Al-Bakkal v. University of Manitoba et al.,

• Jurisdiction: Manitoba
• Judge: Joyal
• Neutral Citation: 2016 MBQB 45
• Citation: (2016), 327 Man.R.(2d) 118 (QB),2016 MBQB 45,327 ManR(2d) 118,(2016), 327 ManR(2d) 118 (QB),327 Man.R.(2d) 118
• Date: 04 April 2016
• Court: Court of Queen's Bench of Manitoba (Canada)

Al-Bakkal v. Man. Univ. (2016), 327 Man.R.(2d) 118 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. AP.004

Ghasaq Al-Bakkal (plaintiff) v. Johann de Vries, Randy Mazurat and The University of Manitoba (defendants)

(CI 06-01-47679; 2016 MBQB 45)

Indexed As: Al-Bakkal v. University of Manitoba et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Joyal, C.J.Q.B.

April 4, 2016.

Summary:

A dentistry student failed a third year university course. Following an internal university appeal and judicial review process the grade was changed and she was allowed to enter fourth year (see 176 Man.R.(2d) 127). She graduated a year late. Subsequently, the applicant sued the faculty dean, the instructor and the university (defendants), alleging breach of contract and negligence because of monetary loss resulting from her delayed graduation. The defendants moved for summary judgment to dismiss the action.

The Manitoba Court of Queen's Bench, granted the motion and dismissed the action.

Education - Topic 4582

Universities - Actions against universities - Jurisdiction - The Manitoba Court of Queen's Bench reviewed the law relating to a superior court's involvement in university disputes, particularly in non judicial review type actions - See paragraphs 56 to 77 - The court stated, inter alia, that "While the practical result of most non-judicial review cases may suggest that there remains a well-established reflex on the part of superior courts to defer to the academy's administrative and appellate processes, it is erroneous to suggest that the superior court has no jurisdiction. At the very least, it has, because of its inherent jurisdiction, a concurrent jurisdiction with the university. The inherent jurisdiction of a superior court is, after all, limited only by express language in a statute or a contractual provision" - See paragraph 56.

Education - Topic 4582

Universities - Actions against universities - Jurisdiction - The Manitoba Court of Queen's Bench reviewed the law relating to a superior court's involvement in university disputes, particularly in non judicial review type actions - See paragraphs 56 to 77 - The court stated, inter alia, that "There is now clear authority to support the proposition that even where a dispute arises in the university context, a properly pled action in contract and/or tort that transcends an academic dispute is an action that may appropriately be advanced in a superior court. However, the cumulative force of the governing jurisprudence also suggests that where the essential character and nature of the dispute is academic, the matter must be commenced and concluded using the administrative and appellate processes of the university, all of which of course is subject to judicial review. In neither scenario (absent express and limiting language in a statute or contract) would it be accurate to say that the question would be decided using the categorical language of jurisdiction. Given the concurrent jurisdiction of both the university and the courts, the more significant and preliminary question will be one which probes the nature and character of the dispute itself. The result of that inquiry will then determine whether a court will defer, as it frequently does, its inherent jurisdiction to an institution (the university) that for reasons of expertise, policy and practicality is better placed to use its administrative processes to bring finality to those disputes whose pith and substance are academic" - See paragraph 57.

Education - Topic 4582

Universities - Actions against universities - Jurisdiction - The Manitoba Court of Queen's Bench set out the relevant and applicable principles relating to a superior court's involvement in university disputes - The court stated that: "(a) where the essential character of the dispute involves an academic matter, the superior court will demonstrate institutional deference and defer its jurisdiction to the university, except of course on an application for judicial review of the matters arising from the university's own academic appeal processes ... (b) in circumstances where the 'essential character' of a dispute involves an academic matter or where the dispute focusses on the academic requirements, rules and/or regulations that the university applies to students, a civil suit for damages is not an available remedy ... (c) even where non compliance with its own processes has been noted by the university (or others), the student seeking to bring an action against the university in respect of academic matters is in no better or different a position than where the university does not make such a finding ... (d) actions brought by students involving academic matters may be dismissed even where a student has been successful on a prior application for judicial review. This is so 'even if the plaintiff could not have obtained a damages award through [those] other proceedings ...' (e) in a university context there is 'no cause of action at law as damage to life and career ... that is simply frivolous and vexatious' ..." - See paragraph 77.

