Case Name:

Olar v. Laurentian University

Between

Alvin Olar, plaintiff, and

Laurentian University, defendant

[2001] O.J. No. 5575

[2001] O.T.C. 1001

17 C.P.C. (5th) 353

111 A.C.W.S. (3d) 414

Court File No. 00-GD-49743

Ontario Superior Court of Justice

Brockenshire J.

Heard: August 28-30, 2001.

Judgment: October 1, 2001.

(41 paras.)

Torts -- Duty of care, particular relationships -- Negligent words -- Extent of liability -- Practice -- Judgments and orders -- Summary judgments -- To dismiss action.

Motion by Olar to amend the statement of claim and have the action certified as a class action. Motion by Laurentian University for a summary judgment dismissing the action. Olar was enrolled as a student at the University. He claimed that he was misled by materials from the University indicating that he was eligible to transfer into the third year of an engineering degree following two years in the program. In fact, Olar was required to complete an additional year because he did not have the required number of credits in the first two years. He claimed damages for the extra year of tuition and the income that he claimed to have lost by not working for an additional year.

HELD: Motion to amend the statement of claim allowed, motion for certification dismissed, motion for summary judgment allowed. The statements upon which Olar relied were conditional upon the successful completion of two years of study. His claim did not have any chance of success.

Statutes, Regulations and Rules Cited:

Ontario Rules of Civil Procedure, Rule 20.04(4).

Counsel:

Raymond G. Colautti and Owen D. Thomas, for the plaintiff.

Philip Spence, Q.C. and Glenn Zakaib, for the defendant.

PROCEEDINGS UNDER THE CLASS PROCEEDINGS ACT, 1992

1 BROCKENSHIRE J.:-- In this matter, motions by the plaintiff to amend the Statement of Claim and to have the action certified as a class action, and a motion by the defence for summary judgment dismissing the plaintiffs action and for other relief all came on before me together. The motion to amend the Statement of Claim was granted on consent. After extensive argument I reserved decision on the substantive motions. I have decided to grant the defence motion dismissing the claim of the plaintiff. While that decision necessarily ends the present certification motion, as obviously the plaintiff can not now serve as the representative plaintiff, I am mindful that the action could be reconstituted with another representative plaintiff and I have therefore dealt with various issues raised in the certification motion as well as other issues raised in the defence motion. The following are my reasons for my decisions.

BACKGROUND

2 The plaintiff, Alvin Olar, had been enrolled in a two year program at the School of Engineering at Laurentian University in the years 1994 to 1996. At the relevant times, Laurentian offered a four year program leading to engineering degrees in extractive metallurgical engineering and mining engineering. It also offered three two year partial programs in chemical engineering, civil engineering and mechanical engineering. It was clearly understood by the plaintiff that if he wanted to proceed on to a degree in chemical, civil or mechanical engineering, he would have to complete those programs at another university. The complaint of the plaintiff is that he was misled by the Laurentian materials he read into believing that after two years at Laurentian, he could obtain his degree, after spending only two further years at another university. In fact, he spent three more years at the University of Windsor before obtaining his degree and now claims damages against Laurentian for his tuition and living expenses etc. for the extra year plus the income he alleges he lost by being in school instead of working for an extra year. In the Statement of Claim and in the materials it is alleged that there are a number of other students in the same situation.

3 The causes of action alleged in Mr. Olar's case are that the words in the university calendar and student guide concerning transfers to other universities after the two year engineering program at Laurentian were representations, on which he relied to his detriment, and that those representations, in what they said and what they did not say, were in fact misrepresentations, made either fraudulently or negligently. The materials indicate that the other students that have complaints rely on the same causes of action, based on the same or different written words, and also oral statements by university recruiters.

CONDITIONAL STATEMENTS

4 The defence raised and argued several alternate grounds in support of its motion for dismissal. In my view one is sufficient to deal with the matter - that Mr. Olar had not met the terms of the statements upon which he claims to rely. This motion was argued before a certification, so it relates to Mr. Olar's position alone.

