Fufa v. University of Alberta, 2012 ABQB 405

Court of Queen ’ s Bench of Alberta Citation: Fufa v. University of Alberta, 2012 ABQB 405 Date: 20120619 Docket: 1103 20194 Registry: Edmonton Between: Adane Fufa Plaintiff - and - University of Alberta Defendant _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is the University ’ s application to dismiss Mr. Fufa ’ s lawsuit. [ 2 ] The Plaintiff was a doctoral candidate in the Department of Rural Economy.

He commenced his studies in September 2007 but was slow in completing his course work. He had difficulty choosing a viable thesis topic, which frustrated attempts to find an appropriate supervisor. [ 3 ] Professor Luckert, Graduate Coordinator, eventually recommended that the Plaintiff be required to withdraw. He said:

“ Mr. Fufa entered the PhD program in Agricultural and Resource Economics in September 2007. As of May 2011, he has completed all course and comprehensive examination requirements, but has not yet prepared a workable proposal for candidacy. His progress has been delayed for various reasons, including problems he had in passing the preliminary examinations that are required of all agricultural and resource economics PhD students in our department, prior to advancing to the candidacy exam.

This included three separate appeals to the Chair of Rural Economy and a recommendation from FGSR that the department provide Mr. Fufa with an unusual third opportunity to write the preliminary examination in marketing economics. Normal progress in our Department is for students to complete their coursework and preliminary examinations within the first two years of their programme. Mr. Fufa required 34 months to reach this milestone. . . . . It has now been almost 2 years since Mr. Fufa completed his coursework, and 9 months since Mr. Fufa completed his comprehensive exams.

Moreover, his current supervisors have indicated that he has made little progress towards having a thesis proposal that would be defendable in a candidacy exam (see letter to you from Drs. Swallow and Rude, April 26, 2011, attachment B). [ 4 ] The Faculty of Graduate Studies and Research accepted the recommendation that the Plaintiff be required to withdraw and advised the Plaintiff of this in a letter dated May 17, 2011.

The Plaintiff was also advised of his appeal rights. [ 5 ] The Plaintiff did appeal; both formally to the Appeal ’ s Committee Panel and, informally, to a number of other university officials, including the President. The Plaintiff has tendered into evidence a lengthy series of e-mail correspondence relating to this. [ 6 ] The appeal of the decision of the Faculty was heard August 16, 2011. The Panel issued detailed reasons for denying the appeal and later, a hearing

summary. [ 7 ] The Plaintiff did not seek Judicial Review of this decision. Instead, he sued. [ 8 ] The Plaintiff ’ s own description of his various claims and causes of action are as follows: a. Malicious conspiracy to secure a dismissal of the Plaintiff from his educational career: Statement of Claim paragraphs 2 (a-z), 5, 6, 7, 12, 22, 27, 28, 31, 36, 38, 45, 52, and 54. b. Negligence of misrepresentation, misleading: Statement of Claim paragraphs 3, 4, 21, 26, 29, 31, 37, 40, 46, and 51. c. Negligence in duty of care and failure to act: Statement of Claim paragraphs 33, 34. d. (deleted) e.

Discrimination: Statement of Claim paragraphs 8, 13, 15, 39, 40, 41, and 51. f. Abuse of power: Statement of Claim paragraphs 8, 30, 32, 41, 43, 44, 47, 52, and 53. g. Undue influence: Statement of Claim paragraphs 9, 10, 11, 16, 17, 19, 20, 23, 24, 25, 27, 48 and 53. g. Acting in Bad Faith: Statement of Claim paragraphs 14, 15, 44, 54, and 55.

h. Wrongful dismissal: Statement of Claim paragraphs 8 and 41. [9] A number of decisions give us guidance about how to approach claims of this nature. The law is detailed by Madam JusticeBrowne in Yen v. Alberta, 2010 ABQB 380: 34 The Post-secondary Learning Act provides the University with sole authority over academic matters including admissions,grading, passing and failing, discipline, and appeals from any and all of those decisions.

