ONTARIO SUPERIOR COURT OF JUSTICE
RE: H.Z., a Minor, by their Litigation Guardians B.Z. and S.Z., plaintiff
-and-
Upper Canada College, defendant
BEFORE: Robert Centa J.
COUNSEL: Manjit Singh, for the plaintiff
Chloe Snider and Rabita Sharfuddin, for the defendant
HEARD: August 5, 2022
ENDORSEMENT
1Between 2020 and 2022, H.Z. completed Years 3 and 4 at Upper Canada College. By all accounts, he is a smart, kind, and delightful boy. At the time of the registration deadline for the 2022-2023 school year, however, H.Z.’s parents owed the College almost $36,000 in unpaid tuition fees. The College did not permit H.Z to re-register and filled his spot in the Year 5 class with an external applicant. H.Z.’s parents have now paid the arrears and wish to register H.Z. for Year 5. The College has declined to do so because the class is full, and it wishes to defend its payment and registration policies. H.Z has sued the College for breach of contract and seeks a mandatory injunction asking ordering the College to register him pending the trial of the action.
2I dismiss the motion for an injunction. H.Z. has not proven that he has a strong prima facie case against the College or that he will suffer irreparable harm if the injunction is not granted. While I accept that the balance of convenience may favour H.Z. over the College, that factor alone does not justify imposing a mandatory order on the College given my findings on the other two branches of the test.
3Given the urgency of this issue, I have released this decision as quickly as possible. I have carefully reviewed all of the written evidence and considered all of the arguments made, even if I do not refer to all of them.
Facts
4I will set out the facts briefly in this section and then examine the relevant facts more closely below.
5H.Z is ten years old. He lives in Toronto with his mother, B.Z., father, S.Z, six-year-old twin siblings, and his three-year old brother. B.Z. is a dentist and H.Z. is a lawyer and entrepreneur.
6H.Z attended the York School from junior kindergarten through the end of grade 2. H.Z.’s parents felt that the York School did not have the same reputation as the College and wanted to give their son a “bigger, brighter ceiling.” H.Z.’s parents applied for and H.Z. obtained admission to the College for Year 3, which commenced in September 2020.
7The Z. family paid the first tuition instalment and the initial registration fees on time. Without notice to the College, they did not pay the July 2020 tuition instalment on time and did not make the full payment until September 10, 2020. They did not pay the December 2020 tuition instalment until January 26, 2021, which eliminated the outstanding account balance. Having paid the outstanding account by the re-registration deadline of February 10, 2021, the College allowed the family to re-register H.Z. for Year 4 in the 2020-2021 academic year. On February 8, 2021, B.Z. filled out the registration agreement for 2020-2021. She chose to pay the tuition fees in three instalments and declined the tuition insurance that was available.
8On June 15, 2021, the Z. family made a $2700 payment to retire the outstanding account balance. However, they did not pay the July tuition instalment ($16,500) or the December tuition instalment ($16,500) when those charges were levied. By March 4, 2022, they owed the College $36,649.54 and had not made any payments since June 15, 2021.
9B.Z. and S.Z. explain that they did not have the money to make the tuition payments due to a combination of factors. First, S.Z. was heavily invested in a company that defaulted in spring 2020 due, in large part, to “global tightening of markets caused by the pandemic.” Second, B.Z.’s dental practice experienced significantly reduced revenue due to the pandemic. Third, S.Z.’s start-up business struggled because of a “lack of available investment funding” due to the economic downturn associated with the pandemic. Fourth, B.Z. fell ill in June 2021, which further reduced the income from her dental practice. B.Z. and H.Z. agree that they did not advise the College of their financial distress until February 2022.
10The College provided S.Z. and B.Z. with notice of the arrears. Each month the College sent the family a statement of account, which showed the increasing balance owed. Staff in the finance office regularly sent emails to S.Z. and B.Z. reminding them of their financial obligations. S.Z. and B.Z. did not always respond to these messages or did not respond in a timely way. At no time did they dispute the legitimacy of any of the charges or the arrears balance.
11On December 13, 2021, Collen Papulkas sent an email to S.Z. and B.Z. She brought to their attention the $34,403 balance owing on the December account. She encouraged them to pay the current balance owing and reminded them that students would not be permitted to re-register for the 2022-2023 academic year until the accounts were paid. The re-registration deadline was set for February 11, 2022. From the College’s perspective, students could not re-register until the accounts were paid and students had to re-register before February 11, 2022, or they would lose their ability to re-register for the next academic year.
12S.Z. and B.Z. did not respond to this message until January 13, 2021, when S.Z. finally responded and stated, “we intend to get the account caught up before the end of February.” Ms. Papulkas responded “Okay – thank you for the update.”
13On January 24, 2022, the College sent an email to all parents. It stated:
To register your student(s) for the 2022-23 school year at Upper Canada College, the following must be completed and submitted by no later than Feb. 11, 2022:
Registration or Re-Registration Contract(s) for your student(s)
2022-23 Athletic Consent and Media Waiver for your student(s)
If there is an outstanding balance owing to the College, you will not have access to your re-registration contract(s). Please contact Colleen Papulkas to complete payment and access your contract(s) for the 2022-23 school year.
14S.Z. and B.Z. did not respond to this message, did not pay the $35,960 in arrears owing by the re-registration deadline of February 11, 2022, and took no steps to complete payment or access the re-registration agreement by the deadline. The re-registration deadline passed without H.Z. being re-registered.
15On February 24, 2022, Ms. Papulkas sent another email to H.Z.’s parents. The College asked for immediate payment of the entire outstanding balance and clearly communicated that H.Z. would not be able to re-register for the following term.
16In response to this message, S.Z. forwarded the email exchange from December 13, 2021, through January 14, 2022, which is described above, and in which S.Z. stated his intention to pay the account by the end of February. Ms. Papulkas apologized and stated that she had misfiled the email exchange. She asked if he was still on track to make a full payment by the end of the month. S.Z. left her a voicemail in response to her request.
17H.Z.’s family did not make a payment by the end of February. S.Z.’s evidence is that in January 2022, B.Z. and S.Z. began to arrange a loan for S.Z.’s dentistry business, which they expected would close by the end of February. Once the loan was made to the business, B.Z. and S.Z. intended to have the corporation loan money to its shareholders, which they would use to pay the money they owed to the College. S.Z. indicated that the lender declined to enter a loan agreement.
18On March 1, 2022, Ms. Papulkas sent a message to S.Z. and B.Z. She stated that the College CFO stated the College had to receive payment in full of all outstanding accounts no later than March 11, 2022, failing which there would be further communication from the principal. Neither S.Z. nor B.Z. acknowledged or responded to this message.
19On March 7, 2021, David Girard, the Assistant Head, Preparatory School – Primary Division wrote to S.Z. and B.Z. He noted that the family had an outstanding balance of $36,649.54. He stated that unless the balance was paid in full, H.Z. would not be permitted to return to school after March break.
20On March 11, 2021, the payment deadline set in the March 1 and March 7 communications, S.Z. spoke with Ms. Papulkas. The parties agree that S.Z. stated that he would not be able to pay the account that day, requested a further extension to pay until March 18, 2022, and that Ms. Papulkas agreed to a further extension. The parties dispute what else might have been said during that call.