5 Mr. Olar swore two affidavits. In his affidavit of July 31, 2000, at paragraph 8 he deposed that:

"I was a student as [sic] Laurentian University during the years 1994 and 1996. I applied to become a student at the school of engineering at that university as a result of certain representations made in the university calendar. Specifically the following representation induced me to enter into the first two years of the engineering program at the university:

"Students having successfully completed the first and second year programs may proceed into the third year in mining engineering or extractive metallurgical engineering at Laurentian University, or may transfer into the third year of other universities in Ontario, if they wish to pursue chemical, civil or mechanical engineering."

6 In his affidavit of February 21, 2001, Mr. Olar deposed at paragraph 17 as follows:

"Now shown to me and marked as Exhibit D to his my affidavit is a true copy of the university student guide for the year 1993 to 1994 from Laurentian University. I had received this guide and relied upon it. At page 20 of the guide, there is a description of the engineering program at Laurentian University. The last paragraph states as follows:

"An agreement between the school of engineering at Laurentian and the department of chemical and civil engineering at the University of Toronto, enable [sic] successful students to transfer directly to third year at Toronto. Masters and Ph.D. programs in mining engineering are also offered in corroboration with Queen's University."

Mr. Olar continued at paragraph 18 of that affidavit as follows:

"This representation clearly misled me into believing, along with the representation contained in the calendar, that after successfully completing the first and second year programs at Laurentian University, I had the ability to transfer into the third year of other universities in Ontario."

7 Mr. Olar in his second affidavit mentions other students telling him what they thought other brochures of Laurentian had said, but he later admitted to never seeing such brochures.

8 Mr. Olar was cross-examined on those affidavits on June 8, 2001. He was asked at question 121 whether:

"... would you agree that it makes sense when it says the words students who complete the first two years of these programs ..."; what that means essentially is that you have to take the required credits and pass all the courses."

9 His answer to that was:

"Sure, I agree with that at this time."

10 At questions 144 to 147, he was asked about successfully completing the program, and answered as follows:

"144.

Q. What does it mean to successfully complete the first and second year program?

A. I would say now it means completely [sic] the curriculum that was laid forth in the calendar.

145. Q. All right. And if it's 72 credits in the required courses would you agree that's what you have to do?

A. Yes.

146. Q. And you'd agree with me that you only had 66 credits?

A. Yes.

147. Q. And would you agree with me, sir, that you did not successfully complete the first two years at Laurentian University because you did not have enough credits?

A. Yes."

11 This admission by the plaintiff is corroborated by the affidavit of Ron Smith, the Registrar of Laurentian University who in an affidavit sworn January 15, 2001 stated at paragraph 6 the following:

"According to the university calendar of Laurentian University for the academic years 1994-1995 and 1995-1996, Mr. Olar was required to complete 12 full course equivalents or a total of 72 credits, in his first two years of study. Mr. Olar only completed 11 courses or 66 credits, in his first two years in the school of. engineering"

Attached as an exhibit to that affidavit is Mr. Olar's detailed academic record showing in fact that he had dropped a course in economics in his first year and never made up the resulting shortfall. In his affidavits Mr. Olar says that he could have made up this missing course during the summer but the fact is that he did not.

12 The statements on which Mr. Olar is basing his action, whether or not they are representations, and whether or not they are true, are in my opinion clearly conditional. They contain a clear condition precedent, in that they only apply to students who have successfully completed the first two years of the program.

13 A further statement, not referred to in Mr. Olar's affidavit of February 21, 2001, but on the same page of the student guide as the above-quoted statement, and raised extensively in argument, referred to the two year chemical and civil engineering programs (Mr. Olar was enrolled in the latter) and said:

"Students who complete the first two years of these programs may be eligible to take advantage of a transfer agreement with the University of Toronto."

14 This too, in my view, contains a clear condition precedent, namely completion of the first two years of the program.

15 Quite simply, on the basis of the affidavit of the registrar, and his academic record, and his own admission, Mr. Olar had not completed the first two years of the program, so that the statements on which he relies do not apply to him.

