Taheri v Buhr, 2021 SKCA 9

Court of Appeal for Saskatchewan Docket: CACV3213 Citation: Taheri v Buhr , 2021 SKCA 9 Date: 2021-01-20 Between: Ahmad Taheri Appellant (Respondent) And Mary Buhr, Karen Chad, Vladimir Vujanovic, Chantal Hamel, Yantai Gan, the University of Saskatchewan, and the Attorney General of Canada representing Agriculture and Agri-Food Canada Respondents (Applicants) Before: Richards C.J.S., Leurer and Kalmakoff JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr.

Justice Kalmakoff On appeal from: QBG 513 of 2014, Saskatoon Appeal heard: June 1, 2020 Counsel: Jay Watson for the Appellant Kaylea Dunn for Mary Buhr and the University of Saskatchewan Marlon Miller and Jayme Anton for the Attorney General of Canada Eugene Bodnar for Vladimir Vujanovic Richards C.J.S. I. Introduction [ 1 ] Ahmad Taheri was a graduate student at the University of Saskatchewan. He believed that various professors with whom he was associated had taken inappropriate advantage of his research. This led Mr.

Taheri to file a complaint pursuant to the University’s Research Integrity Policy [Integrity Policy]. The decision in response to the complaint did not satisfy Mr. Taheri. He then commenced an action seeking damages in the Court of Queen’s Bench. [ 2 ] The action named, as defendants, the University, three professors, two adjunct professors who were employees of Agriculture and Agri-Food Canada [Agriculture Canada], and Agriculture Canada itself. The defendants responded by bringing applications, three in total, pursuant to Rule 7-9(2)(

a) of The Queen’s Bench Rules to strike various parts of the statement of claim as disclosing no reasonable claim. They were successful in this regard and, in aggregate, the fiats written by the Chambers judge ordered that the whole of Mr. Taheri’s statement of claim be struck. [ 3 ] Mr. Taheri now appeals to this Court.

He argues that the Chambers judge made numerous errors in the course of his analysis and asks that we set aside the fiats in issue as they relate to the claims against the respondents Vladimir Vujanovic, Chantal Hamel, Yantai Gan and Agriculture Canada. [ 4 ] As explained below, this appeal must be allowed to the extent of reversing the Chambers judge’s decisions to strike the claims in negligence against Drs. Hamel, Gan and Vujanovic and to the extent Agriculture Canada is alleged to be vicariously liable to Mr. Taheri on the basis of these claims. In all other respects, I would dismiss Mr. Taheri’s appeal. II.

Background [ 5 ] The proceedings before the Chambers judge were driven by the pleadings, i.e., by Mr. Taheri’s statement of claim. In order to provide some context for the analysis demanded by this appeal, it is useful to review the key factual allegations found in the statement of claim. In the course of undertaking that review, I will also make reference to the contents of some of the documents referred to in it: (

a) In 2009, Mr. Taheri enrolled in a Ph.D. program in applied microbiology at the University. (

b) Chantal Hamel and Vladimir Vujanovic were the co-supervisors of Mr. Taheri’s studies. Dr. Hamel was employed by Agriculture Canada as a research scientist. She was also an adjunct professor at the University. Dr. Vujanovic was employed by the University as an associate professor. (

c) Yantai Gan was a member of Mr. Taheri’s advisory committee. He was employed by Agriculture Canada and was an adjunct professor at the University. (

d) In the fall of 2009, Drs. Hamel and Gan asked Mr. Taheri to draft a research proposal [Proposal] for their consideration. He did so and later learned that, without giving him any credit, Drs. Hamel and Gan had successfully used the Proposal to obtain significant funding for a research project.

