Figuring Out Where to Go With a Complaint: Different Answers in Academia and Unionized Workplaces

• Author: Patricia Hughes
• Date: March 12, 2019

A recent Ontario Court of Appeal case reaffirmed that for certain purposes, academic complaints are properly brought to court, rather than addressed in university internal processes. In Lam v. University of Western Ontario, 2019 ONCA 82, the Ontario Court of Appeal allowed Lam’s appeal from the decision of a motions judge that his complaint should have been brought as a complaint to the university and not as a claim for damages in superior court. The test for determining where to bring the complaint, said the court, is not the nature of the dispute (here, academic), but “whether the genuine issues of fact he found existed would, if resolved at trial as the appellant claims they should be, make out a cause of action in contract for which damages were claimed” [para. 34].

This approach might be contrasted with that in labour relations cases as a result of Weber v. Ontario Hydro, in which the Supreme Court of Canada held some 20 years ago that where a dispute arose (broadly defined) out of the collective agreement, it was appropriately addressed through arbitration and not the courts.

After Simon Lam had begun a Master’s degree at Western, he was allowed to transfer into the PhD program in 2011. His supervisor advised him in June 2012 that she had received a grant that would fund Lam’s research, along with her own and that of other graduate students, until its completion. However, the supervisor died and it was necessary to establish a new supervisory committee. By the spring of 2013, the committee began to be critical of Lam’s work and told him that he would be better to transfer to a Master’s program. It also told him that the funding he had been relying on was no longer available. In fact, the funding was available and was used by one of the committee members “‘for other purposes'”. Lam transferred; a committee member indicated on his transfer request that the committee could not provide the supervision required and that there was no one with the necessary expertise to act as his supervisor in the PhD program.

In September 2014, Lam commenced his action in superior court, eventually claiming breach of contract and breach of fiduciary duty [para. 21]. The university denied the claim and moved for summary judgment: ” The principal basis for its motion was that the claim relates to decisions about teaching, mentoring, supervising and administering the Ph.D. program and thus to matters that are “purely academic” in nature, and therefore the claim fails to disclose a reasonable cause of action.” [para. 21] Although stating that there were issues of fact that required a trial, the motion judge granted summary judgment because “academic and legal issues must be distinguished when reviewing a university’s conduct; academic issues are to be resolved using a university’s informal operational and formal appeal processes and thereafter by judicial review” [para. 23]. The motion judge took into account that the internal processes were better placed by virtue of “expertise, policy and practicality”. Therefore,

the motion judge concluded that the appellant’s complaints would have been more appropriately resolved within the University, subject to judicial review. He held that the subject matter of the claim involved academic advancement and administration of a university program...