16 The foregoing conclusion does not involve evaluating credibility, weighing evidence, or drawing, factual inferences (see Aguonie v. Galion Solid Waste Materials Inc. (1998), 38 O.R. (3d) 161 Ont. C.A. at 173 )). If the foregoing involves any finding at all, it is a finding of law, that each of the foregoing statements contained a condition precedent which the plaintiff would have to meet before he could rely on the statements. Under Rule 20.04(4) a motions judge is clearly entitled to make such a finding.

17 My conclusion is that although the materials indicate there may be many areas in Mr. Olar's action in which a trial judge would have to evaluate credibility, weigh evidence, and draw factual inferences, especially in the area of the claim for damages, none of them would be issues for trial unless the condition precedent was met. On the undisputed facts, that condition was not met, so Mr. Olar has no real chance of success with his claim. See Guarantee Co. v. Gordon Cap. [1999] 3 S.C.R. 423 at 435. A motion for summary judgment dismissing the claim of the plaintiff is therefore granted.

18 If I should be wrong in the foregoing the defence raised other grounds in support of its motion for summary judgment, which I will now consider.

ACADEMIC AND INTERNAL GOVERNANCE

19 The defence argues that causes of action for damages for acts of negligence in the educational process are precluded by public policy considerations, the difficulties in establishing approximate cause and the standards of care, the burden such litigation must place on the educational system and judicial reluctance to interfere with the formulation or implementation of educational policy. Defence counsel puts it that Canadian law does not recognize the tort of educational malpractice. The defence cited a series of cases in support of that argument, including Hicks v. Etobicoke (City) Board of Education [1988] O.J. No. 1900; Wong v. University of Toronto (1989), 79 D.L.R. (4th) 652 (Ont. Dist. Ct.); McKay v. CDI Career Development Institutes Ltd. [1999] B.C.J. No. 561 (B.C.S.C.).

20 Mr. Colautti in his argument said that the case has nothing to do with any academic matters or internal governance at Laurentian, it has to do with misrepresenting what Laurentian had to offer as those offerings related to the requirements of other universities in the province.

21 The problem with this is that Mr. Olar in his affidavit of February 21, 2000 raised a number of complaints about academic and Governance matters at Laurentian which were collected by the defence in paragraph 57 at page 26 of its factum. For convenience these are reproduced here as follows:

(a) there were "deficiencies in Laurentian's program";

(b) there were "deficiencies in core engineering course at Laurentian University";

(d) "courses ... could be changed in Laurentian's program in order to assist students to more readily obtain transfers and transfer credits"; and

(e) "the problem was with core engineering course content at Laurentian University".

22 Further, Mr. Colautti, in the amended Statement of Claim, pleads the statement above set out in the calendar, further pleads that it was stated that there was a transfer agreement between Laurentian and the University of Toronto, pleads that these "representations" were false, and alternately pleads that the "representations" were negligent. The entire particulars of the negligence pleaded in paragraph 10 of the amended Statement of Claim are as follows:

"a) The Defendant university did not coordinate its' activities and courses respecting the School of Engineering with other universities in Ontario, in order to ensure that course requirements were consistent with and acceptable to other universities in the Province of Ontario;

b) The Defendant university failed to make changes to its' course materials and outlines when other universities in Ontario brought the inadequacy in the course content for years one and two to the Defendant university's attention;

c) The Defendant university failed to design its courses to ensure complete portability and transferability of second year students to other engineering programs in other Ontario universities."

23 As I read those allegations of negligence, they are not allegations that the statements in the calendar were negligently made, but rather statements that the university failed to change its' academic offerings to comply with the plaintiffs understanding of those statements.

24 The cases relied on by the defence make it abundantly clear that the courts are, at the least, very reluctant to become involved in academic affairs. As was pointed out at length in Wong v. University of Toronto, universities are independent institutions, with their own internal governance and their own internal systems of dealing with academic affairs and the righting of academic wrongs. The evidence contained in the materials filed with me indicated that universities develop their own ideas as to the course content of particular programs, including engineering. There can be differences in the courses offered, in the contents of particular courses offered at different universities even though they may have the same name, and in the order in which they are offered - that is one university might offer a course in second year and another offer it in third year with some different course in its place in the second year program. Despite these differences, the programs leading to degrees are all certified by an independent body. Mr. Olar, despite being one course short, and despite receiving a D in two of the courses he did complete at Laurentian, was nevertheless accepted for transfer by all of the University of Windsor, Queen's University and the University of Toronto. However all of them required additional courses.