(

e) In the course of his research, Mr. Taheri discovered possible commercial applications of some types of fungi. Drs. Vujanovic and Hamel, by virtue of being his co-supervisors, became aware of that research. In April of 2012, Mr. Taheri discovered that Drs. Vujanovic and Hamel, without his knowledge and without giving him credit, had published a paper [Paper] containing his research and the conclusions that he had drawn from it. (

f) On discovering the Paper, Mr. Taheri met with Mary Buhr, the Dean of the College of Agriculture and Bioresources, to advise of his concerns. Then, in June of 2012, he submitted a written complaint against Dr. Vujanovic to Dr. Buhr. The complaint is referred to in the statement of claim but not reproduced in it. The complaint alleges that Dr. Vujanovic, Dr. Hamel and another person had published the Paper and that “[Mr. Taheri] found the results of [his] research presented as their own”. It asks that “necessary measures be taken to stop this matter from happening in future in regard to [Mr.

Taheri’s] results” and that Mr. Taheri be given “a safe and constructive scientific environment” to complete his doctorial work. Dr. Buhr decided, pursuant to the Integrity Policy, that a formal hearing would be necessary to investigate and resolve the matter. (

g) The hearing took place. Mr. Taheri believed it had been compromised by Dr. Buhr’s failure to provide the hearing board with documents that he considered key to the inquiry. (

h) The hearing board was unable to come fully to grips with Mr. Taheri’s allegations about the Paper but it did provide various recommendations. The particulars of those recommendations are not set out in the statement of claim itself but the report said that (

a) the authors of the Paper should review the data presented in it and take appropriate action, (

b) Dr. Vujanovic should be reminded that all authors are responsible for the content of a published paper, and (

c) graduate students should be advised that they cannot proceed with reports of invention without the support of their supervisors and that ownership of experimental materials and intellectual property is vested in the University and collaborating institutions. (

i) After receipt of the hearing board report, Dr. Buhr released a decision. The detail of it is not set out in the statement of claim but in the decision she wrote, most significantly, that she had (

a) recommended to the President of the University that she, the President, provide a written reprimand to Dr. Vujanovic, (

b) corresponded with the editors of the publication where the Paper had appeared and asked that it be withdrawn, and (

c) told all graduate programs to inform students that they cannot proceed with reports of invention without the acknowledging signatures of their supervisors, and that ownership of experimental materials and intellectual property is vested in the University and collaborating organizations. According to the statement of claim, Dr. Buhr’s decision inappropriately favoured Dr. Vujanovic and was a response significantly different from that recommended by the hearing board. (

j) Mr. Taheri then submitted a “conditional” appeal of Dr. Buhr’s decision to Karen Chad, the University’s Vice President of Research and the individual who had oversight of the Integrity Policy. It was not followed up by Mr. Taheri. (

k) Subsequent to the release of Dr. Buhr’s decision, Drs. Vujanovic, Hamel and Gan hindered Mr. Taheri’s efforts to publish his research and to obtain suitable employment by doing things such as providing negative references. (

l) After he complained to Dr. Buhr, Mr. Taheri was not permitted to enter Dr. Vujanovic’s lab where he had stored various species of fungi. Mr. Taheri made it known to Dr. Vujanovic and Dr. Buhr that the fungi needed special care but that care was not provided. As a result, a number of species died. This hindered Mr. Taheri in his research and delayed his graduation. III. The Claims Advanced [ 6 ] As noted above, Mr. Taheri commenced an action in the Court of Queen’s Bench after the hearing board had finished its work and Dr. Buhr had made her decision. He named, as defendants, Drs.

Buhr, Vujanovic, Chad, Hamel and Gan, the University, and Agriculture Canada. The only relief that he sought was in the form of damages. [ 7 ] The claims relevant to this appeal, and the paragraphs in the statement of claim where they are addressed, are set out below. A. The claims against Dr. Vujanovic and Dr. Hamel [ 8 ] Mr. Taheri alleges (at paras 41–43) that, as the co-supervisors of his studies, Drs. Vujanovic and Hamel owed fiduciary duties to him.

