Turner v York University: Final Round of Legal Battles?
Talking to York University students these days, the 2008-2009 strike seems like a distant memory. Four years ago, however, the strike was all that they were talking about. It was the longest faculty strike in Canadian university history. All in all, starting November 2008, over 50,000 students were locked out and over 3,000 teaching assistants and professors were prohibited from carrying on their courses. Three months later, the strike ended; and with the end of the lawsuit came the beginning of a protracted legal battle. The $250-million dollar class action lawsuit launched by unhappy students came to an abrupt halt in September 2009. It was dismissed by Justice Cullity of the Ontario Superior Court of Justice. The decision was then appealed. The appeal centered on certification of the class action lawsuit. Just two weeks ago, the decision in the appeal came out. Justice Cullity’s decision was upheld by a three-judge panel. It seems unlikely that the lawsuit will go any further. Finally one of the darkest periods in York University history would come to an end – but perhaps not on a bright note.
The strike was instigated by the labour union, CUPE Local 3903. It affected over 50,000 students at York University – undergraduate, graduate and professional students alike. Contract faculty, teaching assistants and graduate assistants, who are represented by CUPE Local 3903, walked off the job in early November 2008. They would not return until the new year, shutting students out of classrooms for three months. Only when provincial legislators passed back-to-work legislation on January 25, 2009 did the strike end. Not surprisingly, students returned to school disgruntled and resentful.
Shortly after the strike ended, a group of students launched a lawsuit against the University, seeking to have their tuition reimbursed during the period of the strike. They also sought damages for the losses resulting from the strike, such as the postponement of graduation. It ultimately shaped up to be a $250-million dollar class action lawsuit. Henry Juroviesky, a partner at Juroviesky and Ricci LLP, which filed the lawsuit against the University, summarized their position in this way:
It’s unfortunate that this matter has evolved into a stalemate labor negotiation between York University and the Union, and has lost its primary focal point, namely the welfare of the York University students… As such the only practical option the students have for immediate relief and the possibility to salvage their academic track is via the court system through this class action.
Students generally welcomed this lawsuit. Their optimism would not last long, though. The lawsuit was dismissed in September 2010 by Ontario Superior Court Justice Maurice Cullity. Justice Cullity found that the plaintiffs – led by student Jonathan Turner, the representative plaintiff – had not sufficiently supported his allegations that the University had breached its duty to its students or caused them to suffer (Turner v York University, 2011 ONSC 6151). More specifically, Justice Cullity found that the plaintiffs failed to identify the terms of the contract that the University had allegedly breached. The plaintiffs appealed. The only issue in the appeal was whether Justice Cullity applied the test outlined by s. 5(1)(a) of the Class Proceedings Act, 1992, 1992 SO c 6 [CPA] correctly. The plaintiffs argued that there was indeed a reasonable cause of action required under s. 5(1)(a) of the CPA.
Cause of Action?
The appeal revolved around section 5(1)(a) of the CPA, which asks the question: do the pleadings disclose a cause of action? The appellant argues that he in fact pleaded several terms of the contract – seasonal dates, schedules of instruction and the terms of the Student Calendar – which provide students with 13 weeks of instruction on a specific schedule (Turner v York University, 212 ONSC 4272, para 18). Justice Cullity found it problematic to equate the cancellation of classes with a breach of contract, since the breach of contract can be permissible if academic standards are maintained. According to the appellants, however, this is too narrow of an interpretation; it is also “erroneous and inconsistent with the generous reading that should be given when determining whether it is “plain and obvious” that the action will fail” (para 18). Even though the University holds the right to change class schedules, the appellants argue that there was insufficient notice of it, thereby rendering it not “plain and obvious” that the breach of contract would fail (para 18).
Justices Cunningham, Swinton and Crane, who comprise the panel hearing this appeal, disagree with the appellant. Instead, they side with Justice Cullity, concluding that the appellant failed to meet the requirements set out in section 5(1)(a) of the CPA. They reiterate that the basis of a certification is drawn from the pleadings. The pleadings made reference to a “contract” which the plaintiff and class members entered into with York University, which was “to provide each of the Plaintiff and Class Members with access to resources, class instruction and education” (para 29). That was the extent of the pleadings. The appellant has attempted to amend his pleadings to make reference to an “Enrolment Agreement” or an agreement made by way of the course calendar, but this was disallowed by Justice Horkins earlier.
Related to the issue of certification, the appellant also took issue with Justice Cullity’s application of case law, specifically the case of Gauthier v Saint-Germain, 2010 ONCA 309 [Gauthier]. The appellant took issue with how Justice Cullity interpreted the case so as to grant a form of per se immunity to universities in respect of claims against them by students (para 19). The appellant finds Gauthier to be inapplicable, as this earlier case concerns academic activities, such as grading, evaluations or admissions. Rather, the case at hand concerns class cancellation and exam rescheduling. Unlike grades, these are not things which one could challenge through judicial review of the exercise of academic discretion (para 19).
This argument failed on appeal. At issue in this case is whether York University, in modifying the academic schedule to accommodate the strike’s disruption, was within its discretion over “the organizing and carrying out the university programs,” as noted by Gauthier. It was. There are additional holdings from Gauthier and another case, Jaffer v York University, 2010 ONCA 654 [Jaffer] that were applied here. And they are entirely unhelpful to the appellant’s case. Gauthier and Jaffer both confirm that there must be particulars given that the university has gone beyond its broad academic discretion. Given the claim as argued by the appellant, this court would instead be tasked with inquiring into York’s decisions in dealing with the strike and measuring it against a standard of academic integrity. And that is “exactly the kind of decision the courts ought not to review, as it falls within the purview of a university’s ability to make decisions concerning academic integrity” (para 32).
Just four months ago, York University was teetering toward yet another strike. The same union, CUPE Local 3903, was threatening to strike, if the University did not provide their union members, teaching, graduate and research assistants and contract faculty, with better job security. Final examinations would have been interrupted and students may have had their graduation deferred. York University students were again on edge, wondering whether they could wrap up their term. Happily (or not) for these students, the strike was averted.
It should also be noted that, fifteen years ago, a seven-week long strike took place; in 2001, university operations were disrupted by a strike that lasted more than eleven weeks, breaking its former record. Needless to say, York University has had an uneasy relationship with labour unions. There may be something to the students’ claim that, like any other consumer of goods and services in Ontario, they should be protected. If you pay for a two-week hotel, and you are kicked out after 3 days by hotel management, then you may have a case. In the case of universities and labour unions, litigation may not be the best route for those students caught in the crossfire. For instance, it may be more effective for students to be allowed a greater voice (and voting rights) during negotiations between the two parties. Until that is achieved, though, shutting students out of the court system after they have been shut out of classes for months and months may be adding insult to injury.