Olar v. Laurentian University
Alvin Olar, Plaintiff, and
Laurentian University, Defendant
 O.J. No. 2211
49 C.C.L.T. (3d) 257
158 A.C.W.S. (3d) 849
2007 CarswellOnt 3595
Court File No. 00-GD-49743
Ontario Superior Court of Justice
R.C. Gates J.
Heard: November 20-24, 28-30 and December 1, 2006.
Judgment: June 6, 2007.
Corporations and associations law -- Universities and colleges -- Failure by university to disclose difficulty of transferring to another school to complete engineering degree constituted negligent misrepresentation -- Student who was forced to attend an extra year of school was awarded damages of $120,620.
Tort law -- Fraud and misrepresentation -- Negligent misrepresentation -- Failure by university to disclose difficulty of transferring to another school to complete engineering degree constituted negligent misrepresentation -- Student who was forced to attend an extra year of school was awarded damages of $120,620.
Laurention University's promotional material and calendar indicated that engineering students could take two years of stay at its school and then move into third year engineering courses at other universities, including the University of Toronto -- In fact, the courses offered by Laurention did not allow easy integration into other schools -- In addition, while Laurention had an agreement with the University of Toronto regarding entry of Laurention students into its third year engineering program, the agreement was terminated, which was not communicated to student -- Olar entered into the Laurention program -- After two years, he sought to transfer to another school -- Olar discovered that the other courses were not integrated with Laurention's -- He ultimately transferred to the University of Windsor, but was required to take an extra year of school in order to obtain his degree -- Olar brought an action against Laurention for negligent misrepresentation -- HELD: Action allowed, and Olar awarded $120,620 -- The components of negligent misrepresentation were established -- It was a probability approaching a certainty that a Laurentian student would require make-up courses in order to successfully transfer elsewhere -- This would in all likelihood, involve taking an extra year to complete the four year Engineering program -- Laurention owed a duty to its students to disclose the potential difficulties involved in the required transfer, which duty was breached -- The breach resulted in Olar's delayed entry into the workforce by one year, and an experiential loss due to the fact that throughout his career relative to his contemporaries, Olar would always be a year behind, which would likely impact negatively on his future income.
Raymond Colautti and Owen Thomas for the Plaintiff.
Jacqueline Wall and Peter Henein for the Defendant.
REASONS FOR JUDGMENT
R.C. GATES J.:--
1 In the spring of 1994, Alvin Olar graduated from White Pines Collegiate in Sault St. Marie, Ontario.
2 Because he had decided to pursue an engineering degree at University, in the fall of 1993 he applied to Ryerson, Waterloo and Laurentian.
3 He elected to attend Laurentian in part because it was located in Sudbury which is closer to where he lived, and would result in a saving of travel and living expenses. In addition, from the information he reviewed from the University, it appeared that he would be able to attend the first two years of a Civil Engineering course at Laurentian and then transfer elsewhere to complete the third and fourth years.
4 On June 21st, 1994, he accepted Laurentian's Offer of Registration and in September of that year, began the first term of the School of Engineering. Academically, his first year was a success. He achieved five A's, four B's, one C, and one D. However, he chose to drop a non-engineering, non-technical elective Humanities course in order to concentrate on his engineering courses.
5 He entered second year in September 1995 and that year achieved similar academic success, with seven A's, one B, two C's and one D. He again chose to drop a non-engineering, non-technical elective Humanities course in order to focus on his engineering courses and enhance his transfer from Laurentian to complete years three and four of his Civil Engineering degree.
6 Ultimately he was able to obtain a transfer to the University of Windsor, but required a total of five years to complete the four-year Engineering degree. Thereafter he was admitted to the Masters course in Civil Engineering at Windsor and graduated in the spring of 2000 with a MSC. Eng. His marks at Windsor mirrored those at Laurentian.
7 The main focus of this action is in respect of Mr. Olar's transfer after completing the two year part Engineering course at Laurentian. He (nor, presumably the other engineering students) was not made aware by Laurentian of the difficulties that would be encountered in transferring elsewhere and the very real likelihood that as a result, an additional year would be required in order to graduate.
8 The issues in this case include the following:
(1) Did the Defendant owe a duty to the Plaintiff to disclose the potential difficulties involved in the required transfer after completion of Laurentian's two year part course to complete his engineering degree?
(2) If yes, did it breach this duty?
(3) If the Defendant did breach its duty, did this result in a delayed entry of the Plaintiff into the workforce?
(4) If so, did the Plaintiff suffer damages and if so what is the measure of those damages?
9 Dr. Paul Linden, Ph. D. was the Director of Engineering at Laurentian from 1981 to 1995. Following a one year sabbatical, he returned to his role as Director of Engineering until his retirement in 2003. He testified that the two year part course in Chemical, Mechanical and Civil Engineering had its origins in the University of Sudbury which became Laurentian University in 1960.