He pleads that they breached those duties by failing to act in his best interests, refusing to consent to him seeking patent protection for the results of his research, publishing his research and conclusions without his consent and without giving him credit, intentionally pre-empting his research, and interfering with his ability to publish that research and to successfully seek a post-doctoral position or employment. [ 9 ] Mr. Taheri further alleges (at paras 44–45) that Drs. Vujanovic and Hamel are liable in negligence. He claims that they “owed him a duty of care, breached that duty, and were negligent”.

He indicates that he had suffered damages as a result and, by way of particulars, the statement of claim refers back to the ways in which Mr. Taheri pleads that Drs. Vujanovic and Hamel breached their fiduciary obligations. [ 10 ] Mr. Taheri also advances (at paras 47–49) a claim for unlawful interference with economic interests. In this regard, he relies on the same facts as he pleads in connection with the fiduciary duty and negligence claims and contends that Drs.

Vujanovic and Hamel did these things with the intent of injuring his reputation in the academic community and to affect his ability to publish his research and pursue further economic and employment opportunities. B. The claim against Dr. Vujanovic individually [ 11 ] Mr. Taheri alleges (at para 50) that Dr. Vujanovic failed to preserve his fungi collection and had prevented him from accessing the collection, thereby committing the tort of detinue.

C. The claims against Drs. Hamel and Gan [12] Mr. Taheri alleges (at paras 52–53) that, as his co-supervisor and a member of his Ph.D. advisory committee respectively, Drs.Hamel and Gan “owed him a duty of care, breached that duty and were negligent”. By way of particulars, the statement of claim allegesthat Drs. Hamel and Gan submitted the Proposal without giving Mr. Taheri any credit, neglected to rectify their failure to give him credit,and denied his right to credit. [13] Further, or in the alternative, Mr. Taheri claims (at para 54) that Drs.

Hamel and Gan unlawfully interfered with his economicinterests by intentionally and unlawfully taking credit for his work with the intention of preventing him from benefitting from it. [14] Mr. Taheri also alleges (at paras 55–56) a claim against Dr. Hamel specifically saying that, as his Ph.D. co-supervisor,Dr. Hamel owed him “fiduciary duties” and breached those duties by doing the same things listed as the particulars of how Dr. Hamel hadbreached the duty of care owed in the negligence context. D. The claims against the University and Agriculture Canada [15] Mr. Taheri alleges (at paras 67–68) that Drs.

Vujanovic, Buhr and Chad were employees of the University and that Drs. Hameland Gan were employees of Agriculture Canada. He contends that they all were acting within the scope of their employment at therelevant times and that, as a result, the University and Agriculture Canada are vicariously liable for the actions of their respectiveemployees. IV. THE FIATS [16] Three separate applications were made to strike aspects of Mr. Taheri’s statement of claim as disclosing no reasonable claim:(

a) one was filed by Drs. Buhr and Chad, and the University; (

b) one was filed by Drs. Hamel and Gan, and Agriculture Canada; and(

c) one was filed by Dr. Vujanovic. [17] The Chambers judge wrote three fiats, one in response to each of the applications. The first, dated December 13, 2017 [FiatOne], dealt with the application by Drs. Buhr and Chad, and the University. The second, dated January 10, 2018 [Fiat Two], dealt with theapplication by Drs. Hamel and Gan, and Agriculture Canada. The third, dated February 1, 2018 [Fiat Three], dealt with Dr. Vujanovic’sapplication. When the dust had settled, the whole of Mr. Taheri’s claim had been struck. [18] Mr.

Taheri indicates in his notice of appeal that he is appealing all three fiats (no orders were taken out). However, given thatMr. Taheri asks the Court to grant relief only insofar as Drs. Vujanovic, Hamel and Gan, and Agriculture Canada are concerned, he is infact taking issue only with Fiat Two and Fiat Three. [19] It will be most efficient to look at the particulars of the Chambers judge’s reasoning in the course of the analysis of how hedealt with the various aspects of Mr. Taheri’s statement of claim. V. ANALYSIS [20] Mr. Taheri argues that the Chambers judge erred on numerous fronts.

