The law regarding a court's involvement in the student/ university relationship has seen significant changes in the last decade, particularly with respect to the level of deference that is accorded to so-called academic matters.
What follows is a summary of this development and a brief discussion of resulting practical issues.
A. HISTORICAL APPROACH
Historically, the court would look at the plaintiff's case and ask a threshold question: "Is the claim being advanced academic in nature?" Irrespective of the remedy being sought, claims that were academic in nature were routinely dealt with by summary judgment, in favour of universities; the courts were reluctant to take jurisdiction over such matters.
In Gauthier v Saint Germain,1 however, the Court of Appeal for Ontario challenged this notion by emphasizing the importance of the remedy being sought by the plaintiff. The Court of Appeal wrote: "when the desired legal remedy aims to modify an internal academic decision made by university authorities, the appropriate option remains judicial review... when an action alleges tort or a breach of contract for the purposes of claiming damages, it follows that the court has jurisdiction to hear the case."
Post-Gauthier, courts have considered the remedy being sought by the plaintiff as a driving factor in determining the court's jurisdiction over the matter. If a plaintiff's action is grounded in contract or tort and seeks damages, courts have been far more open to assuming jurisdiction, regardless of the academic nature of the claim
B. RECENT CASE LAW
Post-Gauthier, courts seem to be moving further away from the historical approach. This can be seen in the following two decisions: Tapics v Dalhousie University2 and Lam v University of Western Ontario. 3
TAPICS V DALHOUSIE UNIVERSITY
The issues of deference and jurisdiction were put to the test in a case involving claims made by a Ph.D. candidate (Tara Tapics) against Dalhousie University ("University") in the Supreme Court of Nova Scotia.
Ms. Tapics began her Ph.D. studies in January 2011, working on a leatherback turtle project in the Department of Oceanography. After a series of difficulties with the external collaborator and committee member, predominantly related to data access, the remainder of Ms. Tapics' committee recommended that her work on the leatherback turtle project come to an end in June 2018.
Ms. Tapics agreed, and she thereafter changed the focus of her studies to right whales under the guidance of her committee supervisor. By January 2013, however, the working relationship between Ms. Tapics and her supervisor had become strained; he withdrew as her supervisor, and no other supervisor could be found for Ms. Tapics within the University.
Engaging the internal academic appeals process at the University, Ms. Tapics challenged the withdrawal of her supervisor and alleged that she had been de facto dismissed from the Ph.D. program. The ad hoc Faculty Graduate Studies Committee dismissed Ms. Tapics' appeal. On further appeal to the Senate Appeals Committee, however, Ms. Tapics was partially successful on the basis that the faculty had failed to comply with the procedural obligation to explore the possibility of an informal settlement with Ms. Tapics.
The dean therefore wrote to Ms. Tapics to invite the possibility of mediation. Ms. Tapics did not respond to this invitation and, instead, commenced suit against the University alleging breach of contract and breach of a duty of care.
The University moved for summary dismissal of the suit on the basis that all the issues were (or could have been) decided by the internal academic appeals process. Pointing to the position of historical deference, as well as the doctrine of abuse of process, the University argued that the suit should not be permitted to proceed.
The motion judge agreed and dismissed the entire suit.4 On appeal, however, the Nova Scotia Court of Appeal disagreed with the extent of the dismissal.5 Writing for the unanimous panel, Justice Fichaud concluded that Ms. Tapics should be entitled to proceed in Court with her claims as they relate (but only as they relate) to the leatherback turtle project. To the Court of Appeal, this was because the internal appeals process had only been engaged to consider issues related to the right whale project (and could not award a remedy in damages in any event).
On this point, Justice Fichaud wrote:
 The University's internal tribunals were suited for functional redress, but not structured to adjudicate a fault-based claim for damages against the University itself. A civil damages claim against the University would be outside the mandate of an ad hoc faculty committee and would challenge an internal committee's institutional objectivity ...
 ... For the sea turtle project, the underlying controversy was not adjudicated by the university tribunal, was extraneous to Ms. Tapics' objective with her university appeal, and a damages claim against the University would lie outside the tribunal's mandate.
The matter proceeded to a six-day hearing on the merits in the fall of 2017. By decision released on March 9, 2018,6 Justice Hood concluded that the University was liable by virtue of certain issues arising under the University's "Conflict of Interest" policy. In particular, the Court was concerned by the close relationship between the external collaborator and those in control of the leatherback turtle data, all of which ultimately led to the downfall of that project. The Court found that Ms. Tapics' supervisor "knew or should have known" that the external collaborator "had two competing and conflicting interests in Tara Tapics' research."
