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When students sue

There is a growing tide of litigiousness on Canadian campuses. While some complaints may appear frivolous, universities never take them lightly

BY ANNE MULLENS | APR 07 2008

Like the legendary case of the elderly woman who sued McDonald’s for $2.9 million when she spilled hot coffee in her lap, the recent case summaries of students suing Canadian universities at first make one want to gasp in disbelief or laugh at the audacity.

Take the student who took the University of Winnipeg to small claims court when he got a B+ rather than an A. Or the student who sued the B.C. Ministry of Advanced Education for $1.5 million when it stopped payment on his student loan and demanded repayment after he dropped out of Dalhousie University without telling anyone.

The case books have umpteen stories these days of students suing universities for perceived discrimination or wrongdoing, some that raise eyebrows at their apparent outrageousness. In January, the University of British Columbia won an $18-million lawsuit launched by a woman doing her master’s in English who claimed religious discrimination. The judge of the Supreme Court of B.C. dismissed the action in full on the basis of no evidence, not only finding in UBC’s favour but also awarding costs to the university.

But like the story of the McDonald’s coffee lawsuit (which the court found in the plaintiff’s favour, after all, deeming the coffee was hotter than necessary and awarding a more modest payout of $460,000), cases of students suing universities are always much more complex than simple headlines. Sometimes there is substance behind a claim that sounds out of line – such as cases about the over-serving of alcoholic beverages that lead to serious injuries. And fights over intellectual property ownership that make it to the courts are often not frivolous in the least.

Lawyers representing universities and colleges across Canada note that whenever there is real substance to a student’s lawsuit they do their best to settle as quickly as possible, sometimes changing policies and procedures to ensure no similar case arises again. But here’s the rub: the more frivolous or vexatious a lawsuit, the more a university will refuse to settle and will battle it out in court. That leads to eye-popping cases that make casual observers chuckle.

But for the parties involved, no matter how odd the facts or how seemingly frivolous, such cases are never a source of merriment.

In fact, phone calls for this story to lawyers who represent universities being sued found that many of them are reluctant to even go on record to talk about the increasing problem of frivolous or vexatious lawsuits on campuses in Canada, lest they spur more copycat suits, get slapped with slander allegations, breach client confidentiality or invite trouble with the courts.

“It’s a dangerous area to even talk about,” notes Donald Guthrie, senior consulting partner at the Toronto law firm Cassels Brock and the co-founder and past president of the Canadian Association of University Solicitors (CAUS). For 30 years, Mr. Guthrie says, he has been watching the creep of “U.S.-style litigiousness” into Canadian campuses. But he is loath to make light of them or even discuss them in substance.

“We all dread them. They are tremendously time-consuming and disruptive for both the academic staff and the legal team. They cost inordinate amounts of money and effort. They take years to resolve. They can be a huge waste of resources,” says Mr. Guthrie.

But, he adds, every so often an injustice has been done, “so you cannot give the blanket label of ‘frivolous.’ And you certainly can’t laugh about them. They are deadly serious.”

Grant Mitchell, a partner with the Winnipeg firm Taylor McCaffrey, agrees: “Every year now in Canada there are at least half a dozen that give one pause, in which a student claims a hardship or discrimination and which others might call frivolous. But yesterday’s frivolous lawsuit can wind up becoming tomorrow’s human right. We treat them all very seriously.”

Thirty years ago, a group of about 20 lawyers who represent universities in Canada – both as in-house counsel and as external counsel at Canadian law firms – became concerned about the increasing number of suits being launched against universities. They formed CAUS, an informal group that has no physical entity but consists of lawyers who get together from time to time to swap stories, share trends and experiences and link each other to case law, much of it coming from the United States.

“It seems that whatever is happening legally in the U.S., no matter how nutty it may seem at first, eventually makes its way here in some form or another,” says CAUS secretary Anthony Little, with the firm Little & Jarrett in London, Ontario.

In some cases, it is not simply the nature of the claim, but also the amount of damages being sought – in the millions and millions of dollars – that strike many observers as being “outrageous and out of line,” notes Mr. Mitchell.

Such is the case of Maughan v. the University of British Columbia. The suit was valued at $18 million to $40 million depending on how one tallied the costs. But even though it was finally resolved in the university’s favour this year, there is no victory celebration at UBC, says Hubert Lai, UBC general counsel. The case was a seven-year “nightmare” he says.

“Even if you know from the start the allegations are groundless, you have to fight it to the end when there is that amount of money involved,” he points out.

It all began with a provocative listserv e-mail circulating among graduate students in the English faculty in November 2000. A male student, writing about Stockwell Day, wrote that “he makes me recall fondly when Christians were stoned :)” – complete with the smile emoticon. Grad student Cynthia Maughan, an Anglican Christian, was offended by the e-mail and said so on the listserv. A few months later Ms. Maughan and the male student were in the same graduate-level seminar, and when students elected to hold a meeting on a Sunday in the male student’s home, she was offended and declined to attend. Still, she did not raise the issue of religion with the professor, Lorraine Weir, until she received what she thought were unsatisfactory marks on a series of papers she had written for the course about an essay by Jacques Derrida which she also found anti-Christian. In reviewing Dr. Weir’s comments on her papers for the course, combined with the earlier incidents, she said she believed an agenda of atheism was being pushed and that her religious and academic freedom was being denied.

Ms. Maughan took her complaint through every level of the internal university appeal process, ultimately to the Senate Appeal Committee, losing at every level. She also pursued a complaint under the Humans Rights Code, which she also lost. Then she launched an action in the Supreme Court of British Columbia against the university, Dr. Weir and three other English professors who had written letters of support for Dr. Weir during the internal appeal process.