I propose to approach the assessment of his submissionsby: (

a) confirming the principles that govern the consideration of an application to strike a pleading as disclosing no reasonable claim; andthen (

b) working through the particulars of his arguments about the various elements of his statement of claim. Given that this involvesnavigating two fiats, multiple respondents and several claims or causes of action, the required analysis is somewhat involved. A. Governing principles [21] There is no dispute about the principles governing the adjudication of an application to strike a statement of claim as disclosingno reasonable claim.

They were summarized as follows in Saskatchewan Power Corporation v Swift Current (City), 2007 SKCA 27,[2007] 5 WWR 387: [18] These general principles were summarized by Gunn J. in the case of Collins v. McMahon [2002 SKQB 201]: 11 The principles which apply to an application to strike a plaintiff’s claim under Rule 173(

a) are the following: (

i) The claim should be struck where, assuming the plaintiff proves everything alleged in the claim there is no reasonable chance ofsuccess. (Sagon v. Royal Bank of Canada et al. (1992), (SK CA), 105 Sask.R. 133 at 140 (C.A.)); (ii) The jurisdiction to strike a claim should only be exercised in plain and obvious cases where the matter is beyond doubt. (Sagon, at140; Milgaard v. Kujawa et al. (1994), (SK CA), 123 Sask.R. 164 (Sask.

C.A.)); (iii) The court may consider only the claim, particulars furnished pursuant to a demand and any document referred to in the claim uponwhich the plaintiff must rely to establish its case (Sagon, at p. 140); (iv) The court can strike all, or a portion of the claim (Rule 173); (

v) The plaintiff must state sufficient facts to establish the requisite legal elements for a cause of action. (Sandy Ridge Sawing Ltd. v.Norrish and Carson (1996), (SK KB), 140 Sask.R. 146 (Q.B.)).

[19] Accepting the plaintiffs alleged facts as true the Court is called upon to decide if the alleged facts make out a cause of action and ifnot the claim should be struck. Accepting the truth of the pleadings allows the Court to evaluate the plaintiff’s claim in its best light. See also: R v Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras 17–25, [2011] 3 SCR 45. [22] I would add one additional point, which is the corollary of the idea that a claim will only be struck if it is plain and obvious thatit cannot succeed. It is this.

The refusal of a court to strike a claim does not mean that a plaintiff will succeed at trial. It simply means thatthe claim may proceed to trial. There, the plaintiff will have to prove his, her, or its claim in the usual way. See: Harpold v Saskatchewan(Corrections and Policing), 2020 SKCA 98 at para 69. [23] The correctness standard of review is used in this Court when considering whether a Chambers judge made a reversible error instriking a pleading as disclosing no reasonable claim. See: Reisinger v J.C.

Akin Architect Ltd., 2017 SKCA 11 at para 27, 411 DLR (4th)687; Canada (Attorney General) v Merchant Law Group LLP, 2017 SKCA 62 at para 17, [2017] 10 WWR 664. B. The particulars of Mr. Taheri’s argument [24] Mr. Taheri’s submissions are best dealt with by looking at them argument-by-argument rather than respondent-by-respondent. Iwill begin with the question of whether the Chambers judge erred by striking claims because they deal with academic issues. I will thenturn to Mr. Taheri’s treatment of the claims in detinue, unlawful interference with economic interests, and breach of fiduciary duty. 1.

Claims related to academic issues [25] The Chambers judge struck some of the claims against Drs. Vujanovic, Hamel and Gan on the basis that they concernacademic issues and, therefore, should not be addressed by the courts. In this regard, the Chambers judge relied heavily on Fraser vTimmon, 2017 SKQB 376 [Fraser]. In that case, Kalmakoff J. (as he then was) struck a claim brought by a student against the Universityof Regina on the basis that it concerned matters of an academic nature. a.

The law [26] There is a significant body of case law dealing with the question of when, aside from proceedings taken by way of judicialreview, a court should entertain a claim against a university that concerns the internal academic affairs of the university. In general terms,it is well-settled that there is a realm of academic issues into which the courts should not reach.

