Canada: Claims Against Educational Institutions – It's Not Just Academic Anymore

Last Updated: April 3 2019
Article by Stephen G. Ross and Colleen Mackeigan

This paper seeks to explore an emerging area in education law, specifically, the right and ability of students to sue educational institutions in court for a compromised education.

What historically was considered an internal administrative law issue (at best) is now a recognized claim in tort and/or contract – universities, professors and teachers, beware.

In this paper we canvas the law as it relates to such academia based claims and then consider the kinds of situations and allegations which may support such a claim in court. Lastly, we provide some takeaways in terms of dealing with these issues going forward.


Historically, it was believed that students would have to pursue the internal administrative process of a university to seek redress for any grievances of an academic nature.

However, given recent developments in the law, it is now clear that students can sue an academic institution in a civil action for breach of contract and/or tort.

The evolution of this process, starting with the presumed jurisdiction of the court, as compared to that of academic institutions, is worthy of review.

Jurisdiction of the Court and Academic Institutions

The Superior Court is a court of inherent jurisdiction. As such, its powers and scope may be limited only by clear and express legislative or contractual provisions to that effect.1

An academic institution such as a university, however, derives its powers and jurisdiction from an enacting statute which bestows the university with the power to internally manage and control the institution's affairs.

For example, the enacting statute of the University of Western Ontario states:

Except in such matters as are assigned by this Act to the Senate or other body, the government, conduct, management and control of the University and of its property and affairs are vested in the Board, and the Board may do such things as it considers to be good for the University and consistent with the public interest [emphasis added].2

As such, courts have held that universities enjoy "broad discretion" in respect of academic affairs.

Further, the Ontario Court of Appeal ("ONCA") in Gauthier v. Saint-Germain held that by enrolling at a university, it is understood that the student implicitly agrees to be subject to the university's discretion in resolving academic matters, including the assessment of the quality of the student's work and the organization and implementation of university programs. 3

The scope of this "broad discretion" is what drove the traditional view that academic institutions enjoyed exclusive jurisdiction over academic affairs. This traditional view has been challenged of late and, as such, the question of what role a court may play in resolving academic disputes requires greater scrutiny.

Can the court adjudicate civil claims arising from academic decisions?

The Supreme Court of Canada has long held that a contractual relationship exists between a university and its fee-paying students, giving rise to duties in both contract and tort.4

Nonetheless, courts have historically been hesitant to accept jurisdiction for actions arising out of disputes regarding academic decisions or activities of a university where no external legislative authority such as the Child Protection Act5 or Consumer Protection Act6apply.

As such, Ontario universities often enjoyed success on early dispositive motions to have a plaintiff's claim struck on the ground that it discloses no reasonable cause of action or that the court lacks jurisdiction over the subject matter.

Recent developments, however, reveal that a properly crafted claim will survive such motions going forward and should also support a successful claim for damages at trial.

In Lam v. University of Western Ontario, the ONCA recently held that so long as a plaintiff alleges the constituent elements of a cause of action based in tort or breach of contract while claiming monetary damages, the court will have jurisdiction even if the dispute stems from the scholastic and academic activities of the university in question.7

The court clarified that the "broad discretion" enjoyed by academic institutions did not provide exclusive jurisdiction over academic affairs, as long as damages are sought and a tort or breach of contract is asserted.

However, if the remedy sought by the plaintiff is the reversal of an academic decision, he or she must first exhaust the internal remedies available through the dispute resolution system of an academic institution before resorting to the courts and may then only do so by way of judicial review.

What constitutes a claim in breach of contract or negligence against an academic institution?

As indicated, it has been held that there exists an implied agreement between an institution and its students, a term of which is that the students agree to be subject to the institution's discretion in resolving academic matters.

As such, a student will need to do more than argue that an academic result is wrong or that a professor is incompetent to successfully advance a breach of contract (or tort) claim against a university.

In other words, our courts have found that students have essentially agreed as a matter of contract law, that there are certain academic issues (like a bad grade) that you cannot sue over. As such, it is clear that the broad discretion enjoyed by institutions extends to basic academic decisions.

