Case Name:

Olar v. Laurentian University

Between

Alvin Olar, plaintiff, and

Laurentian University, defendant

[2003] O.J. No. 2756

[2003] O.T.C. 637

37 C.P.C. (5th) 129

124 A.C.W.S. (3d) 25

Court File No. 00-GD-49743

Ontario Superior Court of Justice

Patterson J.

Heard: May 21-22, 2003.

Judgment: July 2, 2003.

(46 paras.)

Counsel:

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

Glenn Zakaib and Jacqueline L. Wall, for the defendant.

1 PATTERSON J.:-- The plaintiff resides in the City of Windsor and attended Laurentian University during the years 1994 to 1996 being his first two years of an engineering program. The Laurentian University calendar contained the following representation:

The first year of a four-year program leading to the professional degree in chemical, civil, mechanical, mining engineering or extractive metallurgical engineering is common to all branches of engineering. Starting with the second year, students select one of the above fields of specialization. The curricula for the first and second years are based on a flexible system of term courses which emphasizes strongly the use of programmable calculators and computers as engineers' tools. Students having successfully completed the first and second year programs may proceed into the third year in mining engineering or extract metallurgical engineering at Laurentian University or may transfer to the third year of other universities in Ontario if they wish to pursue chemical, civil or mechanical engineering ... (underlining added)

2 The plaintiff subsequently found out that to enroll in third year in other engineering programs in the Province the other engineering schools would not permit him to transfer fully into a third year without the requirement of completing additional first and/or second year courses. This essentially added an additional year to obtain his engineering degree.

3 This proceeding is a re-hearing of an application by the plaintiff which hearing was originally heard on August 28-30, 2000 before Justice Brockenshire. In his decision of October 1, 2001, Justice Brockenshire dismissed the certification motion on the basis that the plaintiff had not fulfilled the course credit requirement as a pre-condition. This order of Justice Brockenshire was subsequently overturned by the Court of Appeal on October 16, 2002 at which time a re-hearing of the certification motion was remitted to the Superior Court. This matter came before me on May 21 and 22, 2003. Justice Brockenshire in his original decision made certain comments as to the possibility that this matter may be certified with another representative but I am satisfied that the hearing before me is de novo and further that I have the advantage of other cases that were decided subsequent to Justice Brockenshire's decision.

4 The above-mentioned wording in the calendar was amended in the year 2000 with the relevant wording applicable to this case as follows:

Students have successfully completed the first and second year programs may proceed into the third year in mining engineering and extractive metallurgical engineering at Laurentian, or must apply to transfer into the third year at other universities in Ontario if they wish to pursue chemical, civil or mechanical engineering. (underlining added)

Therefore, the difference is that originally it provided - may transfer into third year of other universities ... as compared to or must apply to transfer into third year at other universities ...

5 Justice Brockenshire made his observation based on the state of the law prior to the release of the decisions of the Supreme Court of Canada in Hollick v. Toronto (City) [2001] 3 S.C.R. 158 and Rumley v. British Columbia [2001] 3 S.C.R. 184 which evolved the substantive test for certification.

6 Laurentian offers the four year engineering degree program only in mining engineering and extractive metallurgical engineering but offers two year partial programs in civil, chemical and mechanical engineering Those two years are obviously applicable to the four year degree programs offered at Laurentian but also contain courses that are either required or technical elective courses in four year degree programs such that their content is evaluated and accredited by the Canadian Engineering Accreditation Board (CEAB). Also in the original university calendar there was specific mention of the University of Toronto whereby Laurentian represented that students who had successfully completed the two year program at Laurentian and fulfilled appropriate standards for advanced standing at U. of T. could transfer to the third year of the chemical and civil engineering program at the University of Toronto. This cooperative agreement was in place between Laurentian University and University of Toronto from 1988 to 1994 at which time the University of Toronto indicated they wish to allow the agreement to lapse. Essentially courses had changed at both universities and the fit was not easy. Though this transfer agreement lapsed in 1994, Laurentian failed to advise the students of this change until 1998. The representation concerning the U. of T. transfer agreement contained in the Laurentian University student guide stated as follows:

An agreement between the school of engineering at Laurentian and the Department of Chemical and Civil Engineering at the University of Toronto enables successful students to transfer directly to third year at the University of Toronto.

