Hozaima v. Perry et al., 2010 MBCA 21

• Judge: Scott, C.J.M., Hamilton and MacInnes, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 17, 2009
• Jurisdiction: Manitoba
• Citations: 2010 MBCA 21;(2010), 251 Man.R.(2d) 148 (CA)

Hozaima v. Perry (2010), 251 Man.R.(2d) 148 (CA);

      478 W.A.C. 148

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. MR.001

Lena Hozaima (plaintiff/respondent) v. John Perry, Johann de Vries and The University of Manitoba (defendants/appellants)

(AI 08-30-07002; 2010 MBCA 21)

Indexed As: Hozaima v. Perry et al.

Manitoba Court of Appeal

Scott, C.J.M., Hamilton and MacInnes, JJ.A.

February 24, 2010.

Summary:

The plaintiff was forced to resign from the dental program at a university for failing to obtain a passing grade in one of her courses. She sued the university, the Dean of the dental faculty and an individual professor, for breach of contract, negligence and breach of fiduciary duties. The defendants sought to summarily dismiss the action for want of jurisdiction (Queen's Bench Rule 21.01(3)(a)) or strike it as being an abuse of process (Queen's Bench Rule 25.11(c)). Alternatively, they requested that the court exercise its jurisdiction under s. 38 of the Court of Queen's Bench Act to stay the proceeding on the grounds that the plaintiff should have exercised her right to seek judicial review.

The Manitoba Court of Queen's Bench, in a decision reported at 232 Man.R.(2d) 85, dismissed the motion. The defendants appealed.

The Manitoba Court of Appeal dismissed the appeal.

Education - Topic 4513

Universities - Students - Academic evaluation - Appeals - [See Practice - Topic 2241 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - The plaintiff was forced to resign from the dental program at a university for failing to obtain a passing grade in one of her courses - Her appeals to the Student Appeals Committee and the Senate Appeals Committee were unsuccessful - She did not seek judicial review of those decisions - She sued the university, the Dean of the dental faculty and an individual professor, for breach of contract, negligence and breach of fiduciary duties - They argued that the plaintiff was advancing a claim for educational malpractice - They argued that there was no hope of success for such a claim under Canadian law and thus that it was an abuse of process and ought to be struck out - The motion judge dismissed the motion - He was required to accept the plaintiff's allegations as provable facts - He concluded that it was not plain and obvious or beyond doubt that the plaintiff's action had to fail - He determined that the statement of claim should not be struck out as an abuse of process - The Manitoba Court of Appeal dismissed the defendants' appeal - In the circumstances here, the motion judge was entitled to so decide - See paragraphs 41 to 44.

Practice - Topic 2241

Pleadings - Striking out pleadings - Grounds - Lack of jurisdiction (incl. alternative remedy) - The plaintiff was forced to resign from the dental program at a university for failing to obtain a passing grade in one of her courses - Her appeals to the Student Appeals Committee and the Senate Appeals Committee were unsuccessful - She did not seek judicial review of those decisions - She sued the university, the Dean of the dental faculty and an individual professor, for breach of contract, negligence and breach of fiduciary duties - The defendants sought to summarily dismiss the action for want of jurisdiction - They argued that the presence of the appeal mechanism (including possibility of judicial review) replaced the jurisdiction of the court in this matter - The motion judge dismissed the motion - The nature of the dispute was contractual not academic - The plaintiff did not seek to have the decisions of the two Appeals Committees set aside and had "moved on" - Therefore, the university's appeal process was not the appropriate mechanism for resolving the dispute - The Manitoba Court of Appeal dismissed the defendants' appeal - The court might have concluded that some of the allegations were ones better suited for decision by the university than by the courts - However, there were allegations which, at this stage, had to be accepted as provable facts, upon which the motion judge could make the decision which he did that the essential character of the dispute raised in the statement of claim was not an academic one, but one over which the court had jurisdiction - See paragraphs 27 to 40.

