on a partial indemnity basis to the successful party on these motions at the hearing of this matter. The successful party, the Defendant, is therefore awarded costs on a partial indemnity basis, in accordance with the agreement of the parties.

[31] Notwithstanding Rule 59.05, this Order is effective from the date it is made, and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal Order need to be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this Order may nonetheless submit a formal Order for original signing, entry, and filing when the Court returns to regular operations.

Pollak J.

Date: May 11, 2020