Ontario Court of Appeal: Courts have jurisdiction over academic disputes grounded in contract or tort
An interesting debate is popping up repeatedly in judgments from Ontario that may have an impact on universities in British Columbia, which centers around the issue of whether a student’s academic grievance may be heard by a court. The topic of jurisdiction is concerning for universities, which have traditionally been afforded the exclusive authority – akin to administrative agencies – to resolve academic disputes internally.
Earlier this year, the Ontario Court of Appeal, the decisions of which are generally binding on courts across the country, dealt with a dispute involving the scope of the court’s jurisdiction in the academic affairs of universities in Gauthier v. Saint-Germain (CanLII). The decision is published only in french, but there is a helpful discussion of Gauthier in Nazik Amdiss and University of Ottawa, Ltd. (CanLII). As quoted in Nazik Amdiss, Mr. Justice Rouleau in Gauthier stated several relevant principles:
(1) The Superior Court is a court of general jurisdiction and its jurisdiction may only be delimited by clear and express legislative or contractual provisions. If there are no such provisions, the court is competent to rule on the dispute (i.e. even in matters of an academic nature), (paragraph 29);
(2) Where the remedy sought is to alter an internal academic decision made by university authorities, the appropriate proceeding is normally judicial review. In that context, the court should be hesitant in becoming embroiled in the internal affairs of a university.
(3) There is a contractual aspect to a student’s relationship with the university and when a breach of contract is properly alleged, the court has jurisdiction to hear the case (paragraph 32).
In Nazik Amdiss, a student in her final year of an undergraduate psychology degree received a conditional acceptance to the French Language MD program at the University of Ottawa. She had excellent grades and was excited to start medical school in the 2010/2011 academic year. The conditions of acceptance involved the student successfully completing the 2009/2010 academic year, providing proof of citizenship, etc. But at the end of July, she received an email from the Faculty of Medicine advising her that the offer of acceptance was being withdrawn because she failed to maintain an average of 3.60. The student alleged that this was not a condition of acceptance and thus the withdrawal was a breach of contract.
The university argued that the court did not have jurisdiction over the subject matter identified by the student. Even though this is a framed as a contractual dispute (i.e. whether the university had a contractual obligation to accept her into the program, her sudden poor grades notwithstanding), the student’s claims are essentially academic in nature and are therefore within the exclusive jurisdiction of the court, and courts have long accepted the principle that they should not interfere with the core academic functions of universities, including setting admissions policies (see Mulligan v. Laurentian University - CanLII).
This was quickly rejected by the court because the student’s claims went to whether those policies were followed. However, the court found that the average grade criteria was part of the conditional acceptance even though it had been poorly communicated to the student by the university, and the student was unsuccessful.
Another Ontario judgment involving similar issues was released by the Ontario Court of Appeal last month. The following is a summary by Allison MacIsaac in The Court of the background to Jaffer v. York University (CanLII):
After gaining admission to York University, Ashif Jaffer and his mother approached the school to discuss accommodation measures to address his Trisomy 21 Down Syndrome disability. No formal agreement was ever reached. At the culmination of Jaffer’s first year, a professor offered Jaffer the opportunity to resubmit a paper and confirmed he would grant Jaffer deferred status for that course. Assuming this meant his status as a student would be granted a deferred status, Jaffer enrolled in second year. He was soon informed however, that he no longer qualified as a student since he had failed to obtain a D+ academic average. Jaffer then initiated a claim against the University seeking damages, arguing a contractual breach – specifically, a breach of good faith and negligent misrepresentation. York responded by claiming the matter was academic in nature and outside the court’s jurisdiction, and also that Jaffer had initiated a human rights claim, which fell within the exclusive jurisdiction of the Ontario Human Rights Commission.
At the Superior Court of Justice, the University brought a Rule 21 motion (of the Rules of Civil Procedure) for an order striking out the appellant’s Statement of Claim on the basis that it failed to plead a known cause of action within the jurisdiction of the Superior Court of Justice. Pitt J. agreed with the University’s counsel, finding that the issue was academic and fell within the university’s discretion. He also found that Jaffer was effectively making a human rights claim, which must be heard before the provincial human rights tribunal.
Fundamentally, the motion judge maintained that if the core of a student’s grievance involves academic conduct, then it cannot be heard by the courts, even if there are embedded issues involving contract or tort. This essentially summarizes the university’s position: the student’s claim arises out of academic decisions and procedures of the university, the substance of which are beyond the jurisdiction of the court. (The only way these sorts of claims can reach the courts is by a process of judicial review – that is, the student has to take their grievance to every relevant adjudicative body within the university and, if they are still unsatisfied, they must then approach the court and ask that the zone of deference owed to a university and surrounding those decisions be demolished. A claim for judicial review is far more difficult to argue than a fresh cause of action. And, as the court in Mulligan said above, courts should not interfere with decisions relating to the core academic functions of universities.)
However, Madam Justice Karakatsanis, in a unanimous decision, rejected that position and stated clearly on the basis of Gauthier that:
where the elements of a breach of contract or negligence are properly pleaded, the Superior Court will have jurisdiction to hear a claim even if the dispute is academic in nature and arises out of the academic activities of the university.
Courts have rejected similar claims by other students not because the court lacked jurisdiction or because procedurally the claims should have been made in the form of judicial review but because the claims were untenable. It is as simple as that. Here is an unofficial translation in Jaffer of a key passage in Gauthier:
In my opinion, to determine whether the court has jurisdiction it is more useful to look at the remedy claimed by the plaintiff. When a party is seeking to have the internal academic decision of a university reversed, the proper procedure is judicial review. However, if the plaintiff is alleging the basis for a cause of action in tort or breach of contract and claiming damages, the court will have jurisdiction even if the dispute arises out of the scholastic or academic activities of the university in question.
This does not necessarily mean it will be easy to students to simply head off to court if they disagree with the decision of a professor or associate dean. By enrolled with a university, they agree to submit themselves to the discretion of the university on academic affairs. To get the attention of the court, they will have to show that they have a valid claim in contract or tort. As well, the court will try to sniff out whether the claim is “simply an indirect attempt at judicial review”, like what amounts to an appeal of a determination of grades or admission.
What, then, is a reasonable cause of action on the part of a student against a university in contract or tort? In a claim for breach of contract, the student has to show:
- the existence of an implied or express term in the contract between the student and the university that arose by virtue of the student’s enrolment; and
- a breach of that term by the university that resulted in harm to the student.
In Jaffer, the student failed to show that it was a term of the contract with the university that the university would accommodate the student’s disabilities. The student skipped that step in the arguments, instead focusing on how the university failed to accommodate the student’s disabilities.
A similar test should be applied in a claim in tort against a university. The student must raise the same elements – duty of care, causation, etc. – that appear in any successful tort claim. In Jaffer, the student failed to do that, so the claim was rejected by the court.
These cases contain a roadmap for how a student can mount a successful claim against a university without the disadvantages of proceeding by way of judicial review. They also show the arguments a university should raise in trying to stifle such a claim before reaching a trial.