21During this period, S.Z. and B.Z. continued to negotiate with the lender over the terms under which it would borrow funds. Ultimately, the dental practice borrowed $220,000 at an interest rate of 26% and received the funds on March 22, 2022. The dental practice then retired the outstanding account with the College, which received the funds on March 24, 2022.1 The College permitted H.Z. to complete his semester at the College.
22The Principal of the College then arranged a Zoom videocall with S.Z. and B.Z. to speak personally to them about the College’s decision not to permit H.Z. to re-register and to offer assistance in finding an alternative school arrangement for H.Z. That call took place on April 5, 2022. S.Z. and B.Z. expressed surprise at the decision and described the financial and medical challenges they had faced. The Principal expressed sympathy but explained that H.Z.’s spot in the Year 5 class had already been filled by a new applicant. He said that he would review the College’s decision-making process and would follow up with them if he found any basis to reconsider the College’s position.
23On May 5, 2022, the Principal had a second Zoom videocall with B.Z. and S.Z. He advised them that he had reviewed the process followed by the College. He concluded that the College had acted in a manner consistent with its agreements, policies, and handbooks. He concluded that the S.Z. and B.Z. had ample notice of the consequences of non-payment, and that the Year 5 class was full. The parties dispute what happened during a part of the call that concerned a recent census conducted among the student body. I will address that below.
24S.Z. appealed the decision to the College’s Board of Governors, which confirmed the Principal’s decision.
25On June 10, 2022, H.Z. issued a notice of action in this proceeding. The statement of claim is dated June 13, 2022, and the notice of motion for an injunction was served on July 5, 2022.
Nature of the relief sought and the appropriate test to be applied
26H.Z. brings this motion seeking a pre-trial order requiring the College to admit him to Year 5 in September 2022. A party may seek an interlocutory injunction or mandatory order pursuant to s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rule 40 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
27In general, a party seeking an interlocutory injunction must meet the test set out in RJR — MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. The moving party must demonstrate that:
a. the action raises a serious question to be tried, in the sense that the claim is neither frivolous nor vexatious;
b. the moving party would suffer irreparable harm if the court does not grant the injunction until the completion of the trial; and
c. that the balance of convenience favoured granting the injunction because the moving party would suffer greater harm than the responding party if the injunction is not granted.
28The College submits that H.Z. seeks a mandatory injunction and that, therefore, a higher standard should be applied at the first stage of the test. The College relies on the decision of the Supreme Court of Canada in R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196.
29CBC involved an application for an interlocutory mandatory injunction in the context of a citation for contempt. CBC refused to remove information from its website identifying a victim, allegedly contrary to a publication ban that was issued after the CBC had posted the information. The Supreme Court unanimously held that the test for an interlocutory mandatory injunction requires, at the first stage, that the applicant demonstrate a strong prima facie case, and not simply a “serious issue to be tried.”.
30After setting out the various formulations of the meaning of a strong prima facie case, Brown J. noted, at paras. 17-18, that all of the formulations require the moving party to show a case of such merit that it is very likely to succeed at trial. He then set out the test:
upon a preliminary review of the case, the application judge must be satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations set out in the [statement of claim].
31H.Z. submits that the injunction it seeks is merely preserving the status quo by allowing H.Z. to continue as a student at the College pending trial. H.Z. submits, therefore, that the lower standard of serious question to be tried should be applied. I disagree.
32The College’s Registration Agreement, Financial Handbook, and Family Handbook all state that registration is required annually for each student to reserve placement for September of each academic year. The written contract documents do not confer an automatic right for a current student to re-register for the following academic year. The College explicitly reserves its right to refuse registration to any student previously admitted if the student’s account with the College is considered past due. At the time he commenced this action, H.Z. was not registered for Year 5 in 2022-2023.
33I am required to look past the form and the language in which the order sought is framed and identify the substance of the relief sought by H.Z. I am to examine whether, in substance, the overall effect of the injunction requires the College to do something or to refrain from doing something: CBC at para. 16.
34I find that H.Z. is asking the College to do something, namely, register him for September 2022. I find that H.Z. is not currently registered at the College and has no contractual right to enter Year 5 in September 2022. H.Z. is not seeking an order to preserve the status quo, he is seeking a mandatory injunction to flip the status quo and to direct the College to undertake a positive course of action and to re-register him for September 2022.
35I find that H.Z. seeks a mandatory interlocutory injunction and he must meet the modified RJR test:
a. H.Z. must demonstrate a strong prima facie case that he will succeed at trial;
b. H.Z. must demonstrate that irreparable harm will result if the relief is not granted; and
c. H.Z. must show that the balance of convenience favours granting the injunction.
No strong prima facie case
36At the first stage, H.Z. must prove on the law and evidence before me, that he is very likely to succeed at trial. H.Z. has pleaded four causes of action:
a. The College breached its written agreements by failing to re-register him for Year 5 after his parents paid the outstanding accounts on March 24, 2022;
b. The College breached agreements that were formed between the College and H.Z. when Ms. Papulkas agreed on March 11, 2022, to extend further the payment deadline and confirmed that this would not prejudice H.Z.’s ability to be re-registered;
c. The College breached the implied term of procedural fairness in the written contact between H.Z. and the College; and
d. The College’s decision not to re-register H.Z. was made in retaliation for H.Z.’s parents expressing their views regarding a survey of the student body.
Is H.Z. the correct plaintiff?
37During oral argument, I asked counsel if H.Z. was the correct plaintiff in this action.
38In his statement of claim, H.Z., a minor, asserts that the College breached a contract with him, and breached an amended contract entered into on March 11, 2022, during a phone call between the College and S.Z. Under Ontario law, contracts for the education of students by private schools are understood to be between the school and the parents of the student: Setia v. Applebee College, 2013 ONCA 753, 118 O.R. (3d) 481 at para. 40; W.W. v. Lakefield College School, 2012 ONSC 577 at para. 50; Symonds v. All Canadian Hockey School Inc., 2009 CanLII 46446 (Ont. S.C.) at para. 19.
39In this case, there is no evidence that the College entered into a contract with H.Z. The College requires a parent, not the student, to sign its Registration Agreement. By signing, the parent agrees to be legally bound by the Registration Agreement and its ancillary schedules and accept financial responsibility for all fees and charges owing. There is no place for the student to sign the Registration Agreement, which states:
You understand and agree that Upper Canada College requires only one parent to complete the following registration. You understand and agree that the parent who completes and submits this Registration Agreement is accepting full financial responsibility for all fees associated with Day Student Registration. Please type your full name in the box below in order to signify your agreement to the terms of this Registration Agreement. You understand and agree that this Registration Agreement will be legally binding when you type your name in below, with the same effect as if you had signed this Registration Agreement in ink.
40In oral submissions, the College confirmed that, in its view, the contract is between the College and the parents.
41This is not a case where the College has removed a student by relying on its Student Code or the Social Contract: COVID circumstance, which students are expected to sign themselves and thereby apply directly to the student.
42I have serious doubts as to whether H.Z., a minor, can sue to enforce the contract between his parents and the College: Greenwood Shopping Plaza Ltd. v. Neil J. Buchanan Ltd., 1980 CanLII 202 (SCC), [1980] 2 S.C.R. 228, at para. 9. There is no evidence before me that the parents assigned the contract to H.Z. or that the parents were acting as agents for H.Z.