10 This two-year part course was intended to function as a "feeder" to the other seven Engineering schools in Ontario. It serviced the engineering needs of northeastern Ontario. It was established because it was convenient for the students of that area, given the time and distance which would otherwise be involved in travelling to other Engineering Schools in southern Ontario. Also taking the first two years in Sudbury would result in a cost saving to area students.
i) Laurentian Student Calendar and Student Guide
11 Laurentian's Student Calendars through the 1990's are consistent in their description of the two year part course in Civil, Mechanical and Chemical Engineering in that the first year of the program is common to all branches of Engineering. In second year however, students select one of these three fields of specialization or, Mining Engineering or Extractive Metallurgical Engineering. At the end of the first two years the Calendar states that students may proceed into the third year in Mining or Extractive Metallurgical Engineering at Laurentian, or they "may transfer into the third year of other Universities in Ontario" if they wished to pursue the Chemical, Civil or Mechanical Engineering options. This was subsequently changed in January 2001 to state that those students who wished to transfer, "must apply" to transfer into third year elsewhere.
12 At the same time the Student Guide produced by Laurentian, and in particular for the two school years (1994-96) when the Plaintiff attended, stated that students who completed the first two years of these programs may be eligible to take advantage of a Transfer Agreement with the University of Toronto (U. of T.). Dr. Linden confirmed that this agreement was designed to enable successful students to transfer directly to third year of the relevant Engineering program at Toronto.
13 The origin of the Transfer Agreement with the University of Toronto is a letter dated April 14, 1988 from Dean Gary Heinke at U. of T., to Dr. Irvine Reilly at Laurentian. It confirmed a series of discussions between the schools and acknowledged that the courses offered in the two year part-program in Chemical and Civil Engineering at Laurentian, with some "minor exceptions", (that it agreed to change), appeared to match those courses offered at the University of Toronto. Accordingly, it was agreed that students who completed the two-year program at Laurentian may transfer to the third year in Chemical or Civil Engineering at the University of Toronto. There was no evidence before me that these "exceptions" were ever changed.
14 The Transfer Agreement was cancelled by the University of Toronto in October or November 1994. However, disclosure of this fact was never made by Laurentian while the Plaintiff was endeavouring in the fall of 1995 to pursue his transfer after completing second year.
15 Dr. Linden admitted that he became aware that the Defendant's Liaison Department was still advertising this Transfer Agreement in its Student Brochure as late as 1998. In response, he ordered the immediate deletion of any reference to it in the school's promotional material.
16 The problem confronting the Plaintiff (and others) in seeking to transfer elsewhere to complete the third and fourth years of an Engineering degree was in matching the courses taken at Laurentian with the course requirements of the school to which he proposed to transfer. As Dr. Linden testified, this is further complicated by the fact that no one engineering program is of a universal nature; all schools are different, although there are a number of similar courses. There is no standard curriculum for the Engineering programs in Ontario universities. This fact is confirmed by the Canadian Engineering Accreditation Board (C.E.A.B.) on which Dr. Linden previously served.
17 All engineering degree programs require C.E.A.B. accreditation, but accreditation is only granted to a complete program and not the two year part program at Laurentian, which is unique among the Engineering schools in Ontario. This was confirmed by Dr. Irvine Reiley a former Director of Engineering who also testified on behalf of the Defendant.
18 At a meeting of the Senate of Laurentian University on April 21, 1994, the curriculum and academic regulations of the School of Engineering were approved. The regulations provided that a student in the Bachelor of Engineering program would be considered to be in good academic standing if he or she had satisfied all conditions of admission and had achieved an average of at least 60% and failed no more than six credits in a given session.
19 The regulations also approved the program requirement that in first year all Engineering students were required to take the same five compulsory courses plus one elective Humanities or Social Sciences course in each of the first and second term of first year.
20 Similarly, Civil Engineering students in each of the two terms in second year were required to take five compulsory Engineering courses but they had the option of taking either one technical elective or an elective from Humanities or Social Sciences.
ii) Evidence of Dr. Reilly
21 Dr. Reilly admitted that while in 1988 the respective courses at Laurentian and U. of T. in Civil Engineering were fairly harmonious, as the years passed, the courses at both institutions changed. Furthermore, subsequent to 1988 and up to the termination of the agreement in 1994 there had never been any other analysis or comparisons of the curricula at the two schools that would assist students in considering a transfer. In addition, he stated that prior to 1994, U. of T. had added material to its first year which had never been a part of it before. This served to further differentiate the two schools' programs, thereby making transfers more problematic. Dr. Reilly stated that none of these problems were ever communicated to Laurentian students.
22 Dr. Reilly also admitted that:
* There is a substantial variation in the curricula of the different Engineering schools.
* There was nothing specifically written into any of Laurentian's materials for its students, that points out that Laurentian's Civil, Chemical and Mechanical Engineering course structure is different from the other schools.
* There was no warning to the Laurentian students that a transferee school would not even evaluate a student's Transfer Credits, until a formal application for transfer had been filed.
* There was nothing in Laurentian's material to its students to indicate that their transfer application would be reviewed on an individual and subjective basis by the Admissions Officers in other schools which could lead to inconsistent results.
This is borne out by the experience of the Plaintiff and his classmate Greg Spangler who had virtually identical marks at Laurentian when they both applied to transfer to the University of Toronto. Spangler was admitted but Olar was not. Dr. Reilly concluded that this reflected the fact that they were being assessed by different Admissions Officers. Even though he was admitted, Spangler was not given full credit for his Laurentian experience as he was required to take additional ("make-up") courses at U. of T., which added one year to the acquisition of his degree.
* Laurentian's material provides no information about the minimum academic standards of the other Engineering schools.
* Laurentian's material makes no reference to the fact that even if a transfer were possible there may not be space available for that student in the third year of the transferee school.