See, for example: Williams v SimonFraser University, 2019 BCCA 41; Green v University of Winnipeg, 2015 MBCA 109, 323 Man R (2d) 157 [Green]; Albu v TheUniversity of British Columbia, 2019 BCCA 222 [Albu]; Tapics v Dalhousie University, 2015 NSCA 72, 363 NSR (2d) 202 [Tapics]; andGauthier v Saint-Germain, 2010 ONCA 309, 325 DLR (4th) 558 [Gauthier] (leave to appeal to SCC refused, ). [27] The authorities do not reveal a wholly consistent approach for identifying the sorts of claims that should not be entertained bythe courts.

Some of them proceed on the basis that it is necessary to identify the essential character, or pith and substance, of the claim inissue. If that essential character concerns academic requirements and processes, the court should decline to exercise its jurisdiction. Thus,for example, in Warraich v University of Manitoba, 2003 MBCA 58, 226 DLR (4th) 714, the Court of Appeal for Manitoba wrote asfollows in a case dealing with the course requirements for a medical residency: [14] The essence of Dr.

Warraich’s argument is that by the terms of his agreement, the University is contractually obliged to provideacademic and practical training to meet the requirements of his orthopedic residency so that he can, on satisfactory completion, obtain hisspecialty accreditation, all subject to an implied term that the course requirements are reasonable. But therein lies the rub. To complete theprogram, Dr. Warraich needs to comply with the Faculty of Medicine’s academic requirements, rules and regulations.

This, it seems to me,leads inevitably to the conclusion that the dispute, in its “essential character” is an internal disagreement relating to academic matters. Bytheir very nature, and for obvious reasons, domestic disputes such as we have in the appeal before us, are better resolved by theUniversity’s own procedures so long as they are fair, comprehensive and effective. See King v. University of Saskatchewan, (SCC), [1969] S.C.R. 678, and Harelkin [v University of Regina, (SCC), [1979] 2 SCR 561].

Generally speaking,universities “have absolute discretion as to the management of their own affairs, and there is accordingly no legal right that can beenforced against them by mandamus” (Halsbury’s Laws of England, 3rd ed., vol. 11, at p. 104).

It may well be as a matter of law that Dr.Warraich has certain enforceable contractual rights, but if the pith and substance of the dispute concerns academic requirements andprocesses, then any difficulties are to be resolved through the mechanism specifically provided for such matters by the University. (Emphasis added) See also: Al-Bakkal v de Vries, 2016 MBQB 45 at para 77, [2016] 10 WWR 706 [Al-Bakkal]; Green at para 31. [28] On the other hand, the Court of Appeal for Ontario has rendered a series of decisions explaining that a court should not declineto hear a claim for the sole reason that the tort or breach of contract in issue concerns an academic matter.

See: Gauthier; Jaffer v YorkUniversity, 2010 ONCA 654, 326 DLR (4th) 148 [Jaffer] (leave to appeal to SCC refused, ); and Lam v University ofWestern Ontario, 2019 ONCA 82, 55 Admin LR (6th) 288 [Lam] (leave to appeal to SCC refused, ). These cases saythe remedy claimed is indicative of whether a claim should be allowed to proceed, i.e., if a student seeks damages for breach of contractor tort, a court has authority to deal with the claim “even if the dispute arises out of an academic matter” (see Lam at para 31).

However,while making this point, the Court of Appeal for Ontario has also recognized that there are various kinds of claims for damages against auniversity that cannot succeed. Thus, in Lam at paragraph 31(

d) Zarnett J.A. wrote as follows: (

d) A claim by a student against a university will fail if it is an indirect attempt to appeal an academic decision for which judicial reviewwould be the remedy, or if insufficient detail is given in the pleadings to show that the university’s actions go beyond the broad discretionit enjoys: Gauthier, at para. 50; and Jaffer, at para. 28. These points do not invite a court to decline to entertain a legal claim for damagesfor breach of contract in favour of an internal university complaint process. Rather, they flow from the points above. A claim that does notallege conduct outside of the university’s broad discretion does not allege a breach of contract. It alleges conduct the university may

engage in without breaching its contract, because it has been given a discretion by the agreement between the parties to act as it has. A claim that is an indirect appeal of an academic decision suffers the same fate.

