Olar v. Laurentian University
Alvin Olar, plaintiff/appellant, and
Laurentian University, defendant/respondent
 O.J. No. 3716
6 C.P.C. (6th) 276
Court File No. 1405
Ontario Superior Court of Justice
Divisional Court - London, Ontario
Gravely, Flinn and Swinton JJ.
Heard: April 29, 2004.
Judgment: June 18, 2004.
Practice -- Persons who can sue and be sued -- Individuals and corporations, status or standing -- Class actions, certification, considerations (incl. when class action appropriate) -- Class actions, appeals -- Duty of appellate court regarding discretionary orders.
Appeal by Olar from a decision that refused to certify his action as a class proceeding. Olar was an engineering student at the defendant Laurentian University between 1994 and 1996. He claimed that Laurentian made misrepresentations about the ability of a student to complete the first two years of a four-year engineering degree at Laurentian and then transfer to another Ontario university to complete the last two academic years within a two-year period. Olar attended Laurentian based on these representations. When he transferred he was told he would have to take additional first and second year courses. He had to spend an extra year at university to obtain his degree. Olar's action was based on the torts of negligent and fraudulent misrepresentation. In an earlier stage of the proceedings a different judge commented favourably about certification. Certification was refused at a de novo hearing because the proposed class, which consisted of all engineering students at Laurentian between 1994 and 2000 who transferred to engineering programs of other Ontario universities and had to complete additional courses, was over-inclusive and was not identifiable because it did not contain objective criteria. The judge acknowledged that there were common issues. However, when these issues were considered in the context of the whole action they would not materially advance the proceeding. Ultimately, each member's misrepresentation claim would have to be considered individually. None of the objectives of the Class Proceedings Act would be advanced if this action was certified.
HELD: Appeal dismissed. The court refused to interfere. The decision to refuse certification was not clearly wrong. The judge did not abuse his discretion. He did not have an obligation to amend the proposed class definition to make them satisfy the requirements of the Act. The judge did not err regarding his assessment of the common issues. He applied the correct principles to conclude that a class action was not the preferable procedure. Olar failed to show that a widespread problem of university misrepresentation would be curtailed if a class action was certified. The judge acted properly when he conducted a de novo hearing, rather than deferring to the comments of the other judge.
Statutes, Regulations and Rules Cited:
Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5(1), 5(1)(b), 5(1)(c).
Raymond G. Colautti and Owen D. Thomas, for the appellant.
Glenn Zakaib and Jacqueline L. Wall, for the respondent.
Reasons for judgment were delivered by Swinton J., concurred in by Flinn J. Separate reasons were delivered by Gravely J.
1 SWINTON J.:-- This is an appeal from a decision of Patterson J. dated July 2, 2003, in which he dismissed the plaintiff's motion for certification of this action as a class proceeding and the appointment of Alvin Olar as a representative plaintiff. He also awarded costs against the plaintiff, who seeks leave to appeal that order as well.
Overview of the Facts
2 The Appellant was an engineering student at Laurentian University during the years 1994 through 1996. Laurentian's school of Engineering provided a four year degree programme in mining engineering or extractive metallurgical engineering. Students who wished to pursue chemical, civil or mechanical engineering could enrol in the first two years of the engineering programme at Laurentian, and then they would have to transfer to another university to complete their degree.
3 The Appellant claims that the University made various misrepresentations in its Calendar, Student Guide, a brochure and a web-site, as well as through its liaison officers. Specifically, he claims that the University represented that a student could complete the first two years of a four year engineering degree in civil, mechanical or chemical engineering at Laurentian and then transfer to another Ontario university to complete the last two academic years within a two year period. Relying on this representation, he attended Laurentian for two years. When he then attempted to transfer to another university, he found that no other Ontario university would accept him unless he completed additional first and second year courses. As a result, he was required to spend an extra year at the University of Windsor in order to complete what should have been a four year programme.
4 The Appellant also alleges that Laurentian University misrepresented in its Student Guide that it had a transfer agreement with the University of Toronto Faculty of Applied Science in Engineering, which permitted students to transfer after second year at Laurentian into third year of civil engineering or chemical engineering at the University of Toronto. That agreement had lapsed sometime in 1994, yet references to it were not removed from the Student Guide until the 1998-99 academic year.