* Dr. Reilly agreed that it would be of great assistance to Laurentian students to pre-determine and then publish for them, the curricula criteria of the other Engineering schools for the purpose of transferring from Laurentian's two year course.
23 The problems of trying to match Laurentian's courses with other schools is illustrated by the conversations Dr. Reilly had with the Dean at the University of Windsor in the 1990's on the subject of student transfers. He was told by the Dean that at that time that there were three courses offered at Laurentian which could assist a transfer to Windsor. However, Dr. Reilly confirmed that at least two of them were not part of Laurentian's Civil Engineering program at all, and none of them were mandatory. Even if the courses could be offered, there were additional scheduling problems that could have arisen for a student for the remainder of his courses. There was also the concern of prerequisite courses that might be required, their availability and possible adverse implications for the student's course load. A fourth course at Windsor, Environmental Engineering, was not even offered at Laurentian.
24 In other words, a seamless transfer from Laurentian elsewhere was impossible, since the courses at the various Engineering schools varied so much. In all likelihood extra courses would have to be taken in order to complete a degree elsewhere.
iii) The Evidence of Dr. Linden
25 Dr. Linden admitted that in October or November 1994, Dean Charles at U. of T. wrote to him and stated that it did not wish to renew the Transfer Agreement. This was never communicated to either the Plaintiff or Spangler nor, would it appear, to any other student.
26 This letter came as a result of Dr. Linden's intervention on behalf of a Laurentian student of Chemical Engineering who wished a Transfer to U. of T. following her completion of the two year part course.
27 In his investigation, it appeared that she was accepted on a part-time basis only and she would have to take additional courses eliminating therefore, her transfer directly into third year. Her application had been made through the normal Registrar's channel and was apparently refused because that office was not even aware of the existence of the Transfer Agreement. It was only after his direct intervention on her behalf that she succeeded in being accepted directly into third year.
28 Dr. Linden also testified about three other Laurentian students, who each had 70% in their courses and likewise attempted to transfer to U. of T. Only one of them was accepted into third year.
29 While Dr. Linden denied that he ever gave the Plaintiff or any other student in the two year program any assurance that Laurentian's curriculum would be the same as other schools, he never communicated to the engineering student body that all the other Engineering schools were individually different, with varying curricula and degree requirements.
30 As previously noted, the Transfer Agreement had ceased to operate in the fall of 1994, but it was not until April 1998 that the Laurentian Liaison Office was instructed by Dr. Linden to delete any further reference to it in its promotional material.
31 Dr. Linden also admitted that the availability of transfer places elsewhere was never guaranteed nor was there even a benchmark performance level established for an automatic transfer acceptance; although he did express the view that a 70% average with no failed courses might provide the basis for a ready acceptance. While this may have been, in his mind, a reasonable approach, this was never communicated to Laurentian students.
32 There was an obvious shortcoming in the Laurentian system recognized by Dr. Linden. In April 1998 correspondence with the Liaison Department, he stated that if a student at Laurentian was firmly committed to Chemical, Civil or Mechanical Engineering and had an offer of admission to an institution with a full four year program, he would "need a good reason to choose Laurentian and no promotional activity should fail to acknowledge this."
33 The reservations expressed by Dr. Linden to the Liaison Department in April 1998 were amplified in e-mail correspondences with Dr. Douglas Parker, the Vice-President of Academic Affairs at Laurentian on October 29th, 1999. In response to an inquiry by Dr. Parker as to the nature of the advice normally given by Dr. Linden to Engineering students who request information on the transfer issue, he replied that he points out that there are risks associated with curriculum mismatch as well as admission requirements and transfer credits awarded by the transferee school. He stated that if a student were offered a direct admission to an Engineering School with a full program in the discipline of their choice, acceptance of that offer would remove the uncertainties associated with the transfer issue. As he had told the Liaison Department a year earlier, a student should have some good reasons to undertake the partial program at Laurentian. He did acknowledge however that in the case of some students, the prospect of lower living costs, and smaller classes at Laurentian might make it their logical school of choice.
34 This did not end the issue. In a subsequent memorandum to Dr. Linden on November 2, 1999, Dr. Parker observed that it was crucial for the School of Engineering to review its programs in order to ensure a smooth transition with other Universities and that he expected Laurentian to approach other Schools of Engineering to obtain written assurances that Laurentian Students would be able to proceed into years three and four elsewhere.
35 Dr. Linden's response on November 8th very thoroughly speaks to the shortcomings of the entire transfer issue. In it, he pointed out that there were a number of constraints and he stated;
The first two years of engineering curricular differ significantly both by institution and by discipline. Program structures usually introduce some discipline-related courses in the first year and further discipline specialization in the second year. Our partial programs cover a good selection of courses, typically contained in the first two years of the corresponding disciplines at other institutions, while making maximum use of the courses included in our own degree programs. Offering a broader range of courses for the partial programs, to provide a better fit elsewhere, would require the allocation of increased faculty resources for that purpose. Are you prepared to make such an allocation?
The availability of places in the upper years of engineering programs at other institutions is dependant on capacity, its own first year enrollment and the attrition rates in first and second years. While space may be made for a small number of excellent students seeking transfer, any institution should target first year enrollment to utilize the capacity of upper years. A formal assurance of transferability for Laurentian students would require a reservation of upper end capacity and foregoing enrollment and revenues in first and second years to do so. There would seem to be no reason for another institution to do this.
