Gauthier v. Saint-Germain,

• Jurisdiction: Ontario
• Judge: Weiler, Sharpe and Rouleau, JJ.A.
• Neutral Citation: 2010 ONCA 309
• Court: Court of Appeal (Ontario)
• Citation: (2010), 264 O.A.C. 336 (CA),2010 ONCA 309,325 DLR (4th) 558,[2010] CarswellOnt 11457,[2010] OJ No 1771 (QL),264 OAC 336,325 D.L.R. (4th) 558,[2010] O.J. No 1771 (QL),(2010), 264 OAC 336 (CA),264 O.A.C. 336
• Date: 02 November 2009

Gauthier v. Saint-Germain (2010), 264 O.A.C. 336 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MY.010

Manon Gauthier (demanderesse/appelante) v. Michel Saint-Germain, Pierre Boudreau et l'Université d'Ottawa (défendeurs/intimés)

(C49312; 2010 ONCA 309)

Indexed As: Gauthier v. Saint-Germain et al.

Ontario Court of Appeal

Weiler, Sharpe and Rouleau, JJ.A.

May 3, 2010.

Summary:

Unable to complete her doctorate, a student at Université d'Ottawa brought an action in Sudbury against the university and two of its professors for breach of contract, negligent misrepresentation, breach of duty of care, intentional infliction of emotional harm, and intimidation. The defendants moved to strike the 154-paragraph statement of claim.

The Ontario Superior Court allowed the motion. The court struck the statement of claim, ruling that it did not have jurisdiction to hear the action. Alternatively, the court ordered that if the action proceeded, the statement of claim would have to be revised in its entirety because, as presently worded, it contained statements of evidence rather than relevant facts. The court also ordered that the action be transferred to Ottawa. The student appealed.

The Ontario Court of Appeal allowed the appeal in part. The court quashed the order striking the statement of claim. Instead, the court ordered that paragraphs 6 to 141 of the statement of claim be struck with leave to amend them. The court upheld the transfer of the action from Sudbury to Ottawa.

Education - Topic 4582

Universities - Actions against universities - Jurisdiction - The Ontario Court of Appeal discussed the jurisdiction of the court of first instance in respect of disputes between a university and an attending student - The court stated the following: (1) no precedent established that the court did not have jurisdiction to hear cases for the only reason that the tort or breach of contract alleged resulted from an academic dispute; (2) the proper remedy against an academic decision was judicial review - However, if the plaintiff alleged elements of tort or breach of contract, as well as claiming damages, the court would have jurisdiction, even if the dispute resulted from an academic activity - See paragraphs 29 to 46.

Education - Topic 4583

Universities - Actions against universities - Requirement of disclosing cause of action - The Ontario Court of Appeal stated the following in respect of actions by students against universities: (1) allegations of breach of contract had to be founded on the violation of a specific obligation agreed to by the university when it accepted the student's registration; (2) as for negligence, simply alleging that a professor was incompetent was insufficient - The student had to plead specific facts tending to show that the professor's or the university's conduct constituted an intentional tort, or went beyond the wide discretion given to the university and its professors - In addition, if an action in contract or tort was only an indirect attempt to appeal against an internal academic decision when judicial review was the proper remedy, the court was entitled to strike the claim - The court was also entitled to strike the claim if it did not provide the necessary particulars to establish that the university or its employees exceeded the "wide" discretion that they enjoyed - See paragraphs 29 to 44 and 47 to 50.