5 Essentially, the Appellant's claim is based on the torts of negligent and fraudulent misrepresentation, and he seeks damages for loss of income and the extra costs associated with the added period of university attendance.
6 The motion for certification came on initially before Brockenshire J., along with a motion for summary judgment. Brockenshire, J. granted the motion for summary judgment and dismissed the action. However, in the course of his reasons, he also commented favourably on the merits of the certification motion, although he described his comments as theoretical and dismissed the motion because he concluded that there was no suitable representative plaintiff (Olar v. Laurentian University,  O.J. No. 5575 (S.C.J.)).
7 On October 16, 2002, the Court of Appeal allowed an appeal by the Appellant with respect to the dismissal of the action, and remitted the motion for certification for a re-hearing. With respect to costs, the Court's order stated that "the costs of the motion before Brockenshire, J. shall be in the cause" ( O.J. No. 3881).
8 The motion for certification was then heard de novo by Patterson J., who denied certification and awarded costs against the Appellant in the amount of $54,609.00, to be paid no later than July 1, 2004, with interest commencing on July 2, 2003.
Standard of Appellate Review
9 An appellate court may only interfere with a certification decision if that decision was clearly wrong (Brimner v. VIA Rail Canada Inc.,  O.J. No. 3684 (Div. Ct.) at paras. 1 and 3). The appellate court is limited to determining whether the motions judge proceeded on a wrong legal basis, abused his or her discretion or erred on a matter of general principle (Carom v. Bre-X Minerals Ltd. (2001), 51 O.R. (3d) 236 (C.A.) at paras. 36-37; Moyes v. Fortune Financial Co.,  O.J. No. 4731 (Div. Ct.) at para. 5).
The Criteria for Certification
10 The requirements for certification are set out in s. 5(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6. It provides:
5(1) The court shall certify a class proceeding on a motion under section 2, 3 or 4, if
(a) the pleadings or the notice of application discloses a cause of action;
(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;
(c) the claims or defences of the class members raise common issues;
(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and
(e) there is a representative plaintiff or defendant 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 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.
11 The motions judge carefully considered and applied the requirements set out in s. 5(1) of the Act. His reasons are consistent with the Supreme Court of Canada decisions in Hollick v. Toronto (City),  3 S.C.R. 158 and Rumley v. British Columbia,  3 S.C.R. 184, which were released shortly after Brockenshire J. issued his reasons in the motions described earlier.
12 The Appellant argues that the motions judge made a number of errors with respect to whether there was an identifiable class, whether the claims of the class members raised common issues, and whether a class proceeding would be the preferable procedure for the resolution of the common issues.
13 Three different class definitions had been proposed by the time the motion came before Patterson J. The third definition proposed by the Appellant in his Amended Amended Statement of Claim defined the class as follows:
All students who were enrolled at the School of Engineering at Laurentian University during the years 1994 to 2000, and who transferred into the Civil, Chemical or Technical Engineering Program of other universities in Ontario and who were required to complete additional courses.
14 In Western Canadian Shopping Centres Inc. v. Dutton,  2 S.C.R. 534, the Supreme Court of Canada articulated the requirements which the Appellant 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 ... (at para. 38).
15 In this case, the motions judge concluded that the latest definition proposed was inadequate to identify the class. He correctly concluded that it is over-inclusive for a number of reasons, as set out in paragraph 29 of his reasons. For example, every engineering student transferring after second year to another university would have to complete added courses to graduate. Thus, the definition is not limited only to those who relied on the University's representations about transferability and who had to take courses that lengthened their total years of study beyond four years because of the academic requirements of the second university.
16 The motions judge also observed (at para. 33):
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 of 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.
While the motions judge makes reference to the need for a trial to determine class membership, with respect, the inquiry at this stage of the proceedings is not proof of class membership. Rather, it is whether the class definition sets out objective criteria, so that class members can be notified, and an individual can determine whether he or she is a member of the class.