Also, all engineering degree programs require C.E.A.B. accreditation to satisfy the academic requirements for professional practice. C.E.A.B. guidelines include a critical evaluation of credits awarded to transfer students entering engineering programs. While a generalized evaluation on how a transfer student from Laurentian might fit into the other institution's program could be made, if the other institution had any incentive to do so, any written assurance or guarantee of transferability would tie that institution's program accreditation to Laurentian and Laurentian would become a part of the C.E.A.B. accreditation evaluation for that institution. I do not believe that any institution would want external programs, over which it has no control, to be an integral part of its accreditation evaluation. This would be particularly so when the external programs are at Laurentian which has not shown a commitment to maintain accreditation of its own engineering degree programs.
I believe, therefore, that a quest for written assurances of transfers from Laurentian by other institutions is naÔve and unrealistic. I suggest that, if you choose to pursue such assurances, it should be at the vice-presidential level, where other considerations might apply.
36 These two series of correspondences speak dramatically to the underlying weaknesses and risks inherent in the Defendant's two year program.
37 As noted earlier, Dr. Reilly also stated that the availability of places in third and fourth years elsewhere is entirely dependant upon the space capacity of those other institutions. This is particularly significant when one considers the fact that students enrolled in Chemical, Civil and Mechanical Engineering have no choice but to transfer elsewhere. As Dr. Linden put it, there is a very real and substantial risk involved in the transfer process which could be alleviated if a student were to be enrolled in a full four year program elsewhere. Despite the fact that through their collective wisdom and experience, Laurentian's Faculty and Administrators were very much aware of the risks and pitfalls facing a transferring student, its material is virtually devoid of any of this information during the relevant time periods.
38 Dr. Linden also testified, with respect to the Transfer Agreement with Toronto, that there had been an "understanding" at one time that those Laurentian students who had attained 70% would be accepted, providing that the numbers were small. However, there was no reference anywhere in the University's material of such an academic standard.
39 It is abundantly clear from the evidence of Dr. Linden and the other University witnesses, that not only are the course structures at Ontario Engineering Schools quite different, (which itself could potentially make transfer elsewhere problematic) but this problem is compounded by the fact that curricula at all the Engineering schools change and evolve on a fairly regular basis and this constant change also makes transferring more difficult. Furthermore Laurentian's two year program is unique in Ontario.
iv) Laurentian Promotional Material
40 Against this backdrop, there was virtually no communication of this critical information by the Defendant to the Plaintiff and other students. None of the issues referred to by Dr. Linden and Dr. Reilly appear in the University Calendar, the Student Guide or the Brochure produced by the Liaison Office. To the contrary, the Student Guide for the year 1993/94 and 1994/95 suggests quite the opposite insofar as a transfer to the University of Toronto is concerned. It merely describes the students as being eligible to take advantage of the agreement which enables a direct transfer into third year at Toronto.
41 The Guide for these years states:
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 Toronto ... . [Emphasis added]
42 Similarly the Calendar states:
Students having successfully completed the first and second year program 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. [Emphasis added]
43 In my view this promotional material is ambiguous in the sense of being doubtful and equivocal. It is also misleading.
44 The critical pieces of information set out above and within the knowledge of Drs. Reilly and Linden defined the shortcomings in the system in 1998 and 1999. However, there was no evidence before the Court that the system was in any way different back in 1993 when the Plaintiff would have first examined the Defendant's material which ultimately lead to his attending there in 1994 and 1995. This information was available and should have been disclosed to the students either at Registration or Orientation. There was no evidence before the court to suggest that this was done, or even considered.
45 While Drs. Linden and Reilly knew of these shortcomings, this was not divulged to either the Plaintiff or his classmate Spangler when they separately met with these people in the fall of second year. Both Olar and Spangler testified that there was no such disclosure. Although neither Dr. Linden nor Dr. Reilly could remember meeting with the Plaintiff or Spangler, I accept the evidence of the two students that it did take place. The Plaintiff and Spangler both testified that they were given the impression from this meeting that the transfer agreement with U. of T. was still in place. It is the lack of clarity and communication by Laurentian to its two-year Engineering program students that is problematic.
46 In my view full disclosure on a timely basis to student-applicants such as the Plaintiff should have been made. The diversity and the constant evolution of curricula at Engineering Schools across the Province made the potential for a seamless transfer from Laurentian at the end of second year into third year elsewhere, difficult if not impossible. Dr. Reilly testified that he encouraged students to select courses with a view to matching. However, institutionally, the Defendant ought to have made this fact known to students much earlier as well as the various other issues known to the administrators. Perhaps, then, armed with this information a Laurentian student on registering these might choose to engage in a form of "shadow registering" (my emphasis) with one or more potential transferee schools to increase his/her chances of a successful and seamless transfer elsewhere. Alternatively, when faced with this potential transfer problem a student might choose, as Dr. Linden stated, to go elsewhere for a full four-year program and avoid the whole transfer hassle. However, because virtually none of the transfer issues were ever shared with the students they were deprived of this strategic option.
