



COURT OF APPEAL FOR ONTARIO

CITATION: Lam v. University of Western Ontario, 2019 ONCA 82

DATE: 20190206

DOCKET: C64761

Strathy C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Simon Lam

Plaintiff (Appellant)

and

The University of Western Ontario Board of
    Governors

Defendant (Respondent)

Selwyn A. Pieters and Christopher Stienburg, for the
    appellant

Sarah Jones, for the respondent

Heard: December 17, 2018

On appeal from the judgment of Justice Markus Koehnen of
    the Superior Court of Justice, dated November 22, 2017, with reasons reported
    at 2017 ONSC 6933.

Zarnett J.A.:


Introduction

[1]

The appellant, Simon Lam, appeals from the decision of the motion judge
    granting summary judgment dismissing his action against the respondent, the
    University of Western Ontario Board of Governors (the University). The appellants
    action claims damages for loss of income, pain and suffering, and out of pocket
    expenses resulting from his having been deprived of the opportunity to complete
    a Ph.D. degree.

[2]

The appellant enrolled, in 2011, in a Ph.D. program at the Universitys
    faculty of science. His thesis research focused on a highly specialized area of
    biochemistry. He had funding for his research through a grant obtained by his
    thesis supervisor from the Canadian Institute of Health Research (CIHR).

[3]

In 2012, the appellants thesis supervisor died. As a result, a new
    supervisory committee was formed. After various meetings and discussions with
    the new supervisory committee, the appellant transferred out of the Ph.D.
    program into a Masters program.

[4]

The appellant founds his action on the allegation that he was pressured
    by the new supervisory committee to transfer out of the Ph.D. program, in a
    manner that involved breaches of obligations the University owed to him. He
    says the members of the supervisory committee lacked, and were unwilling to
    acquire, the necessary expertise in his area of research, and misled and
    provided knowingly incorrect information to him about the availability and
    security of his funding.

[5]

The motion judge, after carefully reviewing the evidence, found there
    were genuine issues of fact that would require a trial to resolve, including:

(a)

whether the supervisory committee recommended the appellants transfer
    out of the Ph.D. program because it genuinely believed there were problems with
    the appellants work (as the University contended) or because the members of
    the committee were unwilling to familiarize themselves with his research (as
    the appellant contended); and

(b)

what the appellant was told about funding by the supervisory committee and
    whether those statements were justified.

[6]

The motion judge held, however, that it was not necessary for those
    issues to proceed to trial, because as a matter of law the appellants action
    should have been brought as a complaint to the University and should not be
    before [the] court to begin with. He granted summary judgment and dismissed the
    action.

[7]

In my view, the motion judge erred in law. The genuine issues of fact he
    identified as requiring a trial could, if resolved in favour of the appellant,
    result in a legally cognizable claim. There was nothing in law that required
    the Superior Court to decline to deal with such a claim or to refuse remedies
    such as damages, in favour of an internal University complaint process in which
    such remedies would not be available.

[8]

Accordingly, I would allow the appeal, set aside the judgment dismissing
    the action, and direct that the matter proceed to trial.

The Facts

[9]

The appellant received two Bachelor of Science degrees from the
    University of Alberta in 2005 and 2007, and another from the respondent University
    in 2009. Thereafter, he enrolled in a Masters program in biochemistry at the University.
    In 2011, and before completing a Masters degree, he was allowed to transfer to
    the Ph.D. program in biochemistry.

[10]

At
    the time of his transfer to the Ph.D. program, the appellants supervisor was
    Professor Megan Davey. According to the appellant, in June 2012 Professor Davey
    advised him that CIHR had approved a grant to fund her research and that of her
    doctoral students, including the appellant, and that he would receive funding
    from the CIHR grant until completion of his Ph.D.

[11]

In
    August 2012, Professor Davey unexpectedly died. According to the appellant this
    created uncertainties for him as to who would supervise his research, where the
    research would be done (it had been done at Professor Daveys lab), and about
    the continued availability of the CIHR grant, which had been funding the
    appellants Ph.D.

