Prepared by: Alexander D. Pettingill and Sarah L. Jones

apettingill@tgplawyers.comwww.tgplawyers.com

14 Annual Ontario Higher Education Risk Management SymposiumMay 23, 2013

Failure to Educate Claims: A Question of Discretion

Informative

“Failure to Educate” Claims Include:

• Alleged bias/discrimination in evaluation• Alleged negligence in evaluation• Bias/bad faith/conflict in clinical rotations • Alleged bias/negligence in internal appeal procedures

• Conflict between grad student and supervisor

“Failure to Educate” Claims (cont’d):

• Identity of Thesis Supervisor • Degree Requirements • Decisions Regarding Student Status • Sufficiency of Academic Accommodation• Misrepresentations in Calendars or Student Literature

THE PAST: Exclusive Jurisdiction of Academic Institutions• Courts do not have jurisdiction to hear actions relating to

academic disputes within universities and colleges. Such claims should be struck on a motion prior to pleading.

• Where the “essential character” of the dispute is academic in nature, the dispute remains a matter which should be dealt with by the academic institution’s internal procedures, regardless of whether the claim is framed in contract or tort.

• In limited circumstances, a student has a right to judicial review of the procedures used by the academic institution to make a decision, but they cannot ask the court to interfere with an institution’s academic judgment.

The Exclusive Jurisdiction of Academic Institutions is Developed in Case Law• “Authorities… establish that apart from a judicial review

function about procedural fairness and natural justice, the court does not have jurisdiction over matters of an academic nature. Where the essential character of the dispute is of an academic nature, the dispute remains exclusively a matter to be dealt with by the school’s own procedures, provided the school does not breach the principles of natural justice”.

Dawson v. University of Toronto, 2007

The Court of Appeal Recants

• “It thus appears that there is no precedent to indicate that the court lacks jurisdiction to hear cases solely because the delict or breach of contract in question arises out of a dispute of a scholastic nature… the court will have jurisdiction even if the dispute arises out of the scholastic or academic activities of the university in question.”

Gauthier v. University of Ottawa (Ont. C.A.)

• “Where the elements of a breach of contract or negligence are properly pleaded, the Superior Court will have jurisdiction to hear a claim even if the dispute is academic in nature…the real issue is whether the pleadings support a cause of action in either contract or tort.”

Jaffer v. York University, 2010 ONCA 654

THE PRESENT: Discretion to Resolve Academic Matters

• However, Gauthier and Jaffer have not opened the “floodgates” for academic claims

• “… by enrolling at the university, it is understood that the student agrees to be subject to the institution’s discretion in resolving academic matters, including the assessment of the quality of the student’s work and the organization and implementation of university programs. As a result, a student will usually have to do more than simply allege that an academic result is wrong or a professor is incompetent in order to make out a cause of action in breach of contract or a duty of care.”

Jaffer v. York University, 2010 ONCA 654

• “Thus, although the court has jurisdiction to hear [academic] claims, the court may strike the claim… when it appears that the cause of action is untenable or unlikely to succeed. This will occur if an action is simply an indirect attempt to appeal an academic decision and the appropriate remedy would be judicial review, or if the pleadings do not disclose details necessary to establish that the university’s actions go beyond the broad discretion that it enjoys”.

Jaffer v. York University, 2010 ONCA 654

• “The claim arises out of an academic dispute with the university. The jurisprudence establishes that the courts will defer to universities in matters of academic disputes except in narrow circumstances. Courts are not well positioned to oversee academic issues at universities. The deference of the courts to universities in such disputes is well-established in the case law. Here, the pleadings do not disclose a factual basis to establish that the conduct of the university goes beyond the broad discretion that the courts have recognized is the province of the university.”

Murray v. Lakehead University (September 9, 2011, Ont. Sup. Ct.)

RECENT SUCCESS: Claims Struck on the Basis of Academic Discretion

• “Universities have broad discretion with respect to academic matters and matters of an internal academic nature. As the Ontario Court of Appeal has stated in Jaffer…, the proper procedure in such a case lies in an application for judicial review, not an action. Mr. Ramlall has already brought an application for judicial review that was dismissed.”

• “Further, as stated in Jaffer…, the court may have jurisdiction over a properly pleaded cause of action in tort or contract and a claim for damages against a university, but a university enjoys broad discretion with respect to academic decisions, such as an admissions decision.“

Ramlall v. Ontario Family Medicine Programs (December 20, 2012, Ont. Sup. Ct.)

HOT OFF THE PRESS: Claims Struck for Academic Discretion in 2013

• “There is nothing that supports a finding that York’s actions went beyond the broad discretion that it enjoys. Absent the pleadings containing “specific facts that could demonstrate that the conduct constituted an intentional tort or fell outside the broad margin of discretion enjoyed by the university and its professors, Mr. Gayflor cannot establish a breach by York of its duty of care”.

Gayflor v. York University (April 24, 2013, Ont. Sup. Ct.)

• The Plaintiff’s claims “amount to an academic dispute and do not support a cause of action”.

Thompson v. York University Board of Governors (May 15, 2013, Ont. Sup. Ct.)

• The plaintiff “exhausted the review avenues offered by the university, but was not pleased with the outcome of those proceedings. To allow a fresh claim in the circumstances would be an abuse of process.”

Bounpraseuth v. York University (February 13, 2013, Ont. Sup. Ct.)

• “To be successful on the claims would require different findings of fact from what was determined in the internal review process on the very same evidence. It would be re-litigation in a different form…There is [also] no foundation for an argument that the defendants in this case went beyond the scope of their discretionary powers in dealing with the issues in the internal university review and appeals process.”

Aba-Alkhail. v. University of Ottawa, 2013 ONSC 2127

Recent Class Actions Involving Academic Institutions

• Courts have refused to certify class actions where the claim dealt with matters within the discretion of the academic institution

• The statement of claim involves “qualitative assessments of the effect on education standards of York’s response to the strike and of the remedial measures involved. These are matters that fall within the discretion of the University and…bald assertions that they constituted breaches of contract are not enough.”

Turner v. York University, 2011 ONSC 6151

Recent Class Actions Involving Academic Institutions (cont’d)

• Historically, fraudulent or negligent misrepresentation actions could not overcome the “common issue” hurdle

Mouhteros v. DeVry Canada Inc. (1998), 41 O.R. (3d) 63 (Div. Ct.)

Olar v. Laurentian University, [2004] O.J. No. 35

Recent Class Actions Involving Academic Institutions (cont’d)

• A misrepresentation class action was certified where all of the students based their claim on representations in the college’s promotional materials.

Hickey-Button v. Loyalist College of Applied Arts & Technology, 2006 WL 1664361 (C.A.)

• Former students were successful in a common issues trial based on claims of negligent misrepresentation as a result of statements made in a George Brown College course calendar

Ramdath v. George Brown College, 2012 ONSC 6173

Prepared by: Ian H. Goldand Andrew L. Mercer

amercer@tgplawyers.comwww.tgplawyers.com

14 Annual Ontario Higher Education Risk Management SymposiumMay 23, 2013

Waving Goodbye to Unnecessary Litigation: A Guide to Waivers for Universities and Colleges

Informative

What is a Waiver?

• Voluntary abandonment of a known right (i.e. the right to sue for an injury)

• Often used when students participate in risky activities (e.g. skiing)

• Scope of the waiver depends on the language

Sample Language

I agree to waive any and all claims that I have or may in the future have against the releasees and to release the releasees from any and all liability for any loss, expense or injury, that I may suffer, as a result of bungee jumping with Ian Gold’s Bungee Jumping Adventures.

Common Questions

• Does the waiver prevent a student from suing?

• Does a waiver apply in cases of obvious negligence?

• Does it matter if the student reads the waiver?• Do font style and size make a difference?

Downs v. Georgian College (2008, Ont. Sup. Crt.)Facts:

• Downs required to take fitness course as part of paramedic program

• Downs is injured while traversing obstacle course

• Alleges that Georgian failed to maintain the course

Downs v. Georgian College (2008, Ont. Sup. Crt.)• Georgian brings a summary judgment

motion and argues waiver is a complete bar to all claims

• Plaintiff argues waiver only addresses “inherent hazards”; it does not cover “self-made” hazards

Downs v. Georgian College (2008, Ont. Sup. Crt.)Decision:• The waiver was predicated on the fact

that obstacle course was properly set up and maintained

• Case had to go to trial for determination as to whether negligence caused injuries

The Waiver

“I…do hereby release, indemnify, and forever discharge Georgian College, agents and employees, from any and all actions, cause of action, claims, demands, prosecutions, and remedies for any and all damages, losses, injuries, and expenses, of any nature or kind howsoever arising out of the fitness testing engaged in by myself as part of the aforesaid fitness process.”