47 Dr. Linden's challenge to Dr. Parker in their November 1999 correspondence, that increasing the courses available in the two-year program would enhance the matching with other schools after the second year, was echoed by Dr. Reilly who testified that the program was never expanded because of funding issues at Laurentian as well as competition from other Departments in the school. This all made expansion of the two year program impossible. This point was also made by the Registrar Ron Smith to Dr. Parker in a letter dated November 1st, in which he stated:
I believe the School of Engineering should review each of its 2 year programmes to ensure a smooth transition with other Universities ... .
48 Dr. Reilly also confirmed that two of the most important factors in affecting a student's transfer was whether space was available at the other school as well as the grades of the Laurentian student. Many other schools, especially the larger ones where the competition is more severe, require nothing less than a C+ in order to obtain Advanced Standing on a transfer. However, as with so much other pertinent information critical to the issue, there was no mention of any of this in Laurentian's material.
49 Former Associate Dean Phillip Alexander of the University of Windsor also admitted that an application for transfer is an administrative process and as such, is subject to individual variations. In the case of the Plaintiff, he was initially given full credit for his first year at Windsor, but he was registered into second year with only six credits, which meant that he had to take six more. On a subsequent review, his course credits were increased, but he still required an additional year to complete his Bachelors degree. He also admitted that even if the Plaintiff had taken three additional courses of Laurentian's Chemical Engineering, plus Vector Calculus, he would still be short by one full course credit because of the difference in curriculum criteria.
50 The difficulties in matching the differing course curricula of Laurentian and other schools was also experienced by Greg Spangler when he applied to transfer to U. of T. He was required to take six "must take" courses there because these were not offered at Laurentian. He completed three of them in each of the two terms of his third year, however, in the end it took him an extra year to complete his Engineering degree. The only assistance he ever received from Laurentian in respect of the transfer came from a comment by Dr. Reilly that he should match his courses as best he could.
51 Olar applied to U. of T., in 1995 and was accepted only into second-year. Furthermore he would not be able to start until the following spring term. This would delay his graduation by 18 months. At both Queen's and Waterloo Universities, he would be required to take an extra year because of the lack of appropriate matching courses. He eventually decided on the University of Windsor.
52 In his Affidavit sworn January 15th, 2001, Dr. Reilly states that he has been a Professor at Laurentian's Engineering School for 35 years and he has been a first year counsellor since 1992. He also testified that he has never indicated to transferring students that a transfer after second year would be guaranteed or that they could automatically transfer to any other Ontario University.
53 This is, however, somewhat at odds with the University's Calendar and Student Guide which, for the relevant period of time, have consistently stated that a student "may transfer elsewhere" or, in the case of the University of Toronto the Transfer Agreement that existed between Laurentian and U. of T. would enable students to Transfer "directly to" third year at Toronto.
54 As I have indicated, in my view the manner in which the transfer issue generally and to U. of T. particularly, is referred to, is deficient to the point of being misleading. A transfer is subject to a number of external factors none of which are described.
55 The external factors which have been previously referred to in the evidence of Drs. Linden, Reilly, Associate Dean Alexander, and Registrar Smith, while known to Laurentian and substantially beyond its control, were unknown to and completely beyond the control of the individual student. Any one of these factors could drastically affect his/her plans to transfer into third year.
56 The Plaintiff admitted that by the end of his second year he was short two elective, non-technical courses in order to complete his first two years. He had attained 66 of 72 course credits. Laurentian argued that this result demonstrated that he had not "successfully completed", his two year program. He testified that it was not the non-engineering courses which held him back and I accept this. He had earlier deposed in his Affidavit that; "it was not the elective course which held me back. Even if I had taken all the courses on the Calendar and had A's in every single course, it would have not made any difference." Andre Bom, his friend and fellow student stated that he completed his two years at Laurentian with full credits but was also set back an extra year because universities in Windsor, Ottawa and Hamilton required certain prerequisite courses that were not offered at Laurentian. Similarly, Greg Spangler also completed his two years with full credits but was still required by the University of Toronto where he was accepted, to make up core courses which were missing from his first and second years. Therefore he too required a total of five years to complete the four year degree program there.
57 It is reasonable to infer from this evidence together with that of Drs. Linden and Reilly, Registrar Smith and Associate Dean Alexander, that it was a probability approaching a certainty that a Laurentian student would require make-up courses in order to successfully transfer elsewhere. This would in all likelihood, involve taking an extra year to complete the four year Engineering program.
58 Furthermore, the notion of "successful completion" as defined in Laurentian's Calendar is qualified in my view by the Minutes of the University Senate of April 1994 which mandated from the academic regulations of the school, that a student in the two-year Engineering program, where all courses were mandatory, would be considered to be in "good academic standing" if he/she:
* Satisfied the conditions of admission, which the Plaintiff obviously has here.
* Has attained an average of at least 60% and has failed no more than 6 credits.
59 There is no doubt, from the marks attained by the Plaintiff as revealed by his transcript, that in each of his two years at Laurentian he attained an average of at least 60%. In addition it is clear from a review of his academic record that the Plaintiff did not fail any courses.
60 The "good academic standing" status as defined by the Minutes of the Senate also state that a student cannot have failed more than six course credits. As noted the plaintiff did not fail any courses; he dropped one non-engineering course in Humanities/Social Science in each of the two years. In place of them he took two additional technical engineering courses (which he likewise passed) in order to enhance his chances of a transfer. The Plaintiff stated that this decision was made after the consultation with Dr. Linden and Dr. Reilly referred to above.
61 The Plaintiff's attempt to transfer to U. of T., as well as Queens and Waterloo into third year were frustrated by the fact that each of these schools required another full year of engineering courses to complete his degree because of the disparity in curricula with Laurentian. Their refusal to admit him to third year had nothing to do with any Humanities or Social Sciences requirements. There was no evidence before the court, that had he taken the Humanities or Social Science Electives, the Plaintiff would have avoided an additional year in any of those other University Engineering programs.
62 While Olar was eventually accepted at Windsor, it took some negotiating on a subjective basis to increase the course credits from Laurentian. But even then he still required an additional year to complete his degree.
63 Whether an additional year could have been avoided by a more precise analysis of Laurentian's offerings as against the requirements of other Engineering schools before the Plaintiff began his academic career at Laurentian in the fall of 1994, is speculative. However, the lack of disclosure in its published materials of the problems and the issues associated with the ultimate mandatory transfer after second year meant that Olar was, in effect, denied the option even before accepting an offer to enroll at Laurentian of determining whether he could successfully transfer elsewhere without restrictions, or avoid the hassle of the transfer issue altogether by seeking admission into a full four year program elsewhere.
64 While the Plaintiff did admit that by attending Laurentian he would be closer to home and it would be cheaper, I heard no evidence that these issues were anything more than a convenience, as opposed to a necessity. He was employed during the summers before and during his attendance at Laurentian and there was no suggestion that money would have been a prohibitive factor in attending an engineering school elsewhere.
65 Without attempting to put too fine a point on this, when all of the complexities of the transfer process are taken into account in my view the Defendant owed the Plaintiff a duty of timely and meaningful disclosure of the transfer issues so as to enable him to choose between starting at Laurentian or attending elsewhere. He was deprived of the opportunity to make an informed choice and this cost him an extra year to obtain his degree.
66 Laurentian not only had the knowledge but the ability to address this deficiency but it chose not to. In my view, it must be held to account for this.
67 With respect to the first issue, I find that the Defendant did owe a duty to the Plaintiff to disclose with a reasonable degree of particularity, the potential difficulties the Plaintiff would have when required to transfer from Laurentian after second year in order to complete his Engineering degree, as opposed to seeking admission to a four year course elsewhere.
68 I conclude that there has been a negligent misrepresentation by the Defendant. The five constituent elements for this have been established. (See Queen v. Cognos Inc.,  1 S.C.R. 87 at 110).
69 The relationship between the Plaintiff and the Defendant is contractual in nature involving his acceptance of registration, payment of tuition, and attendance at classes. (See Ciano v. York University,  O.J. No. 183 (Superior Court) at para. 15.
70 The notion that duty of care exists between a university and its students is not without precedent. The courts have established that the duty of care of the university is based upon a "special relationship." Similarly, in this case there is sufficient evidence to find that the defendant, Laurentian University, owed a duty of care to Mr. Olar. The defendant ought reasonably to have foreseen that students would rely on the statements included with the Student Guide and Calendar. These promotional materials were published with the intention that students would read them and rely upon the information included in order to become informed about the academic programs offered and to assist them in their decision about the academic program that they wanted to pursue. Because of this, it was reasonable for a student like Mr. Olar to have relied on these statements.
71 Further, I do not believe that there are any policy considerations that would apply here to negate the duty of care. The University published these statements with the intention and knowledge that the students would read them and the plaintiff relied upon the statements for the very purpose for which they were published. The duty of care found to apply should not in any way be limited by public policy considerations here.
72 The representations were deficient to the point of being inaccurate or misleading. Virtually all of the risks and pitfalls that would face the Plaintiff were known by the Defendant, but virtually none of it was communicated to him either personally or in any of the Defendant's material.
73 I accept the Plaintiff's evidence that had he known of the problems associated with the transfer, he would have sought registration in a full four year course elsewhere and, given his academic record there is no doubt that he would have succeeded.
74 As I have noted, even Dr. Linden acknowledged in his discussions with the Liaison Department that it might be preferential for a student to register in a full four year course elsewhere, rather than Laurentian. The whole transfer process had a fatal flaw in it, as expressed by Dr. Linden to Dean Parker in their exchange of e-mails in November 1999.
75 I conclude therefore that the relationship which existed between the Plaintiff and the Defendant is a special one which gives rise to a duty of care. I find that Olar relied on the information in the Defendant's Calendar and Student Guide and that his reliance was reasonable in the circumstances, especially considering that none of the external factors which adversely affected the issue had been communicated by Laurentian to Olar.
76 Laurentian's program was unique and was very much dependant upon a set of conditions or circumstances which were fully known to it. By failing to disclose this, the Plaintiff was deprived of the opportunity to make an informed choice of either accepting Laurentian's program with its shortcomings or registering elsewhere for a full program.
77 Iacobucci J. in Cognos, supra, at paragraph 71 found that the standard of care to be adopted with respect to this type of conduct is that of the reasonable person.
The standard of care required by a person making representations is an objective one. It is a duty to exercise such reasonable care as the circumstances require to ensure that representations made are accurate and not misleading ...