43I recognize, however, that the doctrine of privity of contract in Canadian law has become weakened over time: Brown v. Belleville (City), 2013 ONCA 148, 114 O.R. (3d) 561, at paras. 73-79; London Drugs Ltd. v. Kuehne & Nagel International Ltd., 1992 CanLII 41 (SCC), [1992] 3 S.C.R. 299, pp. 418-426; Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., 1999 CanLII 654 (SCC), [1999] 3 S.C.R. 108, at para. 26.
44The plaintiff could also amend the title of proceedings to add the Z. parents as plaintiffs in their own right: see for example W.W.2
45Both parties need an urgent answer to the question of whether or not the mandatory injunction will issue. The record permits me to determine the issue and there is no reason to dismiss the motion simply to have it reargued with a different plaintiff: r. 1.04. I will not dismission the motion on this basis.
The written contract
46The plaintiff alleges that the College breached the Registration Agreement, the Financial Handbook, and the Family Handbook, when it declined to re-register H.Z. once S.Z. and B.Z. had paid the outstanding accounts on March 24, 2022.
47I find that the plaintiff has not demonstrated a strong prima facie case that the College breached the written contracts. I do not think it is very likely that the plaintiff will succeed at trial on this argument.
Principles of contract interpretation:
48The Court of Appeal has held that when interpreting a contract, a judge should:
a. determine the intention of the parties in accordance with the language they have used in the written document, based upon the "cardinal presumption" that they intended what they said;
b. read the text of the written agreement as a whole, giving the words used their ordinary and grammatical meaning, in a manner that gives meaning to all of the agreement’s terms and avoids an interpretation that would render one or more of its terms ineffective;
c. read the contract in the context of the surrounding circumstances known to the parties at the time of its formation. The surrounding circumstances, or factual matrix, include facts that were known or reasonably capable of being known by the parties when they entered into the written agreement, such as facts concerning the genesis of the agreement, its purpose, and the commercial context in which it was made. However, the factual matrix cannot include evidence about the subjective intention of the parties; and
d. read the text in a fashion that accords with sound commercial principles and good business sense, avoiding a commercially absurd result, objectively assessed.
Weyerhaeuser Company Limited v. Ontario (Attorney General), 2017 ONCA 1007, 13 C.E.L.R. (4th) 28, at para. 65, rev’d on other grounds, Resolute FP Canada Inc. v. Ontario (Attorney General), 2019 SCC 60, [2019] 4 S.C.R. 394; Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 517, 424 D.L.R. (4th) 588, at paras. 30, 46 (“City of Thunder Bay”); Ottawa (City) v. ClubLink Corporation ULC, 2021 ONCA 847, 159 O.R. (3d) 255, at para. 52 (“City of Ottawa”).
49Where the parties entered into more than one contract as part of an overall transaction, the contracts must be read in light of each other to achieve interpretive accuracy and to give effect to the parties’ intentions: City of Ottawa, at para. 54. To ascertain the parties’ intentions in the case before me, therefore, it will be necessary to read all of the applicable agreements together: the Registration Agreement, the Financial Handbook, and the Family Handbook.
50Finally, when determining the intentions of the parties, the court is not concerned with the parties’ subjective intentions at the time they drafted the contract, but rather with the intent expressed in the written words of the contract and the context in which they used them: Dumbrell v. The Regional Group of Companies Inc., 2007 ONCA 59, 85 O.R. (3d) 616, at para. 50.
Interpretation of contracts at issue
51The relationship between the College and H.Z.’s parents is governed by contract. The contract of instruction is made up of a bundle of documents. As explained in Symonds:
Whereas in Ontario’s publicly-funded school systems the obligations of the schools to parents are governed by statute, the Education Act, R.S.O. 1990, c. E.2, the relationship between independent schools and the parents of their students for the most part is governed by contract. At the heart of this relationship lies the contract of instruction under which the parents of each student contract for the school to provide a specified kind of instruction in return for the payment of tuition. An understanding of the respective legal rights and obligations of an independent school and its students’ parents involves the interpretation of the bundle of documents that typically make up its contract of instruction – the school’s brochure or catalogue, the application for admission, the letter of acceptance, tuition schedule, and any handbook distributed to students or parents on acceptance or at the start of the school year.
52In this case, the applicable documents are the Registration Agreement, the Financial Handbook, and the Family Handbook.
53Section 5 of the College’s Family Handbook made clear that students needed to re-register annually, that there was a fixed deadline by which students must re-register, and that students with unpaid accounts would not be permitted to re-register. It states:
Families are required to re-register annually to confirm enrolment for their student(s) for the following academic year. The process is completed online via Bluenet log-in.
Notification of the opening of the re-registration process and the deadline for re-enrolment is communicated as early as possible in the new calendar year.
Information about fees, policies and tuition refund insurance is accessed at the time of registration. The first instalment of fees is due at the time of re-enrolment. Re-registration will be withheld for students whose College accounts aren't current.
54The College’s Financial Handbook contains very similar provisions that required annual registration to reserve a place in the next academic year and required all past due accounts to be paid prior to re-registration:
Registration is required annually for all students to reserve placement for September. Please note that online registration forms must be completed by a parent or legal guardian of the student. The parent or guardian who completes the registration agreement is considered financially responsible for all fees associated with that student.
The College reserves the right to refuse registration for any students previously admitted whose accounts show a debit balance outstanding over 30 days.
Responsibility for Full Payment of Fees
Parents are responsible for payment of fees as per the agreed schedule. Any student whose account has not been paid promptly or has not made acceptable payment arrangements with the Finance Office may not:
be permitted to attend classes, any school activities or take examinations;
be permitted to receive any grades or transcripts from the school;
be provided with any receipts for income tax purposes;
be permitted to re-enroll in the school.
Re-Registration of Returning Day Students
Details on re-registration of returning families will be provided through Heads Up.
55On January 24, 2022, as promised, the College provided parents with notification of the opening of the re-registration process and the deadline for re-enrolment. The College sent an email to all parents that stated:
To register your student(s) for the 2022-23 school year at Upper Canada College, the following must be completed and submitted by no later than Feb. 11, 2022:
Registration or Re-Registration Contract(s) for your student(s)
2022-23 Athletic Consent and Media Waiver for your student(s)
The contract(s) and form(s) will be available as of noon on January 24, 2022 on Bluenet.
Please note the following: …
If there is an outstanding balance owing to the College, you will not have access to your re-registration contract(s). Please contact Colleen Papulkas to complete payment and access your contract(s) for the 2022-23 school year.
56For the purposes of this motion, the Registration Agreement for 2022-2023 was essentially identical as the ones signed by B.Z. or S.Z. in 2020 and 2021, except for the specific dates that applied in each year. The Registration Agreement contained provisions that were consistent with the other documents. It provided:
Registration is required annually for all students to reserve placement for September. Parents or guardians must confirm registration for the 2022-2023 academic year by completing and submitting this Registration Agreement online by February 11, 2022. The first instalment of tuition fees must also be forwarded to the College by February 11, 2022. The first instalment of $2,000 is applicable for all payment plans…
The College reserves the right to refuse registration to any student previously admitted whose account with the College is considered past due.
