



COURT OF APPEAL FOR ONTARIO

CITATION: Ramdath v. George Brown College of
    Applied Arts and Technology, 2013 ONCA 468

DATE: 20130709

DOCKET: C56389

MacPherson, Cronk and Rouleau JJ.A.

BETWEEN

Katrina Ramdath, Zsolt Kovessy and Ashish Singh

Plaintiffs (Respondents)

and

The George Brown College of Applied Arts and
    Technology

Defendant (Appellant)

Robert B. Bell, Michael C. Smith and C. Peterson, for
    the appellant

Won J. Kim and Aris Gyamfi, for the respondents

Heard: July 2, 2013

On appeal from the judgment of Justice Edward P. Belobaba
    of the Superior Court of Justice, dated November 16, 2012, with reasons
    reported at 2012 ONSC 6173, 113 O.R. (3d) 531.

By the Court:

[1]

The appeal was dismissed with reasons to follow. These are those
    reasons.

A.

Introduction and factual Background

[2]

The appellant appeals the judgment that the trial judge rendered on the
    common issues certified in this class proceeding. The trial judge found that
    the program description published by the appellant in its course calendar negligently
    misrepresented the benefits of its graduate international business management
    program and thereby breached the unfair practices provisions of the
Consumer
    Protection Act, 2002
, S.O. 2002, c.
    30, Sched. A (the 
CPA
)
.
    The program description stated that the program provided students with the
    opportunity to complete three industry designations/certifications in addition
    to the George Brown College Graduate Certificate.

[3]

The promise of these industry designations made the program very
    attractive to prospective students. Upon graduating, however, the respondents did
    not automatically receive the designations and, moreover, were not automatically
    eligible to write the industry exams necessary to obtain the designations. This
    is because the appellant had no agreements in place with the industry
    associations with respect to awarding the designations. Students would have to
    apply separately to each industry association and, in addition to writing the
    exam and paying the sometimes hefty fee, they would be required to take
    additional courses and/or submit proof of work experience.

[4]

Based on the representations made by the appellant to prospective and
    actual students, the trial judge found that graduates of the program reasonably
    expected that they fulfilled the necessary qualifications to obtain the
    promised industry designations by completing the program. He found, however,
    that they also reasonably understood that they still had to write the industry
    exams and pay the requisite fees in order to obtain the designations.

B.

Analysis

(1)

The Appellants Duty
    of Care

[5]

First, the appellant argues that the trial judge erred in finding that
    it owed a duty of care to its students. In the appellants submission, a
    special relationship giving rise to a duty of care would only be created if the
    respondents acted reasonably in relying on the program description. The
    respondents could have obtained all of the relevant information from the
    various industry association websites. Had they done so, they would have known
    what was required in order to receive the designations. Further, no special relationship
    was created, in the appellants submission, because the respondents
    interpretation of the program description was unreasonable. The trial judge
    found that students reading the program description would reasonably expect to
    have to write an examination and pay a fee in order to obtain the industry
    designations. The evidence of the representative plaintiffs, however, was that
    they neither expected to write the examinations or pay any fees, nor would they
    be prepared to do so if that were a requirement. In addition, the appellant
    notes that the vast majority of the class members took no steps to obtain the
    designations. As a result, the appellant argues that the test for reasonable
    reliance was not made out.

[6]

We disagree. As confirmed in
Olar v. Laurentian University
(2007),
    49 C.C.L.T. (3d) 257 (Ont. S.C.), at paras. 70-71, affd 2008 ONCA 699, it is
    reasonable for students to rely on statements contained in course calendars, because
    these calendars are published with the intention that students read them and
    rely on the information contained therein in order to decide which academic program
    to pursue. We see no error in the trial judges conclusion that a special
    relationship existed between the appellant and the respondent class members.

[7]

With respect to the appellants submission that the record establishes
    that the respondents were not, and are not now, prepared to pay the necessary fees
    and write the required examinations for the industry designations, we do not
    view the respondents statements as having gone as far as the appellant
    suggests. They do not show that reliance on the program description was
    unreasonable.

[8]

The appellants concerns are primarily directed at whether each of the
    class members reasonably relied on the representations and can prove damages. The
    issue of damages was not certified as a common issue and will be determined,
    with evidence, at the individual issues phase of the trial.

(2)

The
CPA
Claims

[9]

Second, the appellant takes issue with the trial judges holding that
    the respondents have made out a claim under the
CPA
. The appellant
    argues that: a) the students are not consumers as defined in the
CPA
; b)
    each class member ought to have been required to prove reliance before being
    entitled to an award of damages under s. 18 of the
CPA
; and c) the
    requirement for timely notice of the claim ought not to have been waived by the
    trial judge.

[10]

We
    will address each of these submissions in turn.

(a)

Are
    students consumers under the
CPA
?

[11]

Consumer
    is defined in s. 1 of the
CPA
as an individual acting for personal,
    family or household purposes and does not include a person who is acting for
    business purposes. The appellant argues that postgraduate students seeking to
    obtain a business certificate are acting for a business purpose.

[12]

We
    would not give effect to this submission. Before reaching his conclusion that
    the respondents came within the definition of consumer under the
CPA
,
    the trial judge carried out a careful and thorough review of the legislations underlying
    principles, its statutory history, judicial interpretation of the enactment,
    and the legislative intent behind it. The trial judge then considered the
    uncontroverted evidence tendered by the respondents and concluded that they
    were typical students who obviously hoped that their education would one day
    lead to employment. He did not, as the appellant suggests, reverse the burden
    of proof and place it on the appellant. The trial judges finding that the
    respondents were consumers within the meaning of the
CPA
was reasonable
    in the circumstances.

(b)

Did
    each class member have to prove reasonable reliance on the misrepresentation?

[13]

The
    appellant argues that the promise contained in the program description was only
    that the students would have an
opportunity
to obtain the
    designations. This did not amount to an unfair practice, as there was ample
    information available on the Internet and elsewhere that students could access
    with respect to the requirements for industry association designations.
    Further, even if it could be considered an unfair practice, each individual member
    of the class must prove that he or she relied on the misrepresentation contained
    in the course calendar before being entitled to a remedy under the
CPA
.

[14]

We
    reject the submission that the program description did not amount to an unfair
    practice. The trial judge found as a fact that the representation was
    misleading and that it would be unreasonable to expect students to conduct
    independent research to verify its accuracy. This finding is entitled to
    deference and we see no error in the trial judges conclusion in this regard.

[15]

As
    to the reliance issue, we do not view the

CPA
as requiring proof of reliance in order to establish that there has been an
    unfair practice and that there is entitlement to a remedy under the Act. Section
    18(1) of the
CPA
clearly provides that a consumer who enters into an
    agreement "after or while a person has engaged in an unfair practice is
    entitled to any remedy that is available in law, including damages. Proof of
    reliance is not a prerequisite. In any event, as noted by the trial judge, the individual
    damage awards are to be determined in the next phase of the litigation and
    individual circumstances will be considered.

(c)

Did
    the trial judge err in waiving the timely notice requirement?

[16]

Section
    18(3) of the
CPA
provides that consumers must give notice of a claim
    within one year after entering into the agreement. The appellant argues that
    some class members did not comply with this timely notice requirement and that
    the trial judge erred in law by waiving it.

[17]

We
    disagree. Assuming that waiver of the timely notice requirement was in fact
    necessary, the trial judges exercise of discretion in this regard is entitled
    to deference. The delay, if any, was minimal and we see no basis to interfere
    in the circumstances of this case.

(3)

Class Composition

[18]

The
    appellant lastly argues that there was no evidence at trial to support various
    class members remaining in the class: for example, nothing in the record
    justifies a claim advanced by those who withdrew from the program before
    graduating or those who ultimately obtained the relevant industry designations.
    As the respondents correctly note, however, the issues of damages and
    individual reliance were not certified as common issues and remain to be
    determined. In the circumstances, such individual inquiries would be better
    addressed at that stage. To the extent that the appellant seeks to raise new
    issues on appeal regarding the class composition, we decline to entertain them,
    as it would not be fair to the respondents and the necessary factual findings
    were not made by the trial judge.

C.

Disposition

[19]

For
    these reasons, the appeal is dismissed. Costs to the respondents are fixed at
    $17,500, inclusive of disbursements and applicable taxes.

J.C. MacPherson J.A.

E.A. Cronk J.A.

Paul Rouleau J.A.

Released: July 09, 2013