What is less clear, however, is the type of academic issues or matters students did not implicitly agree would be subject to the institution's discretion pursuant to the implied student/university contract.

A review of the impugned conduct of academic institutions as alleged in recent cases is illustrative of this point.

Gauthier v. Saint-Germain

In Gauthier v. Saint-Germain, Ms. Gauthier, a graduate student, brought an action against the University of Ottawa alleging that the university breached its contract with her by failing to provide an appropriate thesis supervisor.

Ms. Gauthier alleged that her first thesis supervisor acted inappropriately towards her and made false representations about available funding.

Ms. Gauthier was subsequently assigned a replacement supervisor; however, she alleged the replacement was incompetent which delayed her studies further.

The decision in Gauthier was the first time an appellate court in Canada definitively stated that a court will have jurisdiction to hear a claim against an academic institution if the claim is framed in tort or breach of contract, even if the dispute arises out of the scholastic or academic activities of the institution.8

Jaffer v. York University

In Jaffer v. York University, a student with a developmental disability received a grade point average during his first year of studies which was below the minimum required to continue attending the university. 9

The student sued the university for breach of contract for failing to provide proper academic accommodations.

The ONCA, following the reasoning of Gauthier, determined that the real issue in such cases is not whether the dispute is academic in nature, but rather whether the pleadings support a cause of action in either contract or tort.10

Lam v. University of Western Ontario

Mr. Lam, a former doctoral science student at the University of Western Ontario, alleged that he was knowingly misled as to the details, amount, and duration of his financial support in regards to his doctoral thesis, in breach of the university's handbook and in violation of honest performance.

Mr. Lam argued that, contrary to the handbook, the institution agreed to supervise his project despite not having sufficient familiarity with the field of research or a willingness to gain it.

Mr. Lam also alleged that the university, through its faculty supervisors, purposefully pressured him to drop out of the PhD program.

The Court of Appeal found that the contract between Mr. Lam and the university consisted of a number of documents, including the university's Graduate Student Handbook.

Additionally, the contract between Mr. Lam and the university was said to be subject to the general provisions of the law, including the general duty of honesty in contractual performance, as per Bhasin v. Hyrnew.11

The court held that an abuse of power, whereby an institution pressures a student to drop out of a PhD program, is not a matter that fits within the institution's broad discretion and, as such, is not something that a student can be seen to have agreed to as part of the contract between the student and the institution.

Accordingly, the sort of conduct alleged in Lam, if proven, would support a claim in breach of contract with resulting damages.

Another case which demonstrates actionable conduct on the part of an academic institution is Tapics v. Dalhousie University.12

Tapics v. Dalhousie University

In Tapics, the plaintiff, a doctoral student at the defendant university, was working on her PhD thesis with an adjunct supervisor who left the university and took data essential to the research.

The student subsequently undertook to complete a different topic for her thesis with her faculty supervisor. However, the faculty supervisor withdrew from the project and the university was unable to find a suitable replacement.

This delayed the process associated with the student obtaining her PhD. The student sued the university as a result of these developments.

The Nova Scotia Supreme Court found that the University had contractual obligations to the student, a term of which was a "conflict of interest policy" found within the Dalhousie Faculty of Graduate Studies Handbook.

The court found that the University had breached its contract with the student by failing to enforce the conflict of interest policy and the student lost the opportunity to complete her PhD within the expected timeframe as a result.

The court quantified this loss at $48,750 and awarded damages to the plaintiff accordingly.

Current State of the Law – What the Case Law Tells Us

To be tenable at law, and subject to the jurisdiction of the court, the following must be satisfied as it relates to a claim arising from an academic dispute against an academic institution:

  1. The action must be grounded in breach of contract or tort;
  2. The plaintiff (i.e. the student) must be seeking monetary damages;
  3. The alleged wrong must fall outside of the broad discretion enjoyed by the academic institution over basic academic affairs; and
  4. The statement of claim must be pled with such particularity and clarity that the court is informed of the express or implicit contractual provision that has been breached and/or the way in which the tortious act exceeds the academic institution's broad discretion.