Furthermore, you understand that a student will not be permitted to attend classes and/or take examinations or re-register for the 2022-2023 academic year unless fees and other charges have been paid by the required dates.
57As noted, the meaning of an agreement and the intent of the parties in entering into it must be derived from the words the parties used and the context in which they used those words. I have not placed any weight on the evidence of B.Z and S.Z. that sets out their subjective understanding of what the contracts meant. The intention that matters is the intent the parties expressed through the words used in the documents.
58I find that the agreements, properly interpreted, require that a current student re-register for the next academic year on or before the annual registration deadline or that student will not be re-registered. The agreements also provide that a student may not re-register while he has an outstanding balance. Nothing in the agreements permits a student to extend the annual re-registration deadline by paying their accounts after the re-registration deadline has passed.
59In my view, this case is very similar to the case of Slattery v. Pacific Academy Private School, 2013 BCCA 106. In Slattery, the school had policies regulating admission and tuition. The school required parents to complete an annual re-registration form and to pay any amounts owing by a certain date or re-registration would be denied. The family fell behind in paying their tuition fees. In spring 2012, the school advised the family of an outstanding balance and required payment by June 30, failing which the student would not be permitted to attend the fall term. The parents offered a series of monthly post-dated cheques that ran from August 2012 to May 2013. The school did not accept this offer but offered two more proposals that it would find acceptable. The student’s family did not accept those proposals and the school de-registered the student. The student’s parent then commenced an action and sought an injunction, which was granted.
60The B.C. Court of Appeal set aside the injunction on the basis that there was no cause of action and, therefore, no serious question to be tried. The reasoning of Finch C.J.B.C. is very helpful and I will set it out at length:
[15] In my respectful opinion there was no basis on which an interim injunction could be granted. There was no evidence before the judge on which he could find that a cause of action existed. There was a contract in place between the parties which provided for payment of monies by the plaintiff to the defendant by certain dates. The express terms of the contract were clear. In order to attend the school payment for services was required. If payment was not received in accordance with the policies the student would not be permitted to re-register.
[16] The plaintiff agreed to the terms of the contract and acknowledged that she was aware of the consequences. The defendant is owed money under the contract for the period ending 30 June 2012.
[17] There is no basis on which the plaintiff can assert let alone prove that the defendant was in breach of the contract. Clearly, it is the plaintiff who has failed to abide by its terms. There is nothing in the contract that gives the plaintiff the right to insist that her child be accepted for enrollment.
[18] Even if the plaintiff had tendered all of the required funds, there was no obligation on the defendant to accept them, or to register the child.
[19] There is no statutory provision requiring the school to accept students who apply, and there is no free-standing absolute right to education at a private school.
[20] Because there is no legal foundation to the plaintiff’s claim, there is no serious issue to be tried. That is the first requirement for the granting of an injunction.
61I agree with this approach. Applying the Slattery principles to this case, H.Z. was required to complete the Registration Agreement on or before February 11, 2022, or he would forfeit the ability to be re-registered for the next academic year. The contracts prevented him from accessing the Registration Agreement until all amounts owing were paid. He was required to pay all amounts owing in order to re-register and he had to complete the re-registration process by February 11, 2022. He had no right to extend the deadline for re-registration past February 11, 2022, by delaying the payment of amounts owing past that date. Paying the amounts that were past due after the re-registration deadline, did not entitle H.Z. to be re-registered for the 2022-2023 school year. There was no provision requiring the College to admit him in the circumstances of this case.
62For these reasons, I find that the plaintiff has not made out a strong prima facie case that the College breached the contract.
The alleged agreement made by Ms. Papulkas
63Although I have found that it is unlikely that the plaintiff will be able to prove a breach of the written contract, it is possible that the College, through its words and conduct, entered into different agreements with the Z. family: Susin Estate v. TD Waterhouse Discount Brokerage, 2022 ONCA 101, 160 O.R. (3d) 708 at para. 16.
64In assessing whether or not the plaintiff has demonstrated a strong prima facie case that parties reached an agreement, however, I must analyze the communications against the contracts as I have interpreted them.
65The plaintiff asserts that there was an agreement on March 11, 2022, between Ms. Papulkas, on behalf of the College, and the Z. family that the College breached when it declined to re-register H.Z. for the 2022-2023 academic year. I disagree. The plaintiff’s submissions rest, in large part, on interpretations of communications and conversations informed by S.Z. and B.Z.’s idiosyncratic and subjective interpretation of what the contract documents meant. I do not share their interpretation and I do not think they are very likely to prove that contract meaning at trial. Assessed in the context of the contracts properly interpreted, I find that the plaintiff has not established a strong prima facie case that the College breached the alleged March 11 agreement.
66Before turning to the specifics of the alleged agreements, I wish to address two challenges the plaintiff faces.
67First, there is no evidence in the record that Ms. Papulkas had the authority or thought that she had the authority to enter into the type of agreement that the plaintiffs allege that she made with them. Ms. Papulkas is the Finance Manager of the College. She is responsible for overseeing the students’ tuition and registration payments. She communicates payment deadlines to parents, ensures that accounts are paid on time, and follows up with parents on outstanding balances. She gave evidence that while she processes the re-registration forms, she did not have the authority to make any decisions concerning registration or enrolment decisions.
68The plaintiff did not challenge the evidence of Ms. Papulkas during her cross-examination. The plaintiff did not raise this issue at all during the cross-examination of Mr. McKinney. There is nothing in the record to suggest that Ms. Papulkas had the authority to enter into the type of agreement asserted by the plaintiff. All of the evidence before me is to the contrary and suggests that Ms. Papulkas did not have the authority to make decisions about the re-registration process and knew that she lacked that authority.
69While the scope of Ms. Papulkas’s authority is not determinative of the issue, it informs my assessment of the meaning of her email exchange and conversation with S.Z.
70Second, the plaintiff is alleging that the College, essentially, entered into a collateral contract with H.Z. during the March 11, 2022, telephone call between Ms. Papulkas and S. Z. in which the College purportedly agreed that H.Z. would be permitted to re-register once the family paid the amounts owing to the College, even if that payment was after the re-registration deadline. A court will find that an oral contract modifies a written contract only in exceptional circumstances. Courts are properly cautious of such arguments. As O’Farrall J. put it in Delta West Academy v. Armutlu, 2009 ABPC 2, at para. 8:
The law with respect to collateral contracts and the parole evidence rule dictates that an oral contract which varies or modifies a written contract will be given effect only in exceptional circumstances. Such contracts and evidence are viewed with suspicion by the law: Heilbut, Symons & Co. v. Buckleton, [1913] A.C. 30 (H.L.). No evidence of exceptional circumstances was put before me. The operative contract therefore is the written admissions agreement signed by both of the Defendants. There is no other operative agreement.
71I turn now to the plaintiff’s submissions. The plaintiff asserts that Ms. Papulkas made an agreement with them on March 11, 2022, and that this agreement must be understood in the context of the prior email communications between the parties. It is important to remember that long prior to this date, the College had been sending S.Z. and B.Z. monthly statements outlining the growing amount owing.
72On December 13, 2021, Ms. Papulkas sent the following email to S.Z. and B.Z.:
You recently received an email with a copy of your December 2021 statement of account. There is a significant balance forward and overdue on this statement, largely driven by a partial or full amount due from the July 1st tuition installment.
You are encouraged to make a full payment for the current balance on your December statement, mindful of the College's policies with respect to overdue and unpaid account balances.
Students will not be permitted to re-register for the 2022-2023 academic year until the full current balance of tuition and incidental charges has been paid.
Students in Year 12 will have transcript requests for university applications held until the full current balance of tuition and incidental charges has been paid.
Tax receipts for child care or higher level IB courses will not be issued until the full current balance of tuition and incidental charges has been paid.
Students in Year 12 may be held from writing final exams until the full current balance of tuition and incidental charges has been paid. Your immediate attention to both your overdue balance and your current balance is greatly appreciated.
73On January 13, 2022, S.Z. responded as follows:
Hi Colleen,
Thank you for this e-mail.
We intend to get the account caught up before the end of February.
I will keep you updated.
74On January 14, 2022, Ms. Papulkas responded, as follows:
Okay – thank you for the update.
75In oral submissions, counsel for the plaintiffs placed significant emphasis on Ms. Papulkas saying, “Okay.” Counsel submitted that by using this word, Ms. Papulkas agreed that B.Z. and S.Z. could make the payment by the end of February, which was after the registration deadline, and that making the payment by that date would mean that H.Z. could then re-register for 2022-2023 academic year.
76I do not think that the plaintiff is very likely to prove this interpretation of Ms. Papulkas’s response at trial. The plaintiff is attempting to pour much more meaning into the word “Okay” than is reasonable. Considered against the meaning of the contracts above, and monthly statements of account, it is much more likely that Ms. Papulkas’s response was a polite acknowledgment of S.Z.’s stated intention to pay the account at the end of February.
77In his factum, the plaintiff suggests that they attempted to arrange a loan to B.Z.’s dental practice “in reliance” on Ms. Papulkas’s acknowledgment. I disagree. B.Z. already owed over $35,000 to the College. That debt needed to be paid regardless of plans for the next academic year. S.Z. admitted as much on cross-examination. It seems far more likely that the attempt to arrange a loan was to obtain cash to deal with existing creditors and cash flow needs, not in reliance on an alleged promise regarding the next academic year. Indeed, that is the only explanation for taking on a loan of $220,000, which was far in excess of the amount owed to the College plus next year’s fees.
78On January 24, 2022, the College sent an email to all parents. It stated:
To register your student(s) for the 2022-23 school year at Upper Canada College, the following must be completed and submitted by no later than Feb. 11, 2022:
Registration or Re-Registration Contract(s) for your student(s)
2022-23 Athletic Consent and Media Waiver for your student(s)
If there is an outstanding balance owing to the College, you will not have access to your re-registration contract(s). Please contact Colleen Papulkas to complete payment and access your contract(s) for the 2022-23 school year.
79This email clearly put S.Z. and B.Z. on notice of the looming registration deadline. They were told that they must complete the registration form no later than February 11, 2022, and that they would not be able to do so if they still had arrears. Neither S.Z. nor B.Z. responded to this message. They did not pay the arrears or contact Ms. Papulkas by the deadline.
80I do not think it is very likely that the plaintiff will be able to establish at trial that they did not need to take any action in response to this email because Ms. Papulkas had responded “Okay” to S.Z.’s stated intention to pay the account by the end of February.
81On February 24, 2022, Ms. Papulkas sent another email to H.Z.’s parents. This is the first communication after the passing of the February 11, 2022, re-registration deadline. Ms. Papulkas informs S.Z. and B.Z. that H.Z. would not be able to re-register for the following term. It read:
I am sending this email as a final ask from the Finance Office as I have not received any response to any previous messages or monthly statement emails.
There has not been a payment made to [H.Z.]'s student account since June 2021. Both the July and December tuition installments have not been paid and are incurring compound interest on a monthly basis.
I urge you to make an immediate full payment for the current outstanding balance of $35,960.14.
The Prep School Administration has been notified that [H.Z.] is not, and cannot be, re-registered for the 2022-2023 academic year.
82In this message, the College clearly decouples the need for B.Z. and S.Z. to pay the debt owing for the 2021-2022 academic year from re-registration for the next academic year. As of February 24, 2022, the parents have missed the re-registration deadline and H.Z. has forfeited his right to apply for re-registration. That does not change, in any way, the College’s insistence on the payment of the amounts past due. The College’s position is entirely consistent with my interpretation of the contract.
83In response to this message, S.Z. forwarded the email exchange from December 13, 2021, through January 14, 2022, which is described above, and in which S.Z. stated his intention to pay the account by the end of February. Ms. Papulkas apologized and stated that she had misfiled the email exchange. She asked if he was still on track to make a full payment by the end of the month. Ms. Papulkas believed that she spoke to S.Z. that day, that he said he could not make the payment until mid-March and that she said “fine.” There is no dispute between the parties about the content of this conversation.
84On March 1, 2022, having not received payment by the end of February, Ms. Papulkas sent a message to S.Z. and B.Z. She stated:
I have consulted with the College's CFO and have been told the College requires full payment of the current balance on [H.Z.]'s student account ($35,960.14) no later than Friday, March 11th.
If payment is not received by March 11th, there will be further communication from the Principal's Office.
85The Z. family did not acknowledge or respond to this message.
86On March 7, 2021, David Girard, the Assistant Head, Preparatory School – Primary Division wrote to S.Z. and B.Z. He noted that the family had an outstanding balance of $36,649.54. He stated that unless the balance was paid in full, H.Z. would not be permitted to return to school after March break. He made no reference to the question of re-registration, which is consistent with the College’s position and my interpretation of the meaning of the contract:
Despite several email messages, and providing you with a statement of account on a monthly basis, the College still has not received payment of [H.Z.]’s July 15 and December 15 tuition installments. As you can see from your enclosed statement, finance charges and accumulating incidental charges, in addition to the overdue tuition fees, have brought [H.Z.]’s current balance owing to $36,649.54.
Given the fact that the vast majority of the current balance is now overdue by over 90 days, the College must insist that the full balance is paid by this Friday, March 11, 2022. If full payment is not received by this date, [H.Z.] will not be permitted to return to the College after the March holidays and your account will be transferred directly to collections.
Immediate attention to this balance is greatly appreciated.
87On March 11, the payment deadline set in the March 1 and March 7 communications, S.Z. spoke with Ms. Papulkas. There is some agreement between the parties as to what was said on that call. The parties agree that S.Z. stated that he would not be able to pay the account by March 11, that he requested a further extension to pay until March 18, 2022, and that Ms. Papulkas agreed to a further extension. The parties dispute what else might have been said during that call.
88In his affidavit, S.Z. states the following about that call:
I immediately called Ms. Papulkas on her cell phone and advised her that we would not be able to pay H.Z.'s account balance for another week or two and asked if that would be acceptable. Ms. Papulkas stated to me that it would be acceptable because the Finance Department would not be working over the March Break so as long as proof of payment was in her email inbox when she returned to work after the March Break on Monday March 28, 2022. In response to my specific inquiry about whether paying the balance of H.Z.'s account by March 28, 2022 would prejudice H.Z.'s right to re-register for grade five at UCC, Ms. Papulkas assured me that it would not (hereinafter the "Agreement").
89In her responding affidavit, Ms. Papulkas disagreed with S.Z.’s recollection and stated:
[S.Z.] left me a voicemail on March 11, 2022 concerning Mr. Girard's letter sent on March 7, 2022. I returned his call that same day. We discussed whether H.Z. could return to the College after the March Break (Mr. Girard's letter stated H.Z. could not as a result of the continued non- payment). [S.Z.] told me that he could not meet the March 11, 2022 deadline for the 2021-2022 payment (to keep H.Z. enrolled for that year) and asked for a further extension until March 18, 2022.
I granted the extension, which concerned a collection matter (not a registration matter). I did not make any representations or commitments about H.Z.'s ability to re-register for the 2022- 2023 academic year and I do not recall discussing H.Z.'s re-enrollment at all on that call. I do not have the authority to make any decisions concerning registration or enrolment - only the Senior Leadership Team has such authority. My responsibility and authority relate only to collections matters, not registration decisions.
90On cross-examination, counsel for H.Z. asked Ms. Papulkas open-ended questions about what she remembered about the phone call:
Q. What can you tell me about the March 11th, 2022 phone call between you and [S.Z.]? What do you remember that was said in that phone call?
A. As I recall the phone call on March 11th was around the letter that the family had received from the college, noting that since there was a large payment owing and overdue to the college, that that payment needed to be made by March 11th or their son would not be able to return to regular classes at the college after the March break.
Q. Do you recall anything else about that phone call?
A. I recall the family ... [S.Z] was who I had the conversation with. I recall that he said he would not be able to meet Mr. Girard's March 11th deadline to have his son return after March break, and that he another week, I believe, is what he noted to me.
Q. And then anything else you recall from that phone call?
A. No. It was a very brief phone call. It was during March break, and as far I can recall, [S.Z.] said he couldn't make the payment by March 11th as noted. He said he needed another week, and I said, "Fine, " but I don't believe that there was any other discussion after that.
91Counsel for H.Z. did not confront Ms. Papulkas with S.Z.’s version of events or otherwise challenge her recollection. Her evidence was entirely unshaken on cross-examination. Counsel for H.Z. submits that cross-examination was unnecessary. S.Z.’s version of the conversation contained in his affidavit tells a different story and it will be up to the trial judge to decide which version of events to prefer.
92I agree with what will happen at trial. However, it is on this motion that the plaintiff must raise a strong prima facie case. The plaintiff must convince me not just that there is an issue for trial, but that the plaintiff is very likely to succeed at trial. The absence of cross-examination of Ms. Papulkas on the crucial conversation means that there is no evidence from that cross-examination to support a finding that the plaintiff is very likely to succeed in establishing the Z. family’s version of that call.
93The plaintiff asserts that S.Z. took contemporaneous notes of his engagements with the College. I give no weight to these notes. They are not contemporaneous notes of the telephone calls or interactions. They are to-do lists and they do not lend any independent support for his version of events.
94I think it is more likely that the trial judge will accept Ms. Papulkas’s version of the call. I say this for three reasons:
a. Ms. Papulkas had known since February 24, 2022, that, from the College’s perspective, “[H.Z.] is not, and cannot be, re-registered for the 2022-2023 academic year.” It seems likely that she would have recalled a discussion that was at odds with the College’s decision.
b. Ms. Papulkas knew that she did not have authority to change the registration rules or to authorize H.Z.’s re-registration after the deadline. It seems likely that she would have sought input from others and consulted with the persons empowered to consider such a request before making such an agreement and unlikely that she made that decision on her own.
c. The call was prompted by the ultimatum contained in Mr. Girard’s letter: pay the arrears by March 11, 2022, or H.Z. will not be permitted to attend class following March break. The letter made no reference to re-registration. Ms. Papulkas’s version of the call is consistent with what triggered it.
95I find that the plaintiff has not demonstrated that it is very likely that he will establish at trial S.Z.’s version of events. I do not find that the plaintiff has demonstrated a strong prima facie case that the College made an agreement that as long as the Z. family paid the arrears by March 18, 2022, H.Z. would be able to re-register.
The alleged breaches of procedural fairness
96The plaintiff asserts that the College breached procedural fairness because Mr. McKinney did not “meet with H.Z. or his parents or permit them to make any statement or submissions” before he made his decision not to allow H.Z. to re-register at the College.
97The rules of fairness are implied into the contract between parents and a private school. However, those rules are subject to the express terms of the contract: W.W., at para. 50; Setia, at para. 40. The level of procedural fairness required will vary with the circumstances: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817; W.W., at paras. 77-83.
98It seems to me that the contract in this case excludes any duty of fairness around the issue of payment of fees and re-registration. The contract seems clear: students must re-register by the registration deadline; if there is an outstanding account balance owing, a student will not be permitted to re-register.
99Assuming that the contract does not completely exclude the duty of fairness, I find that the College met the duty of fairness in the following ways:
a. The College provided notice of the debt by sending monthly statements to the family. From June 2021 to February 2022, the statements showed a growing account balance and the absence of payments. Neither S.Z. nor B.Z. disputed the fact of the debt or its quantification.
b. The College provided notice of the February 11, 2022, re-registration deadline no later than January 24, 2022.
c. The Z. family had an effective right of review through the Principal. Mr. McKinney received submissions from S.Z. and B.Z. requesting an exemption from the re-registration deadline during the Zoom call on April 5, 2022, in emails from S.Z. on April 5, 2022, April 7, 2022, and April 26, 2022. The Principal reviewed the College’s compliance with the contracts, considered the submissions that he had received, and concluded that the College had handled the situation appropriately and consistent with its policies. He concluded that no relief was required.
d. The Z. family had a further right of review through the College’s Board of Governors. S.Z. sent letters setting out his position to three members of the board. The board considered these submissions and provided a written response on May 9, 2022.
100The College fulfilled any duty to provide the Z. family with the ability to know and respond to the situation it faced. There was no need for an oral hearing or any trial-like processes for the College to discharge any duty of fairness in these circumstances: W.W., at para. 79. This case is very different from cases of student discipline where there may be a factual dispute about what happened and a range of penalties that may be available.
101I find that the plaintiff has not established a strong prima facie case that the College violated its duty of procedural fairness.
The alleged reprisal
102In the statement of claim, H.Z. alleges that, in certain communications with the school principal on April 5 and May 5, 2022, the principal unfairly questioned H.Z.’s parents about their public position on a school survey that, among other questions, asked students to describe their sexual orientation. In H.Z.’s factum, he alleges that the decision not to permit him to re-register was a reprisal for his parents expressing their views on the inclusion of the sexual orientation survey.
103I find that this allegation does not raise a serious question to be tried, much less a strong prima facie case.
104First, the survey that H.Z. received did not, in fact, contain any questions about sexual orientation. Those questions appeared only on surveys sent to older boys at the College. Second, the Town Hall at which they expressed their viewpoints was held months after the registration deadline passed. Third, the principal denied that the viewpoints of the parents of H.Z. influenced the decision in any way. That evidence was wholly unshaken on cross-examination.
No irreparable harm
105At the second stage of the test for an injunction, the plaintiff must demonstrate that the plaintiff will suffer irreparable harm if the injunction is not granted. Irreparable harm is “harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other”: RJR – MacDonald, at p. 341.