Professor Khar provides some useful insight on this issue (at P.160):
An advisor does not guarantee the accuracy of the statement made, but is only required to exercise reasonable care with respect to it. As with the issue of standard of care in negligence in general, this is a question of fact which must be determined according to the circumstances [page 122] of the case. Taking into account the nature of the occasion, the purpose for which the statement was made, the foreseeable use of the statement, the probable damage which will result from an inaccurate statement, the status of the advisor and the level of competence generally observed by others similarly placed, the trier of fact will determine whether the advisor was negligent.
78 Nowhere in its material is there any reference to the critical issues that would inevitably affect a Laurentian student's attempt to transfer to a four year program elsewhere. Use of the phrase "may transfer" or reference to the Transfer Agreement with the University of Toronto is misleading. A reasonable interpretation of the Defendant's materials from the Plaintiff's perspective is that a transfer elsewhere was routine and would be devoid of any problems. I conclude that in the context of the relationship between Olar and Laurentian, that the information as conveyed together with that which was known and not disclosed, constitutes a misrepresentation by Laurentian.
79 Laurentian University was not behaving in a reasonable manner, consistent with its own duty of care, when it continued to publish information in its Liaison Department Brochure which made reference to a transfer agreement that no longer existed. Furthermore, Laurentian should have perceived and appreciated the risks of improperly informing students about the ability to transfer to other universities upon completion of the two year partial program in Civil Engineering. Once this information became known to the university, at the earliest in June 1994 and at the latest in November 1994, it had a duty to exercise reasonable care and ensure that this information was disclosed to students. Laurentian failed in this respect.
80 Laurentian argued that Olar did not meet his responsibility to act reasonably and relied on the case of Crearer v. Grande Prairie Regional College,  A.J. No. 1782, (Q.B.). In that case the College was found liable for failing to provide correct advice to the Plaintiff student with respect to transferring elsewhere. However, that case is distinguishable from the one at hand in that the Transfer Guide which was available to students in Crearer, supra, provided correct information with respect to the obligation that the student must undertake in seeking to transfer elsewhere. Obviously, the point of distinction here is that there was virtually nothing communicated by Laurentian to its potential students about any of the issues which had to be considered in attempting to affect a transfer.
81 The court in Crerar, supra, established that the student must act reasonably to succeed in actions of negligent misrepresentation. Here, it was reasonable for Olar to have relied on the statements included with the Calendar and Student Guide and it appears that he did in fact rely on them; otherwise, there would be no reason for him to accept the offer of admission.
82 It was also reasonable to expect Olar to have taken personal responsibility to investigate transfer requirements independently and maintain a course load that would enable him to transfer most easily into the third year of another Ontario university. I find that Olar's efforts to meet with Dr. Linden and Dr. Reilly to determine his options with respect to the transfer and his subsequent decision to include additional engineering courses in his curricula were reasonable. These were choices that demonstrated a genuine effort to ensure a smooth transition into the third year of another university and reinforce the view that the Plaintiff acted reasonably in this case.
83 In my view what accentuates the responsibility of Laurentian is the fact that transferring elsewhere for third and fourth year Civil Engineering was not an option for Olar, it was a necessity. Having induced him to attend Laurentian, it had the obligation to make him aware that there was a probability that registration in its two year program might result in an additional year being required to complete a four year degree.
84 The Defendant also argued that the Plaintiff's case, in effect, is a claim for educational malpractice and it relies on case law which supports the principle that curriculum and course content are matters that fall within the academic affairs of Laurentian and ought not to be the subject of review by the courts.
85 The Defendant also argued that the statements contained in the Calendar and Student Guide include words such as "may" and "enable" which are permissive and cannot be found in negligent misrepresentation claim. The decision in Wong v. Lakehead University  O.J. No. 1901, is relied upon in support of this argument. However, in my view that case is inapplicable to the present circumstances. In Wong, supra, it was determined that the use of the word "may" was held to reserve a discretionary element to the University. The case does not stand for the proposition that a permissive statement cannot be found an action for negligent misrepresentation. In fact, the Defendant did not provide any authority in law, to substantiate this particular argument.
86 In my view the use of the words "may" and "enable" within the statements, does not detract from the fact that a representation was made to students which suggested an ability to transfer to the third year of another Ontario University and the ability to take advantage of a transfer agreement in existence with the University of Toronto. It also does not detract from the failure of the University to include a disclosure to students of the difficulties that would likely arise in the course of transferring.
87 The Defendant also argues that no action lies for negligent misrepresentation in respect of a statement that forecasts the future and says that the statements in question refer to the ability in the future of a student to transfer to another University and the ability in the future to take advantage of the transfer agreement. It argues that neither statement represents an existing statement of fact; therefore, the statements cannot be found an action for negligent misrepresentation.
88 The Defendant relies on the proposition set out in the Hembruff v. Ontario Municipal Employees Retirement Board  O.J. No. 4667, which sets out the following principle with respect to actionable misrepresentations, at paragraph 76:
A representation which amounts merely to a statement of opinion, judgment, probability or expectation, or is vague and indefinite in its nature and terms, or is merely a loose, conjectural or exaggerated statement, goes for nothing, though it may not be true, for a man is not justified in placing reliance on it. [Emphasis mine]
89 The Defendant also relies on the decision by the Manitoba Court of Appeal in Foster Advertising Ltd. v. Keenberg (1987) 35 D.L.R. (4th) 521 where the court dismissed a negligent misrepresentation claim on the ground that the statement in question was "... a forecasts as to the future." It should be noted, however, that the statement made by the Defendant in that case, which was characterized as a prediction of the future, was determined on the evidence to, in fact, be a correct representation.