It is not really a claim that the university breached its agreement, but rather a claim that it should have exercised its discretion differently. [ 29 ] I expect that the two approaches outlined above will generate essentially the same result in relation to any given fact situation. [ 30 ] For my part, it seems most helpful to begin with the point, confirmed by the Supreme Court of Canada in Young v Bella , 2006 SCC 3 at para 51 , [2006] 1 SCR 108, that the relationship between a student and a university has a contractual footing.

By virtue of that relationship, a student impliedly agrees, by enrolling in a university, to accept the university’s determinations with respect to a range of academic matters, including, most obviously, the assessment of the student’s work and the organization and presentation of academic programing. This notion is statutorily reinforced, at least with respect to the University of Saskatchewan, by the terms of The University of Saskatchewan Act, 1995 , SS 1995, c U-6.1 [ Act ]. Section 61(1) of that Act authorizes the University council to: (

c) grant academic degrees, diplomas and certificates of proficiency; (

d) grant scholarships, prizes, fellowships, bursaries and exhibitions; … (

f) prescribe curricula, programs of instruction and courses of study in colleges, schools or departments; (

g) prescribe methods and rules for evaluating student performance, including prescribing examination timetables and the conduct of examinations; (

h) discipline students for academic dishonesty, including admonishing, dismissing, suspending or expelling students or imposing fines; (

i) prescribe academic and other qualifications required for admission as a student; (

j) hear appeals by students or former students concerning academic decisions affecting them; (

k) prescribe dates for beginning and ending lectures; (

l) prescribe and limit the number of students who may be admitted to a college or a program of study; … [ 31 ] All of this means that any claim in contract by a student against the University or a professor will be destined to fail unless it can be shown to be grounded in conduct or actions falling outside the sphere of matters that the student’s contractual relationship with the University has placed in its hands.

It also means that claims in tort, including claims in negligence, will have to be similarly rooted if they are to succeed, i.e., they must be rooted outside the scope of the University’s contractually-based authority to determine academic issues. See: Gauthier at paras 38–39 . Thus, by way of example, the courts will not hear a claim for damages based on an argument that a student should have received an “A” grade rather than a “B” grade in a particular class. However, they will hear a claim grounded on an allegation that a student was assaulted by a professor.

The former falls within the range of matters that the student has impliedly agreed will be resolved by the university. The latter does not. [ 32 ] Some of the cases in this area appear to see all of this as being a matter of jurisdiction in the strict sense of that term. See, for example: Albu at para 14 ; and Green at para 31 . It may be more appropriate, however, to see it as being one of deference. See: Al-Bakkal at paras 56 et seq . In other words, the point is not that a superior court has no jurisdiction to entertain a claim against a university or a professor if the claim involves an academic issue.

Rather, the courts have chosen not to exercise their jurisdiction in respect of such matters. [ 33 ] None of this means, of course, that the internal decision-making of a university in relation to student and academic matters is wholly beyond the reach of the courts. The law of judicial review ensures the fairness and the regularity of internal university processes. [ 34 ] Having confirmed these basic principles, it is now possible to turn to those aspects of the statement of claim that Mr. Taheri says were improperly struck. b.

Analysis [ 35 ] I will deal with Fiat Two and Fiat Three , in that order, to the extent those decisions concern claims dismissed on the basis that they concern academic issues. i. Fiat Two [ 36 ] Fiat Two features three claims struck by the Chambers judge on the basis that they concern academic issues. The first is the claim in negligence against Drs. Hamel and Gan. As noted earlier, the allegation there is that, as a co-supervisor and member of Mr. Taheri’s Ph.D. advisory committee, respectively, Dr. Hamel and Dr. Gan owed him a duty of care and breached it.