The Court went on to write: "But for that negligent action, the harm to Tara Tapics of not having the opportunity to continue with her research and possibly obtain her Ph.D. would not have occurred. I say 'possibly' because ... there are no guarantees that research will lead to the granting of a Ph.D."
The Court significantly decreased the amount of damages requested by Ms. Tapics, in order to account for a number of contingencies and the somewhat speculative nature of her loss. In total, and in order to compensate for lost opportunities and a delay of 18 months, the Court awarded Ms. Tapics $48,750 plus pre-judgment interest and costs.
LAM V UNIVERSITY OF WESTERN ONTARIO
Mr. Lam began his Ph.D. studies in 2011 at the University of Western Ontario's ("University") Faculty of Science, focusing on a highly specialized area of biochemistry. He had funding for his research through a grant obtained by his thesis supervisor. Mr. Lam's thesis supervisor died in 2012 and a new supervisory committee was formed to fill the role of thesis supervisor. However, after various meetings and discussions, Mr. Lam transferred out of the Ph.D. program into a Masters program.
In September 2014, Mr. Lam filed an action against the University in the Ontario Superior Court of Justice. He alleged that he was pressured by the new supervisory committee to transfer out of the program, in a manner involving breaches of the contractual obligations owed to him by the University. Mr. Lam further alleged that the committee members lacked, and were unwilling to acquire, the necessary expertise in his area of research, and knowingly misled and provided him incorrect information regarding the availability and security of his funding.
The University moved for summary judgment, claiming that the action was based on decisions that were purely academic in nature, thus failing to disclose a reasonable cause of action within the Court's jurisdiction.
The motion judge held that Mr. Lam's complaints would be more appropriately resolved using the University's appeal process, noting: "as a matter of law the appellant's action should have been brought as a complaint to the University and should not be before the court to begin with." The motion judge granted summary judgment and dismissed the action.7
The Court of Appeal for Ontario, however, set aside the decision of the motion judge and directed that the matter proceed to trial, holding that there were genuine issues requiring a trial. 8Writing for the unanimous panel, Justice Zarnett wrote:
 The motion judge failed to approach the matter [in the correct way]. He did not treat the remedy sought as indicative of the court's jurisdiction even though damages, not reversal of an academic decision, were sought.
The Court of Appeal found that the motion judge failed to properly apply the law from Gauthier and Jaffer, previous cases dealing with similar issues. Justice Zarnett reiterated:
 The correct approach flowing from Gauthier and Jaffer is to ask whether the complaint is one for damages for breach of contract or tort, as opposed to an assertion that what the university did was something it had a discretion to do
 If a plaintiff alleges the constituent elements of a cause of action based in tort or breach of contract, while claiming damages, the court will have jurisdiction even if the dispute stems from the scholastic or academic activities of the university in question.
The University sought leave to appeal the decision to the Supreme Court of Canada.9 However, the application was dismissed with costs on July 18, 2019.
C. PRACTICAL ISSUES
As is evident from the above, there is a growing tendency by the courts in Canada to abandon the policy of historical deference to universities on academic matters. It is unfortunate that the Supreme Court of Canada did not grant leave to appeal in Lam, particularly as this would have provided the highest court with the opportunity to assess these issues in a comprehensive fashion.
The present reality now provides little room for universities to obtain a summary dismissal of academic claims, so long as they are anchored in an alleged cause of action and seek damages as a remedy. That said, courts should continue to stay away from cases where the plaintiff is seeking an academic remedy. In other words, courts should adhere to the historical approach and dismiss any claims where the plaintiff seeks, for example, the conferral of a degree, a passing grade, or an assessment regarding academic quality.
In this context, universities should pay close attention to the nature of the relief sought in a lawsuit before deciding whether to move for summary disposition. But one should also guard against attempts to cloak what is essentially an academic matter under the cover of a damages claim.
1. 2009 ONCA 309
2. 2018 NSSC 53
3. 2019 ONCA 82
4. 2014 NSSC 379
5 2015 NSCA 72
6 2018 NSSC 53
7 2017 ONSC 6933
8 2019 ONCA 82
9 2019 CanLII 64826 (SCC)
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