Aba-Alkhail et al. v. University of Ottawa et al., (2013) 311 O.A.C. 89 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Feldman, MacPherson and Epstein, JJ.A.
• Citation: (2013), 311 O.A.C. 89 (CA),2013 ONCA 633
• Date: 03 October 2013

Aba-Alkhail v. Ottawa Univ. (2013), 311 O.A.C. 89 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. OC.024

Khalid Aba-Alkhail, Manal Alsaigh and Waleed AlGhaithy (appellants) v. University of Ottawa, Jacques Bradwejn, Paul Bragg, James Worthington, John Sinclair, Richard Moulton, Fraser Rubens, Eve Tsai, Eric Poulin, Thierry Mesana and Lloyd Duchesne (respondents)

(C56995; 2013 ONCA 633)

Indexed As: Aba-Alkhail et al. v. University of Ottawa et al.

Ontario Court of Appeal

Feldman, MacPherson and Epstein, JJ.A.

October 18, 2013.

Summary:

The plaintiffs were current or former medical residents at the University of Ottawa. Each of the plaintiffs was subject to an academic evaluation that resulted in placement in remediation or on probation, or, in the case one of the plaintiffs, termination of his residency. The plaintiffs proceeded through the University's academic appeal process but were unsuccessful. The plaintiffs then sued the University. The University moved to have the plaintiffs' claim dismissed for being an abuse of process or, in the alternative, to strike the claim on the ground that it disclosed no reasonable cause of action.

The Ontario Superior Court, in a decision with neutral citation 2013 ONSC 2127, found that the facts relied on in the action were the same facts relied on by each of the plaintiffs during the University's academic appeal process. The court concluded that this constituted an abuse of process. The statement of claim was struck in its entirety. The plaintiffs appealed.

The Ontario Court of Appeal dismissed the appeal.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - [See Practice - Topic 2239.4 ].

Education - Topic 4584

Universities - Actions against universities - Abuse of process - [See Practice - Topic 2239.4 ].

Practice - Topic 2239.4

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - Collateral attack on administrative decision - The plaintiffs were current or former medical residents at the University of Ottawa - Each of them was subject to an academic evaluation that resulted in placement in remediation or on probation, or, for one of the plaintiffs, termination of his residency - The plaintiffs proceeded through the University's academic appeal process but were unsuccessful - The plaintiffs then sued the University - The University moved to have the plaintiffs' claim dismissed - The motions judge found that the facts relied on in the action were the same facts relied on by each of the plaintiffs during the academic appeal process - He concluded that it was an abuse of process for the plaintiffs to sue for damages in contract and tort on the same facts relied on in the academic appeal process - The plaintiffs' statement of claim was struck in its entirety - The Ontario Court of Appeal dismissed the plaintiffs' appeal - The purpose of the University's academic discipline procedure was to determine the academic consequences for the plaintiffs and the ramifications for their careers - The process and the remedies it provided directly affected the plaintiffs - There was no basis upon which to say that it was unfair to use the results of the discipline proceedings to preclude a civil suit in which the same conduct was in issue, even though a different remedy was sought - The court rejected the plaintiffs' argument that the motions judge's conclusion would result in students not having the incentive to participate fully in discipline proceedings - First, the incentive to participate was to be able to carry on with one's studies and to obtain academic standing - Damages for alleged inappropriate treatment would be a secondary, fall-back goal - Second, the abuse of process doctrine applied not only to bar re-litigation of issues that were actually determined, but also to bar issues that could have been determined.

Practice - Topic 5361

Dismissal of action - Grounds - General and want of prosecution - Abuse of process - [See Practice - Topic 2239.4 ].

Cases Noticed:

Jaffer v. York University (2010), 268 O.A.C. 338; 326 D.L.R.(4th) 148; 2010 ONCA 654, leave to appeal denied (2011), 418 N.R. 395 (S.C.C.), refd to. [para. 3].

Lipsitz et al. v. Ontario et al. (2011), 281 O.A.C. 67; 334 D.L.R.(4th) 606; 2011 ONCA 466, leave to appeal denied (2012), 433 N.R. 393 (S.C.C.), refd to. [para. 4].

Penner v. Niagara Regional Police Services Board et al. (2013), 442 N.R. 140; 304 O.A.C. 106; 356 D.L.R.(4th) 595; 2013 SCC 19, refd to. [para. 6].

Behn v. Moulton Contracting Ltd. - see Moulton Contracting Ltd. v. British Columbia et al.

Moulton Contracting Ltd. v. British Columbia et al. (2013), 443 N.R. 303; 333 B.C.A.C. 34; 571 W.A.C. 34; 2013 SCC 26, refd to. [para. 8].

Counsel:

Barbara Kulaszka, for the appellants;

Sally Gomery and Karen Jensen, for the respondents.

This appeal was heard on October 3, 2013, before Feldman, MacPherson and Epstein, JJ.A., of the Ontario Court of Appeal. The following judgment was delivered by the court on October 18, 2013.