Gallant v. Fanshawe College (Ont. Sup. Crt., 2009)Facts:• Fanshawe offered a motorcycle training/licensing

program• Gallant was injured after colliding into a concrete

barrier• Jury had already concluded that Fanshaw was

liable for 80% of damages

Gallant v. Fanshawe College (Ont. Sup. Crt., 2009)• Gallant signed a waiver prior to

participating

• Fanshawe argued that the waiver was a complete defence to the lawsuit

Gallant v. Fanshawe College (Ont. Sup. Crt., 2009)Circumstances re Waiver Signing:

• Presented with booklet of other papers

• One instructor and 30 students

• Students were assured that course was safe

• Given to students after registration and payment

Gallant v. Fanshawe College (Ont. Sup. Crt., 2009)• No refunds available for students who refused

to sign

• No explanation of the waiver’s terms and conditions

• Court determined that process was perfunctory

Gallant v. Fanshawe College (Ont. Sup. Crt., 2009)The Decision:

• Waiver was ambiguous: no use of the word “negligence”

• Need clear wording if absolving of liability for own negligence because motorcycling is inherently dangerous

The Waiver

“releases…the Motorcycle Training program, Fanshawe College, and all instructional staff from all responsibility, property damage, bodily injury, costs and expenses, or claims of every nature and kind arising from, or in consequence of my participation in the motorcycle training course…”

The Judgment

“When a waiver is signed before partaking in a potentially hazardous activity, the defendant must ensure that each student understands the legal effect of the waiver if she intends to rely on it against a claim. It must be made clear to the students that they are foregoing all rights to make any claim howsoever arising.”

Loychuk v. Cougar Mountain Adventures Limited (B.C. Crt. Appl., 2012)Facts:

• Cougar Mountain offers zip-line tours in Whistler

• Two zip-line participants collide

• They both read and signed waivers

Loychuk v. Cougar Mountain Adventures Limited (B.C. Crt. Appl., 2012)• Cougar admitted it was negligent and caused the

collision

• Plaintiffs advised that they thought they could still sue for Cougar’s negligence

• Plaintiffs also argued there was no consideration

Loychuk v. Cougar Mountain Adventures Limited (B.C. Crt. Appl., 2012)Trial Decision:

• Waiver was enforceable because:

The plaintiffs were given time to read the waiver

The consideration was being able to zip-line

The plaintiffs were free to refuse to sign (would have received a refund)

Loychuk v. Cougar Mountain Adventures Limited (B.C. Crt. Appl., 2012)

Appeal Decision:

• No overriding public policy reason why the waiver should not be enforced

• Cougar’s conduct was not reprehensible

• It is not unfair for the operator of an inherently risky recreational activity to require participants to sign a waiver

The Waiver“I am aware that participating in Eco Activities involves many risks, dangers and hazards including but not limited to: hiking on rough and uneven terrain; changing weather conditions which may cause the tree top trails, suspension bridges, canopy walkways, and Skylines to be slippery; equipment failure; failure to properly adjust or fasten equipment; improper use of equipment; falls; slips and falls while snowshoeing; over-exertion; fear of heights; failure to remain within designated areas; impact or collision with trees, other participants or guides; negligence of other participants or guides; and…

The Waiver

“…NEGLIGENCE ON THE PART OF THE RELEASEES, INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO TAKE REASONABLE STEPS TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF PARTICIPATING IN ECO ACTIVITIES. I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND LOSS RESULTING THEREFROM.”

Tips for Avoiding Liability with Waivers• Advise students in advance that a waiver is

required• Return any fees to those who choose not to sign• Draft the waiver with precise and detailed wording

(include “negligence” and the types of conduct that are covered)

• Explain the meaning of the waiver and the key terms to the students (do not rush them)

• Ensure important terms are in a large font

150 York StreetSuite 1800, TorontoOntario M5H 3S5

t.: 416·507·1800f: 416·507·1850www.tgplawyers.com

Informative