106At this stage, the burden remains on the plaintiff to place sufficient evidence before the court to demonstrate that he will suffer irreparable harm. The evidence tendered must be clear and not speculative. Absent clear evidence that irreparable harm will result, the injunction should not issue. Irreparable harm is not made out simply because damages may be difficult to quantify. The plaintiff must prove that the alleged harm cannot be quantified in monetary terms: Downtown Kids Academy Inc. v. Zakrzewski, 2017 ONSC 5045, 43 C.C.E.L. (4th) 339; Ciba-Geigy Canada Ltd. v. Novopharm Ltd., 1994 CanLII 19563 (FC), 1994 CarswellNat 700 (F.C.T.) at para 118; 754223 Ontario Ltd. v. R-M Trust Co., [1997] O.J. No. 282 (Gen. Div.) at para. 40; 2158124 Ontario Inc. v Pitton, 2017 ONSC 411 at para. 49.
107H.Z. provided scant evidence of irreparable harm on this motion. He did not swear an affidavit, so we have no direct evidence from him. The totality of the evidence provided by H.Z. was found in the affidavits sworn by his parents. They do not provide even hearsay evidence about the views of H.Z. on how he feels about switching schools pending the trial of this action. The only evidence provided of irreparable harm is contained in the following three paragraphs, which appeared in each of B.Z.’s and S.Z.’s affidavit:
I strongly believe that H.Z. will suffer irreparable harm if he is yanked out of UCC and deprived of his inclusion within the broader UCC community and, more particularly, his network of close school friends and forced, at his tender age, to undergo the trauma of said sudden deprivation through no fault of his own.
I also strongly believe that not only will H.Z. suffer psychological harm if he is not allowed to continue at UCC, but he would thus be in grave danger of also suffering academically which, in turn, would result in a lifetime of negative ramifications.
Thus, I verily believe it is irrefutable that H.Z. will suffer irreparable harm if an interlocutory injunction is not granted maintaining the status quo by allowing H.Z. to continue with his schooling at UCC until the within Action is decided upon its merits.
108There are a number of problems with this evidence.
109First, it contains impermissible opinion evidence. B.Z. and S.Z. tendered factual affidavits, not expert reports. They confirmed on cross-examination that they were giving evidence as fact witnesses, not as experts. Neither S.Z. (a lawyer) nor B.Z. (a dentist) filed a report as an expert or a Form 53 acknowledgment of expert’s duty.
110The following statements appear to me to be opinions, not statements of the affiant’s personal knowledge of known facts:
a. H.Z. will suffer trauma if he is deprived of the opportunity to continue to study at the College;
b. H.Z. will suffer psychological harm if he is not allowed to continue to attend at the College;
c. H.Z. would be in grave danger of suffering academically if he is not allowed to continue at the College;
d. H.Z. would suffer a lifetime of negative ramifications if he is not allowed to continue at the College;
111These comments go well beyond a permissible compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly: R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819 at 835. Witnesses are entitled to provide lay opinions on matters such as the identity of persons or places, the identification of handwriting, mental capacity, and state of mind: John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 6th ed. (Lederman, Fuerst, Stewart) (LexisNexis, 2022), at paras. 12.17 to 12.38. I accept easily that B.Z. and S.Z. had an opportunity for personal observation of H.Z., but these statements cross that line into opinions that need to be provided by qualified and independent medical, educational, or vocational experts.
112To be admissible opinion evidence, the plaintiff has to demonstrate on a balance of probabilities that: the evidence is relevant to some issue in the case; the evidence is necessary to assist the trier of fact; the evidence does not contravene an exclusionary rule; and the witness is a properly qualified expert: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330; R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40. The evidence from the parents’ fails the fourth branch of the test.
113Moreover, even if I were to admit the opinions, I would give them no weight because they are bald assertions, which are unsupported by any other facts in the record. Moreover, the parents’ opinions are not self-evident inferences available on the record. They are unsupported conclusions.
114There is, for example, no evidence in the record to support the parents’ opinion that H.Z. will suffer “trauma” or “psychological harm” if he has to attend a different school pending trial of this action. He attended the York School from JK through grade 2 and then his parents moved him to the College. There is no evidence that H.Z. had any trouble integrating into his new school environment, meeting friends, immersing himself in the new school, or excelling academically. There is also no evidence that H.Z.’s parents view switching schools as per se traumatic for their children. Their evidence on cross-examination is that they intend to move their six-year-old twins from their current schools into different schools as early as grade 3.
115Similarly, there is no evidence in the record to suggest that H.Z. has any educational needs, or health issues that require accommodations that only the College can provide. The College is no doubt an excellent school, but I firmly reject the submission that a student faces the “grave danger of suffering academically” or faces a “lifetime of negative ramifications” if he is required to attend grade 5 in the Toronto District School Board instead of the College, pending the trial of this action.
116For these reasons, I exclude the opinions listed in paragraph [110] as impermissible opinion evidence. If I am wrong, and should admit this evidence, I give it no weight because they are unexplained conclusions that are not supported by the evidence in the record.
117Second, the entire final paragraph of the parents’ affidavits set out above is nothing more than the parents’ personal views on the proper outcome of this branch of the test. I will repeat that paragraph for convenience:
Thus, I verily believe it is irrefutable that H.Z. will suffer irreparable harm if an interlocutory injunction is not granted maintaining the status quo by allowing H.Z. to continue with his schooling at UCC until the within Action is decided upon its merits.
118This sentence appears to be little more than a submission on the appropriate outcome on this branch of the test. It does not provide me with any evidence that I can use in evaluating whether or not there will be irreparable harm.
119The remaining evidence is found in the first sentence of the first paragraph of the parents’ affidavit. They affirm that H.Z. will be “deprived of his inclusion within the broader UCC community and, more particularly, his network of close school friends.”3
120While this statement accurately describes the outcome if I do not grant a mandatory injunction to return H.Z. to the College pending the trial of this action. It is very thin evidence of irreparable harm. Transferring schools is not the preferable result for this family and it may be disappointing for all of them, but this evidence does not persuade me that H.Z. will, in fact, suffer irreparable harm absent a mandatory injunction.
121S.Z. provided evidence that they have attempted to place H.Z. in a different private school by “looking at the same tier of private schools that [the College] would be in, and we haven’t looked elsewhere.” S.Z. stated that “there is no reasonable alternative for H.Z. but to continue his schooling at [the College].” I disagree. There is no evidence in the record that H.Z. would not be able to attend the same TDSB junior elementary school that his six-year-old siblings attend. I do not see how requiring H.Z. to attend the same public junior elementary school as his siblings is not a reasonable alternative, even if it is not his parents’ preference.
122Apart from the evidence tendered on this motion, counsel for the plaintiffs placed significant emphasis on the case of Kaufman v. Leo Baeck Day School, 2004 CanLII 21290 (ON SC), 72 O.R. (3d) 208 (S.C.). The Kaufman family’s two sons, Harris (age 11) and Elliot (age 7), had attended the Leo Baeck Day School for their entire school careers. The school was described as a private reform Jewish day school, which catered to the special needs of the Reform Jewish community to which the family belonged. The Kaufman parents ended up in a very serious and public dispute with the school over alleged bullying suffered by Harris and how the school responded to the bullying. The record is clear that Elliot was not a bully, was not a victim of the bullying, and was a student of exemplary character. The Kaufman parents removed Harris from the school at the end of grade 6 over the bullying and how the school responded to the dispute.