Education - Topic 4583

Universities - Actions against universities - Requirement of disclosing cause of action - Unable to complete her doctorate, a student at Université d'Ottawa sued the university and two of its professors for breach of contract, negligent misrepresentation, breach of duty of care, intentional infliction of emotional harm, and intimidation - The statement of claim included the following allegations: (1) financial losses resulting from leaving her employment and moving from Sudbury to Ottawa, on the basis of negligent misrepresentation by one defendant professor; (2) harassment by one of the defendant professors, who was also incompetent; (3) plain incompetence of the other professor; and (4) excessive and unreasonable delays in the progress of her studies - The plaintiff claimed damages - The defendants moved to strike the 154-paragraph statement of claim - On appeal, the Ontario Court of Appeal, struck paragraphs 6 to 141, with leave to amend them - It was impossible to conclude that the plaintiff did not establish any cause of action - The present action was not an indirect attempt to appeal against an internal academic decision nor did the plaintiff's allegations deal with behaviour that was within the "wide" discretion given to universities respecting their academic programs - See paragraphs 51 to 61.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See second Education - Topic 4583 ].

Practice - Topic 5221

Trials - General - Venue or place of trial - Application for change of venue - Unable to complete her doctorate, a student at Université d'Ottawa brought an action in Sudbury against the university and two of its professors for breach of contract, negligent misrepresentation, breach of duty of care, intentional infliction of emotional harm, and intimidation - A motion judge transferred the action to Ottawa because the majority of the events that gave rise to the action took place in Ottawa and most of the witnesses lived there - In addition, the motion judge rejected the argument that there was a better chance of constituting a fair jury in Sudbury - The Ontario Court of Appeal upheld the decision, absent error - See paragraphs 62 to 64.

Cases Noticed:

TeleZone Inc. v. Canada (Attorney General) (2008), 245 O.A.C. 91; 94 O.R.(3d) 19 (C.A.), consd. [para. 29].

Polten v. University of Toronto et al. (1976), 8 O.R.(2d) 749 (Div. Ct.), refd to. [para. 30].

Dr. F. v. University of Toronto, [1997] O.A.C. Uned. 96; 143 D.L.R.(4th) 574 (C.A.), refd to. [para. 30].

Paine v. University of Toronto et al. (1982), 34 O.R.(2d) 770 (C.A.), refd to. [para. 30].

Ward v. University of Prince Edward Island (1997), 157 Nfld. & P.E.I.R. 129; 486 A.P.R. 129 (P.E.I.T.D.), refd to. [para. 30].

Warraich v. University of Manitoba (2003), 173 Man.R.(2d) 202; 293 W.A.C. 202 (C.A.), consd. [para. 31].

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, refd to. [para. 32].

Mohl v. University of British Columbia (2006), 222 B.C.A.C. 258; 368 W.A.C. 258; 52 B.C.L.R.(4th) 89 (C.A.), refd to. [para. 32].

Hozaima v. Perry et al. (2008), 232 Man.R.(2d) 85 (Q.B.), refd to. [para. 32].

Wong v. University of Toronto (1992), 4 Admin. L.R.(2d) 95 (Ont. C.A.), consd. [para. 33].

Dawson v. University of Toronto et al., [2007] O.A.C. Uned. 528; 2007 ONCA 875, consd. [para. 34].

Zabo v. University of Ottawa, [2005] O.A.C. Uned. 300 (C.A.), leave to appeal refused (2006), 352 N.R. 192; 217 O.A.C. 399 (S.C.C.), consd. [para. 33].

Wong v. University of Toronto (1989), 79 D.L.R.(4th) 652 (Ont. Dist. Ct.), consd. [para. 35].

Dawson v. University of Toronto et al., [2007] O.T.C. Uned. S22 (Sup. Ct.), consd. [para. 38].

Visic v. University of Windsor et al. (2007), 227 O.A.C. 129 (Div. Ct.), affd. [2008] O.A.C. Uned. 490; 2008 ONCA 731, leave to appeal refused (2009), 396 N.R. 385; 260 O.A.C. 397 (S.C.C.), refd to. [para. 63].

Authors and Works Noticed:

Sarna, Lazar, and Sarna, Noah, The Law of Schools and Universities (2007), pp. 83 to 94 [para. 35].

Counsel:

Ronald F. Caza and Justin Bertrand, for the appellant;

Marc Smith, for the respondents.

This appeal was heard on November 2, 2009, by Weiler, Sharpe and Rouleau, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Rouleau, J.A., and released on May 3, 2010.