COURT FILE NO.: CV-19-620145-00CL
DATE: 20210526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAYLAN HAYLES, TOOSAA BUSH and GEOFFREY OLARA
Plaintiffs
– and –
DURHAM COLLEGE and DURHAM COLLEGE STUDENTS INCORPORATED
Defendants
Jason E. Bogle and Jonathan Shulman, for the Plaintiffs
Deborah Palter and Alexander Soutter, for the Defendant Durham College
Nicole McAuley, for the Defendant Durham College Students Incorporated
HEARD: January 14 and 15, 2021
REASONS FOR DECISION
McEwen J.
[1] The Defendant, the Durham College of Applied Arts and Technology (“Durham College”),[^1] brings this motion seeking summary judgment on the basis there is no genuine issue requiring a trial in respect of any of the Plaintiffs’ claims against it. The Plaintiffs resist the motion. The Defendant, Durham College Students Incorporated (“DCSI”), takes no position on the motion.
[2] For the reasons that follow, I grant Durham College’s motion for summary judgment.
OVERVIEW
The relationship between the parties
[3] The Plaintiffs, Jaylan Hayles (“Hayles”), Toosaa Bush (“Bush”) and Geoffrey Olara (“Olara”) (collectively, the “Plaintiffs”), were students of Durham College, elected as executives of DCSI in spring of 2018, and subsequently terminated by DCSI.
[4] Durham College is a Crown corporation subsisting pursuant to the provisions of the Ontario Colleges of Applied Arts and Technology Act, 2002, S.O. 2002, c. 8, Sched. F (“OCAATA”), and the regulation made thereunder, General O. Reg. 34/03. It has campuses in Oshawa and Whitby, as well as a learning site in Pickering. Durham College has approximately 13,600 full-time, post-secondary and apprenticeship students.
[5] DCSI is the student association at Durham College. It operates on Durham College’s campuses. DCSI is incorporated pursuant to the Canada Not-for-profit Corporations Act, S.C. 2009, c. 23.
[6] Prior to DCSI’s incorporation, students of Durham College and the University of Ontario Institute of Technology (“UOIT”) shared a student association.
[7] In 2017, an application appeared before this court to appoint a receivership to wind up that student association and create two separate and independent associations for the students of Durham College and the UOIT (the “Receivership Proceedings”).
[8] I managed the Receivership Proceedings for some time. Ultimately, in 2017, DCSI was created as the student association for Durham College.
[9] Durham College and DCSI maintain a relationship governed by two Operational Agreements that are relevant to the proceedings before this court. The first was entered into in September 2017 (the “2017 Operational Agreement”) and the second was entered into in April 2018 (collectively, the “Operational Agreements”).
[10] As a condition of enrollment, Durham College students are required to pay DCSI fees, as set by DCSI, in addition to their tuition. Durham College collects DCSI’s fees and remits them to DCSI at no cost. This is in accordance with the Operational Agreements. Durham College is also required to report annually regarding such fees to the Ministry of Colleges and Universities (then the Ministry of Advanced Education and Skills Development).
[11] Further, insofar as the relationship between Durham College and DCSI is concerned, s. 7 of the OCAATA provides as follows:
Nothing in this Act restricts a student governing body of a college elected by the students of the college from carrying on its normal activities and no college shall prevent the student governing body from doing so.
[12] Durham College is, therefore, prohibited by statute from interfering with DCSI’s normal activities. As noted, however, Durham College and DCSI interact and maintain a contractual relationship pursuant to the Operational Agreements. For example, in addition to the collection of fees, DCSI’s By-Laws permit Durham College to have up to two representatives sit as observers on the DCSI Board of Directors. These representatives act only as observers. They do not have voting rights and only have speaking rights at the discretion of the Chairperson of DCSI. They also do not have the right to remain present for “in-camera” (closed) sessions of DCSI’s Board of Directors without the Chairperson’s approval.
[13] As will be discussed below, the Plaintiffs take issue with certain provisions in the Operational Agreements. These Operational Agreements primarily involve Durham College providing assistance to DCSI and other provisions designed to avoid duplication of services offered to students by Durham College and DCSI.
The election and subsequent termination of the Plaintiffs
[14] The Plaintiffs decided to run in the election for the DCSI Executive and were elected in spring 2018. Hayles was elected as President-Executive Officer; Olara was elected as Vice President External-Executive Officer; and Bush was elected as Vice President Internal-Executive Officer. Their term was to run from May 12, 2018 to April 30, 2019.
[15] Each of the Plaintiffs entered into Employment Agreements with DCSI. Durham College did not participate in the negotiation of, and was not a party to the Employment Agreements, which did not require Durham College’s execution. Durham College was not provided with copies of the Employment Agreements until after this action began. The Plaintiffs had no contractual relationship with Durham College.
[16] On June 28, 2018, DCSI terminated the Plaintiffs’ employment. The termination followed an in-camera meeting that was held immediately prior to their termination. No member of Durham College attended or was privy to the discussions that took place at the in-camera meeting. Durham College did not participate in DCSI’s decision to terminate the Plaintiffs’ employment. Durham College first learned of the Plaintiffs’ termination on June 28, 2018, when it received a letter from DCSI.
[17] DCSI’s termination of the Plaintiffs did not prevent them from continuing their studies at Durham College.
THE MOTION FOR SUMMARY JUDGMENT
[18] These claims originate from the Plaintiffs’ alleged wrongful termination by DCSI. The thrust of the Plaintiffs’ claims against Durham College stems from allegations that Durham College employees, by both act and omission, exerted control over DCSI and prevented DCSI from carrying out its normal activities, contrary to s.7 of the OCAATA. The Plaintiffs take the position that Durham College granted its employees authority to supervise DCSI activities, including those concerning the Plaintiffs. Last, the Plaintiffs argue that Durham College failed to investigate allegations of discrimination advanced by the Plaintiffs against DCSI, both prior to and following their termination, and failed to investigate the manner of their termination.
The amended statement of claim
[19] In the amended statement of claim, the Plaintiffs seek the following relief against Durham College:
Equitable remedy of specific performance compelling Durham College to amend its website to advise the public that DCSI is completely independent from Durham College and that Durham College does not have any supervision or control over DCSI: at para. 1.
Damages for intentional infliction of mental distress: at paras. 2-4.
Damages for negligence: at paras. 2-4. Specifically,
a. negligent misrepresentation with respect to its roles and responsibilities relating to DCSI, at paras. 14-18; and
b. negligent supervision of DCSI, which resulted in damage to the Plaintiffs who were unaware of this alleged relationship between Durham College and DCSI, at paras. 74-79.
[20] The Plaintiffs do not allege any sort of contractual relationship with Durham College or any involvement by Durham College in the Plaintiffs’ terminations by DCSI.
[21] As will be identified throughout this decision, the claims suffer from insufficient pleadings. Of import is the fact that the Plaintiffs specifically plead that they were discriminated against by DCSI. No allegations of discrimination are made against Durham College.
The law
[22] The law is well settled that a court shall grant summary judgment where it is satisfied that there is no genuine issue requiring a trial with respect to the claim. There is no genuine issue requiring a trial where a judge is able to reach a fair and just determination on the merits, utilizing the summary judgment process.
[23] This occurs where a judge can make the necessary findings of fact, and apply the law to those facts, in a summary judgment process that is a proportionate, more expeditious and less expensive means of achieving a just result: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 20.04(2); Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at para. 49.
[24] The initial burden of establishing no genuine issue requiring a trial is borne by Durham College. However, once Durham College meets the onus, the evidentiary burden is placed on the Plaintiffs to adduce evidence that raises a genuine issue requiring a trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26, aff’d 2014 ONCA 878, leave to appeal ref’d [2015] S.C.C.A. No. 97; Dia v. Calypso Theme Waterpark, 2021 ONCA 273.
[25] Given that the proposed application is characterized as partial summary judgment, the choice of procedure is more complex and requires careful consideration of additional factors. In addition to the risk of duplicative or inconsistent findings, the Court of Appeal in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 29-33, notes the following problems raised by partial summary judgment: (1) the potential delay in the resolution of the main action, (2) the added cost of a motion for partial summary judgment, (3) scarcity of judicial resources, and (4) the additional risk to inconsistent findings flowing from a limited record relative to the trial record.
[26] Following my decision to consider Durham College’s motion, the Court of Appeal provided directions for judges facing a request for partial summary judgment: Malik v. Attia, 2020 ONCA 787. Specifically, judges are directed to make three requests to counsel, at para. 62:
(i) demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;
(ii) show how partial summary judgment will get the parties’ case in and out of the court system more quickly;
(iii) establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.
[27] Additionally, pursuant to r. 20.02(2), the Plaintiffs must not rely solely on their amended statement of claim. As is often stated, the court is entitled to assume that the parties have “put their best foot forward” in that they have advanced their best case and that the record before the court contains all of the evidence that the parties would present at trial. The parties may not rely on the prospect of additional evidence being tended at trial: Sweda, at paras. 26-27 and 32.
[28] Further, the evidence provided at the motion must be detailed and particularized as opposed to vague, comprising of isolated pieces of evidence which, as was described in Sweda, at para. 20, amounts to “no evidence.”
[29] Last, pursuant to r. 20.02(1), the court may draw an adverse inference against a plaintiff that does not adduce evidence in response to a summary judgment motion.
The procedure followed
[30] Given my previous role as case management judge, I reviewed this matter with counsel at a case conference, prior to the scheduling of the summary judgment motion.
[31] Although the litigation is undoubtedly important to the parties, particularly the Plaintiffs, the damages sought collectively by the Plaintiffs are less than $1,000,000, plus interest and costs. It was, therefore, my view that this matter had to proceed in a proportional, but fair manner.