It further contained the statement that:

Students who complete the first two years of these programs, that is civil engineering and chemical engineering may be eligible to take advantage of a transfer agreement with the University of Toronto.

7 There was other promotional material from Laurentian University that represented to students the following:

We also offer two-year programs in chemical, civil and mechanical engineering. Upon completion of the two-year programs students normally transfer to other universities to complete their degree or to our own degree programs to complete their degree in two additional years.

8 There was evidence that the Laurentian University's liaison department at university information sessions to high school students stated that the two year partial engineering program at Laurentian University was a good idea enabling students to save money while staying at home and then transferring to the third year engineering program at another Ontario university.

9 Mr. Olar, the plaintiff in this case, after completing a two year program at Laurentian applied and was accepted for transfer into the engineering programs at the University of Windsor, Queens' University and the University of Toronto. All three universities accepted him but he was required to complete some first and second year courses at these universities.

10 Laurentian apparently did not compare its program to other Ontario universities to make certain that the two year program offered at Laurentian would be comparable to and be accepted by other Ontario universities.

11 In an internal memorandum at Laurentian dated November 2, 1999 the comment was made of a desire that their two year program should enable a smooth transition to other universities and that Laurentian should approach other institutions to receive written assurances that students from Laurentian could proceed into years three and four. It was further admitted that the defendant acknowledged that the two year engineering criteria differed significantly among other institutions and that there would be a better fit between Laurentian's partial two year program and other institutions by the offering of a broader range of courses which was not done. The defendant concluded in its memorandum that an attempt to obtain written assurances for transfers from Laurentian University to other institutions would be naive and unrealistic.

12 On a review of the evidence of Olar and other proposed class members, Greg Spangler, AndrÈ Bom and Fredrik Zettler (as represented by his mother Louise Glover), it appears that each student's experience was highly individualized with respect to the following issues which were outlined in the defendant's factum:

(a) Did the student read the Statement in the Calendar prior to accepting Laurentian's offer of admission to the School of Engineering?

(b) Did the student read the Statement in the Student Guide prior to accepting Laurentian's offer of admission to the School of Engineering?

(c) Did the student speak to a liaison officer from Laurentian prior to accepting Laurentian's offer of admission to the School of Engineering?

(d) If the student did speak to a Laurentian liaison officer, where and when did the conversation take place, and what statements did the Laurentian liaison officer make?

(e) Did the student read any other "promotional materials" prior to accepting Laurentian's offer of admission to the School of Engineering?

(f) If the student did review any other "promotional materials", what documents did he review and when did he review them?

(g) Did the student speak to Dr. Lindon, Director of the Engineering school at Laurentian, and, if so, where and when did the conversation(s) take place, and what statements did Dr. Lindon make?

(h) Did the student speak to Dr. Irvine Reilly, a professor at Laurentian's School of Engineering who acted as an academic advisor and, if so, where and when did the conversation(s) take place, and what statements did Dr. Reilly make?

(i) Upon what, if any, written and/or oral representations made by Laurentian or its representatives did the student rely in making the decision to accept Laurentian's offer of admission?

(j) What was the student's academic performance in the two-year engineering program?

(k) Did the student successfully complete the two-year engineering program?

(l) In what year did the student register at Laurentian and in what year did the student register at the university to which he or she transferred from Laurentian?

(m) To what other universities did the student apply for transfer to complete his Bachelor of Engineering degree?

(n) What were the curriculum requirements of the first two years of the engineering programs in each of the other universities to which the student applied?

(o) What transfer credits were granted by each university to which the student applied for the courses taken at Laurentian?