The Act creates a myriad of appeals fromdecisions made within the context of education and academia under the final authority of the University Board of Governors and theGeneral Faculties Council. 35 The Court of Queen’s Bench in Naimji v. University of Alberta (1988), (AB KB), 87 A.R. 357, [1988]A.W.L.D. 1039 (Alta. Q.B.) addressed the University’s sole authority to deal with certain matters within its administration, noting (atpara. 16) the comments of Beetz J. in Harelkin v.

University of Regina, (SCC), [1979] 2 S.C.R. 561 (S.C.C.) that thelegislation governing the University of Regina: “... does not alter the traditional nature of such an institution as a community of scholarsand students enjoying substantial internal autonomy”. 36 Beetz J. concluded that while a university is incorporated by statute and subsidized by public funds and may in some waysconstitute a public service, its immediate and direct responsibility is to its present members and its governing bodies function as domestictribunals.

This means that universities have autonomy in making academic decisions. 37 In Naimji, McFadyen J. (as she then was) relied on these comments to interpret the Alberta legislation, saying (at para. 16): A review of the Universities Act, R.S.A. 1980 c. U-5 discloses a carefully established scheme for the autonomous conduct of the affairsof the university. Under this scheme, and only subject to an appeal to the Board of Governors, the General Faculties Council is maderesponsible for the academic affairs of the university, including the right to hear and determine appeals from decisions of the facultiescouncils.

Pursuant to the authority granted to it by the Act, the General Faculties Council established an Academic Appeals Committeeand set up an elaborate procedure for the conduct of such appeals. The regulations governing such academic appeals provide that thedecision of the appeal committee is final and binding. 38 In Tillack v. The Governors of the University of Calgary (unreported) February 8, 1983, Prowse J. came to a similar result. Anappeal to the Court of Appeal against this decision was dismissed. In a memorandum of judgment delivered from the bench on October12, 1983, Laycraft J.A. [Tillack v.

University of Calgary, [1983] A.J. No. 385 (Alta. C.A.)] stated: It is also implicit in the procedures that they are to be effective. To say that the appellant may follow them and when he doesn’t like theresult, go to Court, is to say that the parties deliberately agreed upon a process which would be singularly ineffective. Surely, it isimplicit in such elaborate procedures that they were intended as a final adjudication and the mere fact that the Universities Act does notsay that in so many words does not mean in our opinion that this meaning should not be implied.

Had the appeal process been defective,the appellant may well have been able to have the defects reviewed and corrected and a new and correct process carried out by resort tothe appropriate perogative [sic] writs. His time for so doing is long since expired and this action is at most a colourable attempt to obtainthat review out of time. 39 In Rittenhouse-Carlson, Gill J. found that there was a contractual relationship between a University and a student that can giverise to both contractual and tort duties, but he dismissed the claim on the facts.

The question of whether the action should have beensummarily dismissed was raised in an earlier application, but not addressed, by Lee J: 2008 ABQB 486 (Alta. Q.B.). In my view, the factthat the Rittenhouse-Carlson matter proceeded to trial is an anomaly, and to the extent it suggests that academic decisions such as thoseat issue here give rise to a cause of action, I decline to follow it. 40 Gill J., in Rittenhouse-Carlson, in reaching his decision summarized the law in regard to the relationship between students andan educational institution: 1.

A student who is registered and paid tuition in a post secondary program is in a contractual relationship with the institution. The

student must be taken to know and accept the regulations of the institution in determining academic matters set out in documents such as the university calendar. Wong v. University of Toronto (1989), (ON SC), 79 D.L.R. (4th) 652 (Ont. D.C.) Court hasno jurisdiction to deal with academic matters. 2. A student is bound by the requirements set for the program by the post secondary institution and the academic policies, and isrequired to follow and knows, or should know, what is required to satisfy the program’s requirements.

Courts have no power to intervenemerely because it is thought that the standards are too high, or that the student’s work was inaccurately assessed; 3. The relationship between a student and a post secondary institution has a contractual foundation, which gives rise to duties in bothcontract and tort. Bella v. Young, 2006 SCC 3 (at para. 31). 4.

