Jaffer v York University, 2010 ONCA 654
Ashif Jaffer has Tisomy 21 Down Syndrome. He graduated from high school, where he had received accommodations for his disability, as an Ontario Scholar.
Mr. Jaffer enrolled at Glendon College (part of York University) in September 2006. In the summer leading up to the fall semester, the he and the university exchanged communications about accommodations for Jaffer, but no resolution was reached. In April 2007, Jaffer failed a paper. His professor agreed to allow him to resubmit a paper and told him that rather than give him a failed grade, he would grant him a deferred status. Jaffer believed that this meant that he would receive a deferred status on not only the professor’s course, but rather on all of his courses, on the basis that the university had failed to accommodate him. He resubmitted the paper in the summer of 2007. The professor acknowledged receipt of the paper, but failed to mark it. As a result, Jaffer’s average fell beneath the required minimum average of D+ and was advised that he could no longer continue his studies at York.
He took the University to court. He did not claim discrimination on the basis of disability, nor did he seek to have his mark changed or to be allowed to continue his studies. Instead, he claimed a breach of contract, negligence and negligent misrepresentation, as well as a breach of duty of good faith, for York’s failure to accommodate his disabilities and to properly investigate, assess and evaluate his claim for accommodation.
In 2009, Justice Pitt (2009 CanLII 60086 ON S.C.) dismissed his claim for two reasons: 1) the issue was related to academics and was therefore within the discretion of the University or 2) the issue was one of human rights and was therefore within the jurisdiction of the OHRC.
Jaffer took the decision to the court of appeal.
- Does the Court lack jurisdiction to hear this action because it relates to a dispute as to academics?
- Does the Court have jurisdiction to hear an action based upon the university’s failure to accommodate disabilities?
- If the court has jurisdiction to hear this action, do the pleadings disclose a reasonable cause of action for breach of contract, including a breach of the duty of good faith?
- If the court has jurisdiction to hear this action, do the pleadings disclose a reasonable cause of action for negligence or misrepresentation?
- Some claims fall under the jurisdiction of the court, even if they deal with academic matters. Following Gauthier c. Saint-Germain, 2010 ONCA 309,the CA stated that it is the remedy sought by the applicant which determines the jurisdiction: “it is the remedy sought that is indicative of jurisdiction. Judicial review is the proper procedure when seeking to reverse an internal academic decision. However, if a plaintiff alleges the basis for a cause of action in tort or contract and claims damages, then the court will have jurisdiction even if the dispute arises out of an academic matter” (26) The CA determined that Jaffer “did not seek to reverse decisions with respect to his grades or compel the university to readmit him. His claim is that the university owed him various obligations in both contract and in tort, and that its failure to meet those obligations has caused him pecuniary and non-pecuniary damages. Such claims fall within the jurisdiction of the Superior Court an may proceed if they are properly pleaded and tenable in law and disclose a reasonable cause of action” (29)
- On the one hand, the CA pointed to two cases; Seneca College of Applied Arts and Technology v Bhadauria “rejected the recognition of an independent tort of discrimination and established that a civil cause of action cannot be ground directly in an allegation of a breach of human rights legislation or the public policy expressed therein” (37) and Honda Canada Inc. v Keays  2 SCR 362“concluded that a breach of the Code is neither an actionable tort, nor an “independently actionable wrong” for the purposes of awarding punitive damages” (38). On the other hand, using Gauthier the CA determined that “although a person may not commence an action based solely on an infringement of a right under Part 1 of the Code, breach of the Code may be properly raised in an action if the claim is otherwise properly before the court.
Thus, whether or not a claim for breach of duty to accommodate disabilities can proceed in the Superior court depends upon whether or not the pleading discloses a reasonable cause of action that does not arise solely from a breach of the Code”. (44 I underscore). A reasonable cause of action could take the form of a failure to honour a “specific contractual provision” to accommodate disabilities which exists independently from the Code. The rule would appear to be: No specific contractual provision, no reasonable cause: “Thus, in the absence of a specific contractual provision, the duty to accommodate in the provision of education does not exist independently from the Code. There is no free-standing duty of care to provide accommodation that can ground a claim in negligence. The motion judge was therefore correct in his view that whether or not the university failed to comply with its duty to accommodate under the Code was a matter for the OHRC.” (40)
- Gauthier set forth specific conditions under which a human rights breach could be heard in court: 1) Was the university aware that the applicant had disabilities when it accepted him as a student? 2) Did the university’s policies provide for accommodation independently of its obligations under the Code? 3) If yes, did the university bind itself to such an obligation? The CA determined that none of these aspects had been pleaded by the applicant, although, according to the latter, they could have been. It therefore accepted the Supreme Court’s decision, but altered its orders as follows “While counsel suggested that it may be possible to amend the pleadings to include facts that allege York was award of the student’s disability and undertook to provide him with accommodations or that it bound itself to specific terms regarding accommodation independently from its obligations under the Code, the pleadings do not currently allege or support such a conclusion.” (50) "Accordingly, I conclude that the motion judge did not err in dismissing the claim for breach in contract as pleaded, although I do so for different reasons. I would vary his order, however, to strike the pleadings with respect to breach of contract and duty of good faith and permit an amendment to the pleadings (if available on the facts) to plead the specific term of agreement that was allegedly breached and the supporting circumstances, as indicated above. In so amending the pleadings, the appellant may choose to include the facts on which he asserts the existence, contents and breach of the obligation owed by the university to him." (51)
- Failure to accommodate students may be used as part of a claim for negligent misrepresentation, but the pleadings must establish a causal link between the misrepresentation and the damages claims. Jaffer failed to create such a link: Again, Jaffer’s pleadings were too vague to make out such a claim:“In my view, Jaffer has not made out a claim for negligent misrepresentation. The professor’s offer to permit Jaffer to redo a paper in his course cannot reasonably found an action in negligent misrepresentation on the facts as pleaded. It is not clear that this was a misrepresentation or how it could result in the expectation that Jaffer would have a deferred standing in is other courses or that he would be accommodated in his other courses. The pleadings do not establish a causal link between the misrepresentation and the damages claimed. In other words the pleadings do not establish that, but for the misrepresentation. Jaffer would have been able to continue his studies.” (57) The CA agreed with the SC, but altered the order: “Accordingly, as with the breach of contract claim, I conclude that the motion judge did not err in striking the claim for negligent misrepresentation, although I do so for different reasons. I would again vary his order, striking the negligent misrepresentation claim but permitting an amendment to the pleadings (if available on the facts) to plead specific facts demonstrating that the misrepresentation in question caused the damages pleaded.” (58)
The CA allowed the appeal in part. It struck the pleadings but varied the order of the SC. It allowed Jaffer to amend the Statement of Claim in accordance with these reasons.
 “ […][A]n allegation that the university was negligent based solely upon the breach of its duty to provide accommodation as required by the Code does not create an actionable tort. However, that failure may be part of a claim for negligent misrepresentation.” (52).