123The school concluded that its relationship with the Kaufman parents was so dysfunctional, and that the parents had so poisoned the school atmosphere, that it was impossible for them to work together to educate Elliot. The board then advised the parents that Elliot would not be permitted to re-register for the following year.
124In response to the school’s decision, the Kaufman parents personally, and as litigation guardians for Harris and Elliot, sued the school and the parents of the two children who had allegedly bullied Harris. The parents sought an injunction to require the school to readmit Elliot.
125Justice Pitt granted the injunction. First, he found that there was a strong and clear case against the school that had denied Elliot, “a 7-year-old innocent child,” re-registration on the basis of the dispute with the parents that did not involve Elliot. Second, Pitt J. found the case to be one of the “clearest cases” of irreparable harm and that the school’s decision would “necessarily have a severe negative impact on the child’s perception of justice and fairness at such an early stage of his life.” Justice Pitt held:
I would have thought it self-evident that the expulsion from school or denial of the right to re-entry to school of an innocent 7 year old child on the grounds of a major dispute between school and parents with respect to an older sibling, would cause irreparable harm to both the innocent child and parents.
126Finally, Pitt J. held that the balance of convenience favoured granting an injunction. I find Kaufman distinguishable from this case.
127It appears to me that Pitt J. viewed the first two branches of the RJR Macdonald test as closely inter-related on the facts of the case before him. I understand Pitt J. to have been influenced by his assessment that Elliot was an innocent by-stander to the dispute between his parents and the school over the bullying his brother experienced.
128The reasons in Kaufman do not describe the terms of the contract between the school and, presumably, the Kaufman parents. We do not know, for example, if it contained a clause requiring the parents to conduct themselves in a certain way in their dealings with the school. I do not see any reason why, in principle, a private school could not include a term in its contract that would deny re-registration to a student if the school considered the working relationship with the parents to be dysfunctional or otherwise harmful to the educational environment. Presumably, the Leo Baeck contract did not contain such a term.
129The situation here is very different. The dispute between the College and the Z. family arose out of unpaid tuition fees for H.Z.’s education at the College. The registration agreement for the 2021-2022 school year was signed by B.Z. By signing the registration form, B.Z. acknowledged that she was accepting full financial responsibility for all fees associated with H.Z.’s attendance at the College. Although H.Z. is neither legally responsible nor morally culpable for the failure of his parents to pay his tuition fees on time, he is not unconnected to the breach of the agreement in the way that Pitt J. found that Elliot was innocent of the dispute about the bullying. The consequences of the failure of S.Z. and B.Z. to pay the tuition fees on time fall more naturally on H.Z. than the consequences of his parents’ dispute with the school fell on Elliot.
130It is not self-evident to me, on the facts of this case, that denying re-registration to H.Z. would cause irreparable harm to him or his parents. I also do not see how denying an injunction in this case would affect H.Z.’s perception of justice and fairness. This is a sad example of how illness, a global pandemic, and business setbacks can harm family finances. I would not presume to tell S.Z. and B.Z. how to explain this situation to H.Z., but a truthful explanation need not undermine his sense of justice or fairness.
131There are many cases where irreparable harm could be more easily demonstrated: a student being removed mid-semester from a school without a viable option for continuing their schooling that year: D.(C.) v. Ridley College (1996), 1996 CanLII 8128 (ON SC), 140 D.L.R. (4th) 696 (Ont. S.C.); a student who might not be able to graduate on time if they are removed from the school: W.W.; a student who would be unable to access a particular set of academic accommodations that are necessary for them to have equal access to an education: Gianfrancesco v. Junior Academy Inc., [2001] O.J. No. 2730 (S.C.); or a student who would be removed from a school that had a particularly important connection to their faith community: Kaufman.
132There is no evidence before me that H.Z. faces any of these challenges. He is not being “yanked out” of the College (although he very clearly faced that risk in March 2022 when his tuition fees remained unpaid), he is simply not able to return in September. The level of disruption in his education is low. There is no evidence that he will not be able to join his twin siblings at the public junior public school in September. I accept that he will miss the educational environment provided by the College and not attending school with his friends. I find, however, that H.Z. will not suffer irreparable harm.
Balance of convenience
133The College submits that the balance of convenience does not favour granting a mandatory injunction because granting such an injunction would be unfair to the families and students currently enrolled at the College who have complied with the College's policies and Registration Agreement. The College notes that these parents have chosen the College, in part, based on the representation of an 8:1 ratio of students to teaching faculty.
134If the injunction is granted, the College submits, it will also require the College to create an additional seat where none exists, as registration in Year 5 for the 2022-2023 academic year is full. Adding an additional student would impact the College's educational environment and allocation of teaching resources and would set a difficult precedent. Finally, the College submits, allowing H.Z. to enroll ahead of waitlisted applicants is unfair and undermines the College's admissions and registration process.
135I accept that a mandatory injunction would impose the undesirable consequences identified by the College. If, however, I found that H.Z. had presented a strong prima facie case and demonstrated that he would suffer irreparable harm absent an injunction, I would have issued the mandatory injunction. In those circumstances, the case for relief would be so compelling that comparatively modest costs imposed on the College would not stand in the way of achieving justice in advance of trial.
136However, given my findings that H.Z. has demonstrated neither a strong prima facie case nor that he will suffer irreparable harm, I would not issue the injunction. Even if the balance of convenience favours the plaintiff, that is insufficient to obtain a mandatory injunction when the evidence on the other two branches is so weak.
Conclusion
137In deciding whether or not to issue a mandatory injunction, the court must decide whether or not the interests of justice require a pre-trial remedy: Starkman v. Homes Trust Co., 2015 ONCA 436 at para. 7.
138I conclude that the interests of justice do not require an injunction in this case. Viewed holistically, the circumstances presented do not call out for the extraordinary relief of a mandatory injunction. The plaintiff’s case on the merits is weak. There is no evidence of irreparable harm. Even if the balance of convenience might favour the plaintiff, it is insufficient to compel relief given the weakness of the case on the other two branches.
139I have no doubt that H.Z. and his family are disappointed that he was not permitted to re-register for Year 5. As I said, this case is an example of how illness, a global pandemic, and business setbacks can harm family finances, which can, in turn, disrupt a family’s preferred education plan. The family will have a chance to establish at trial whether or not the College breached its contract, but they have not made out a case for injunctive relief.
140The motion for a mandatory injunction is dismissed.
Costs
141The parties advised me that they had agreed that $35,000 in costs should be paid to the successful party on this motion. I thank them for their cooperation. That amount is reasonable, and I order the plaintiff pay the defendant $35,000 in costs, inclusive of disbursements and taxes, within 30 days of the date of this order.
Robert Centa J.
Date: August 9, 2022
Footnotes
- There was remaining balance of a few hundred dollars that was paid a few days later. The College agrees that nothing turns on that fact.
- After consultation with counsel for the parties, the text of this footnote has been deleted as unnecessary.
- The plaintiff’s factum suggests that this group of friends has provided H.Z. with “immense psychological benefits.” There is no evidence in the record to support this more extravagant characterization of the benefits of his group of school friends.