



COURT OF APPEAL FOR ONTARIO

CITATION:
Mortazavi v. University of Toronto, 2013 ONCA
66

DATE: 20130130

DOCKET: M41960 (C56058)

Laskin J.A. (In Chambers)

BETWEEN

Houman Mortazavi and Mojgan Yousefi

Plaintiffs (Appellants/Moving Parties)

and

The University of Toronto, Adonis Yatchew, Martin
Osborne, Arthur Hosios, Jon Cohen, Berry Smith, Brian Corman, Heather Kelly,
Elizabeth Smyth, Jane Alderdice, Ralph Scane, Edith Hillan, Jill Matus, Cheryl
Misak, Ellen Hodnett, Angela Hildyard, Hamish Stewart, Joan Foley, and Isfahan
Merali

Defendants (Respondents/Responding Parties)

Houman Mortazavi, acting in person

Mojgan Yousefi, acting in person

Robert A. Centa, for the
responding parties, The University of Toronto, Adonis Yatchew, Martin Osborne,
Arthur Hosios, Jon Cohen, Berry Smith, Brian Corman, Heather Kelly, Elizabeth
Smyth, Jane Alderdice, Ralph Scane, Edith Hillan, Jill Matus, Cheryl Misak,
Ellen Hodnett, Angela Hildyardm, Joan Foley, and Isfahan Merali

Eric S. Baum, for the responding party, Hamish Stewart

Heard: December 4, 2012

On appeal from the order of Justice Edward Belobaba of
the Superior Court of Justice, dated August 27, 2012 and on a motion for an
extension of time to perfect the appeal.

Laskin J.A.:

Overview

[1]

The appellants, Houman Mortazavi and Mojgan Yousefi, were both doctoral
students in the University of Torontos Department of Economics.  They are
married.  Early in their studies, they sought accommodation from the University
when Mortazavis father became ill and they returned to Iran to care for him. 
Though some accommodation was made, they received failing grades in five
classes and were required to pay tuition for classes they did not attend.

[2]

They appealed these decisions through three levels of internal academic
appeals.  Their final appeal was dismissed and they were left with two failing
grades.  They did not seek judicial review.  Instead, on May 1, 2012, they filed
a claim against the school and several of its administrators and employees. On
August 27, 2012, the claim was struck by a motion judge under rules 25.06 and
25.11 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, without
leave to amend.

[3]

On September 27, 2012, the appellants filed a notice of appeal of the
motion judges decision.  However, they have not yet perfected their appeal. 
They now seek an extension of time to do so.   In this case, whether that extension
should be granted depends on whether the appeal has any merit.

A.

Facts

(1)

Background

[4]

The appellants were admitted to the Ph.D. program in Economics for the
2007-2008 academic year.  Shortly after they were admitted, Mortazavis father,
who lived in Iran, became seriously ill.  They returned to Iran to care for
him, and contacted the University to request a one-year deferral.  The
appellants say that their request was initially denied, and that they were told
to re-apply to the program, without a guarantee of re-admission.

[5]

The appellants then say that, after some back-and-forth with the
University, only Yousefis deferral was approved.  Mortazavis deferral was
still declined.  Finally, according to the appellants, they incurred
approximately $5,000 to fly back to Canada to resolve the status of their
registration.  Upon attending at the graduate directors office in person, they
say they were granted a deferral in less than 3 minutes.

[6]

In the fall of 2008, the appellants began their studies. According to
the appellants, the financial terms of their new offer of admission were varied
from the previous year.  For example, they say that an entrance award due to
each of the appellants in the amount of $5,000 had been retracted. 
Nonetheless, they attended classes throughout September.

[7]

Then, in early October 2008, Mortazavi and Yousefi learned that
Mortzavais fathers illness had suddenly progressed.  They flew back to Iran
to care for him.  During October and November, they exchanged a series of
emails with the graduate director about potential accommodations.  The appellants
eventually requested a leave of absence for the fall 2008 term.

[8]

The University says there was confusion over what period of time the
leave of absence would apply to, and the request was eventually cancelled; the
appellants say it was arbitrarily refused.  Ultimately, the appellants did not
attend any more classes or take exams during the fall 2008 term.  As a result,
they received three failing grades.

[9]

The appellants returned to the program for the winter 2009 term with a
modified schedule to reflect the classes they had missed in the fall.  They
attended classes and completed some assignments.  Then, in March 2009, Mortazavis
father died.  Both Mortazavi and Yousefi returned to Iran to make funeral
arrangements.

[10]

The
appellants did not return to classes, and they did not sit their exams in April
2009.  As a result, they received two more failing grades.  The appellants say that
they gave notice of Mortazavis fathers death to the University.  The
University says the appellants did not communicate with the school until May
2009, when the appellants were informed that the Department would be seeking to
terminate their registration.

[11]

During
the summer and fall of 2009, the appellants and the Department continued to
negotiate about the terms of the appellants studies.  The appellants were
permitted to audit three courses in the fall 2009 term and to write two exams,
despite not being formally registered and not having paid tuition.  However,
their exams were not graded.

[12]

The
appellants eventually appealed their academic record to the Graduate Department
Academic Appeals Committee (GDAAC), which unanimously dismissed the appeal. 
They next appealed that decision to the Graduate Academic Appeals Board (GAAB),
which directed that the three failing grades in the fall 2008 semester be
marked as withdrawals and recommended that the fees attributable to that term
be waived.  The three grades were changed; however, the school declined to
follow the GAABs recommendation on the fees.

[13]

In
early 2012, the appellants appealed the decision of the GAAB to the Academic
Appeals Committee (AAC).  They submitted, among other things, that the GAAB
should have ordered that their two winter 2009 failing grades be marked
withdrawn and that their two fall 2009 tests be graded.   Those appeals were
dismissed.  The appellants were therefore left with two failing grades from the
winter 2009 term.

[14]

The
record is unclear on which fees have been paid by the appellants to the
University and which scholarships and disbursements have been paid by the
University to the appellants.  The appellants appear to owe the University
arrears for unpaid tuition from the fall of 2008, plus accumulated interest. 
They say the University unfairly forwarded their debts to a collection agency
during the appeals process.  As a consequence of their lapsed status as
students, the appellants have also lost their employment as teaching
assistants.

(2)

The Appellants Allegations

[15]

As
I said, instead of seeking judicial review, the appellants filed a statement of
claim against the University of Toronto; the Dean of the School of Graduate
Studies (SGS) (Brian Corman); two Vice-Deans of the SGS (Berry Smith and
Elizabeth Smyth); two directors of the SGS (Jane Alderdice and Heather Kelly); three
professors in the Department of Economics (Arthur Hosios, Adonis Yatchew, and
Martin Osborne); two vice-provosts of the University (Edith Hillan and Jill
Matus); two vice-presidents of the University (Cheryl Misak and Angela Hildyard);
the chair of the Academic Board (Ellen Hodnett); the chair of the GDAAC (Jon
Cohen); the chair of the GAAB (Ralph Scane); the chair of the AAC (Hamish
Stewart); the University Ombudsperson (Jane Foley); and the manager of the
Anti-Racism and Cultural Diversity Office at the University (Isfahan Merali).

[16]

The
statement of claim is 187 pages.  The appellants seek approximately 80 million
dollars.  For the purpose of this motion, I rely on the appellants listed claims
at p. 5 of their statement of claim.  The allegations can be grouped in the
following way:

1.

Collective agreement claims arising from the appellants employment as
teaching assistants (only against the University);

2.

Breach of the appellants ss. 2(b), 2(d), 7, 12, and 15 rights under the
Canadian Charter of Rights and Freedoms
and breach of the appellants
rights under the
Canadian Human Rights Act
and the
Canada Labour
Code
;

3.

Violations of procedural fairness and natural justice (including the
creation of a capricious and prejudicial complaint process, abuse of
procedure, and bias);

4.

Conspiracy to injure;

5.

Misfeasance in public office;

6.

Breach of fiduciary duty;

7.

Negligence;

8.

Breach of contract;

9.

Various intentional torts.

[17]

The
University defendants and Professor Hamish Stewart, who is represented by
separate counsel, moved to strike the statement of claim under Rules 21 and 25.

(3)

The Motion Judges Decision

[18]

I
agree with the respondents that the motion judge struck the claim under rules
25.06 and 25.11.  However, he also declined to grant leave to amend.  As he
describes in the excerpt below, he declined to do so because he was confident
that the claim should be struck anyway under Rule 21 as disclosing no
reasonable cause of action:

Indeed I am more than satisfied that the defendants motion to
strike without leave to amend should be granted in its entirety.

I say this primarily because at root I agree with Mr. Centa
that this is a genuine but misguided attempt by two very upset former graduate
students to re-package and re-litigate the very claims (about leave of absence
and failing grades) that were advanced and considered and argued and reasons
given before several appeal boards as provided in the university system, namely
internal appeals to various graduate boards and overarching appeal tribunals. 
I note that neither plaintiff decided to seek judicial review of the
universitys decisions with regard to any of their complaints or concerns.

[19]

The
motion judge also specifically struck the allegations pleaded against
Professors Scane and Cohen on the principle of adjudicative immunity, and found
that the court had no jurisdiction over disputes arising under the appellants
collective agreement as teaching assistants for the University.  Finally, the
motion judge struck the claims against all individual defendants as an abuse of
process.

(4)

The Appeal

[20]

The
appellants argue that the motion judge erred in dismissing the action because
the claim, or parts of it, disclosed reasonable causes of action falling within
the jurisdiction of the Superior Court of Justice.  They further submit that,
once the claim was struck, the motion judge erred in declining to grant the
appellants leave to amend.  The appellants also suggest that the motion judge exhibited
bias against them during the motion hearing.

B.

Principles and analysis

[21]

The
overriding principle the court must consider in deciding whether to grant a
party an extension of time to perfect an appeal is whether the justice of the
case requires it.  In applying this principle, the court typically takes into
account the following four factors:

1.

Whether the appellant formed an intention to appeal within the relevant
period;

2.

The length of the delay and explanation for the delay;

3.

Any prejudice to the respondent;

4.

The merits of the appeal.

See
Issasi v. Rosenzweig
, 2011 ONCA 112, at para. 4.

[22]

The
respondents acknowledge that the appellants had a timely intention to appeal,
the length of the delay is short, and a brief extension would cause them no
actual prejudice.  However, they argue that the justice of the case does not
require an extension, because the appellants have not provided a reasonable
explanation for the delay and because the underlying appeal has no merit.

(a)

Explanation for the Delay

[23]

The
appellants say they were erroneously advised by their counsel at the time that
they would have sixty days to perfect the appeal from the date they received
the motion transcript.  Emails in the motion record confirm their belief that
they were not subject to the thirty-day timeframe.  I accept the appellants
statements.  They provide a reasonable explanation for the delay.

(b)

Merits of the Appeal

[24]

I
must consider whether the appellants case has so little merit that this court
could reasonably deny the important right of an appeal:
Issasi v.
Rosenzweig,
at para. 10.

[25]

As
a preliminary matter, I reject the appellants contention that the motion judge
exhibited bias towards them.  Nothing in the transcript of the proceedings
before the motion judge supports this contention.

[26]

I
also see no merit to the appeal of the striking of the claim under Rule 25. 
Rule 25.06 requires that every pleading shall contain a concise statement of
the material facts on which the party relies for the claim or defence  Rule
25.11 allows a judge to strike out a pleading, with or without leave to amend,
if the pleading (a) may prejudice or delay the fair trial of the action; (b)
is scandalous, frivolous or vexatious; or (c) is an abuse of process of the
court. The appellants statement of claim was 187 pages long and, in the words
of the motion judge, replete with evidence being repeated over and over
again.  Without doubt it violated Rule 25 and was properly struck.

[27]

The
only serious question is whether the motion judge was justified in refusing to
grant leave to amend.  His reason for doing so was his confidence that the
claim should be struck anyway under Rule 21 because it disclosed no reasonable
cause of action.  The legal benchmark for striking a claim for failing to
disclose a reasonable cause of action is whether it is plain and obvious that
the claim will fail:
Hunt v. Carey Canada Inc.
,

[1990] 2
S.C.R. 959.  Therefore, in determining whether the appeal of the motion judges
decision not to grant leave to amend has any merit, I must consider whether there
is any force in the appellants argument that it was not plain and obvious that
their claims would fail.

[28]

Largely for the reasons set out by the motion judge, I
believe that the following claims were bound to fail: all claims relating to the
appellants employment as teaching assistants; all claims alleging breaches of
the appellants rights under the
Canadian Charter of Rights and Freedoms
,
the
Canadian Human Rights Act
, the
Canada Labour Code
; all
claims relating to violations of procedural fairness, natural justice, or the
Statutory
Powers Procedure Act
, R.S.O. 1990, c. S.22, including those made
personally against Professors Scane, Cohen, and Stewart as chairs of the
internal appeals bodies; all claims alleging misfeasance in public office,
conspiracy to injure, and other miscellaneous intentional torts; and all claims
alleging breach of fiduciary duties.  If these were the only claims set out in
the appellants statement of claim, I would decline to grant an extension of
time.