(p) What courses was the student required to take to complete his Bachelor of Engineering degree at the university to which he transferred?

13 The circumstances of Olar, Spangler, Bom, Zettler as well as five other students mentioned in the claim were provided to the court and it was obvious that in each case there was an individual story to be told.

14 Olar pleads in the amended Statement of Claim that the particulars of Laurentian's alleged negligence include:

a) The defendant knew or ought to have known that other Ontario universities would not recognize Laurentian University's School of Engineering two year program as a full and complete two year program and would require students transferring to complete additional courses thus leading to a loss of up to one year of schooling; and

b) The defendant mislead, implied or provided inaccurate information that other Ontario universities would accept Laurentian University's School of Engineering two year program as a full and complete two year program permitting students to transfer completely into third year programs without requiring them to complete additional courses.

15 Ron Smith of Laurentian University indicated that Ontario universities grant a student a specified number of credits for each course that he completes. A transfer student who has not yet completed one or more pre-requisite courses may be accepted into third year but be required to take pre-requisite courses such that it takes him more than four further semesters to complete his engineering degree.

16 Dr. Reilly also of Laurentian University stated the following:

In evaluating applications from transfer students to the engineer school at Ontario universities are guided by the following practices and procedures: a) the university recognize that there are variations in curriculum at different universities; b) the universities will not evaluate what transfer credits will be granted to the students seeking to transfer to an engineering program until after universities have received the student's formal application and academic transcripts; c) the universities evaluate the transfer application and academic transcripts of each applicant on an individual basis; d) the universities have different minimum academic standards which must be met by the transfer applicant and; e) different evaluators at the same university may evaluate a transfer application differently.

17 Olar accepted the transfer to the University of Windsor; he was also accepted into third year at the civil engineering program at Queens. Queens would have required him to take three first year courses.

18 Olar was also accepted into the spring or second semester of year two of the engineering program at U. of T. He therefore could have completed his degree after five more semesters, or two and a half years of further studies at U. of T. and not a full three years that he was required to take because he had went to the University of Windsor.

19 The court may certify a class proceeding only if the plaintiff satisfies the following criteria:

(a) the pleadings disclose a cause of action;

(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff;

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e) there is a representative plaintiff who:

(i) would fairly and adequately represent the interests of the class;

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying the class members of the proceeding; and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

20 The class representative must show some basis in fact for each of the certification requirements set out in section 5(1) of the Act. The certification stage is not meant to be a test of the merits of the action; rather, it focuses on the form of the action.

21 Section 5(1)(a) of the Class Proceedings Act, 1992 requires the pleadings disclose a cause of action advanced by the class members and in my opinion it does.

22 There is an argument that there is a relationship calling on a duty of care in that the university should have known that its statement would be relied on by its students. This is an area in which evidence would have to be heard and findings made.

23 The Statement of Claim, the amended Statement of Claim and the final amended amended Statement of Claim each contained a different version of the definition of the Class with the final version being "all students who are enrolled at the School of Engineering of Laurentian University during the years 1994 to 2000 and who transferred into civil, chemical or mechanical engineering program of other universities in Ontario and who were required to complete additional courses".

24 The requirement that the Class members who are required to complete "additional courses" is a problem as all students who transfer to another university after completing one of Laurentian's partial engineering programs will have to complete "additional courses" in order to obtain a degree.

25 Though there may be other means to resolve the identity of the class members, Laurentian has stated that they do not have any records which identify students who may be possible members of the proposed Class.

26 In Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, the Supreme Court of Canada articulated the requirements which the plaintiff must satisfy to establish that there is an identifiable class:

First, the class must be capable of clear definition. Class definition is critical because it identifies the individuals entitled to notice, entitled to relief (if relief is awarded), and bound by the judgment. It is essential, therefore, that the class be defined clearly at the outset of the litigation. The definition should state objective criteria by which members of the class can be identified. While the criteria should bear a rational relationship to the common issues asserted by all class members, the criteria should not depend on the outcome of the litigation. It is not necessary that every class member be named or known. It is necessary, however, that any particular person's claim to membership in the class be determinable by stated, objective criteria [emphasis added].

