February 25th, 2013
In this case, self-represented students sued the University of Toronto after they were expelled as a result of several failing grades and a series of deferrals to care for an ailing parent abroad. They sought damages arising out of breach of contract and breach of the duty of care.
In 2007, Houman Mortazavi and Mojgan Yousefi, a married couple originally from Iran, enrolled in the doctoral program in Economics at the University of Toronto. Soon after, Mortazavi’s father became seriously ill and they returned to Iran to care for him. In the meantime, Mortazavi and Yousefi contacted the University to defer their studies for a year. While Yousefi’s deferral was immediately approved, Mortazavi’s was declined until he could return to Canada and resolve the issue with the University. They re-enrolled for the fall 2008 term.
In early October, Mortazavis’s father’s health declined significantly and they returned to Iran. They exchanged emails with the University and applied for another leave of absence. It was later cancelled and they received failing grades for the fall 2008 term. Mortazavi and Yousefi say it was arbitrarily refused.
While they started the winter 2009 term, their studies were interrupted again after Mortazavi’s father died in March. Mortazavi and Yousefi say they gave the University notice of the death. However, the University says that no contact was made until the Department informed them that proceedings were underway to terminate their registration in May.
By the summer, they were no longer enrolled and had lost their positions as teaching assistants. However, they were still in discussions with the University as to the future of their academic status.
In 2011, Mortazavi and Yousefi appealed their failing grades to three appeal bodies within the University. Ultimately, their failing grades from fall 2008 were substituted for withdrawals, but they retained two failing grades from the winter 2009 term.
Instead of seeking judicial review, Mortazavi and Yousefi filed a statement of claim against the University. They sought $80 million in damages arising from the University’s alleged breach of its contractual duties and breach of duty of care owed to Mortazavi and Yousefi. The motion judge struck out the claim under Rules 25.06 and 25.11 of the Rules of Civil Procedure, RRO 1990,and Regulation 194.
Rule 25.06 requires that every pleading “shall contain a concise statement of the material facts on which the party relies for the claim or defence.” Rule 25.11 allows a judge to strike out a pleading, with or without leave to amend, if the pleading “(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of process of the court.” The statement of claim was 187 pages long and filled with repetition. On this basis, the motion judge found that it violated Rule 25 and struck down the claim (para 18).
Moreover, the motion judge was confident that the statement of claim did not disclose a reasonable cause of action under Rule 21 and so did not allow leave to amend (para 18).
The Court did not challenge decision to strike down the claims under Rules 25.06 and 25.11. However, the Court was not convinced that the claim was bound to fail and held that Mortazavi and Yousefi should be granted time to perfect their appeal (para 35).
To grant an extension of time to perfect an appeal, the Court must consider whether justice would be better served in this case if more time were allotted to the applicants (Issasi v Rosenzweig, 2011 ONCA 112 (CanLII), at para 4). To apply the principle, courts balance the following four factors:
1. Whether the appellant formed an intention to appeal within the relevant period;
2. The length of the delay and explanation for the delay;
3. Any prejudice to the respondent;
4. The merits of the appeal.
In this case, the central issue is whether the merits of the appeal warrant an extension. Specifically, the Court must assess whether the claim can be struck down under Rule 21 because it is “plain and obvious that the claim will fail” (Hunt v Carey Canada Inc,  2 SCR 959). To determine whether the appeal of the motion judge’s decision should be allowed, the Court assessed whether it is plain and obvious that Mortazavi and Yousefi’s claim would fail on appeal (para 27).
The Court held that certain elements of the claim are not bound to fail: specifically, (1) the allegedly arbitrary delay in granting Mortazavi’s deferral in 2007; (2) the alleged mismanagement of their request for a leave of absence in 2008; and (3) the University’s failure to waive Mortazavi and Yousefi’s fees in 2008 (para 29).
The strength of the Court’s argument relies on the fact that, when considering a motion under Rule 21, the judge must assume that all the facts in the statement of claim are true. This is a case where the viability of a finding for Mortazavi and Yousefi depends heavily upon whether their presentation of events is accurate. The facts underlying the claim have yet to be examined through a proceeding, which may underline the need for an extension so that such a proceeding can take place.
Moreover, while courts are generally unwilling to interfere in the adjudicative processes of academic institutions, recent case law suggests a shift underway. In Gauthier v Saint-Germain, 2010 ONCA 309 (CanLII), the Ontario Court of Appeal found that a claim arising out of an academic context may be subject to judicial scrutiny, if it is correctly framed as a tort or breach of contract (para 46). If successful, Mortazavi and Yousefi’s case will have a large impact on academic self-governance. Specifically, the ability of academic institutions to grant or deny leaves of absence and corresponding fees for students without fear of external interference.
The progression of Mortazavi and Yousefi’s case through the judicial system is significant. At first, they pursued redress through the University appeal system. Once this failed, they launched a proceeding against the University, which by-passed judicial review. Importantly, judicial review only restarts the process, it does not have the power to change the administrative decision (let alone issue damages). It can only compel the tribunal to rehear the case and abide by its own procedures and statutory entitlements. The Court did not consider the option of judicial review as a reason to dismiss the request for an extension to amend. Laskin J.A. notes that Mortazavi and Yousefi’s case does not challenge an academic decision, but rather the conduct of the University in its relationship with them as students of the institution (para 33). However, the areas that Laskin J.A. believes might support their claim – an arbitrary refusal of a deferral, mismanagement of their leave of absence and payment of fees – are all functions specific to the internal procedures of the University. The use of litigation to side-step the scrutiny of judicial review is disconcerting.