The particulars of the breach are described as follows at paragraph 53 of the statement of claim: (

a) Submitting the Proposal for research funding without giving any credit to [Mr. Taheri]; (

b) Neglecting to rectify the lack of credit on numerous occasions after original submission of the Proposal, despite requests from [Mr. Taheri]; (

c) Denying any recollection of the Proposal submitted by [Mr. Taheri] and denying his right to credit for the Proposal.

[ 37 ] I note here that Dr. Hamel and Dr. Gan did not attempt to strike this pleading on the basis that it was not a proper or adequate pleading of negligence or that it could not support the claim for damages asserted by Mr. Taheri. Their sole basis for attacking this aspect of the statement of claim was based on what they saw as the academic nature of the wrongdoing alleged by Mr. Taheri. This led the Chambers judge to strike this part of the pleading, at paragraph 13 of Fiat Two , by writing that it “relate[s] solely to Hamel and Gan in their roles as adjunct professors supervising [Mr.

Taheri’s] post-graduate program [and] … fall[s] clearly within the framework of [ Fraser ]. Paragraphs 52 and 53 are therefore struck”. [ 38 ] In my respectful view, the Chambers judge’s reasoning on this point does not come to grips with the nub of the issue. The alleged cause of action in negligence against Drs. Hamel and Gan cannot fail to reveal a reasonable claim against them simply because it relates to their student–professor relationship with Mr. Taheri.

That is so because not all conduct in a student–professor relationship falls, by definition, beyond the reach of a properly drafted statement of claim seeking damages in tort or contract. As noted above, the root question is whether the alleged conduct of Drs. Hamel and Gan can be said to fall within the sphere of activity which, by reason of the contractual foundation of the relationship between Mr. Taheri and the University, or by reason of the Act , it is plain and obvious that Mr.

Taheri has left the adjudication of his rights and claims to the University and its internal processes with the result that he should not be allowed to initiate a claim for damages in respect of such matters. [ 39 ] I do not see that to be the case here. It is not plain and obvious, as per the Rule 7-9(2)(

a) case law, that the resolution of an allegation about the appropriation of research by a professor and the damages said to flow from that appropriation is something that a student can be deemed to have agreed to leave for determination by the University through its internal proceedings and processes. [ 40 ] That said, I also note here that Mr. Taheri’s claim in negligence is something less than a textbook example of good pleading. Even he acknowledges its shortcomings. But, at the same time, and as noted, Dr. Hamel and Dr.

Gan do not argue that this claim should be struck on the basis that, as a claim in negligence, it is inadequately or improperly pleaded. In light of that, I conclude that the claim must be allowed to stand. But, in the interests of clarity, I would emphasize that this means nothing more than that all issues relating to the merits of Mr. Taheri’s negligence claim will be determined at trial. With this in mind, I would add that Mr.

Taheri would be well-advised to make amendments to this aspect of his statement of claim in order to more clearly set out the alleged duty of care, the standard of care, the breach of that standard and how the breach caused the damages claimed. [ 41 ] The second claim struck in the Second Fiat because it concerns academic issues is the other claim in negligence against Dr. Hamel. This claim, laid out at paragraphs 44 to 46 of the statement of claim, is based on the allegation that, along with Dr. Vujanovic as Mr. Taheri’s co-supervisors, Dr. Hamel “owed [Mr.