27 In Hollick v. Toronto (City) the Supreme Court of Canada directed that actions brought by representative plaintiffs who propose class definitions which are overbroad or over-inclusive should not be certified.

28 I agree with the argument of the defendant that it is not possible for a person to determine on an objective basis whether he or she is a member of the class defined by the plaintiff, because the class definition does not indicate that a person only has a potential claim against Laurentian if that person is able to establish the following elements:

(a) the person received and relied upon representations made in Laurentian's Calendar, Student Guide and/or promotional material and/or on Laurentian's website and/or by persons employed in Laurentian University's Liaison Services Department which were untrue, inaccurate or misleading; and

(b) the person would not have chosen to attend Laurentian had the representations not been made.

29 I also agree that the class definition is over-inclusive. Various examples were outlined in the defendant's factum as follows:

(a) The class definition includes students who enrolled in Laurentian's School of Engineering during 1994 to 2000, transferred into the civil, chemical and mechanical engineering program at another Ontario university and complete their engineering degree in two additional years of study, that is they obtained their engineering degree in four academic years. Such students would fall within the class definition, notwithstanding that they have no cause of action against Laurentian.

(b) The class definition includes students who enrolled in Laurentian's four year degree programs in mining engineering and extractive metallurgical engineering and, having decided to change their field of specialization, transferred to the civil, chemical or mechanical engineering program at another Ontario university. The plaintiff does not allege that Laurentian made any misrepresentations to students enrolled in the mining engineering and extractive metallurgical engineering. It is possible, however, that such students would have been required to complete additional courses to complete their engineering degrees such that they would fall within the class definition, notwithstanding that they have no cause of action against Laurentian.

(c) The class definition includes all students who enrolled in Laurentian's School of Engineering during 1994 to 2000 and transferred into the civil, chemical and mechanical engineering program at another Ontario university regardless of whether the student read or heard and relied upon any of the alleged misrepresentations. Students to whom no alleged misrepresentation was made, and those students to whom an alleged misrepresentation was made but who did not rely upon such misrepresentations in making their decision to attend Laurentian, would fall within the class definition, notwithstanding that they have no cause of action against Laurentian.

(d) The class definition includes students who enrolled in Laurentian's School of Engineering during 1994 to 2000 and transferred into the civil, chemical and mechanical engineering program at another Ontario university who were required to complete additional courses, because they either receive one or more failing grades and/or failed to take certain prerequisite courses in their first two years of study. Students who were required to take additional courses for reasons unrelated to any reliance on the alleged misrepresentations would fall within the class definition, notwithstanding that they have no cause of action against Laurentian.

30 The Ontario Superior Court of Justice denied certification in Hickey-Button v. Loyalist College of Applied Arts & Technology, [2003] O.J. No. 811, and a companion misrepresentation action which arose from facts very similar to the facts in this case. The plaintiffs were students at Loyalist College of Applied Arts & Technology ("Loyalist") situated in Belleville, Ontario who commenced Loyalist's three-year nursing program in 1997 and 1998. The students alleged that Loyalist offered qualified students the option of obtaining a university degree in nursing by attending Loyalist's nursing program for two years, and then taking two further years of courses offered by Queen's University at Loyalist's campus. In February, 1999 Loyalist advised the students that the Queen's University program was not in place such that the students were required to complete the three year program at Loyalist and then attend Queen's University or some other university for an additional two years in order to obtain the four year university degree that Loyalist had promised to provide.

31 The plaintiffs framed their claim in contract and negligent misrepresentation. Mr. Justice Manton found that the allegations made by the students resulted from verbal and written communications between Loyalist and each individual student. In respect of the negligent misrepresentation claim, the judge found that each student would be required to establish the existence of a special relationship giving rise to a duty of care on the part of Loyalist, and to prove that the misrepresentation was made negligently and was relied upon by each class member, and that each class member suffered damages as a result of such reliance.