90 In Datile Financial Corp. v. Royal Trust Corp. of Canada  O.J. No. 1859, the court asserted that one requirement of a representation is that the communication be in relation to a fact that exists at the present time or in the past.
91 In my view, the statements provided by the Defendant within its Calendar are statements of fact that existed in the present. They did not amount merely to a "probability" or "expectation". Their publication was maintained over the course of approximately 9 years. As such, it would have to be relied upon not only by students considering an application to Laurentian, but also when the students made their determination to transfer. The statements made specific reference to the availability of a transfer agreement that was not described as being made in the future, but rather, was in existence at the time of publication. It was not purely a "forecast of the future"; it was a statement of fact. Accordingly these statements are distinguishable from Hembruff, Foster Advertising and Datile, supra, where the negligent misrepresentation claim was denied.
92 However that may be, as I have concluded the Plaintiff's claims against the Laurentian is based on misrepresentation caused by its promotional material and its failure to disclose highly relevant information to Olar on the transfer issue, the issue of educational malpractice is not engaged.
ISSUES OF DAMAGES
ECONOMIC LOSS AND SPECIAL DAMAGES
93 The final consideration that must be assessed within the negligent misrepresentation claim is damages. I conclude that the plaintiff sustained an economic loss, in the main, reflective of a one-year delay into the job market. The Labour Economist, Dr. Michael Charette, who testified on behalf of the Plaintiff, calculated the Plaintiff's total earnings loss to be the sum of $115,320.00 whereas Ms. Deborah Carter, an Economist who testified on behalf of the Defendant, estimated it to would be between $104,994.00 and $109,359.00.
94 The two opinions on this point are approximately $11,000.00 apart which, Dr. Charette concluded is not unusual in the circumstances of this case.
95 I accept the assumption put forward by him that the Plaintiff would have completed his course in 1999, but for the delay. As a consequence Olar has sustained a loss on two counts; firstly, a one-year loss arising from the delayed entry into the job market and secondly, an experiential loss reflective of the fact that throughout his career relative to his contemporaries, the Plaintiff will always be a year behind which will likely impact negatively on his future income.
96 I also accept Dr. Charette's analysis that the Plaintiff's loss includes a future income loss component which he quantified at $49,200.00, which is the difference between his future income loss without the delayed entry into the job market and the future income loss reflective of this delay.
97 With respect to past income loss, Dr. Charette analyzed statistical data for Engineers in the 25-34 year age group which is most likely the cohort into which the Plaintiff would fall and concluded that a salary of this group without a delay averaged $77,236.00 whereas the actual salary of the Plaintiff with the delay was $75,012.00.
98 He therefore concluded and I accept that the past loss of income was the sum of $66,120.00 which reflects an income employment differential without the delay as compared with the delay.
99 Together, these two sums comprise the Plaintiff's economic loss of $115,320.00.
100 I accept the report of Dr. Charette in preference to that of Ms. Carter and in support of my decision on this, I note the following:
(i) Ms. Carter adjusted her second and third reports of September 11, 2006 and November 10th, 2006, respectively, to attribute income to the Plaintiff, closer in value to that expressed by Dr. Charette.
(ii) She relied upon general census data whereas he preferred to use statistical data which in his view was more realistic with respect to an Ontario Civil Engineer with a Master's Degree, than the data compiled from the census.
(iii) While each considered the notion of negative contingencies, Dr. Charette concluded that the usual ones relating to a claim for future income concerning work, family issues, illness or early retirement would be offset by the positive ones which would include the likelihood of future promotions as well as increases in non-wage benefits. In his view, they were almost the same and therefore he set off one against the other. However, Ms. Carter concluded that the negative contingencies would approximate 18% which would be the equivalent to 6.3 years of the Plaintiff not working for various reasons in the future, whereas Dr. Charette's calculation had been 5.6 years. I preferred his analysis which was based on the reasonable assumption that the Plaintiff would have a higher participation rate in the workforce than the general population because his record reflects that he is someone who is obviously ambitious, has had substantial academic success and the experiential advantage of co-op employment while still at University, all of which would make him more employable in the early years of his career.
(iv) Furthermore in Dr. Charette's view, because he is someone who is not likely to benefit from a defined pension plan, the Plaintiff would probably be inclined to work longer, which would therefore increase his rate of employment participation.
101 In addition to the employment issues, I am satisfied that the Plaintiff also sustained an extra-ordinary expenditure of $5,300.00 for tuition and books, in order to finance the additional year of his education.
102 I find therefore that the Plaintiff's total loss is the sum of $120,620.00.
103 The answers to the issues posed in paragraph 8 are as follows:
(1) The Defendant did owe a duty of disclosure to the Plaintiff.
(2) It breached its duty.
(3) The breach by the Defendant resulted in a delayed entry of the Plaintiff into the workforce.
(4) As a result of the breach by the Defendant, the Plaintiff has sustained damages in the sum of $120,620.00.
(1) There will be judgment for the Plaintiff in the sum of $120,620.00.
(2) The Plaintiff shall have his costs. If the parties are unable to agree they may make written submissions not to exceed two pages. The Plaintiff shall serve his on or before July 15, 2007 and the Defendant within 30 days thereafter.
R.C. GATES J.