25 In my view, the issue of "educational malpractice" would not be sufficient in this case to support a summary judgment for the defence. I accept that the case law clearly points to educational matters as being outside of the court's jurisdiction, but the one Ontario Court of Appeal decision, in Wong, was on a factual situation different from that of Mr. Olar, and Ontario case law indicates that novel legal arguments, even though unlikely to succeed, should not be dismissed out of hand at a preliminary stage. It does however appear that the particulars of negligence pleaded do not seem to coincide with the urgings of counsel in argument before me. If this were the sole issue raised by the defence, my inclination would be to dismiss the defence motion, but without costs and with leave to the plaintiff to amend.

MISREPRESENTATION

26 The defence argues that there was no special relationship pleaded or established to support a claim in negligent misrepresentation or evidence of false representation being made knowingly or recklessly. The plaintiff argues that there was a relationship calling for a duty of care in that the university would have known or should have known that its statements, and what they said and what they did not say, are false.

27 This obviously is an area in which evidence would have to be heard and findings made on credibility.

THE UNIVERSITY OF TORONTO AGREEMENT

28 The agreement between Laurentian and the University of Toronto was allowed to expire in November of 1994, after Mr. Olar had enrolled. The defence argues that a statement concerning that agreement was therefore true at the time Mr. Olar relied upon it. His counsel argues, supported by material in the affidavits, that the agreement in fact was not functioning and was allowed by the University of Toronto to come to an end after Laurentian pointed out the problems under the agreement.

29 This also would obviously be an area in which evidence would have to be heard and decisions made by a trial judge.

THE STATEMENTS WERE PERMISSIVE

30 A defence argument was that the statements being relied upon contained the words "may" or "enable". The defence relies on the Interpretation Act which says that the word "may" is to be construed as permissive while "shall" is to be construed as imperative. That is most helpful in dealing with statutes and regulations, but is of little assistance in dealing with a school calendar or student handbook.

31 The defence further relies upon Black's Law Dictionary which says that the word "may" usually is employed to imply permissive, optional or discretional and not mandatory action or conduct, and the word "enable" means to give power to do something. I accept that here, as in Wong v. University of Toronto, where Lang J. so found at page 657, a contractual relationship had been formed between Mr. Olar and Laurentian on his acceptance at Laurentian and his payment of tuition, the terms of which are set out in the university calendar and student handbook. However, in my view that does not mean that those materials had been drafted by lawyers as legal documents. I assume they were largely, if not entirely, drawn up by academics, to reflect decisions reached by academic departments and the university senate, which would be largely made up of academics, as to the academic requirements of the institution. I assume the intent was to provide helpful information to students, rather than to provide legally clear and well defined limits on the liability of the institution.

32 The defence argument is that the statements are not representations, because they do not promise that the occurrence of a future event - admission into third year elsewhere - will be a certainty. The plaintiffs argument is that the statements are a holding out that after successfully completing two years at Laurentian, a student could enroll, without further requirement, in the third year of an engineering program in other Ontario universities. If a student thought it was that simple, perhaps the student would wonder why Laurentian inserted a special clause about transfer privileges between Laurentian and University of Toronto. The plaintiff s counsel argues that the statements are representations, and in the circumstances fraudulent or negligent misrepresentations. It seems neither side has considered to date that they might be innocent misrepresentations.

33 My conclusion is that the wording of the statements, and particularly the use of the words "may" and "enable", without further amplification, are ambiguous or equivocal. In situations of ambiguity, courts usually permit parol evidence to provide context and explanation for the words, and the sense in which the words used would have been understood by the parties to the contract. Therefore I do not see this as a situation of simply interpreting, the words, or of interpreting them with the limited assistance of the affidavits and cross-examinations available. The background and context would require findings of fact that should be made in a trial situation. See Hi-Tech Group Inc. v. Sears Canada Inc. (2001), 52 O.R. (3d) 97 (C.A.).