17 Nevertheless, the motions judge did not err in concluding that none of the definitions proposed to date defined an identifiable class on the basis of objective criteria. He aptly stated, at paragraph 28, that the class definition did not indicate that a person had a potential claim only if he or she had received certain misleading representations from Laurentian and relied on them in making the decision to attend Laurentian.
18 In his factum on appeal, the Appellant proposed a fourth definition of the class, which was not before the motions judge:
Students enrolled in the Civil, Chemical or Mechanical two year engineering program at the School of Engineering of Laurentian University during the years 1994 to 2000, and upon transferring to another Ontario University claimed to have suffered loss or damage as a result thereof.
19 There is a fundamental flaw in each of the definitions proposed, including this latest one, in that there is no connection between the common issues defined by the Appellant relating to the alleged misrepresentations and the class definition.
20 The Appellant has suggested that the motions judge erred in failing to amend the various proposed definitions to make them satisfy the requirements of s. 5(1)(b), and thus he erred on a matter of principle. However, in Kumar v. Mutual Life Assurance Co. of Canada,  O.J. No. 1160, the Court of Appeal rejected the argument that the motions judge has a duty to modify the proposed class definitions, although the Court observed that he or she has a discretion to do so (at paras. 30-31).
21 There are other cases where there has been a problem with the class definition, in which the motions judge has refused to take on the task of counsel by defining the class. For example, in Caputo v. Imperial Tobacco Ltd.,  O.J. No. 299 (S.C.J.), Winkler J. refused to amend the class definition so as to make the class certifiable for the following reasons:
What the plaintiffs suggest is akin to having the court perform the role of class counsel by making wholesale changes to arrive at a definition that the court itself would accept. That goes beyond a simple exercise of discretion and verges into the prohibited territory of descending "into the arena" with the parties to the motion (at para. 41).
See, also, Bellaire v. The Independent Order of Foresters,  O.J. No. 2242, (Ont. S.C.J., Court File No. 39813/99, March 15, 2004) at para. 26.
22 In this case, the motions judge made no error in principle in concluding that the class definition failed to meet the requirements of s. 5(1)(b) of the Act and in leaving it to counsel to formulate an appropriate definition.
23 McLachlin C.J.C. stated in Hollick, supra, that "an issue will not be common in the requisite sense unless the issue is a substantial ingredient of each of the class members' claims" (at para. 18). Moreover, the resolution of the common issues must "significantly advance the action" (at para. 32).
24 The Appellant argues that there are common issues to determine - namely, whether the University made misrepresentations in the Calendar, Student Guide, brochure and web-site and whether those representations were made negligently or fraudulently. However, the motions judge determined that the common issues identified by the Appellant did not have the level of commonality necessary to satisfy s. 5(1)(c) of the Act, because their resolution would not materially or significantly advance the overall determination of the liability issue.
25 It is noteworthy that there are five types of alleged misrepresentation here, made in different settings. Four of the representations are found in the publications listed above, while counsel conceded in oral argument that the oral representations would not be common issues. The evidence indicates that different individuals read or received different communications. While the motions judge acknowledged that there are common issues with respect to misrepresentation and fault, he concluded that when those issues are considered in the context of the whole action, they will not materially advance the proceeding. He concluded that ultimately there must be an examination of each individual's misrepresentation claim to determine the nature of the representation made, the student's understanding of the representation, the circumstances surrounding the decision to attend Laurentian, the student's course selection and academic performance, and the individual's experience when he or she tried to transfer. Therefore, individual trials will be necessary in order to determine reliance, causation and damages.
26 Given the facts in this case, the motions judge did not err in concluding that the common issues would not materially or significantly advance the litigation for the reasons which he gave.
27 Notably, other motions judges have reached similar conclusions in the context of a claim based on misrepresentation. See, for example, the Court of Appeal decision in Kumar, supra; Moyes v. Fortune Financial Corp. (2002), 61 O.R. (3d) 770 (S.C.J.), aff'd  O.J. No. 4731 (Div. Ct.); and Moutheros v. DeVry Canada Inc. (1998), 41 O.R. (3d) 63 (Gen. Div.) at 70, 73.