[12]

A
    new supervisory committee was then formed consisting of Professors Chris Brandl,
    David Edgell and Brian Shilton. They met formally with the appellant in
    November 2012, and April and May 2013.

[13]

Although
    the supervisory committee noted in November 2012 that the appellants work was
    satisfactory, in April 2013 it was critical of his work habits and of the pace
    of his work. The appellant deposed that at this meeting the committee told him
    it would be in his best interest to transfer out of the Ph.D. program to a
    Masters program.

[14]

At
    a further meeting in May 2013 (which was recorded by the appellant and later transcribed)
    there were discussions about whether the appellant should remain in the Ph.D.
    program or transfer to a Masters program. The motion judge summarized his
    conclusion about this meeting:

Mr. Lam submits that numerous passages of the latter portion of
    the transcript show the committee admitting that they did not have and were
    unwilling to acquire the required degree [of] expertise to supervise his Ph.D.
    Mr. Lam submits that the transcript also shows that the committee had made up
    its mind to transfer Mr. Lam to the Masters program immediately after his
    first supervisor passed away.

Western points to other passages of the transcript which it
    says are consistent with the committee providing an adequate degree of
    supervision.

In my view, the transcript has portions that support both Mr.
    Lams and Westerns characterization of events.

[15]

The
    appellant also gave evidence that, prior to the April and May 2013 meetings, he
    was told by a supervisory committee member that the CIHR grant could be
    cancelled due to Professor Daveys death, and that funding for his research was
    somewhat up-in-the-air. He deposed that during the April and May 2013
    meetings he was told my funding was not available to complete my PhD research
    and that I should transfer back to the Masters program.

[16]

The
    motion judge noted that when various statements were made to the appellant that
    funding was up in the air or might be cancelled, the funding had in fact
    already been extended, with one of the approved cost items being financial
    support for the appellant. He also noted that after the appellant transferred
    out of the Ph.D. program one of the supervisory committee members began to use
    the CIHR grant money that had been ascribed to the appellant, for other
    purposes.

[17]

The
    appellant applied to transfer back to a Masters program on May 6, 2013. He
    deposed that he felt after his meetings with the supervisory committee that he
    had no alternative. He specifically stated that he relied on their statements
    about there being no funding available and that if he had known there was such
    funding he would not have transferred.

[18]

In
    the formal request for the transfer, one of the supervisory committee members
    stated:

The advisory committee cannot provide the level of supervision
    necessary for Simon to complete a PhD. There is also no other faculty member in
    the Biochemistry or other program that can act as supervisor.

[19]

The
    motion judge stated that it was unclear from the form whether the committee was
    unable to provide the level of supervision because the appellant required too
    much handholding (as the University alleged) or because the committee members did
    not have the necessary expertise and were unwilling to acquire it (as the
    appellant alleged). He noted that none of the committee members filed an
    affidavit on the motion.

[20]

The
    appellant completed his Masters thesis through a successful defence in August
    2014 but alleges he was required during the Masters program to take outside
    employment and has not been able to resume his studies toward a Ph.D. or obtain
    his desired lab-based research employment due to his treatment by the University.

The Action and the Summary Judgment Motion

[21]

The
    appellant commenced his action in September 2014. The statement of claim was the
    subject of two motions by the University to strike it and was amended twice as
    a result of the disposition of those motions: see
Lam v. The University of
    Western Ontario Board of Governors
,
2015 ONSC 1642, and
Lam v.
    University of Western Board of Governors
, 2015 ONSC 5281. As finally
    constituted, the appellants Second Fresh as Amended Statement of Claim alleges
    that the conduct of the University constituted breach of contract and breach of
    fiduciary duty.
[1]
The particulars he alleges are the Universitys lack of good faith efforts to
    ensure an adequate alternate supervisor after Professor Davey died, the new
    supervisory committee members lack of expertise and their unwillingness to
    acquire it, their failure to inform him accurately about funding, and their
    pressuring him into transferring out of the Ph.D. program. He claims monetary
    relief  damages and equitable compensation.