[32] Durham College submitted that the choice of a summary judgment procedure would be appropriate and proportional. The nature of its summary judgment motion is largely based on Durham College’s assertion that it did not owe the Plaintiffs a duty to supervise their employment relationships with DCSI, it did not represent to the Plaintiffs that it would supervise DCSI and, even if it made representations, they were not relied upon by the Plaintiffs. Of note is the fact that DCSI takes no position against Durham College, nor has it crossclaimed against Durham College.
[33] Over the Plaintiffs’ objection, I decided that it would be fair and reasonable to allow the motion in advance of examinations for discovery, but only after affidavits of documents of all parties were delivered and the parties to the motion had the full right of cross examination. The decision was informed by the nature of the motion and my concerns that the examinations for discovery would be protracted and expensive.
[34] I did not preclude the Plaintiffs from filing affidavits of any witnesses, examining non-parties or seeking to adduce oral evidence at the motion. There was also nothing preventing the Plaintiffs from reappearing before me, in advance of the motion, if they sought further orders.
[35] At the return of the motion, the Plaintiffs submitted that the discovery process raised issues of credibility as well as factual disputes that made a motion for summary judgment inappropriate.
[36] I advised the parties that I would hear the motion and thereafter determine whether this was an appropriate matter for summary judgment.
[37] Having heard the arguments and having reviewed the filed record, I am of the view that this matter is appropriate for summary judgment and, as noted, have granted summary judgment dismissing the Plaintiffs’ claims against Durham College.
[38] In this regard, it bears noting that I questioned the Plaintiffs’ counsel at the motion as to whether the Plaintiffs had taken any further steps to secure evidence that may be germane to the issues on the motion so that I could determine whether it would be fair to let the motion for summary judgment proceed. Counsel advised that the Plaintiffs had made a decision not to introduce any further evidence at the motion, or attend before the court in advance to seek assistance, for “strategical reasons.” Counsel also advised that the Plaintiffs did not want to give the Defendants a “heads up” as to their position in the litigation and “tip their hand.”
[39] The Plaintiffs also took issue with the fact that only Durham College was moving for summary judgment and, as such, the motion was properly characterized as a partial summary judgment motion. They submitted that summary judgment ought not to be granted in circumstances where DCSI was not moving for summary judgment. I disagree.
[40] Even though the motion could be described as a motion for partial summary judgment, since the action against DCSI will continue, the motion does finally decide all of the claims against Durham College. It does not affect any of the Plaintiffs’ claims against DCSI.
[41] Proceeding with the motion in these circumstances is consistent with the existing law: Hryniak, at para. 60. In Butera, at para. 34, the Court of Appeal for Ontario noted that partial summary judgments are rare procedures, “reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.”
[42] Partial summary judgments consistent with the approach in, and considerations from, Butera are appropriate. In Larizza v. Royal Bank of Canada, 2018 ONCA 632, the Court of Appeal for Ontario upheld the trial judge’s partial summary judgment dismissing the claims against two of the defendants, while allowing the remaining issues to go to trial. Pepall J.A., notes, at para. 42, that the partial summary judgment dismissed all of the causes of action against the defendant, and that “it would be disproportionate, inefficient, and costly to require them to remain as a defendant in the appellant’s action.” In Kueber v. Royal Victoria Regional Health Centre, 2018 ONCA 125, partial summary judgment dismissing claims against several defendants was upheld, despite claims against the hospital remaining for determination at trial.
[43] In determining that this is an appropriate case for summary judgment, I considered not only the risk of inconsistent findings, but all of the considerations raised in Butera. The issues before me can be completely determined summarily without any effect on the Plaintiffs’ claims against DCSI. By dismissing the claims against Durham College, the scope and issues of the remaining litigation have been narrowed and discovery and trial preparation have been appropriately limited. Partial summary judgment, therefore, reduces the costs of this litigation and expedites the trial without any risk of inconsistent or duplicative findings. The choice of procedure is also consistent with the call for proportionality codified in r. 1.04(1.1) of the Rules of Civil Procedure. Based on the foregoing, I am satisfied that the criteria set out in Malik has been met.
[44] Furthermore, by releasing Durham College, the Plaintiffs will not be prejudiced. The Plaintiffs maintain their full right to pursue DCSI as a result of their employment, they can continue with all their claims against DCSI, who has not taken a position on this motion, and they can receive full compensation if successful. This would include their claims for discrimination.
[45] Last, it bears noting that the Plaintiffs Bush and Olara did not adduce any evidence on this motion, or any evidence at all. Durham College submitted that, notwithstanding my ruling concerning Hayles’s claim, Bush and Olara’s claims should be dismissed out of hand given their failure to produce any evidence.
[46] This has become somewhat academic given my dismissal of all of the Plaintiffs’ claims. Nevertheless, had I allowed Hayles’s claims to proceed, I would have allowed Bush and Olara’s claims as well, despite their failure to deliver affidavits. While it would have been far more preferable for Bush and Olara to have delivered supporting affidavits, I am of the view that it would have been just to allow their claims had I allowed Hayles’s claim, since all three are based on the same general factual matrix. Having concluded that Durham College has met its onus on this motion, I infer from the absence of affidavit evidence from Bush and Olara that their evidence would not have further supported the Plaintiffs’ claims.