Education - Topic 4582

Universities - Actions against universities - Jurisdiction - A dentistry student failed a third year university course - Following an internal university appeal and judicial review process the grade was changed and she was allowed to enter fourth year - She graduated a year late - Subsequently, the applicant sued the faculty dean, the instructor and the university (defendants), alleging breach of contract and negligence because of monetary loss resulting from her delayed graduation - The defendants moved for summary judgment to dismiss the action - The Manitoba Court of Queen's Bench allowed the motion and dismissed the action - Despite the case being pleaded in contract and negligence, the action in fact represented a dispute whose essential nature and character were academic - In cases involving academic matters, the court had no role in the connected dispute except to fulfill its role in the context of judicial review - The university's appeal mechanism provided an exclusive forum for academic matters, notwithstanding that the damages remedy was not available on internal appeal or judicial review - The resolution to the dispute should have and did take place in the context of the university's internal appellate process in tandem with the oversight that came with judicial review - Thus, there was no genuine or triable issue for trial and summary judgment was granted dismissing the action - See paragraphs 79 to 104.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See fourth Education - Topic 4582 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See fourth Education - Topic 4582 ].

Cases Noticed:

Young v. Bella et al., [2006] 1 S.C.R. 108; 343 N.R. 360; 254 Nfld. & P.E.I.R. 26; 764 A.P.R. 26; 2006 SCC 3, refd to. [para. 10].

Green v. Tram et al. (2015), 320 Man.R.(2d) 84; 2014 MBQB 128, refd to. [para. 47].

Green v. Tram et al. (2014), 307 Man.R.(2d) 82; 2014 MBQB 118, refd to. [para. 47].

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 366 D.L.R.(4th) 641; 2014 SCC 7, refd to. [para. 48].

Jaffer v. York University (2010), 268 O.A.C. 338; 326 D.L.R.(4th) 148; 2010 ONCA 654, refd to. [para. 56].

King v. Ryerson Univiversity et al., [2015] O.A.C. Uned. 649; 2015 ONCA 648, refd to. [para. 60].

Gould v. Board of Education of Regina (East) School Division No. 77 et al. (1996), 151 Sask.R. 189; 7 C.P.C.(4th) 372 (Q.B.), refd to. [para. 60].

Warraich v. University of Manitoba (2003), 173 Man.R.(2d) 202; 293 W.A.C. 202; 226 D.L.R.(4th) 714; 2003 MBCA 58, refd to. [para. 62].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23; 2000 SCC 14, refd to. [para. 62].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364; 96 D.L.R.(3d) 14, refd to. [para. 63].

Hozaima v. Perry et al. (2008), 232 Man.R.(2d) 85; 2008 MBQB 199, refd to. [para. 67].

Hozaima v. Perry et al. (2010), 251 Man.R.(2d) 148; 478 W.A.C. 148; 2010 MBCA 21, refd to. [para. 68].

Walia v. University of Manitoba, 2012 MBQB 104, refd to. [para. 71].

Walia v. University of Manitoba et al., [2013] Man.R.(2d) Uned. 33; 2013 MBCA 61, refd to. [para. 73].

Green v. University of Winnipeg (2014), 312 Man.R.(2d) 201; 2014 MBQB 243, refd to. [para. 75].

Cruickshank v. University of Lethbridge et al., [2010] A.R. Uned. 365; 2010 ABQB 186, refd to. [para. 76].

Aba-Alkhail v. University of Ottawa et al., [2010] O.T.C. Uned. 2385; 2010 ONSC 2385, refd to. [para. 76].

Said v. University of Ottawa, 2013 ONSC 7186, refd to. [para. 76].

Statutes Noticed:

University of Manitoba Act, R.S.M. 1987, c. U-60; C.C.S.M., c. U-60, sect. 67(1), sect. 67(2) [para. 53].

Counsel:

Candace Grammond and Jared Enns, for the plaintiff;

Jamie Kagan and Andrew Sain, for the defendants.

This motion was heard before Joyal, C.J.Q.B., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on April 4, 2016.