Canada: $150-Million Lawsuit Against University Dismissed As Abuse Of Process

On April 11, 2013, the Ontario Superior Court dismissed a $150-million claim for damages by three former medical residents against the University of Ottawa.1 The students alleged that the University had improperly evaluated their academic performance, resulting in their dismissal from the program or a period of remediation or probation. The court ruled that the action was an abuse of process.

The AlGhaithy decision affirms that courts have the discretion to dismiss lawsuits that indirectly attempt to challenge academic decisions, and clarifies the Court of Appeal's judgments on this issue.

The facts

Drs. AlGhaithy, Aba-Alkhail and Alsaigh were medical residents in the neurosurgery or cardiac surgery programs at the University of Ottawa. Drs. Aba-Alkhail and Alsaigh had academic difficulties and were required to complete a period of remediation or probation. Dr. AlGhaithy was dismissed from the University for failing to meet the Faculty of Medicine's standard of professionalism.

Each of the residents challenged the decision made with respect to remediation, probation or dismissal from their program. The University's Senate Appeals Committee dismissed their appeals. AlGhaithy and Alsaigh applied for judicial review of the Senate Appeal Committee decisions by the Ontario Divisional Court. These applications were rejected.2

Following the Divisional Court's dismissal of the applications, the three residents sued the University of Ottawa and various faculty members for breach of contract, negligence, breach of fiduciary duty, conspiracy, defamation and violation of their rights under ss. 2 and 15 of the Canadian Charter of Rights and Freedoms. They claimed approximately $150 million in damages. The University and individual defendants moved to have the action dismissed as an abuse of process.

Justice Minnema's decision

Justice Minnema reviewed the Ontario Court of Appeal's decisions on civil suits by students against academic institutions.3 He concluded that although courts retain jurisdiction to adjudicate such disputes, they should decline to do so where the matters at issue were "in pith and substance academic matters, and the claims part and parcel of ... academic disputes."4 This is due to the universities' broad academic discretion and the desire to avoid re-litigation and contradictory findings of fact and protect the integrity of the adjudicative process.

The judge compared the allegations in the statement of claim with the facts underlying the plaintiffs' appeals to the University's Senate Appeals Committee. He observed that:

There are no new events between the parties, and the same evidence is needed to support the issues in both cases. The extent of the plaintiffs' relationship and involvement with the named defendants is limited to the plaintiffs' progress or lack of progress in their programs and their steps in the internal university appeal process. This is the only context in which the parties have been exposed to each other.5

Although the residents' statement of claim alleged a variety of causes of action, Justice Minnema held that the plaintiffs' central allegation focussed on the academic discipline decisions that had been the subject of their appeals to the Senate Appeals Committee and the Divisional Court:

[T]he multiple claims in this case are window dressing. The underlying complaint of each plaintiff is that they were not promoted in their programs or were dismissed in their programs. To be successful on the claims would require different findings of fact from what was determined in the internal review process on the very same evidence. It would be re-litigation in a different forum.6

The judge concluded that permitting the court to indirectly revisit the decisions of the Senate Appeals Committee "would create inconsistency and undermine the credibility of the entire review process, specifically diminishing the credibility of the SAC and the finality of its and the Divisional Court's decisions."7 He therefore dismissed the plaintiffs' claim in its entirety.

Implications of the decision

Following the Court of Appeal's decision in Gauthier v Saint-Germain, it appeared students had a greater scope to challenge decisions by universities through civil lawsuits. The decision by Justice Minnema in the AlGhaithy case confirms that courts should dismiss as an abuse of process claims that are in pith and substance challenges to academic matters properly subject to the universities' discretion.

The University of Ottawa and the individual defendants in this action were represented by Norton Rose Canada LLP.


1AlGhaithy, Aba-Alkhail and Alsaigh v University of Ottawa and others, Ont. S.C. file no. CV-12-53727, decision by Justice T. Minnema on April 11, 2013 ("AlGhaithy ").

2 The residents' motions for leave to appeal the Divisional Court's judgments to the Court of Appeal (and in Dr. AlGhaithy's case, to the Supreme Court of Canada) were also unsuccessful.

3 Dawson v University of Toronto, [2007] O.J. No. 591, aff'd [2007] O.J. No. 4861; Gauthier v Saint-Germain (2010), 325 D.L.R. (4th) 558; and Jaffer v York University, 2010 ONCA 654.

4 AlGhaithy, para. 45.

5 AlGhaithy, para. 30.

6 AlGhaithy, para. 43.

7 AlGhaithy, para. 44.

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