32 Mr. Justice Manton relied on the Supreme Court of Canada's decision in Hollick to conclude that there was no identifiable class on the following grounds:

If the merits and the individual circumstances of a person's claim must be looked at in order to determine whether that person is within the class, then the class is not identifiable. In this case, in order to find out if a student falls within the class, each student would have to be examined under oath because only those students who intended to participate in the Queen's option who would not have attended Loyalist had the Queen's option not been offered and who would have qualified to do so, would potentially have a cause of action. The class is not to include persons who do not have a claim. [emphasis added]

33 This reasoning applies with equal force in this case. The class is not identifiable because it cannot be determined on an objective basis who is and who is not a member of the class. Each student will have to prove that he or she completed the two year program in civil, chemical or mechanical engineering at Laurentian, intended to transfer to another university to complete a four year engineering degree and would not have attended Laurentian had he or she not read or heard one of the several different alleged misrepresentations made in the Calendar, Student Guide and promotional material, on Laurentian's website or by one of Laurentian's liaison officers. A trial will be required in each student's case to determine whether he or she is a member of the class.

34 An important consideration in determining whether the resolution of the proposed common issues will move the litigation forward to a sufficient degree to justify certification is, in my opinion, not made as significant individual issues that will remain for determination after the common issues are resolved.

35 The plaintiff states in paragraph 65 of his factum that the common issues are:

(a) whether the defendant represented that its two year partial engineering programs in civil, mechanical and chemical engineering were equivalent to the first two years of other Ontario universities;

(b) whether the defendant represented that, after completing two years at its institution, students in civil, mechanical and chemical engineering could obtain their degree in engineering in a further two academic years at another Ontario university;

(c) whether the defendant represented that students in the civil or chemical engineering program after completing the two year partial program, could transfer to the University of Toronto and obtain their degree in a further two academic years;

(d) whether the representations identified above were made recklessly not caring whether or not they were true or false or without exercising reasonable care and attention; and

(e) the appropriate measure of damages resulting from the misrepresentation without limiting the damages and, in particular:

(i) damages for loss of income suffered by students which they would have otherwise earned if they had obtained their degree in four years;

(ii) damages for extra tuition paid;

(iii) damages for additional living expenses incurred; and

(iv) damages for additional expenses incurred for books, course material and supplies.

36 Whether Laurentian made the representations referred to in issues (a), (b) and/or (c) does not materially or significantly advance the overall determination of the liability issue, because there are many individual issues which must be determined.

37 In Moyes v. Fortune Financial Corp., 61 O.R. (3d) 770, Mr. Justice Nordheimer concluded that the misrepresentation questions in that case did not have the level of commonality necessary to satisfy the requirement of section 5(1)(c) of the Act for the following reasons:

Central to the liability issues in this regard are the determinations of whether any given class member received the statements and, if so, whether they relied upon them and, if so, whether that reliance caused any damage. In other words, the determination of the accuracy of the statements may start you along the road to the ultimate destination, that is the determination of liability, but it appears that there would be many miles left to travel before arriving there ...

The situation is further complicated by the acknowledged fact that some of the proposed class members met with Mr. Rashif directly. Without an individual examination of each of the proposed class members, one cannot know which of those members did meet with Mr. Rashif and, if so, what they were told or shown and whether any information affected their decision regarding the investment. .... Consequently, success by the representative plaintiff on the question of misleading statements by Mr. Tindall does not necessarily equate to success for all members of the class. That critical element, which must underlie the common issues, is therefore missing.

Further, the determination of these common issues would not appear to fulfill the purpose behind a class proceeding as identified by Chief Justice McLachlin in Western Canadian Shopping Centres Inc. v. Dutton, supra at para. 39. While a determination of the propriety of the actions of Mr. Tindall would avoid duplication in the determination of that issue that would otherwise arise from the pursuit of multiple actions, the reality is that its determination still does not avoid the case-by-case examination required to resolve the claims of all members of the proposed class. Given that the allegations here are inherently individualistic, there is little overall economy that will practically be achieved through the determination of those common issues.

