A recent decision of the Ontario Court of Appeal has effectively established a small, newly defined area in which universities no longer have exclusive jurisdiction in disputes with their students. Students seeking money as a remedy for consequences that impact on their academic situation will be able to use the precedent of the case of Manon Gauthier.
Ms. Gauthier was a doctoral student in education at the University of Ottawa who did not graduate because, she maintains, the university was negligent and in breach of contract in not providing her with adequate thesis supervision.
“It’s a significant decision by a significant appellate court,” said Rob Kligman, an expert on university case law with the Toronto law firm Cassels Brock. “Other provinces will undoubtedly take note of it.”
The decision, in Gauthier c. Saint-Germain, Boudreau et L’Université d’Ottawa, released in French in May 2010, spells out the circumstances in which a student may sue a university for damages. It came to light in October of that year in the context of a judgment by the same appellate court in another case, Jaffer v. York University. In that case, which involved an allegation that York failed to accommodate a student with a disability, Ashif Jaffer was invited to amend his statement of claim using the guidelines in Gauthier, which were not available when his case was dismissed by the Superior Court. The Appeal Court has not expressed an opinion about the merits of either case but has opened the door a crack, giving claimants Gauthier and Jaffer another chance to file a pleading in a way that the justice system would accept.
At the root of both cases is an implied contract, says Mr. Kligman. Students may have a claim for damages if it can be shown that the university did not deliver on its promises and if the allegations refer to behaviour that exceeds the jurisdiction of universities over their academic programs – in other words, if the students are not merely attempting indirectly to appeal a decision of an academic nature.
As the courts move towards a more commercial view of the relationship between universities and their students, universities should make sure they have clear documentation, said Harriet Lewis, the general counsel at York.
“We have always relied on the calendar and university policies as the closest thing to a contract that we have. It has not been seen as a business arrangement. But students, parents and courts are more consumer-oriented today,” she said. “If people are struggling to get the money for tuition, they expect to get something for it – their degrees.”
“It’s a new concept that you can show an implied contract, a breach of which would give rise to an action for damages,” added Mr. Kligman. “That mindset has existed in the U.S. for a long time.”
Ms. Gauthier alleges in her claim she was told by her first supervisor, Michel Saint-Germain, that she’d have her doctorate in education in four years, and that she would get a $50,000 admission scholarship and a teaching assistantship once she was studying full-time. In 2002, after four years of working with Professor Saint-Germain and, according to her statement of claim, rebuffing his sexual advances, she asked that he be replaced; she said in her statement that he had harassed and then intimidated her, suggesting that it would take her another four to six years. His replacement was incompetent, she alleges, causing her to spend four more years on the thesis before abandoning it in 2006 and launching an action on the grounds that misrepresentation, harassment and incompetence on the part of the university and its employees caused her economic loss and mental suffering.
In the other case, Mr. Jaffer, who has Down Syndrome but graduated from high school as an Ontario scholar, claims that if York had properly accommodated him he would not have been prevented from proceeding to second year due to an average that was below D+. He had been allowed to resubmit a paper in the summer of his first year and was led to believe, he alleges, that his standing in all his courses would be deferred while his case for more accommodation was being investigated. He maintains that negligent misrepresentation by York delayed his entry into the work force. The Superior Court dismissed the case, ruling that it was an academic complaint and must be resolved within the academic environment.
The appeal court has ruled that if Gauthier and Jaffer are pleaded properly, with specific evidence of what the contracts and breaches were, their claims could lead to an award of damages. Ms. Gauthier was invited to amend her statement of claim to show what the university had agreed to and what standards of conduct and performance are to be expected in a supervisor. Mr. Jaffer was advised to state exactly what accommodations York’s implicit contract with him promised, what accommodations he was offered, and what further accommodations he required. His amended statement of claim was filed in Superior Court on March 15, 2012.
Traditionally, the courts have declined to interfere in disputes between universities and their students where academic standing is in issue. The universities will still have exclusive jurisdiction over academic disputes in which students seek higher grades or reinstatement, but now students in Ontario who are seeking monetary damages may have their day in court.
“These cases are starting a trend about what people are suing for,” said Mr. Kligman. “It’s not so much about process to remedy the wrong. Breaking the implied agreement, misleading or harassing a student can impact on a career. Now universities are potentially exposed to a liability for damages.”
Both universities applied to the Supreme Court for leave to appeal the Court of Appeal rulings. In March 2011, both applications were dismissed. One never really knows what to make of the Supreme Court’s refusal to rule on a matter, said Mr. Kligman, but it might be taken to mean that the Court did not think it necessary to revisit the ruling by the appellate court.
Canadian post-secondary institutions must ensure that this DOES NOT open the door to ‘credit by registration’, which is prolific in online ‘diploma mills’ and attributed to the decline of the US education system.
If we are truly moving towards the commercialization of education, the contract should require the institution to establish an educational environment conducive to learning, provide quality instruction, and provide differentiating assessment. Not every student deserves an A. The contract should require the student to prepare for class, to attend class and engage in their instruction, to complete the assigned work, and to prepare for assessments. In effect, to treat their studies like a job. The interest of the student and their commitment to a given course determines their grade. If the student repeatedly fails to uphold their part of the contract, they do not get their degree.
On the plus side, this decision may effect change in the resources and effort some institutions put towards education.
Please replace previous posting by Daniel Bratton because of a typographical error:
Now if only former faculty could sue colleges and universities for damaging THEIR careers. Back in 1990, Ryerson (in the name of budget cutbacks), let go members of CUEW who had worked there as many as twenty years, doing incalculable damage to their professional lives. Some of us had actually been encouraged to remain at Ryerson with the promise that tenure-stream positions would eventually be created, yet almost overnight we were told that our lives at Ryerson were over. It was morally reprehensible, yet the administration got away with this because the cuts were all in the name of balancing the budget. Perhaps the day will come when non-tenured faculty enjoy the same legal rights as students!
Where can we find the English version of this case?:
Gauthier c. Saint-Germain, Boudreau et L’Université d’Ottawa
and moreover, this article was not something new. Always students had the option to take universities to the court if they feel they have not fairly treated. The problem is student have no resources to fight against big entities such as universities! It needs tons of dollars. Moreover, if they loose the case, then they can be held for cost! Myself as a university student felt very unfair and injustice when I was in university but had no huge money to take university to court.
Harriet Lewis may want to review her university’s (York) tribunal policy. Seems shes lacking in her Admin law skills. Procedural fairness demands that students be permitted full representation by a lawyer when potential consequences are severe. Allowing your tribunal and its representatives to ignore a student’s legal counsel is not only legally incompetent but distasteful, in the least. Great work.
The issue here is actually quite simple. Our nation is one in which the rule of law is given constitutional recognition.
When persons of capacity – one student and one university in the form of a non-share capital corporation in Jaffer for instance – have a meeting of minds and bargain for consideration in a transaction not itself illegal, what legal reasoning should apply to ouster the law of contract in governing their affairs?
Should there exist a clear legal basis for exemption for universities from the law of contract, let’s hear it.