



COURT OF APPEAL FOR ONTARIO

CITATION: King v. Ryerson University, 2015 ONCA 648

DATE: 20150925

DOCKET: C60211

Cronk, Hourigan and Benotto JJ.A.

BETWEEN

Justine Annette King

Plaintiff/Appellant

and

Ryerson University and Timothy Sly

Defendants/Respondents

Justine King, acting in person

Ashley Richards, for the respondents

Heard: September 21, 2015

On appeal from the order of Justice Carole Brown of the
    Superior Court of Justice, dated January 27, 2015.

ENDORSEMENT

[1]

This is an appeal from the order of C. Brown J. of the Superior Court of
    Justice, dated January 27, 2015, striking the appellants Fresh As Amended
    Statement of Claim dated August 12, 2014, as amended effective January 28, 2014
    (the Amended Claim), without leave to amend, and dismissing the appellants
    action as against both respondents, in its entirety.

[2]

Having carefully considered the contents of the appellants Amended Claim
    and her arguments on appeal, we conclude that there is no basis upon which to
    interfere with the motion judges order.  Accordingly, this appeal must be
    dismissed.

[3]

We say this for the following reasons.

A.      Claims Against Ryerson University

[4]

Most of the appellants claims against the respondent Ryerson University
    (Ryerson) are framed in breach of contract, negligence and the tort of
    intentional infliction of mental distress.  With respect to these claims, in addition
    to other pleadings deficiencies, the appellant has failed to plead the requisite
    elements of each of these causes of action or material facts sufficient to
    support her claims.

[5]

To the extent that the appellant pleads discriminatory conduct by
    Ryerson or its employees, and seeks damages in respect of such conduct, the
    Supreme Court has confirmed that there is no cause of action in tort at common
    law for discrimination, nor an independently actionable wrong in respect of
    discriminatory conduct for the purpose of awarding punitive damages: see
Seneca
    College of Applied Arts & Technology v. Bhadauria
, [1981] 2 SCR 181,
    at pp. 183 and 195;
Keays v. Honda Canada Inc.
, 2008 SCC 39, at para.
    63.  As a result, where, as here, a person alleges conduct that offends the
    Ontario
Human Rights Code,
a remedy must be sought within the
    statutory scheme of the
Code
itself.  We note that the appellant
    previously initiated a complaint to the Ontario Human Rights Tribunal, seeking
    damages against Ryerson on essentially the same basis as set out in her Amended
    Claim.

[6]

The appellant also alleges educational malpractice by Ryerson.  The
    alleged misconduct by Ryerson principally concerns the improper construction and
    administration of an exam, failure to respond to questions posed by the
    appellant concerning the exam in question, and Ryersons conduct and that of
    its employees in relation to that exam and the appellants grades.

[7]

These are issues relating to Ryersons organization and administration
    of its examination, grading, complaints and oversight programs, policies and practices,
    which fall squarely within its discretion and its internal academic
    decision-making.  In the first instance, resort to the universitys internal
    processes, rather than the courts, is the proper procedure to be followed for
    the resolution of complaints or concerns regarding such matters.  In other
    instances, complaints or concerns about such matters may properly form the
    subject-matter of a judicial review application.

[8]

In this case, the appellant has failed to plead specific facts that
    could demonstrate that Ryersons alleged conduct constituted an intentional
    tort or fell outside the broad margin of discretion enjoyed by the university
    and its professors:
Jaffer v. York University
, 2010 ONCA 654, 268
    O.A.C. 338, at para. 56. Even assuming, without deciding, that a claim based on
    a theory of educational malpractice may be justiciable in a proper case, the
    Amended Claim fails to provide the requisite factual foundation to ground such
    a claim.

[9]

We note, also, the appellants assertion in her factum that the motion
    judge failed to consider the appellants Amended Claim and instead evaluated
    the appellants original statement of claim, which had been struck by order of
    Stinson J. of the Superior Court of Justice, dated June 23, 2014.

[10]

The
    motion judges reasons belie this assertion.  Based on her reasons, it is clear
    that the focus of the motion judges analysis was the appellants Amended Claim.

[11]

For
    all these reasons, we agree with the motion judges ruling striking the Amended
    Claim as against Ryerson and dismissing the appellants action as against it. 
    It is plain and obvious that the appellants action as against Ryerson must
    fail.

[12]

We
    also agree that this is not an appropriate case for the granting of further
    leave to amend.  By reason of Stinson J.s order, mentioned above, the
    appellant has already been granted, and taken up, one opportunity to amend her
    pleading.  As we have outlined above, her Amended Claim suffers from multiple pleadings
    defects and fails to allege a reasonable cause of action as against Ryerson. 
    There is no basis to believe that further amendments by the appellant would
    yield a proper pleading, with viable causes of action.

B.      Claims Against Timothy
    Sly

[13]

We turn now to the appellants asserted claims against the personal
    respondent, Timothy Sly.  These claims suffer from a fatal flaw: nothing in the
    appellants Amended Claim discloses any conduct by Mr. Sly outside his duties
    and obligations as a Ryerson employee.  Simply put, no sustainable cause of
    action against Mr. Sly in his personal capacity is pleaded.  Accordingly, we
    see no basis on which to disturb the motion judges order striking the Amended
    Claim as against Mr. Sly, without leave to amend, and dismissing her action as
    against him.

C.      Costs Claim

[14]

In
    her factum, the appellant also seeks leave to appeal from the costs award in
    the respondents favour, set out at paragraph 2 of the motion judges order. 
    This award was based on the parties out-of-court agreement regarding the
    payment of costs by the appellant and the appropriate quantum of those costs
    ($2,000).  Nothing before this court establishes a foundation for the setting
    aside of a consensual costs award that was incorporated, at the parties request,
    in the motion judges formal order.

[15]

We
    note, in any event, the appellants indication during oral argument before this
    court that she is prepared to pay the costs awarded in respect of the motion. 
    Indeed, it appears that she has already offered to do so in discussions with
    the respondents counsel.  The appellant, therefore, did not pursue this ground
    of appeal during the appeal hearing.

D.      Other Comments

[16]

Finally,
    we appreciate that the appellant contends that the motion judge also erred by
    allegedly taking into account unproven facts posited by the respondents in
    their written and oral arguments on the motion.

[17]

We
    disagree.  While the motion judges reasons refer in some places to submissions
    by counsel, they also confirm that her decision and analysis were grounded in
    her consideration of the appellants own Amended Claim.

E.      Disposition

[18]

For
    the reasons given, the appeal is dismissed.  The respondents are entitled to
    their costs of the appeal, if sought, in the total amount of $1,000, inclusive
    of disbursements and all applicable taxes.

E.A. Cronk J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