38 None of the Laurentian Calendar, Student Guide, promotional materials or website contained wording identical to the representations referred to in the plaintiff's issues (a), (b) and (c) that Laurentian's two year programs "were equivalent to the first two years of other Ontario universities", and that after completing Laurentian's two year programs, students could "obtain their degree in engineering in a further two academic years at another Ontario university". It therefore is not possible to determine issues (a), (b) and (c) without first engaging in an individual examination of the specific events which underlie each class member's misrepresentation claim including each class member's interpretation and understanding of the statements in question.

39 Issues (a), (b) and (c) are not common to all class members, because the representations made to the Laurentian students depend on whether the students read the Calendar, Student Guide, promotional materials and website and/or had a conversation with a Laurentian liaison officer or some other person, such as a high school guidance counsellor or another Laurentian employee or student.

40 While all of the proposed class members may be asserting a common theory of liability against Laurentian, the actual determination of liability for each class member can only be made upon an examination of the unique circumstances with respect to each class member's decision to attend Laurentian, selection of courses taken and academic performance at Laurentian, the curriculum of the universities to which the class member applied for transfer and the criteria which the other universities applied to evaluate the class member's transfer application.

41 In Hollick and Rumley, the Supreme Court of Canada directed that the preferability inquiry under section 5(1)(d) should be conducted through the lens of the three principal advantages of class actions: judicial economy, access to justice and behaviour modification.

42 In Hollick, the Court held that to determine the question of preferability the following factors must be taken into account:

(a) the importance of the common issues in relation to the claims as a whole. In other words, the representative plaintiff must demonstrate that, given all of the circumstances of the particular claim, a class action would be preferable to other methods of resolving the claims and, in particular, that it would be preferable to the use of individual proceedings; and

(b) the availability of all reasonably available means of resolving the class members' claims and not just the possibility of individual actions.

43 In Moyes, Mr. Justice Nordheimer held that judicial economy would not be achieved in a misrepresentation claim for the following reason:

Assuming for the moment that the defendants were found to have a duty of care, and to have engaged in conduct that was potentially a breach of that duty of care, the impact of those determinations would be very much abstract in the result until the particular circumstances of each individual claimant are considered. In other words, answers to the proposed common issues are of no more than theoretical interest until the particular factual circumstances of each individual claimant is examined, especially the state of knowledge of each claimant regarding the proposed investment.

44 None of the objectives of the Act will be advanced by certification of this action:

(a) Judicial Economy - the number and complexity of the issues which will have to be determined on an individual basis will necessitate individual trials which will not be shorter or more efficiently managed if certification is granted.

(b) Improved Access to Justice - the plaintiff has estimated that the potential claim of each former Laurentian student for damages equal to the loss of one year's professional income, one year's tuition, one year's course books and one year's living expenses totals approximately $75,000.00. Given that the potential claim of each proposed class member is substantial and potentially sustainable on an individual basis, there is no evidence that the size of the claims would be a deterrent to the commencement of individual proceedings.

(c) Modification of the Behaviour of Wrongdoers - the alleged claims arise from a specific fact situation which is unlikely to recur in the future. Laurentian has adduced evidence which establishes that the statement in the Calendar about which the plaintiff complains was amended in 2000, and the Student Guides have not contained any statement regarding the transfer agreement with the University of Toronto since 1998.

45 Based upon the evidence adduced in this motion, the plaintiff's interests do not appear to conflict with the interests of the class members.

46 For the above-noted reasons the court orders:

(i) that an order is granted dismissing the plaintiff's motion and denying certification of this matter as a class proceeding and the appointment of Alvin Olar as the representative plaintiff; and

(ii) an award ordering the defendant its costs of the certification motion on a partial indemnity basis;

PATTERSON J.

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