The standard of care owed by the Defendant to the Plaintiff can be ascertained from the terms of the contract between the parties.Further, those whose professional responsibilities include the exercise of power over the careers and future lives of fee paying studentsare required to take the necessary care to get their facts straight before taking a potential career ending action in relation to a student.They are required to have reasonable cause to take action. Bella v.

Young, 2006 SCC 3 . [2006] 1 S.C.R. 108, 2006 SCC 3(S.C.C.) at para. 34. 41 Courts typically do not interfere if a student does not pass a course, unless fraud, malice or bad faith on the part of the institutionis proven: Doane v. Mount St. Vincent University (1977), (NS SC), 74 D.L.R. (3d) 297, 24 N.S.R. (2d) 298 (N.S.T.D.) para. 34. 42 The Courts are reluctant to intervene in decisions of educational institutions relating to academic evaluation, save where theapplicant has shown that he or she was treated with such manifest unfairness that there was a flagrant violation of the rules of naturaljustice: Dawson v.

University of Ottawa (1994), 72 O.A.C. 232, 48 A.C.W.S. (3d) 341 (Ont. Div.Ct.) at para. 7, aff’d [1995] O.J. No.2733 (Ont. C.A.). 43 A

summary of these cases confirms that a contract exists between a student and an educational institution, and further confirmsthat the terms of the contract governing the relationship are contained in the university calendars, internal admission, withdrawal andappeal procedures and academic policies.

Within that contract, the University owes a duty of care to a student - a duty of fairness inmaking career-ending academic decisions. 44 The standards for a university degree and the assessment of a student’s work are so clearly vested in the university that theCourts have no power to intervene merely because it is thought that the standards are too high, or that the student’s work wasinaccurately assessed, in the absence of a denial of natural justice: Houston v. University of Saskatchwan, (SK KB),[1994] 4 W.W.R. 387, 117 Sask. R. 291 (Sask.

Q.B.) at para. 17. (emphasis added) [10] The University has applied for dismissal of Mr. Fafa’s lawsuit based on these well established legal principles. Although thelegal burden is on the Applicant, throughout, the burden of demonstrating an ‘arguable case’ falls to the Respondent, once the Applicanthas satisfied their initial evidentiary burden of showing that a case has no merit. The Respondent must put his best foot forward and showthat he has an arguable case. The stakes are high. The Court will not speculate about what evidence might be furnished later. [11] I have reviewed the materials prepared by Mr.

Fufa. There is no doubt that there has been discrimination in an academicsense, but this is the University’s duty and obligation if standards are to be maintained. The materials do not demonstrate any illegaldiscrimination of any kind, or any of the other torts raised by the Plaintiff. I am satisfied that the Plaintiff’s complaints fall entirely withinthose areas for which the University has jurisdiction and authority. There appear to be no grounds to argue that the University hasexceeded its authority or abused its power.

There is no discernable violation of the rules of natural justice, or a breach of the duty offairness. I can only conclude that Mr. Fufa worked backwards from the result and because he did not agree with the University’sconclusion, infers that there must have been a conspiracy, discrimination or some other wrong. These allegations are simply notsupported by the facts. [12] Mr. Fufa is an articulate and obviously bright individual whose hopes of a doctoral degree in Rural Economy from theUniversity of Alberta have come to an end. I have no doubt that he was profoundly disappointed by the University’s decision.

However,it is Mr. Fufa’s own conduct and not the University’s evaluation of him that is to blame. It is time for him to turn his attention tosucceeding at other endeavors.

[ 13 ] The University ’ s Application for

summary dismissal of Mr. Fufa ’ s lawsuit is allowed. Heard on the 4 th day of June, 2012. Dated at the City of Edmonton, Alberta this 19 th day of June, 2012. W. S. Schlosser M.C.C.Q.B.A. Appearances: Adane Fufa self represented Anthony Slemko Parlee McLaws for the Defendant