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - The plaintiff was forced to resign from the dental program at a university for failing to obtain a passing grade in one of her courses - Her appeals to the Student Appeals Committee and the Senate Appeals Committee were unsuccessful - She did not seek judicial review of those decisions - She sued the university, the Dean of the dental faculty and an individual professor, for breach of contract, negligence and breach of fiduciary duties - The defendants sought, inter alia, a stay of the action under s. 38 of the Court of Queen's Bench Act on the ground that the plaintiff should have exercised her right to seek judicial review - The motion judge declined to exercise his discretion to grant a stay - The Manitoba Court of Appeal dismissed the defendants' appeal - Given the motion judge's conclusions that the court, and not the university, had jurisdiction to hear the action and that there was no basis upon which it should be struck as an abuse of process, his refusal to stay the action was a sound exercise of his discretion - See paragraph 45.

Practice - Topic 8804

Appeals - Duty of appellate court regarding discretionary orders - The plaintiff was forced to resign from the dental program at a university for failing to obtain a passing grade in one of her courses - She sued the university, the Dean of the dental faculty and an individual professor, for breach of contract, negligence and breach of fiduciary duties - The defendants sought to summarily dismiss the action for want of jurisdiction (Queen's Bench Rule 21.01(3)(a)) or strike it as being an abuse of process (Queen's Bench Rule 25.11(c)) - Alternatively, they requested that the court exercise its jurisdiction under s. 38 of the Court of Queen's Bench Act to stay the proceeding on the grounds that the plaintiff should have exercised her right to seek judicial review - The motion judge dismissed the motion - The defendants appealed - The Manitoba Court of Appeal held that the motion judge's decision was in all respects a discretionary one - The standard of review to be applied was that the decision should not be overturned unless the motion judge had misdirected himself or his decision was so clearly wrong as to amount to an injustice - See paragraphs 13 to 17.

Cases Noticed:

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 13].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 16].

Warraich v. University of Manitoba (2003), 173 Man.R.(2d) 202; 293 W.A.C. 202; 2003 MBCA 58, refd to. [para. 20].

Desrivieres v. Manitoba (2002), 170 Man.R.(2d) 139; 285 W.A.C. 139; 2002 MBCA 153, refd to. [para. 20].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 26].

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. 27].

Phillips v. Harrison (2000), 153 Man.R.(2d) 1; 238 W.A.C. 1; 2000 MBCA 150, refd to. [para. 28].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 28].

Shaw Cablesystems (SMB) Ltd. et al. v. MTS Communications Inc. et al. (2006), 201 Man.R.(2d) 242; 366 W.A.C. 242; 2006 MBCA 29, refd to. [para. 30].

Giesbrecht v. McNeilly et al. (2008), 225 Man.R.(2d) 223; 419 W.A.C. 223; 2008 MBCA 22, refd to. [para. 30].

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. 31].

Wong v. University of Toronto (1989), 45 Admin. L.R. 113 (Ont. Dist. Ct.), affd. (1992), 4 Admin. L.R.(2d) 95 (Ont. C.A.), refd to. [para. 36].

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. 42].

Mohl v. University of British Columbia (2006), 222 B.C.A.C. 258; 368 W.A.C. 258; 265 D.L.R.(4th) 109; 2006 BCCA 70, refd to. [para. 43].

Towers Ltd. v. Quinton's Cleaners Ltd. et al. (2009), 245 Man.R.(2d) 70; 466 W.A.C. 70; 2009 MBCA 81, refd to. [para. 46].

Counsel:

J.A. Kagan and S.I. Perlmutter, for the appellants;

R.M. Beamish, for the respondent.

This appeal was heard on June 17, 2009, by Scott, C.J.M., Hamilton and MacInnes, JJ.A., of the Manitoba Court of Appeal. The following reasons for judgment of the court were delivered by MacInnes, J.A., on February 24, 2010.