ANALYSIS
[47] Durham College’s motion for summary judgment raises the following issues:
I. Is Durham College liable to the Plaintiffs for its failure to supervise their employment relationships with DCSI?
II. Is Durham College liable to the Plaintiffs for making negligent misrepresentations?
III. Is Durham College liable to the Plaintiffs for the intentional infliction of mental distress?
IV. Should the Plaintiffs be entitled to specific performance compelling Durham College to amend its website?
V. Can the Plaintiffs’ claims against Durham College for discrimination succeed?
[48] Before moving to the specific issues, I note that the genesis of the Plaintiffs’ claims and injuries is the termination of their employment by DCSI. The success of each claim is related to and dependent on the successful claim of wrongdoing related to the Plaintiffs’ termination. However, as will be discussed below, the Plaintiffs’ have failed to plead or provide evidence of Durham College’s involvement in the Plaintiff’s termination or of Durham College’s conduct causing the Plaintiffs’ injuries.
(i) The claim for negligent supervision cannot succeed
[49] In a claim of negligence, the Plaintiff must establish that:
(a) the defendant owed the plaintiff a duty of care;
(b) the defendant breached that duty of care;
(c) the plaintiff sustained damages resulting from that breach; and
(d) the damages were caused, in fact and in law, by the defendant’s breach: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 SCR 263, at para. 44; Saadati v. Moorhead, 2017 SCC 28, [2017] 1 SCR 543, at para. 13.
Durham College did not owe the Plaintiffs a duty of care
[50] The existence of a duty of care must be determined in accordance with a two-step analysis:
(a) first, one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage, there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on their part may be likely to cause damage to the latter—in which case a prima facie duty of care arises; and
(b) if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, reduce or limit the scope of the duty, or the class of person to whom it is owed or the damages to which the breach of it may give rise: Odhavji, paras. 46-51.
[51] In this case, the Plaintiffs bring their claim against Durham College, a creature of statute. In these circumstances, factors concerning proximity must be assessed in light of the governing statute.
[52] Where there is a potential for conflict between the purpose of the defendant’s governing statute (in this case the OCAATA), and the duties sought to be imposed (here by the Plaintiffs), there is a compelling policy reason to refuse the finding of sufficient proximity: Syl Apps Secure Treatment Centre v. D. (B), 2007 SCC 38, [2007] 3 SCR 83, at paras. 20, 27-28; Cooper v. Hobart, 2001 SCC 79, [2007] 3 SCR 83, at paras. 28, 41-43.
[53] The potential for conflicting duties is particularly germane in this case. On the one hand, the Plaintiffs allege that Durham College owed them a duty to supervise their employment relationship with DCSI; while on the other hand, Durham College owes overarching statutory duties prescribed by the OCAATA.
[54] I accept Durham College’s submissions that there is insufficient proximity between the Plaintiffs and Durham College to support such a duty. The existence of that duty would violate the provisions of s.7 of the OCAATA, referred to above, wherein Durham College is specifically restricted from preventing the student governing body from carrying out its “normal activities.” This would include DCSI’s own employment matters.
[55] I further accept that the prohibition in s.7 of the OCAATA is consistent with the OCAATA’s purpose pursuant to s.2(2):
The objects of the colleges are to offer a comprehensive program of career-oriented, post-secondary education and training to assist individuals in finding and keeping employment, to meet the needs of employers and the changing work environment and to support the economic and social development of their local and diverse communities.
[56] The creation of a duty on Durham College to supervise DCSI’s employment relationships with the Plaintiffs is inconsistent with the purposes of the OCAATA, the objects of the colleges, and the relationship set out therein between Durham College and DCSI.
[57] A requirement that Durham College supervise DCSI’s employment matters, where DCSI is an independent corporation and student governing body, would conflict with Durham College’s duties as per s.7 of the OCAATA. Moreover, s.2(2) directs Durham College’s duty to the students’ education and future prospects.
[58] Durham College’s position is supported by the decision of Lax J. in Hassum v. Conestoga College Institute of Technology & Advanced Learning, 2008 CarswellOnt 1677 (S.C.), at paras. 58-59, 61, 63 and 65. In Hassum, the representative plaintiffs in a proposed class proceeding argued that the defendant colleges owed them a duty not to charge students certain ancillary compulsory fees. The claim arose when the defendant colleges allegedly charged ancillary fees contrary to the terms of a policy directive issued by the Minister for Education. Lax J. held that the obligations owed by the colleges to the Minister are overwhelmingly public in nature, and that recognizing a duty on behalf of the colleges to students as it relates to the setting of fees would directly conflict with the legislative scheme. Lax J. concluded that there was an insufficient relationship of proximity between the colleges and the plaintiffs to give rise to a private law duty of care in negligence. The reasoning in Hassum resonates in this case.