[22]

The
    University defended the action denying the appellants main allegations as well
    as the existence of any breach or damages. The University then moved for summary
    judgment. The principal basis for its motion was that the claim relates to decisions
    about teaching, mentoring, supervising and administering the Ph.D. program and
    thus to matters that are purely academic in nature, and therefore the claim
    fails to disclose a reasonable cause of action.

The Motion Judges Decision

[23]

As
    noted above, the motion judge granted summary judgment dismissing the action.
    He found there were genuine issues of fact requiring a trial regarding the
    conduct and motivations of the supervisory committee members, and regarding what
    they knew and said about funding. But, as a matter of law, he held the action should
    have been brought as a complaint to the University whose decision would have
    been subject to judicial review. According to the motion judge, academic and
    legal issues must be distinguished when reviewing a universitys conduct;
    academic issues are to be resolved using a universitys informal operational
    and formal appeal processes and thereafter by judicial review.

[24]

Citing
    this courts decisions in
Gauthier v. Saint-Germain
, 2010 ONCA 309, 264
    O.A.C. 336, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 257, and
Jaffer
    v. York University
, 2010 ONCA 654, 268 O.A.C. 338, leave to appeal to
    S.C.C. refused, [2010] S.C.C.A. No. 402, the motion judge referred to the very
    broad discretion a university has and that a student, by enrolling, subjects
    him or herself to for the resolution of academic issues including evaluation of
    the students work, the structure of programs, and the competence of thesis
    supervisors, and that a court should be reluctant to interfere in the internal
    affairs of universities. He acknowledged that in those cases this court held
    that the court
has
jurisdiction to entertain a claim by a student
    against a university where the facts alleged constitute a cause of action based
    on tort or breach of contract even if the dispute stems from an academic or
    educational activity of the university. But, in his view, if the pith and
    substance of the impugned conduct is academic, it does not belong in the courts
    even if characterized as a breach of contract or tort claim. He held that if
    the impugned conduct
could
be interpreted as academic, the court should
    take a deferential approach to the university, and following such an approach
    find that the impugned conduct is not outside the universitys broad
    discretion. He equated the requirement articulated in
Jaffer
,
that a plaintiff must establish that
    the universitys actions go beyond its broad discretion, with what he termed
    the general rule that courts ought not to assume jurisdiction that others are
    better equipped to assume.

[25]

To
    apply those concepts, the motion judge asked to what degree a court or the University
    would be better able to deal with the issues that concerned the appellant by reason
    of expertise, policy and practicality. He reviewed the Universitys internal complaint
    processes, including the opportunity for the appellant to have raised his
    concerns with the deans, provosts or their deputies at the University, or its
    ombudsman, and then to have sought judicial review if he remained dissatisfied.

[26]

Applying
    this approach, the motion judge concluded that the appellants complaints would
    have been more appropriately resolved within the University, subject to
    judicial review. He held that the subject matter of the claim involved academic
    advancement and administration of a university program within the sphere of the
    Universitys discretion, and in areas where the University has more expertise
    and could have given faster and more direct remedies (even if they were not the
    remedies the appellant now seeks). He therefore held that as a matter of law
    the appellants claim should be dismissed.

The Standard of Review

[27]

Where,
    on a motion for summary judgment, the motion judge applies an incorrect
    principle of law, or errs with respect to a purely legal question, such as the
    elements that must be proved to make out a cause of action, the decision will
    be reviewed on a standard of correctness:
Hyrniak v. Mauldin
, 2014 SCC
    7, [2014] 1 S.C.R. 87, at para. 84.

[28]

The
    motion judge proceeded on a purely legal basis, applying principles of law to
    dismiss a claim that he held would, absent those principles, be a claim that
    would require a trial to resolve, given the conflict in the factual record
    underlying the claim. In order to reach the result he did, the motion judge
    was required to be correct about the legal principles. The applicable standard
    of review is therefore correctness.