[29]

I
am not prepared, however, to say the statement of claim does not disclose a
reasonable cause of action for negligence or breach of contract.  In
particular, I am not persuaded that the appellants claims arising from the
Universitys conduct in relation to the following events  subject, as they may
be, to statutory time limitations  are bound to fail:

·

The  appellants deferral in 2007  specifically, the Universitys
allegedly arbitrary delay in granting each party a deferral, and resulting damages;

·

The appellants requests for accommodation in the fall 2008
academic term  specifically, the Universitys alleged mismanagement of the
appellants request for a leave of absence, and resulting damages;

·

The appellants dispute with the University over unpaid tuition
and fees  specifically, the Universitys failure to adopt the GAABs
recommendation that the school waive the fall 2008 tuition owing and the Universitys
alleged management of the arrears during the appeals process, and resulting
damages.

[30]

This
court has held that judicial review is the appropriate option when the desired
legal remedy aims to reverse an internal academic decision made by university
authorities.  However, the court has also held that where the plaintiff
alleges factors that constitute a cause of action based on torts or a breach of
contract, while claiming damages, the court has jurisdiction, even if the
dispute stems from academic or educational activities of the university in
question:
Gauthier v. Saint-Germain
, 2010 ONCA 309, 325 D.L.R. (4th)
558, at para. 46.

[31]

Even
where a court is found to have jurisdiction, a plaintiff must still plead the requisite
elements of the cause of action.  In
Gauthier
, at paras. 47-49, Rouleau
J.A. discussed the limited ways in which a student can establish a cause of
action against a university in relation to academic decisions:

[B]y registering at a university, it is understood that the
student is subject to the discretion of that institution for the resolution of
academic issues, namely for the evaluation of the quality of the students
work, the structure and implementation of the university programsThis
discretion is very broad

To establish a cause of action for a breach of contract, the
student must show that the university failed to meet its express or implicit
obligation to which the institution committed by approving the students
registration

[I]n order to establish a cause of action based on
negligencethe student must submit specific facts to show that the behaviour of
the university, or the professor in question, constituted an intentional
tortor was outside the discretionary scope granted to the university and its
professors.

[32]

Rouleau
J.A. also discussed the two circumstances in which a court may strike a cause
of action in cases of this nature, at para. 50:

First, if the lawsuit for a tort or a breach of contract is but
an indirect attempt to appeal an internal academic decision when the proper
procedure is a judicial review (for instance, the decision to yield a specific
result, to require a specific task, to refuse admission to a program, or to
fail to grant a diploma), the option to strike will be available to the court.
Second, if the submission does not provide the necessary details to show that
the university or its employees went beyond the scope of their discretionary
power, the court may strike the cause of action.

[33]

The
appellants are not asking the court to reverse an internal academic decision 
they are not asking for their grades to be changed or to be readmitted to the
program.  They are asking for damages arising from the Universitys alleged
failure to comply with its contractual obligations and the duty of care it owed
to the appellants as students.

[34]

Further,
a judge considering a motion under Rule 21 must assume that all facts in the
statement of claim are proven.  Taking the appellants allegations as true, I
cannot say that it is plain and obvious that the university did not breach its
implied obligations or exceed its discretionary power in dealing with the
appellants requests for accommodation  specifically with respect to the 2007
deferral, the fall 2008 academic term, and the appellants unpaid tuition (over
which the internal appeals bodies appear to have lacked jurisdiction).

[35]

This
court has also recently granted student-plaintiffs in similar circumstances an
opportunity to revise their statements of claim to pinpoint an implied or
express contractual term or applicable standard of care from which the
university or its employee deviated: see
Gauthier v. Saint-Germain
;
Jaffer
v. York University
, 2010 ONCA 654, 268 O.A.C. 338, leave to appeal
refused, [2010] S.C.C.A. No. 402.  I am therefore unwilling at this juncture to
deny the appellants their right of appeal of the motion judges decision.  The
justice of the case entitles the appellants to an extension of time to perfect
their appeal.

C.

Conclusion

[36]

The
appellants also seek leave to file the transcript of the submissions made
before the motion judge and an interim decision made by the Ontario Human
Rights Tribunal in relation to this case.  The respondents do not oppose this
request, and neither do I.

[37]

I
grant the appellants thirty days from the release of this decision to perfect
their appeal.  If the appeal is not perfected within this thirty-day period,
the respondents may bring a motion without notice before the registrar to have
the appeal dismissed.  As the appellants obtained only limited success on the
motion and were asking for an indulgence from the court, I order that there be
no costs of the motion.

Released: Jan 30, 2013                                                   John
Laskin J.A.

JL

