Ramdath et al. v. George Brown College of Applied Arts and Technology, (2015) 341 O.A.C. 338 (CA)

• Judge: Feldman, Cronk and Huscroft, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 24, 2015
• Jurisdiction: Ontario
• Citations: (2015), 341 O.A.C. 338 (CA);2015 ONCA 921

Ramdath v. George Brown College (2015), 341 O.A.C. 338 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.047

Katrina Ramdath, Zsolt Kovessy and Ashish Singh (plaintiffs/appellants/respondents by way of cross-appeal) v. The George Brown College of Applied Arts and Technology (defendant/respondent/appellant by cross-appeal)

(C59349; 2015 ONCA 921)

Indexed As: Ramdath et al. v. George Brown College of Applied Arts and Technology

Ontario Court of Appeal

Feldman, Cronk and Huscroft, JJ.A.

December 24, 2015.

Summary:

The plaintiff students commenced a class action against a college that offered a graduate international business management program, alleging negligent misrepresentation, breach of contract and unfair practice under the Consumer Protection Act (CPA). The three groups of students began the program in 2007, January 2008 or September 2008. The action alleged that the college's course calendar falsely misrepresented that students, upon completing the program, would obtain certain industry designations. In fact, such designations required additional courses, and/or work experience, and exams, all at the students' own expense.

The Ontario Superior Court, in a judgment reported [2012] O.T.C. Uned. 6173, allowed the action on the basis of negligent misrepresentation and breach of the CPA. The defendant college appealed.

The Ontario Court of Appeal, in a judgment reported (2013), 307 O.A.C. 196, dismissed the appeal. At the damages trial, the court awarded the plaintiffs aggregate damages under s. 24 of the Class Proceedings Act for the statutory cause of action under the CPA. The trial judge removed from the certified class those September 2008 students who were correctly advised on the industry designation issue but chose to continue with the program (all September 2008 students were given an opportunity to withdraw with a full refund). The plaintiffs appealed the exclusion of the September 2008 students from the class. The college cross-appealed the aggregate damage award, arguing that damages had to be assessed on an individual basis and not aggregated.

The Ontario Court of Appeal allowed the appeal. The September 2008 students were restored to the certified class, but the issue of their damages was remitted to the trial judge. The court dismissed the cross-appeal against the aggregate damage award, subject to the deduction for the residual value of the degree for those students who did not complete the program.

Consumer Law - Topic 1804

Sale of goods - Breach - Remedies of buyer - Damages (incl. punitive damages) - A trial judge found a college that offered a graduate international business management program violated the Consumer Protection Act (unfair practice) by making false representations that students, upon completing the program, would obtain certain industry designations - In fact, such designations required additional courses, and/or work experience, and exams, all at the students' own expense - There were three groups of students in this class action (those starting in 2007, January 2008 and September 2008) - At the damages trial, the trial judge found that the September 2008 students were orally advised of the correction to the misrepresentation in the on-line and written information and were given an opportunity to withdraw with a full tuition refund - Accordingly, they were not entitled to the remedy of damages under the Act that the other two groups of students were entitled to - The Ontario Court of Appeal held that the trial judge erred - A remedy under the Act did not require reliance - Alternatively, the oral correction was too late - As the students had already entered their agreements with the college, their claims under the Act had already crystallized - Further, the students did not obtain a full refund of tuition, as the college retained an administration fee, and the students were also entitled, under the agreed formula, to be compensated for out-of-pocket expenses such as textbooks and travel costs - The court restored the September 2008 students to the class entitled to damages and remitted the assessment of damages to the trial judge - See paragraphs 31 to 45.

Practice - Topic 208.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Aggregate damages - Section 24(1) of the Class Proceedings Act permitted an aggregate assessment of damages where "(a) monetary relief is claimed on behalf of some or all class members; (b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant's monetary liability; and (c) the aggregate or a part of the defendant's liability to some or all class members can reasonably be determined without proof by individual class members" - The plaintiffs were entitled to damages under the Consumer Protection Act (CPA) for the defendant's unfair practice - Reliance on the negligent misrepresentation that founded the breach was not required - The Ontario Court of Appeal held that the trial judge did not err in awarding damages under s. 24(1) on an aggregate basis, rejecting the defendant's argument that damages had to be assessed individually - A consumer who was the victim of an unfair practice under the CPA "was entitled to claim damages with no inquiry into whether the [plaintiff] relied on the misrepresentation or was induced by it into entering into the agreement" - A plaintiff consumer needed to establish causation, but the causal link was between the damages and the agreement (i.e., plaintiff suffered damages flowing from the unfair practice), not between the actual unfair practice and the damages suffered - It was open to the trial judge to use the tort measure of damages and to apply the parties' agreed formula (direct costs such as tuition, books, travel costs, plus forgone income and the cost of delayed entry into the workforce, less the residual value of the program (15%)) - See paragraphs 47 to 95.

Cases Noticed:

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 33].

Matoni et al. v. C.B.S. Interactive Multimedia Inc. et al., [2008] O.T.C. Uned. P64; 2008 CanLII 1539 (Sup. Ct.), refd to. [para. 39].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 55].

Pro-Sys Consultants Ltd. et al. v. Microsoft Corp. et al., [2013] 3 S.C.R. 477; 450 N.R. 201; 2013 SCC 57, refd to. [para. 78].

McKenna v. Gammon Gold Inc. et al., [2010] O.T.C. Uned. 1591; 88 C.P.C.(6th) 27; 2010 ONSC 1591, leave to appeal denied (2010), 266 O.A.C. 314; 2010 ONSC 4068 (Div. Ct.), refd to. [para. 88].

Mouhteros v. DeVry Canada Inc. (1998), 70 O.T.C. 138; 41 O.R.(3d) 63 (Gen. Div.), refd to. [para. 88].

Green et al. v. Canadian Imperial Bank of Commerce et al. (2015), 478 N.R. 202; 2015 SCC 60, refd to. [para. 88].

Cannon v. Funds for Canada Foundation et al., [2012] O.T.C. Uned. 399; 2012 ONSC 399, refd to. [para. 88, footnote 1].

Richard v. Time Inc. et al., [2012] 1 S.C.R. 265; 427 N.R. 203; 2012 SCC 8, refd to. [para. 89].

Bank of Montreal v. Marcotte et al., [2014] 2 S.C.R. 725; 462 N.R. 202; 2014 SCC 55, refd to. [para. 89].

Fulawka v. Bank of Nova Scotia (2012), 293 O.A.C. 204; 2012 ONCA 443, leave to appeal denied (2013), 452 N.R. 393 (S.C.C.), refd to. [para. 91].

Ksiazek v. Newport Leasing Ltd. et al. (2010), 267 O.A.C. 58; 2010 ONCA 341, refd to. [para. 104].

Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943; 277 N.R. 1; 153 O.A.C. 341; 2001 SCC 58, refd to. [para. 104].

Statutes Noticed:

Consumer Protection Act, S.O. 2002, c. 30, sect. 18(2) [para. 76]; sect. 24(1) [para. 75].

Counsel:

Won J. Kim and Aris Gyamfi, for the appellants/respondents by way of cross-appeal;

Robert B. Bell, Michael C. Smith, and Jonathan Chen, for the respondent/appellant by way of cross-appeal.

This appeal and cross-appeal were heard on May 7, 2015, before Feldman, Cronk and Huscroft, JJ.A., of the Ontario Court of Appeal.

On December 24, 2015, Feldman, J.A., released the following judgment for the Court of Appeal.