[59] I pause here to note that, in addition to a statutory duty of care set out in governing legislation, there can also be a common law duty of care that may arise by virtue of interactions between the statutory actor and a private individual: Rausch v. Pickering (City), 2013 ONCA 740, at para. 45.
[60] As further stated in Rausch, at para. 46, however, before analyzing whether there is a common law duty of care, the court must determine whether the statutory scheme forecloses such a duty. It is my view, in conducting the above analysis, that the provisions of the OCAATA do just that.
[61] I am therefore of the view that Durham College did not owe the Plaintiffs a duty to supervise their employment relationships with DCSI. There is insufficient proximity between Durham College and the Plaintiffs to support such a duty of care.
[62] Notwithstanding my conclusion that the common law duty of care has been foreclosed, I nonetheless reviewed the Plaintiffs’ allegations that the Operational Agreements and the conduct of certain employees of Durham College evidenced a supervisory relationship. Those allegations are addressed bellow, where I analyze the Plaintiffs’ claim for negligent misrepresentation. Based on my analysis, I am of the view that neither the Operational Agreements nor the interactions between Durham College staff and the Plaintiffs created a common law duty of care.
[63] Consequently, there is no genuine issue requiring a trial with respect to the Plaintiffs’ claim of negligent supervision against Durham College.
(ii) The claim for negligent misrepresentation cannot succeed
[64] As stated in Soboczynski v. Beauchamp, 2015 ONCA 282, 125 O.R. (3d) 241, at para. 70, the tort of negligent misrepresentation has five elements:
(a) a duty of care based on the special relationship between the parties;
(b) an untrue, inaccurate or misleading statement by the defendant;
(c) negligence on the part of the defendant in making the statement;
(d) reasonable reliance by the plaintiff on the statement; and
(e) damages suffered by the plaintiff as a result.
The amended statement of claim does not disclose a claim for negligent misrepresentation
[65] The primary difficulty with the Plaintiffs’ claim for negligent misrepresentation, or negligence in general, is that there are no allegations in the amended statement of claim that Durham College made any statements that were untrue, inaccurate or misleading.
[66] The Plaintiffs’ claim seems to be set out at para. 78 of the amended statement of claim, which alleges that Durham College failed to supervise DCSI, which resulted in damages to the Plaintiffs, who were unaware of the arrangements between Durham College and DCSI and “relied upon the absence of information as a misrepresentation by Durham College when they participated in the election process, and employment with DCSI.”
[67] Further, the Plaintiffs allege that Durham College failed to expressly state that it did not supervise DCSI, notwithstanding that both defendants share the words “Durham College” in their names, operate from the same premises and have interactive links between their websites, as well as that Durham College is “deemed to misrepresent its function” by collecting DCSI’s fees when accepting tuition payments: see the amended statement of claim, at paras. 11, 14 and 18; and the subsequent Response to Demand for Particulars, at para. 1.
[68] This represents the totality of the allegations against Durham College.
[69] In my view, these pleadings fail to disclose a claim for negligent misrepresentation against Durham College. The Plaintiffs’ main complaint seems to be that Durham College did not really tell them anything. This is repeated in the Plaintiffs’ factum where they refer to the non-existent representations made by Durham College to the Plaintiffs. In these circumstances, I fail to see a tenable claim for negligent misrepresentation. This is particularly so when, as will be seen below, the Plaintiffs were Executives of DCSI and had possession of the DCSI By-Laws which spoke to DCSI’s independence.
The Operational Agreements do not contain negligent misrepresentations
[70] In response to Durham College’s motion, and for the very first time, Hayles alleges in his February 14, 2020 affidavit, at para. 25, that he believed Durham College and DCSI constituted one entity.
[71] He bases this belief on undescribed representations that he claims were made by representatives of Durham College and DCSI, as well as the Operational Agreements. Hayles has provided no evidence as to the identity of Durham College staff who he spoke to in this regard. I do not accept that this generalized statement, without any foundation, is sufficient to rebut Durham College’s allegations that no representations were made and find that the Plaintiffs have failed to put their best foot forward in this regard. Hayles also deposed, at para. 16, that he was compiling a list of witnesses from DCSI and Durham College to support his position. Despite having 11 months to do so, however, no list was provided at the motion.
[72] Further, although there is no pleading in the amended statement of claim referencing the Operational Agreements, Hayles reproduces, at para. 23 of his February 14, 2020 affidavit, a number of excerpts from the 2017 Operational Agreement between Durham College and DCSI that he relies upon to support his allegation that Durham College supervised DCSI. He does not, however, provide any evidence in the affidavit as to why this is the case.
[73] I have reviewed each and every one of these excerpts. There are several problems with Hayles’s submission that these excerpts establish a supervisory relationship between Durham College and DCSI:
• Hayles concedes, at para. 12 of his February 14, 2020 affidavit, that there is no actual supervision referred to in the 2017 Operational Agreement.