In March 2003, at the start of the Supreme Court suit, UBC claimed the action was frivolous and vexatious and entirely without merit, and offered to settle for $1, not as an admission of liability but to keep it out of the courts and bring it to a swift conclusion. The offer was rejected and the case dragged on for another four years, during which time Ms. Maughan lost her counsel and went on to represent herself, including giving six weeks of personal testimony in court in 2007.

With the recent judgment, Ms. Maughan is now on the hook for hundreds of thousands of dollars in legal costs, which UBC counsel Mr. Lai estimates will represent less than 60 percent of the actual legal costs the university was forced to spend defending the case.

As Mr. Lai notes, this kind of suit reveals how the collegial but hierarchical culture on university campuses has been changing. Just a few decades ago, students would have never even questioned a professor’s judgment, let alone launch a lawsuit. Not only have students become much more comfortable questioning professors, but other factors are also coming together that make universities targets.

One is the perception that universities have a lot of money combined with a culture of liberal values that promote freedom and individual rights, posits Mr. Lai. “If someone sues IBM, they know a company like that is going to battle to the end, but universities are seen as soft targets,” he explains.

As well, students perceive much more is at stake – if they don’t get the mark they expect, they may not get into the professional school they have set their sights on. “There is a greater culture of entitlement,” says Mr. Lai. “Some say, ‘I deserve an A and if I don’t get it, it is someone else’s fault other than mine.'”

Still, the right to have recourse in the courts is an important one, notes Zach Churchill, national director of the Canada Alliance of Student Associations, a student group that is closely following the trend towards more lawsuits.

“It is important that each case be looked at individually and we don’t try to lump them all together as frivolous,” says Mr. Churchill. Involving students in every level of decision making at universities tends to lessen the likelihood that students seek redress through the courts, he notes.

Deborah Eerkes, director of the office of student judicial affairs at the University of Alberta, agrees. In the last 20 years, she says, universities increasingly have set up clear “multi-level processes” of internal reviews and investigations that give students a chance to be heard at each level.

In fact, offices like hers are new additions appearing on some university campuses to help ensure key personnel oversee complaints and disputes in a fair and open process. Particularly in cases of academic misconduct, in which a student risks being suspended or expelled from university, having a clear set of rules around academic integrity and judicial review is essential.

“If you have a clear, fair process and can show you have followed the process, it tends to stave off the lawsuits, as students feel that their concerns have been heard and they have received fair treatment,” says Ms. Eerkes.

For his part, Mr. Lai hopes that the huge costs faced by Ms. Maughan may act as a deterrent to other students looking to sue without sufficient evidence of wrongdoing.

“We have no desire to make people suffer. UBC has always taken the approach of being firm but fair, and when there is wrongdoing we acknowledge it and make amends. But if there is no evidence of wrongdoing we have no option but to fight it to the end. These kinds of cases should never come to court in the first place.”

Other stories that might be of interest:

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Anne Mullens
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  1. Tim Melgin / April 7, 2010 at 14:52

    Your article starts off on a terrible note: I think you will find, with the slightest bit of investigation, the McDonald’s lawsuit was valid (and that the woman won lends credence to the fact it was).

    The woman in question received severe burns from coffee served at nearly boiling temperatures, something McDonald’s had received complaints and warnings about previous to that incident. As well, the lid on the cup was improperly secured. McDonald’s was negligent.

  2. Jared Koch / September 8, 2011 at 20:43

    Tim is correct, they basically threw a cup of near-boiling water in the old lady’s lap.

  3. Kayle / November 11, 2011 at 09:15

    First off I thought this article was to be about students suing universities, etc. Not about the poor lady at McDonalds. Anyway, my question is what if the faculty is striking in the first semester and the students are not being re-imbursed for their tuition as it is past the limit of days. Also, what about the graduating students that will either have to take summer classes to graduate or finish in the following year? These teacher’s have been on strike for about 4-5 weeks already. If I were a student I would be irate. They want you to pay anywhere from $8,000 to $20,000 in tuition and then some idiot decides it would be a good idea to strike and I don’t get my money back and have to pay it again just so I can graduate. To sue or not to sue?

  4. W. Anan / April 24, 2012 at 20:02

    I would suggest that perhaps it would be helpful if the author can cite some cases that any Canadian University has been indeed at fault or made some judgement mistakes. There are variety of students in the post-secondary education, not only the ‘entitled’ generation, the use of which may cause some concerns. Often, they are our children or even yours, given the average age of the university faculty.

    As educators, we are here to teach and pass our wisdom to the next generation, and we hope someday they can truly take up the complex challenges of our century. For this, I would induce that the article needs to be more balanced and by doing so, may illuminate how educators may do better to facilitate true knowledge and education.

  5. Joe / November 10, 2016 at 11:57

    If these cases you speak of are such a waste of time, why do you take them on? If you can’t handle it, change your profession. You’re a lawyer for a reason. Don’t cry on a blog and say that taking on a lawsuit for suing a school is a waste of time. You’re wasting your time Guthrie for even saying that.

    Mr. Lai, you made a very large claim that universities have become soft spots for lawsuits. You’re saying that students have become comfortable enough to launch a lawsuit at their university? I don’t see lawsuits like that everyday. Universities bring in millions a year and waste it. They don’t put it towards academics or helping students. But they put millions into new stadiums, making the grounds look nice, but nothing to benefit the student. Maybe hire better professors, or fire the bad ones. Maybe you should change your profession.