Analysis

[29]

In
    my view, the result in this case is controlled by this courts decisions in
Gauthier
and
Jaffer
. In both of those cases, which involved claims of breach of
    contract by students against universities, this court held that if a plaintiff
    alleges the constituent elements of a cause of action based in tort or breach
    of contract, while claiming damages, the court will have jurisdiction even if
    the dispute stems from the scholastic or academic activities of the university
    in question. The question to be addressed was therefore whether the factual
    issues the motion judge found to exist could, if resolved in the appellants
    favour at trial, make out a cause of action for breach of contract. Because
    they could, the Universitys motion ought to have been dismissed.

[30]

The
    perceived advantages of the Universitys internal complaint processes were not
    germane to the issue.

A.

Gauthier
and
Jaffer

[31]

Although
    the motion judge referred to
Gauthier

and
Jaffer
, properly
    understood they do not support and in fact contradict his approach. The
    following propositions from those cases demonstrate this:

(a)

The relationship between a student and a university has a contractual
    foundation, giving rise to duties in contract and tort:
Jaffer
,

at para. 30. This is important here
    because one of the causes of action asserted by the appellant is breach of
    contract. The terms of the contract and the organizing principles of contract
    law are important to determine whether a breach of contract by the University (a
    legal cause of action) would be made out if the facts determined at trial favoured
    the appellant. The motion judge did not analyze this.

(b)

A student who enrolls at a university agrees to be subject to the
    institutions discretion in resolving academic matters, including the
    assessment of the quality of the students work and the organization and
    implementation of university programs:
Gauthier
,
at para. 47; and
Jaffer
,
at para. 27. The motion judge referred
    to this, but not in the proper context. Given the contractual basis of the relationship
    between student and university, this proposition is best understood as an
    implied term of the contract between student and university. The implied term
    is relevant because it goes to whether what the appellant complains of is a
    breach of contract, that is, whether there is a viable cause of action because the
    impugned conduct falls outside the broad discretion of the University. As with
    any implied term, it must be considered in light of the contracts express
    terms and the legal obligations any contract entails. The motion judge failed
    to consider the matter this way.

(c)

It is not accurate to say the court is without jurisdiction to deal with
    a claim for breach of contract or tort because it arises out of a dispute of an
    academic nature. It is the remedy sought that is indicative of jurisdiction.
    Where the claim by the student is for damages for a breach of contract or tort,
    jurisdiction exists to deal with the claim 
even if the dispute arises out
    of an academic matter


(emphasis added):
Jaffer
, at
    para. 26. This is in contradistinction to a claim to reverse an internal
    academic decision, which would be pursued by judicial review:
Gauthier
, at

para. 46; and
Jaffer
, at
para. 26. The motion judge failed to
    approach the matter this way. He did not treat the remedy sought as indicative
    of the courts jurisdiction even though damages, not reversal of an academic
    decision, were sought. And without considering whether the facts that might be
    found at trial would show a breach of contract, he examined whether the dispute
    arose out of an academic matter and concluded the court could and should not
    deal with it.

(d)

A claim by a student against a university will fail if it is an indirect
    attempt to appeal an academic decision for which judicial review would be the
    remedy, or if insufficient detail is given in the pleadings to show that the
    universitys actions go beyond the broad discretion it enjoys:
Gauthier
, at
para. 50; and
Jaffer
, at
para. 28. These points do not invite
    a court to decline to entertain a legal claim for damages for breach of
    contract in favour of an internal university complaint process. Rather, they flow
    from the points above. A claim that does not allege conduct outside of the
    universitys broad discretion does not allege a breach of contract. It alleges
    conduct the university may engage in without breaching its contract, because it
    has been given a discretion by the agreement between the parties to act as it
    has. A claim that is an indirect appeal of an academic decision suffers the
    same fate. It is not really a claim that the university breached its agreement,
    but rather a claim that it should have exercised its discretion differently.

[32]

Therefore,
    the correct approach is not to ask whether the complaint falls on the academic
    or legal end of a spectrum and then determine the answer by considering which,
    as between a court and an internal university process, is the more desirable
    forum from the standpoint of efficiency, policy and practicality. Rather, the
    correct approach flowing from
Gauthier
and
Jaffer
is to ask
    whether the complaint is one for damages for breach of contract or tort, as
    opposed to an assertion that what the university did was something it had a
    discretion to do.