• None of the excerpts provide that Durham College will supervise DCSI’s employment relationships or other normal activities.
• The fee collection arrangement in the 2017 Operational Agreement is consistent with Durham College’s obligations to report to the Ministry on an annual basis, as noted above.
• The Operational Agreements do not provide Durham College with any voting rights on the DCSI Board of Directors. As noted, Durham College is only allowed up to 2 observers on the DCSI Board of Directors.
[74] The Operational Agreements set out a protocol that allowed Durham College and DCSI to coexist and ensure that their mutual operations are carried out harmoniously and for the benefit of the students. This includes some necessary checks and balances that allow Durham College reasonable insight into DCSI’s activities, but that do not provide for any control or supervision in violation of s.7 of the OCAATA.
[75] Additionally, this arm’s-length relationship between Durham College and DCSI is evident in DCSI’s own By-Laws, which Hayles acknowledges receiving at a pre-election, all candidates meeting. Those By-Laws specifically acknowledge that DCSI will manage its own affairs, and that Durham College will collect fees on behalf of DCSI.
[76] Therefore, it is difficult to understand how Hayles, and the Plaintiffs in general, now submit that they did not understand the arm’s-length relationship between Durham College and DCSI relating to employment matters.
[77] Based on the foregoing, I do not accept the Plaintiffs’ submission that the Operational Agreements provided Durham College with some form of supervisory role over DCSI.
Messrs. Jones and Garrett did not make negligent misrepresentations
[78] In addition to the Operational Agreements, the Plaintiffs submit that the actions of two individuals, Kevin Jones (“Jones”) and Peter Garrett (“Garrett”), demonstrate actual supervision by Durham College over DCSI.
[79] Notwithstanding the fact that the Plaintiffs’ claims in this regard would fail on the lack of pleading alone, I will review the issues raised by the Plaintiffs concerning Jones and Garrett.
[80] Jones acted as Durham College’s Procurement Manager.
[81] Section 3.06 of the 2017 Operational Agreement provided that Durham College would support DCSI for up to two Request for Proposal (“RFP”) processes annually.
[82] In this regard, Jones did provide assistance in selecting a healthcare provider for DCSI during Hayles’s employment by DCSI. This led to an email exchange between Jones and Hayles with respect to the RFP process.
[83] Notwithstanding the fact that Mr. Jones clearly identifies himself in his correspondence as a procurement manager for Durham College, Hayles has generally sworn in his affidavit, at para. 36, that, “I was at all times under the impression that Mr. K. Jones, Procurement Manager at [Durham College] was involved in the oversight of DCSI’s conduct.”
[84] There is absolutely no explanation as to why he would believe this, and the statement itself is so broad and generalized that it cannot be given any weight. Moreover, Jones only provided assistance with respect to the RFP process. Neither he, nor Durham College, had anything to do with DCSI employment matters.
[85] While there are broad comments at para. 49 of the amended statement of claim concerning the RFP selection process, there is nothing referencing Jones or Durham College. There are no allegations whatsoever made against them.
[86] Issues did arise between the Plaintiffs and DCSI concerning the RFP process. DCSI in its statement of defence references that the Plaintiffs’ employment was terminated partially as a result of their behaviour during the RFP process.
[87] It bears repeating, however, that whatever dispute they may have had, no allegations are made against Jones or Durham College. Jones simply assisted in the RFP process as per the terms of the 2017 Operational Agreement.
[88] Based on the foregoing, I cannot see how the 2017 Operational Agreement between Durham College and DCSI, concerning procurement, can lead to any liability on the part of Durham College in this action. Further, and in any event, I fail to see how Hayles’s “impression” that Jones was involved in the oversight of DCSI’s conduct, when Jones was only involved in procurement, has any bearing on the Plaintiffs’ claims for wrongful dismissal and related damages.
[89] It can be no surprise, for the reasons I have outlined above, that Durham College and DCSI enjoyed a relationship created by the Operational Agreements that benefited both of them. This does not lead to the inescapable conclusion that Durham College exercises control over DCSI. Further, this is not borne out by the OCAATA, the Operational Agreements or DCSI’s own By-Laws—which By-Laws Hayles reviewed.
[90] Insofar as Garrett is concerned, he was employed part-time, in separate capacities, by both Durham College and DCSI. He acted as the Chief Returning Officer (“CRO”) of DCSI as well as a government relations employee of Durham College. He maintained email addresses on behalf of both organizations and, on occasion, mistakenly used Durham College letterhead when attending to DCSI business.[^2]
[91] During the election, Hayles interacted with Garrett in his role as CRO of DCSI. Garrett dealt with a complaint that had been made against Hayles concerning his campaign which required a response from Hayles.
[92] After the election and prior to the Plaintiffs’ termination, Garrett sent an email to Hayles, using his Durham College email address, apologizing for any problems that they may have had during the election. Garrett also congratulated the Plaintiffs on their victory.