Further, a review of the case law reveals that the following conduct would likely be actionable as falling outside of the student/university contract:

  • Harassment by a thesis supervisor and broken promises regarding academic funding.13
  • Failing to provide academic accommodations as implicitly or explicitly agreed to by the university as part of the university/student contract.14
  • False representations regarding the type and scope of support to be provided as part of an academic program which are relied on to the student's financial detriment.15
  • Agreeing to supervise a student's studies without sufficient familiarity in the field or a willingness to gain it.16
  • An abuse of power, such as pressuring a student to drop or switch out of an academic program which the university no longer wants, or has the resources, to support.17


  • Academic institutions may be sued in court for claims arising from academic affairs. Claims by students with respect to academic decisions or activities are actionable, in certain circumstances, when the remedy sought is monetary damages.
  • Based on the terms of an implied student/university contract, a student will need to prove something beyond incompetence by a professor or a grade given below what was properly deserved, as the parties are seen to have agreed that such academic issues would be remediated through the institution's internal dispute process.
  • Thus, in order to maintain an action and prove damages in court, a student will need to allege and eventually prove more. How much more is a new and developing area of the law.
  • The facts of Gauthier, Jaffer, Lam and Tapics reveal the nature of conduct which would, if proven at trial, likely support a claim in contract or tort against an academic institution.
  • Academic institutions should carefully consider what documents could be held to constitute the express or implied contract between the institution and its students. The courts have determined that terms within the institution's student handbooks are contractual documents, the breach of which can give rise to a claim for monetary damages.
  • Academic institutions should consider which disputes are governed by their internal appeals processes. It may be worthwhile to consider including an express provision that states that claims for breach of contract (or tort) can be remediated only through the institution's internal dispute resolution process.
  • In short, academic institutions may want to consider broadening the privity clause in the policy that governs their internal academic appeals process, so as to provide exclusive jurisdiction over said disputes to an administrative tribunal.
  • Indeed, it may be beneficial to consider incorporating an obligation to pursue arbitration under the Arbitrations Act, 1991 rather than resort to the courts in circumstances where monetary damages are being claimed by a student.
  • Such a provision would need to be carefully considered and drafted. For example, a court is likely to refuse to enforce an arbitral award against a minor and, as such, a clause requiring arbitration would likely not be open in the context of secondary schools or high school institutions.
  • Similarly, academic institutions must be careful to not make an arbitration clause so overreaching that arbitration would be, for all practical purposes, inaccessible and thus 'unconscionable', as a court will strike such a clause down.18
  • Nevertheless, universities and other academic institutions would be wise to consider this very recent and important development in education law and give careful consideration to the (express and implied) terms of the student/institution contract.
  • We hope this paper provides some assistance in that regard.


[1] Gauthier v. Saint-Germain, 2010 ONCA 309, para 29.

[2] An Act respecting The University of Western Ontario, Bill PR14, 1982, as revised by Bill Pr37, chapter Pr26, S.O., 1988, s.18.

[3] Supra, note 1 para 47.

[4] Young v. Bella, 2006 SCC 3, para 31.

[5] Ibid.

[6] Ramdath v. George Brown College, 2014 ONSC 3066.

[7] 2019 ONCA 82.

[8] Supra note 1 para 46.

[9] 2010 ONCA 654.

[10] Jaffer v. York University, 2019 ONCA 654, para 31.

[11] Supra note 9, para 41.

[12] 2018, NSCC 53.

[13] Supra note 1, para 58.

[14] Supra note 10.

[15] Ibid.

[16] Supra note 7.

[17] Supra note 7.

[18] The ONCA in Heller v. Uber Technologies (2019 ONCA 1) found the arbitration clause in the service agreement between Uber and its drivers to be unconscionable as it was inaccessible for drivers to commence an arbitration pursuant to the language of the clause.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions