Jaffer v. York University, (2010) 268 O.A.C. 338 (CA)

• Judge: Feldman, MacFarland and Karakatsanis, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 28, 2010
• Jurisdiction: Ontario
• Citations: (2010), 268 O.A.C. 338 (CA);2010 ONCA 654

Jaffer v. York Univ. (2010), 268 O.A.C. 338 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.015

Ashif A. Jaffer (plaintiff/appellant) v. York University (defendant/respondent)

(C51476; 2010 ONCA 654)

Indexed As: Jaffer v. York University

Ontario Court of Appeal

Feldman, MacFarland and Karakatsanis, JJ.A.

October 7, 2010.

Summary:

Jaffer had Trisomy 21 Down Syndrome. He had been accommodated in high school in accordance with an Independent Education Plan and graduated as an Ontario scholar. Jaffer sued York University, seeking damages for its failure to accommodate him as a student with a disability. The University brought a motion under rules 21 and 25.11 for an order striking out the statement of claim on the basis that it failed to plead a known cause of action within the Superior Court's jurisdiction, or alternatively, that it disclosed no reasonable cause of action, or was frivolous, vexatious, and otherwise an abuse of process.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. Q26, allowed the application on the basis that the issue related to academics and was within the University's discretion, or alternatively, if the issue was one of human rights, it was properly a matter for the Ontario Human Rights Commission. Jaffer appealed.

The Ontario Court of Appeal allowed the appeal in part. The court struck the pleadings, but varied the motion judge's order to permit Jaffer to amend the statement of claim in accordance with the court's reasons. The court awarded the University costs fixed at $7,500, inclusive of disbursements and taxes.

Actions - Topic 1527

Cause of action - Creation of - By statute - By violation of statute - [See second Education - Topic 4582 ].

Civil Rights - Topic 7006

Federal, provincial or territorial legislation - Effect of human rights legislation on availability of court actions - [See second Education - Topic 4582 ].

Education - Topic 4582

Universities - Actions against universities - Jurisdiction - Jaffer had Trisomy 21 Down Syndrome - He had been accommodated in high school in accordance with an Independent Education Plan and graduated as an Ontario scholar - Jaffer sued York University, seeking damages for its failure to accommodate him as a student with a disability - The University brought a motion under rules 21 and 25.11 for an order striking out the statement of claim on the basis that it failed to plead a known cause of action within the Superior Court's jurisdiction, or alternatively, that it disclosed no reasonable cause of action, or was frivolous, vexatious, and otherwise an abuse of process - A motions judge allowed the application on the basis, inter alia, that the issue related to academics and was within the University's discretion - Jaffer appealed - The Ontario Court of Appeal allowed the appeal in part - The court struck the pleadings, but varied the motion judge's order to permit Jaffer to amend the statement of claim in accordance with its reasons - The Superior Court's jurisdiction over the action was not ousted by the raising of issues relating to the university's academic function - The action was not simply an indirect attempt at judicial review, as Jaffer did not seek to reverse decisions respecting his grades or compel the University to readmit him - His claim was that the University owed him various obligations in both contract and in tort, and its failure to meet those obligations had caused him pecuniary and non-pecuniary damages - Such claims fell within the Superior Court's jurisdiction and could proceed if they were properly pleaded, tenable in law and disclosed a reasonable cause of action - There was no dispute that the relationship between a student and a university had a contractual foundation, giving rise to duties in both contract and tort - The real issue in this case was not whether the dispute was academic in nature, but rather whether the pleadings supported a cause of action in either contract or tort - See paragraphs 18 to 31.

Education - Topic 4582

Universities - Actions against universities - Jurisdiction - Jaffer had Trisomy 21 Down Syndrome - He had been accommodated in high school in accordance with an Independent Education Plan and graduated as an Ontario scholar - Jaffer sued York University, seeking damages for its failure to accommodate him as a student with a disability - The University brought a motion under rules 21 and 25.11 for an order striking out the statement of claim on the basis that it failed to plead a known cause of action within the Superior Court's jurisdiction, or alternatively, that it disclosed no reasonable cause of action, or was frivolous, vexatious, and otherwise an abuse of process - A motions judge allowed the application on the basis that the issue was related to academics and within the University's discretion, or alternatively, if it was a human rights issue, it was a matter for the Ontario Human Rights Commission - Jaffer appealed - The Ontario Court of Appeal held, inter alia, that to recognize a common law duty of care that required the University to provide reasonable accommodations would undermine the comprehensive dispute resolution mechanisms established by the Ontario Human Rights Code in precisely the ways that had been cautioned against in cases such as Bhadauria v. Seneca College (1981, S.C.C.) and Keays v. Honda Canada Inc. (2008, S.C.C.) - The court also referred to s. 46.1 of the Code which provided that a person could not commence an action based solely on an infringement of a right under Part I of the Code, but breach of the Code could be properly raised in an action if the claim was otherwise properly before the court - Thus, whether or not a claim for breach of the duty to accommodate disabilities could proceed in the Superior Court depended upon whether or not the pleading disclosed a reasonable cause of action that did not arise solely from a breach of the Code - See paragraphs 32 to 44.

Education - Topic 4583

Universities - Actions against universities - Requirement of disclosing cause of action - [See both Education - Topic 4582 ].

Cases Noticed:

Slater Steel Inc., Re - see Morneau Sobeco Limited Partnership v. AON Consulting Inc. et al.

Morneau Sobeco Limited Partnership v. AON Consulting Inc. et al. (2008), 237 O.A.C. 267; 2008 ONCA 196, leave to appeal refused (2008), 390 N.R. 387; 257 O.A.C. 396 (S.C.C.), refd to. [para. 16].

Freeman-Maloy v. Marsden et al. (2006), 208 O.A.C. 307; 79 O.R.(3d) 401 (C.A.), leave to appeal refused (2006), 359 N.R. 391; 227 O.A.C. 396 (S.C.C.), refd to. [para. 16].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 16].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Gauthier v. Saint-Germain et al. (2010), 264 O.A.C. 336; 2010 ONCA 309, appld. [para. 20].

Wong v. University of Toronto (1992), 4 Admin. L.R.(2d) 95 (Ont. C.A.), dist. [para. 23].

Dawson v. University of Toronto et al., [2007] O.A.C. Uned. 528; 2007 ONCA 875, dist. [para. 23].

Zabo v. University of Ottawa, [2005] O.A.C. Uned. 300; 2005 CanLII 22452 (C.A.), leave to appeal refused (2006), 352 N.R. 192; 217 O.A.C. 399 (S.C.C.), dist. [para. 25].

Zabo v. University of Ottawa, [2004] O.T.C. 327 (Sup. Ct.), refd to. [para. 25].

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. 30].

Board of Education of Peel v. Human Rights Commission (Ont.) (1991), 38 O.A.C. 144; 72 O.R.(2d) 593 (Div. Ct.), refd to. [para. 36].

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, consd. [para. 37].

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299, consd. [para. 38].

L'Attiboudeaire v. Royal Bank of Canada (1996), 88 O.A.C. 70; 131 D.L.R.(4th) 445 (C.A.), refd to. [para. 42].

Andrachuk v. Bell Globe Media Publishing Inc., [2009] O.T.C. Uned. 291; 7 C.C.E.L.(3d) 224 (Sup. Ct.), refd to. [para. 42].

Transamerica Life Canada Inc. et al. v. ING Canada Inc., [2003] O.A.C. Uned. 565; 68 O.R.(3d) 457 (C.A.), refd to. [para. 49].

Olar v. Laurentian University, [2007] O.T.C. Uned. C26; 49 C.C.L.T.(3d) 257 (Sup. Ct.), affd. 2008 ONCA 699, refd to. [para. 53].

Statutes Noticed:

Human Rights Code, R.S.O. 1990, c. H-19, sect. 46.1 [para. 43].

Counsel:

James S. Schacter, for the appellant;

Alexander D. Pettingill, for the respondent.

This appeal was heard on June 28, 2010, by Feldman, MacFarland and Karakatsanis, JJ.A., of the Ontario Court of Appeal. Karakatsanis, J.A., delivered the following decision for the court on October 7, 2010.