[93] Thereafter, Garrett did not participate in the in-camera meeting held by DCSI which led to the Plaintiffs’ dismissals. There is also no indication he had anything to do with their dismissal.
[94] Once again, I do not see how the interaction between Hayles and Garrett, in his role as the CRO of DCSI, could have reasonably led Hayles to conclude that Garrett was operating under the supervision of Durham College with respect to the election, which, in any event, was not the case.
[95] First, the amended statement of claim does not make any allegations against Durham College with respect to any activities by Garrett. He is only briefly mentioned at paras. 32 and 34 of the amended statement of claim.
[96] Further, as I have noted above, there is no evidence that Durham College supervised DCSI with respect to the election or the subsequent termination of the Plaintiffs. This would include Durham College’s relationship with Garrett.
[97] Finally, there is no evidence that Durham College negligently misrepresented that Garrett acted on behalf of both Durham College and DCSI as to create some level of confusion concerning a belief that DCSI’s decisions and actions, related to Garrett’s activities as the CRO of DCSI, were controlled or supervised by Durham College.
Oliver’s evidence does not give rise to a claim in negligent misrepresentation
[98] The Plaintiffs take issue with certain evidence provided at the cross examination of Meri Kim Oliver (“Oliver”), the Vice President of Student Affairs of Durham College. Oliver swore an affidavit with respect to the summary judgment motion.
[99] During Oliver’s cross examination, at pp. 83-87, she answered questions concerning the Ontario College Application Service (“OCAS”) website. She conceded that the OCAS website appeared to suggest that Durham College offered DCSI as a service, that DCSI was a part of Durham College, and that this information was provided to OCAS by Durham College. She conceded that this information was misleading.
[100] Oliver also provided evidence with respect to other services shared by Durham College and DCSI, such as software and passwords.
[101] I have reviewed the evidence in this regard.
[102] Although the above noted issues, and other related issues raised by the Plaintiffs, could arguably have caused some confusion to people reading the OCAS website or attending Durham College, once again there is no specific pleading in the amended statement of claim concerning this issue.
[103] Furthermore, I am of the view that the Plaintiffs have, subsequent to their termination by DCSI, selected portions of the OCAS website (as well as the Operational Agreements) to try to create an aura of potentially confusing language, or lack of clarity, with respect to issues that do not relate to the factual matrix of this case and the allegations in the amended statement of claim. There is nothing in Hayles’s affidavit concerning the OCAS website. Again, there is no connection between the OCAS website and the Plaintiffs’ employment relationship.
[104] Last, I should note that Hayles relies on an email contained in his February 14, 2020 affidavit, sent to him by a DCSI staff member, Dan MacInally (“MacInally”). In a two line email, MacInally states that DCSI staff are “sick of the college interfering with our organization and threatening our jobs.” In my view, however, little or no weight can attach to this email. It was neither attached to an affidavit, nor was any context provided as to why the email was sent or exactly what MacInally was referring to.
The Plaintiffs did not reasonably rely on any statements or omissions of Durham College
[105] I accept Durham College’s submissions that reasonable reliance is fundamental to the tort of negligent misrepresentation and injects an element of causation as set out in the aforementioned test in Soboczynski. I further accept that the alleged negligent misrepresentation must be of the nature that it caused the Plaintiffs to act to their detriment and that such reliance must be supported by the evidentiary record. The Plaintiffs have failed to adduce evidence that they relied upon any representation made by Durham College to their detriment.
[106] The Plaintiffs have not pleaded that they relied upon any portions of the Operational Agreements, statements by Jones or Garrett, or any portions of the OCAS website. In any event, I further accept that no reasonable person reviewing the Operational Agreements would conclude that Durham College and DCSI were one entity. This is particularly so in light of DCSI’s By-Laws, which specifically state that the DCSI Board of Directors would manage the affairs and activities of DCSI, amongst other things.
[107] As noted, Hayles received a copy of the DCSI By-Laws when running for office, which set out the relationship between DCSI and Durham College.
[108] Hayles, in his February 14, 2020 affidavit, at paras. 23 and 25, deposes that he relied upon certain excerpts from the 2017 Operational Agreement and representations made by Durham College staff. What is strikingly absent from his affidavit, however, is any statement that he relied upon the 2017 Operational Agreement or any representation made by Durham College staff to his detriment. Once again, I accept Durham College’s submission that no reasonable person could view the Operational Agreements as evidence of Durham College’s control over DCSI or of the two Defendants constituting one entity. Similarly, there is nothing in Hayles’s affidavit that states that he relied upon any issues raised in Ms. Oliver’s testimony or statements from Jones, Garrett or anyone else from Durham College to his detriment. His affidavit evidence only raises vague assertions made by unnamed Durham College staff that do not support a finding of reasonable reliance.
[109] Therefore, Hayles has failed to properly plead or provide evidence that he reasonably relied upon statements made by Durham College. He has also failed to provide any evidence or plead that he suffered damages as a result of negligent misrepresentations.