28 The Supreme Court of Canada in Hollick, supra stated that the determination of whether a class proceeding is the preferable procedure requires two considerations: whether the class proceeding would be a "fair, efficient and manageable method of advancing the claim" and whether it would be preferable to other procedures, such as joinder, test cases and consolidation (at para. 28). In determining whether a class proceeding is preferable, the court must consider the three advantages of class proceedings: judicial economy, access to justice and behaviour modification (at para. 27). Most importantly, the Chief Justice stated that the question of preferability "must take into account the importance of the common issues in relation to the claims as a whole" (at para. 30), although there is no requirement that the common issues predominate.
29 The motions judge stated the correct principles applicable when determining whether a class action is a preferable procedure. He concluded that none of the objectives of the Act would be advanced by certification (at para. 44). He correctly pointed out that there will still need to be individual trials which will have to determine many complex issues. He also concluded that this was not a case where there would be a denial of access to justice, if certification were not granted, given that the individual claims for damages were estimated at approximately $75,000.00. In his view, there was no evidence of a deterrent to individual actions. Finally, he noted that Laurentian had modified its publications, and the specific fact situation was unlikely to recur in the future. Therefore, he concluded that the factor of modification of wrongdoing was not applicable here.
30 Relying on the decision of Winkler J. in 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 62 O.R. (3d) 535 (S.C.J.), the Appellant argues that the motions judge erred in not finding the class action to be a preferable procedure. The Appellant relies on the A&P case for the proposition that he raised a rebuttable presumption that the class proceeding was preferable by showing that there are common issues. Here, he argues, the Respondent failed to provide evidence to show that another proceeding is preferable and, therefore, failed to rebut the presumption.
31 It is important to read the passage from the A&P case in context. There, Winkler J. stated (at para. 26):
In my view, where a plaintiff has met the evidentiary burden of establishing that there is an identifiable class and common issues, can state a narrow issue that is common to the entire class, and is as significant to the resolution of each individual claim as is the case here, then he or she has established a basis for a determination that a class proceeding is the preferable procedure. This determination remains, consistent with the Supreme Court's holding in Hollick, subject to the court finding that the proceeding would achieve one or more of the goals of [the] Act or, conversely, a showing by the defendants that a class proceeding is not the preferable method of dealing with the claims. (emphasis added)
He went on to state that the defendant must provide an evidentiary foundation to support the argument that another procedure is preferable (at para. 27). In denying leave to appeal on this issue, Lane J. concluded that the motions judge had not reversed the onus ( O.J. No. 1089 at para. 19).
32 In this case, the motions judge concluded that while there were common issues, they did not materially advance the litigation, given the many individual issues to be determined. He went on to conclude that the objectives of the Act were not advanced by certification, for the reasons set out above. Thus, he determined that a class proceeding was not preferable to individual actions. In doing so, there was no error in principle, and the evidence and pleadings support his conclusion.
33 While the Appellant argued that the motions judge erred because he considered deterrence only with respect to Laurentian and failed to consider general deterrence, he pointed to no evidence suggesting a widespread problem of misrepresentation by universities that might be curtailed if a class proceeding were certified here.
34 While the Appellant relied on other cases where certification has been granted when the claim was framed in misrepresentation, these cases are distinguishable. While the Court of Appeal in Carom v. Bre-X Minerals Ltd. (2000), 51 O.R. (3d) 236 certified a class action with respect to a claim for negligent misrepresentation, that decision must be understood in context. The motions judge had certified the class proceeding for the fraudulent misrepresentation claim, and the Court of Appeal concluded that the negligent and fraudulent misrepresentation claims should be treated in the same way (at p. 253). In contrast, the Court of Appeal in Kumar, supra upheld the motions judge's determination that a class proceeding was not the preferable procedure in a case alleging misrepresentation in the sale of whole life insurance policies with a premium offset feature (at paras. 52-53).
35 In Canadian Imperial Bank of Commerce v. Deloitte & Touche,  O.J. No. 2069 (Div. Ct.), a class action was found to be the preferable procedure, even though the claim was for negligent misrepresentation, because there were a number of common issues which would materially advance the litigation, given the way that the case was pleaded. In contrast, in this case, the motions judge reasonably concluded that the objectives underlying the class proceedings legislation would not be achieved by a class action, given the number and complexity of the individual issues, as well as the size of the individual claims.