[33]

The
    divergence between the motion judges approach and that required by
Gauthier

and

Jaffer
is made clear by the following passages from
Jaffer
:

[29]    The Superior Courts jurisdiction over the action in
    this case is thus not ousted by the raising of issues relating to the
    universitys academic function. As in
Gauthier
, the action is not
    simply an indirect attempt at judicial review, as the appellant does not seek
    to reverse decisions with respect to his grades or compel the university to
    readmit him. His claim is that the university owed him various obligations in
    both contract and in tort, and that its failure to meet those obligations has
    caused him pecuniary and non-pecuniary damages. Such claims fall within the
    jurisdiction of the Superior Court and may proceed if they are properly pleaded
    and tenable in law and disclose a reasonable cause of action.



[31]    The real issue in this case is not whether the dispute
    is academic in nature, but rather whether the pleadings support a cause of
    action in either contract or tort.

[34]

What
    was said in
Jaffer
can be said of this case, notwithstanding that
Jaffer
involved a pleadings motion in which the facts alleged were taken to be true,
    and this case was a summary judgment motion in which factual issues were found
    to exist that require a trial to resolve. The real issue the motion judge
    should have addressed was not whether the dispute was academic in nature but
    whether the genuine issues of fact he found existed would, if resolved at trial
    as the appellant claims they should be, make out a cause of action in contract
    for which damages were claimed.

[35]

In
    my view the resolution of this issue yields the opposite result to that reached
    below. The following section explains why this is so.

B.

Application
    of the Principles
to the Factual Result Contended for by the Appellant

[36]

When
    a motion judge finds that genuine issues of fact exist that require a trial to
    resolve, an action may still be dismissed as a matter of law. But that can only
    be done when, no matter how those issues of fact might be resolved at trial, a
    fatal legal impediment to the claim exists. It is not sufficient that a legal
    impediment to the claim will exist in some factual scenarios that may be found at
    trial. It must exist in all factual scenarios. The legal impediment must bar
    the claim even if the plaintiffs best case on the genuine issues requiring a trial
    were made out. This follows from the motion judges duty to take the
    plaintiffs claim at its highest when considering a summary judgment motion:
    see
Hashemi-Sabet Estate v. Mazzulla
, 2016 ONCA 273, at para. 10; and
Khabouth v. Nuko
    Investments Limited
, 2013 ONCA 671, at para. 6.

[37]

The
    motion judge did not properly undertake that analysis. For example, although
    the motion judge said that the impugned conduct does not go beyond the broad
    discretion the University enjoys, he did not consider that proposition in all
    factual scenarios, including that contended for by the appellant. When that
    analysis is performed, it is clear that the impugned conduct does not fall
    within the Universitys broad discretion.

[38]

As
    noted above, in law, the relationship between the appellant and the University had
    a basis in contract:
Jaffer
,
at para. 30; see also
Young v. Bella
, 2006 SCC 3, [2006] 1 S.C.R. 108,
    at para. 31. The contract is alleged by the appellant to consist of a number of
    documents including the Universitys Graduate Student Handbook (the Handbook).
    The motion judge referred to the Handbook as something seemingly with
    contractual force and made no finding that the contract excluded those terms. However,
    he did not apply its terms in his analysis.

[39]

The
    Handbook provided, as to supervision, that thesis supervisors:

[S]hould have sufficient familiarity with the field of research
    to provide appropriate guidance and supervision, or indicate a willingness to
    gain that familiarity before agreeing to act as supervisor.

[40]

As
    to funding, the Handbook provided:

The supervisor should make the student aware, very early on, of
     various sources of funding.... The nature of any financial support provided
    by the supervisor should be communicated clearly to the student, in writing,
    including such details as the amount of financial support, the length of time
    of such support, and any specific conditions pertaining to this financial
    support.