[110] It also bears repeating that Hayles produced a subsequent affidavit on February 26, 2020, in which he attached several documents involving Durham College’s policies and procedures and the OCAS website, amongst other documents. He does not, however, depose that he relied upon them in any way and there is no evidence that Hayles reviewed them or knew of their existence prior to the date he swore his affidavit. In fact, there is a notation that some of the documents were downloaded from the Internet by him the evening before he swore his affidavit.
[111] Based on all of the foregoing, the Plaintiffs’ claim of negligent misrepresentation on the part of Durham College should be dismissed.
(iii) There was no intentional infliction of mental distress upon the Plaintiffs by Durham College
[112] The elements of the tort of mental infliction of mental distress are:
(a) the defendant engaged in flagrant or outrageous conduct that;
(b) was calculated to produce harm; and
(c) resulted in a visible and provable illness: Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), at para. 48.
[113] Once again, I accept Durham College’s argument that there is no genuine issue requiring a trial with respect to the claim of the intentional infliction of mental distress.
[114] Although the relief is generally sought at paras. 2-4 of the amended statement of claim, there are no actual allegations to support the claim in the amended statement of claim. There was also no evidence adduced in this regard in Hayles’s affidavit, or at his cross examination.
[115] The Plaintiffs have also not adduced any evidence that they developed “a visible or provable illness”. The only evidence in this regard is Hayles’s affidavit evidence wherein he states that he has “sought medical evidence to establish psychological damages”.
(iv) Specific performance should not be granted
[116] The Plaintiffs have brought a claim, at para. 1 of the amended statement of claim, for specific performance compelling Durham College to amend its website. The Plaintiffs want Durham College to specifically advise the public of a number of issues primarily concerning the fact that DCSI is completely independent from Durham College and that Durham College does not provide any supervision or control over DCSI, including DCSI’s elections.
[117] The Plaintiffs are not entitled to this relief.
[118] Specific performance is an equitable remedy for breach of contract. Sir John Leach, V.C. described this principle as an equitable relief where damages in contract would be inadequate: “Courts of Equity decree the specific performance of contracts, not upon any distinction between realty and personalty, but because damages at law may not, in the particular case, afford a complete remedy”: Adderley v. Dixon (1824), 57 E.R. 239 (Eng. V.-C.); Matthew Brady Self Storage Corp. v. InStorage Limited Partnership, 2014 ONCA 858, 125 O.R. (3d) 121, at para. 29, leave to appeal ref’d, [2015] S.C.C.A. No. 50 [InStorage]. The key factors of the remedy, “looking at the contract broadly,” are described by the court in InStorage, at para. 40:
(a) whether “damages will afford the vendor an adequate and complete remedy” or whether money is “sufficient to purchase a substate performance”;
(b) “whether the vendor has established some fair, real and substantial justification for the granting of specific performance”; and
(c) “whether the equities as between the parties favour the granting of specific performance.”
[119] There was no contract entered into between the Plaintiffs and Durham College so that the court would order Durham College to perform its contractual obligations therein.
(v) The Plaintiffs’ claim against Durham College for discrimination cannot succeed
[120] The Plaintiffs’ claim for discrimination cannot succeed for two reasons, neither of which relates to a review of the merits of any such claim.
[121] First, there is no pleading in the amended statement of claim against Durham College alleging discrimination. The only allegations of discrimination are contained at paras. 19 and 69 of the amended statement of claim, relating to interactions during the election and the Plaintiffs’ employment, and are made solely against DCSI. I raised this several times with Plaintiffs’ counsel. Nonetheless, he failed to refer me to any pleading in this regard.
[122] Second, the law is settled that there is no independent cause of action in tort at common law for discrimination: Bhadauria v. Seneca College of Applied Arts & Technology, 1981 CanLII 29 (SCC), [1981] 2 SCR 181; King v. Ryerson University, 2015 ONCA 648, at para. 5. While a breach of the Human Rights Code, R.S.O. 1990, c. H.19, can be raised in an action if the claim is properly before the court, it is dependent on the pleading disclosing a reasonable cause of action, other than the breach of the Human Rights Code: Jaffer v. York University, 2010 ONCA 654, at para. 44. Given that the rest of the claims against Durham College have been dismissed, a civil remedy for discrimination cannot survive as a standalone claim.
DISPOSITION
[123] For the reasons above, the Plaintiffs’ claims against Durham College are dismissed.
[124] If the parties cannot agree on the issue of costs, they may schedule a 30-minute case conference before me.
McEwen J.
Released: May 26, 2021
COURT FILE NO.: CV-19-620145-00CL
DATE: 20210526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAYLAN HAYLES, TOOSAA BUSH and GEOFFREY OLARA
Plaintiffs
– and –
DURHAM COLLEGE and DURHAM COLLEGE STUDENTS INCORPORATED
Defendants
REASONS FOR DECISION
McEwen J.
Released: May 26, 2021
[^1]: The Defendant is incorrectly named as Durham College.
[^2]: As did another Durham College employee, Mr. Don Gough, on one occasion.