



COURT OF APPEAL FOR ONTARIO

CITATION: Bounpraseuth v. York University, 2014 ONCA 390

DATE:  20140513

DOCKET: C58221

Doherty, Gillese and Hourigan JJ.A.

BETWEEN

Outhonesavan K. Bounpraseuth

Plaintiff (Appellant)

and

York University

Defendant (Respondent)

Carlin McGoogan, for the plaintiff (appellant)

Sarah Jones, for the defendant (respondent)

Heard and released orally:  May 8, 2014

On appeal from the judgment of Justice Tzimas of the Superior
    Court of Justice, dated February 13, 2013.

ENDORSEMENT

[1]

Counsel for the appellant helpfully narrowed the issue on this appeal. 
    He concedes that the claims as pleaded in the statement of claim cannot stand. 
    He submits, however, that the motion judge erred in not giving the appellant
    leave to amend his pleading.  Before addressing the merits of that submission,
    we note that the motion judge asked the appellant for specifics should she
    give him leave to amend his claim and the appellant declined to provide those
    specifics.

[2]

Counsel before us suggests that in essence, the appellants claim is for
    breach of contract against the respondent University.  He contends that the
    appellant has alleged, albeit in a confusing manner, that he was entitled to
    graduate from the University in 2004 and that the University failed, for no
    good reason, to graduate him until 2010, resulting in the damages as pleaded in
    the statement of claim.

[3]

We cannot accept this characterization of the claim.  Indeed, it is
    contrary to the claim as actually put forward by the appellant in his statement
    of claim.  That claim was all about the marks the appellant received which
    prevented him from graduating and the unfair way he alleges he was treated by
    the respondent University in the course of his attempts to rectify those marks.

[4]

The proposed amendment would, in our view, entirely recast the statement
    of claim.  We would not interfere with the motion judges refusal to allow
    leave to amend the claim.

[5]

The appeal is dismissed.

[6]

Costs awarded to the respondent University in the amount of $2,700,
    inclusive of relevant taxes and disbursements.

Doherty J.A.

E.E. Gillese J.A.

C.W. Hourigan J.A.