[41]

The
    contract between the appellant and the University would also be subject to
    general provisions of the law, including the general duty of honesty in
    contractual performance: see
Bhasin v. Hrynew
, 2014 SCC 71, [2014] 3
    S.C.R. 494, at para. 73. As Cromwell J. put it, this common law duty  applies
    to all contracts to act honestly in the performance of contractual obligations
    and means simply that parties must not lie or otherwise knowingly mislead each
    other about matters directly linked to the performance of the contract:
Bhasin
,
    at paras. 33, 73. The motion judge did not consider this duty.

[42]

The
    broad discretion of the University that the motion judge referred to must be
    understood in light of these provisions and the general duty of honest
    performance. As Rouleau J.A. noted in
Gauthier
, the broad discretion
    would be an answer to a claim that did not allege more than that an academic
    result is wrong or a professor is incompetent: at para. 47. Here,
more
is alleged and there are genuine issues requiring a trial as to whether
more

occurred.

[43]

The
    appellants allegations could result in a finding that the appellant was
    knowingly misled as to the details, amount and duration of his financial
    support, in breach of the Handbooks requirement to communicate those matters to
    the appellant and in violation of the duty of honest performance. If that were
    the resolution of the genuine issue requiring a trial regarding funding, the
    appellants claim could not be rebutted by reference to the Universitys broad
    discretion. The University did not argue that it had a discretion to depart
    from contractual terms or from the duty of honest performance  nor could it
    have so argued.

[44]

Similarly,
    the appellants allegation regarding the supervisory committee is not that its
    members were incompetent. It is that, contrary to the Handbook, they agreed to
    be supervisors without sufficient familiarity with the appellants field of
    research or a willingness to gain it, and used their positions as supervisors
    to pressure the appellant out of the Ph.D. program. If that were the finding
    arising from a trial, the appellants claim could not be rebutted by reference
    to the Universitys broad discretion.

[45]

To
    be sure, there are other possible outcomes of the genuine issues of fact
    requiring a trial, including factual findings of conduct that would be protected
    by the Universitys broad discretion such that no breach of contract occurred.
    But unless all outcomes would result in the failure of the appellants claims, his
    action cannot be dismissed as a matter of law. As shown above, not all outcomes
    are amenable to that result.

[46]

The
    resolution of the genuine issues of fact the motion judge found to exist could
    thus result in findings of breach of contract. The appellant has claimed damages
    for such a breach. That is a legal claim for a remedy over which the court has
    jurisdiction. The existence of damages and the necessary causal link between
    any breach and those damages were not in issue on the motion or this appeal. The
    claim cannot be properly characterized as one that never should have been in
    court to begin with, at least from a legal point of view. Nor is it a claim that
    the court may decline jurisdiction to address on the basis that others may be
    better equipped to resolve it.

C.

The Universitys Internal Complaint Processes

[47]

The
    parties disagreed before us as to whether there was any internal complaint process
    to which the appellant could have had resort and whether that matter was even properly
    before the motion judge. It is not necessary to resolve those issues. Given my analysis
    above, whether an internal process at the University existed with advantages
    from an expertise, policy and practicality standpoint to resolve the
    appellants complaints  albeit with remedies other than what the appellant is
    seeking  is not germane. It was not suggested that the parties had agreed that
    claims for damages for breach of contract would be heard in a forum other than
    the court.

Conclusion

[48]

For
    the reasons above, I would allow the appeal, set aside the decision of the
    motion judge, and substitute an order dismissing the Universitys motion for
    summary judgment and directing that the matter proceed to trial.

[49]

I
    would award costs of the appeal to the appellant in the amount of $12,500,
    inclusive of disbursements and HST. The parties did not address costs of the
    motion below in the event the appeal was allowed. If the parties cannot resolve
    that issue they may make brief written submissions, of no more than two pages,
    within 15 days of the release of these reasons.

Released: February 6, 2019 (G.R.S.)

B.
    Zarnett J.A.

I agree. G.R. Strathy C.J.O.

I agree. P. Lauwers J.A.





[1]
In my view, this appeal may be disposed of on the basis of the appellants
    breach of contract claim alone. It is not necessary to address the appellants
    claim for breach of fiduciary duty, as partial summary judgment was not sought
    nor would it be appropriate.