36 Ultimately, the Appellant's major complaint is that the motions judge conducted a hearing de novo when he should have shown deference to Brockenshire J. However, I find no error in his decision. Of necessity, the motions judge proceeded de novo and applied the legislation and evolving jurisprudence of the Supreme Court of Canada to the evidence and the pleading before him. I agree with the separate reasons of Gravely J. with respect to the irrelevancy of the motions judge's alleged lack of experience.
37 Therefore, the appeal with respect to the issue of certification is dismissed.
The Costs Appeal
38 The Appellant also seeks leave to appeal the order of costs on the basis that the motions judge erred in awarding costs that included an amount for fees incurred for the motions before Brockenshire J.
39 In its reasons, the Court of Appeal made it clear that the costs of the "motions" (sic) before Brockenshire J. were to be costs in the cause. While the formal order refers to costs of the "motion" in the cause, the reasons of the Court of Appeal and of the motions judge refer to the costs of the "motions". Even though certification has been denied, the Appellant can proceed with his individual action and the costs of the motions before Brockenshire J. are to await the conclusion of the litigation, in accordance with the order of the Court of Appeal.
40 When the motions judge calculated the costs, he took into account fees incurred in preparation for the earlier motion -- for example, the fees incurred in the preparation of affidavits and cross-examinations prior to the first motion that were then used in the second certification hearing. To this, he added an amount for fees incurred for the second hearings such as fees for the preparation of a new factum, preparation for the hearing and attendance for oral argument. He also awarded $12,879.99 for disbursements, which includes all the disbursements for the earlier motion and for the second hearing.
41 In my view, the motions judge erred in including any of the cost incurred for the motions before Brockenshire J. in the award of costs of the motion before him. Those earlier costs are to be in the cause. The fact that the work was necessary preparation for the motion before him does not permit him to ignore the terms of the Court of Appeal's costs order.
42 Therefore, leave to appeal the costs order is granted. I would vary the costs order by substituting an award of costs for the motion in the amount of $10,328.58. This includes $7,500.00 for fees, the amount that the motions judge allocated for fees incurred in the preparation for the second motion, plus G.S.T. on that amount. In addition, $2,443.58 is awarded for disbursements, which encompasses disbursements attributable to the May, 2003 hearing.
43 Therefore, leave to appeal the costs order is granted, and the appeal is allowed to the extent that the costs order is varied to require the Appellant to pay costs of the motion in the amount of $10,328.58 all inclusive on July 1, 2004, with interest to run from July 2, 2003.
44 Otherwise, the appeal is dismissed. If the parties are unable to agree with respect to the costs of this appeal, they may make brief written submissions within 21 days of the release of this decision.
45  GRAVELY J.:-- I agree with the reasons and conclusions of Swinton J. I will confine my comments to the argument put forward by counsel for the Appellant about general judicial competence.
46  Counsel submitted that Patterson J. lacked experience in class proceedings, that this was the only certification motion he had ever heard, that he should have been mindful of the fact that Brockenshire J., "an experienced judge" would have been inclined to certify and failure to adopt the reasons of Brockenshire J. constituted an error in principle.
47  The concept that an appeal may be based on the lack of experience of a judge is unsound, both in practice and in principle.
48  There was here, of course, no evidence as to the background or experience of Patterson J. and it is difficult to imagine how that type of information could be communicated to an appellate court. Would a party seek leave to call the judge to give evidence?
49  The significant issue however is one of principle. The appeal is from the decision. There is no authority for going behind the decision and attacking the judge's lack of experience and general competence. Judges are presumed to be competent on taking office.
50  In R. v. Sheppard,  1 S.C.R. 869, Binnie J. in dealing with the necessity of a trial judge to give reasons, affirmed the presumption of a trial judge's general competence and added, at para. 55:
Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court.
51  Patterson J. is presumed to be competent to hear certification motions. His alleged lack of experience is not properly an issue in this appeal. He had no obligation to adopt the obiter reasoning of Brockenshire J.