Tapics v. Dalhousie University et al., (2015) 363 N.S.R.(2d) 202 (CA)

• Judge: Fichaud, Bryson and Scanlan, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 28, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 363 N.S.R.(2d) 202 (CA);2015 NSCA 72

Tapics v. Dalhousie Univ. (2015), 363 N.S.R.(2d) 202 (CA);

    1143 A.P.R. 202

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.033

Tara Tapics (appellant) v. Dalhousie University, Dr. Christopher Taggart, and Dr. Marlon Lewis (respondents)

(CA 433549; 2015 NSCA 72)

Indexed As: Tapics v. Dalhousie University et al.

Nova Scotia Court of Appeal

Fichaud, Bryson and Scanlan, JJ.A.

July 22, 2015.

Summary:

Tapics entered Dalhousie's Ph.D. program in Oceanography in January 2011. A year and a half later, her field supervisor, Dr. James, left, taking the data that was essential to Tapics' research involving sea turtles. Tapics refocused her research on right whales. Early in 2013, her principal supervisor, Dr. Taggart, withdrew. The University notified Tapics that nobody else could be found to supervise her research. Tapics appealed unsuccessfully to an ad hoc Appeal Committee of the Faculty of Graduate Studies, and then further to an Appeal Panel of the University Senate. The Senate's Appeal Panel remitted the matter back to the Faculty of Graduate Studies, with the direction that the Faculty and Tapics seek mediation to identify a new supervisor. The Faculty offered to meet, but Tapics did not take up the offer. Tapics filed a Notice of Application, naming Dalhousie University, Dr. Taggart and Dr. Lewis (Chair of Dalhousie's Oceanography Department) as respondents. She claimed that the respondents breached their contract to provide supervision, breached their duty of care by not securing the specified dataset for the sea turtle research and by engaging the supervisory functions of Dr. James, and that Dr. Lewis committed slander. She sought damages. The respondents moved for dismissal of Tapics' application on the bases that the court had no jurisdiction, the application was an abuse of process further to rule 88, and the application failed to disclose a cause of action further to rule 13.03.

The Nova Scotia Supreme Court, in a decision reported at (2014), 352 N.S.R.(2d) 138; 1112 A.P.R. 138, struck Tapics' claim for slander because of deficient pleading, dismissed the rest of her claims as an abuse of process and, in the alternative, dismissed her claims against Drs. Taggart and Lewis because the pleadings did not disclose sufficient material facts to support liability. Tapics appealed, challenging the dismissal of her claim as an abuse of process.

The Nova Scotia Court of Appeal allowed the appeal in part. The court held that insofar as Tapics' claim involved her initial sea turtle project, Dr. James' involvement, and the University's responsibility (if any) for those matters, it would allow the appeal against Dalhousie, on the basis that her claim was not an abuse of process. In all other respects, the court dismissed the appeal. Tapics had 30 days to amend her pleading consistently with the court's decision.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - [See Education - Topic 4584 ].

Education - Topic 4584

Universities - Actions against universities - Abuse of process - Tapics entered Dalhousie's Ph.D. program in Oceanography in January 2011 - A year and a half later, her field supervisor, Dr. James, left, taking the data that was essential to Tapics' research involving sea turtles - Tapics re-focused her research on right whales - Early in 2013, her principal supervisor, Dr. Taggart, withdrew - The University notified Tapics that nobody else could be found to supervise her research - Tapics appealed unsuccessfully to an ad hoc Appeal Committee of the Faculty of Graduate Studies (FGS), and then further to an Appeal Panel of the University Senate - The Senate's Appeal Panel remitted the matter back to the Faculty of Graduate Studies, with the direction that the Faculty and Tapics seek mediation to identify a new supervisor - The Faculty offered to meet - Tapics did not take up the offer - Tapics filed a Notice of Application, naming Dalhousie University, Dr. Taggart and Dr. Lewis (Chair of Dalhousie's Oceanography Department) as respondents - She claimed that the respondents breached their contract to provide supervision, breached their duty of care by not securing the specified dataset for the sea turtle research and by engaging the supervisory functions of Dr. James - She sought damages - The trial judge dismissed Tapics' claims as an abuse of process on the basis that the allegations in the Notice of Application had been dealt with by the FGS and the Senate Panel - Tapics appealed - The Nova Scotia Court of Appeal allowed the appeal in part - The University's appeal tribunals had determined that Dr. Taggart's withdrawal was not precipitous and the Department's efforts to replace him were not inadequate - Those aspects of Tapics' claim would relitigate matters that were squarely before the University's internal appeal tribunals and were an abuse of the court's process - However, the court allowed the appeal with respect to Tapics' allegations involving Dr. James' role and the sea turtle research, and the University's responsibility for that matter - Tapics' claim regarding those matters was not an abuse of process - The court stated, inter alia, "For the sea turtle project, the underlying controversy was not adjudicated by the university tribunal, was extraneous to Ms. Tapics' objective with her university appeal, and a damages claim against the University would lie outside the tribunal's mandate" - See paragraphs 54 to 79.

Practice - Topic 5361

Dismissal of action - Grounds - General and want of prosecution - Abuse of process - [See Education - Topic 4584 ].

Cases Noticed:

Innocente v. Canada (Attorney General) (2012), 315 N.S.R.(2d) 273; 998 A.P.R. 273; 2012 NSCA 36, refd to. [para. 38].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, consd. [para. 40].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, consd. [para. 43].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, consd. [para. 44].

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 356 D.L.R.(4th) 595; 2013 SCC 19, consd. [para. 45].

Moulton Contracting Ltd. v. British Columbia et al., [2013] 2 S.C.R. 227; 443 N.R. 303; 333 B.C.A.C. 34; 571 W.A.C. 34; 2013 SCC 26, consd. [para. 46].

Wright v. Nova Scotia Public Service Long Term Disability Plan Trust Fund (2006), 246 N.S.R.(2d) 308; 780 A.P.R. 308; 2006 NSCA 101, consd. [para. 47].

Gauthier v. Saint-Germain et al. (2010), 264 O.A.C. 336; 2010 CarswellOnt 11457; 2010 ONCA 309, consd. [para. 49].

Jaffer v. York University (2010), 268 O.A.C. 338; 326 D.L.R.(4th) 148; 2010 ONCA 654, consd. [para. 50].

Aba-Alkhail et al. v. University of Ottawa et al. (2013), 311 O.A.C. 89; 2013 ONCA 633, consd. [para. 52].

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. 53].

Ahmed v. Dalhousie College and University (2014), 350 N.S.R.(2d) 356; 1105 A.P.R. 356; 2014 NSSC 330, refd to. [para. 64].

Counsel:

Blair Mitchell and Barbara Darby, for the appellant

Rebecca Saturley and Scott R. Campbell, for the respondents.

This appeal was heard on May 28, 2015, in Halifax, N.S., before Fichaud, Bryson and Scanlan, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Fichaud, J.A., on July 22, 2015.