34 Because of my conclusion that the wording is equivocal or ambiguous, I would decline to make a determination as a question of law of the interpretation of those clauses without the benefit of further evidence, preferably viva voce evidence, either in the context of a full trial or at a trial of the issue.

CERTIFICATION ISSUES

35 Moving from the summary judgment requirements to those of a procedural finding under the Class Proceedings Act, 1992, means, as the cases cited by both sides repeat over and over, moving, to a much lower evidentiary standard on the plaintiff, and to the context of remedial legislation. Here it is not plain and obvious or beyond doubt (except for Mr. Olar's personal problem with the condition precedent) that members of the proposed class could not succeed in their proposed action against Laurentian. I find that a cause of action has been disclosed.

36 The proposed class description set out at paragraph 50 of the plaintiffs factum speaks of two year engineering students who suffered damages as a result of transferring to other institutions. This wording would create a problem referred to in several of the class action cases - that you could not determine who was in the class until you had heard the evidence on liability and that individual's damages. Perhaps simpler wording, such as two year engineering students who could not transfer, without more, to third year in other Ontario universities, would simplify the situation and meet the primary requirement that the class description would make it possible to determine at any time who was in and who was not in the class. This is a straightforward drafting problem which in my view would simply call for an adjournment of that part of the certification motion until amended wording was prepared and submitted to opposing counsel and the court.

37 Do the claims raise common issues? Recognizing that the statute speaks of common, but not necessarily identical issues of fact; or common, but not necessarily identical, issues of law that arise from common, but not necessarily identical, facts, it would appear here that common issues have been raised in the allegations that Laurentian misrepresented what would happen to these students after the two year partial engineering program. Unfortunately the affidavits indicate that in addition to the statements relied on the Olar claim, there were also other written statements in brochures of some kind, and verbal statements from recruiters for the university. However, I gather that the reliance is on statements made generally by the university to prospective students rather than on what may have happened in individual one to one discussions between individuals students and university representatives. The students would not be aware of the state of knowledge of the university personnel or whether such persons would have been acting negligently or recklessly. Therefore, I would think that it would be possible to isolate out and identify common issues on the university side of the contracts, the trial and determination of which could materially advance the case.

38 Would a class proceeding be the preferable procedure for the resolution of the common issues? I would say at this stage, for the reasons indicated above, and also for the reason that a finding on the state of knowledge of university officials would probably be dependent on providing considerable expert evidence to a court as to what was commonly known in the university community, that a class proceeding would be the preferable procedure for resolving the university's side of the liability issues. As I am saying this I am mindful that certification orders can be amended or revoked if later developments call for it.

39 The plaintiff submits that if this class proceeding is certified, it would meet the three objectives of the statute of judicial economy, improved access to justice, and modification of the behaviour of wrongdoers. The defence says that there is no issue of modification of behaviour the university changed the wording in its descriptive statements concerning the two year engineering program. The defence further points out that the damage claim of Mr. Olar has been roughly put at around $75,000, with the claims of other proposed class members presumably to be in the same range, and questions whether persons claiming such amounts need special and improved access to justice. Furthermore, the defence questions whether much judicial economy would result out of a series of complex and disputed trials of the individual understandings of students, their individual problems in their academic careers, and their individual damage claims.

40 My conclusion is that the determination in one trial, of the issues of whether or not the various university statements were misrepresentations, and if they were whether they were negligent misrepresentations or fraudulent misrepresentations, so that damages could flow, would outweigh the other points raised by the defence. I further think that the provisions of s. 6 of the Class Proceedings Act, 1992 answers individual objections raised by the defence.

41 The foregoing discussion of the certification issues is based, of course, on the materials presently before me. It is, in effect, a theoretical discussion because, as stated at the beginning of these reasons, due to Mr. Olar's academic shortfall, class counsel does not have a suitable representative plaintiff. Because of that, my decision must be that the application for certification is denied. However this denial is without prejudice to the right of class counsel to reapply with new or further materials, should the action be reconstituted with a new proposed representative plaintiff.

BROCKENSHIRE J.

cp/s/qlala/qlcas