Taheri] a duty of care, breached that duty, and [was] negligent”. The particulars of the alleged negligence are described as follows in paragraph 42 of the statement of claim: (

a) Failing to act in [Mr. Taheri’s] best interest throughout the scope of his studies; (

b) Refusing to provide their consent to [Mr. Taheri] seeking patent protection for the Research, and, in fact, actively dissuading [Mr. Taheri] from seeking such; (

c) Having obtained the Research by virtue of their capacities of [Mr. Taheri’s] Ph.D. co-supervisors, subsequently publishing the Research and conclusions [Mr. Taheri] had drawn from the Research in the Paper without [Mr. Taheri’s] consent, or without providing [Mr. Taheri] with proper credit; (

d) In effectively and intentionally pre-empting [Mr. Taheri’s] Research and his ability to seek patent protection for it; (

e) In continuing to prevent or hinder [Mr. Taheri] in his ability to publish the Research and to obtain post-doctoral or other employment. [ 42 ] As was the case with Drs. Hamel and Gan, Dr. Vujanovic took issue with Mr. Taheri’s negligence claim solely on the basis that it concerned academic issues. He did not contest the adequacy of the pleading as a pleading in negligence.

The Chambers judge dealt with matters quite summarily, writing at paragraph 21 of Fiat Two that “[t]he decision Fraser v Timmons effectively eliminate [ sic ] the claims against Hamel contained in paragraphs 41 through 46”. [ 43 ] In my view, the Chambers judge erred in his consideration of this claim of negligence in essentially the same way that he erred in his consideration of the claim just discussed, i.e., the claim that Dr. Hamel is liable in negligence in connection with how Mr. Taheri’s research was used in connection with the Proposal.

It is not plain and obvious that the alleged use of a student’s research by a professor without credit to the student and the damages thereby suffered by the student is the sort of matter that a student should be taken to have impliedly agreed to be something that would be resolved solely by the University through its internal processes and procedures. [ 44 ] Like the negligence claim in relation to the research proposal, the claim in negligence presently under consideration is not well pleaded. However, as is the case with respect to the Proposal claim, Dr.

Hamel does not argue that, as a claim in negligence, it cannot be sustained. Accordingly, I do not see a way in which it can be struck on that basis. But, as with the other negligence claim, Mr. Taheri would be well advised to consider making amendments to clarify and tighten this aspect of his pleadings, particularly given that at least some aspects of the claim, for example, “intentionally pre-empting [Mr. Taheri’s] Research”, do not seem to readily fall under the negligence umbrella. [ 45 ] The third claim struck by the Chambers judge in Fiat Two , because it concerns academic issues, is the claim against Dr.

Hamel for breach of fiduciary duty. As noted, the allegation in the statement of claim is that, as a co-supervisor of Mr. Taheri’s graduate work along with Dr. Vujanovic, Dr. Hamel owed Mr. Taheri unspecified fiduciary duties and breached them by way of the same actions, listed above in paragraph 41, that are said to represent the ways in which he failed to meet the standard of care in negligence. [ 46 ] The Chambers judge struck this breach of fiduciary duty part of the statement of claim, as it relates to Dr.

Hamel, by writing as follows at paragraph 21 of Fiat Two : … The allegations there all fall within determinations made under the University’s policy in respect of the application made by [Mr. Taheri]. The authority to deal with these issues is found in the policy and was determined at the request of [Mr. Taheri]. The decision Fraser v Timmons effectively eliminate the claims against Hamel contained in paragraphs 41 through 46. There is no reasonable chance of

success in respect of these claims. … [ 47 ] However, the Chambers judge struck the same claim against Dr. Vujanovic because Mr. Taheri had failed to plead facts that could sustain a claim for breach of fiduciary duty and, most significantly, because he had not plead that Dr. Vujanovic expressly or impliedly undertook to act on a duty of loyalty and to forsake the interests of all others in favour of Mr. Taheri’s interests. As explained below, that analysis is correct.

It follows that, regardless of whether the Chambers judge erred in approaching the academic issues argument as he did at paragraph 21 of Fiat Two , the claim against Dr. Hamel for breach of fiduciary duty must be struck. It is, therefore, unnecessary to deal with this aspect of the Chambers judge’s handling of the “academic issues” point. ii. Fiat Three [ 48 ] In Fiat Three , the Chambers judge struck two more claims on the basis that they concern academic issues. The first is the claim in negligence against Dr. Vujanovic who, as a co-supervisor of Mr. Taheri’s studies along with Dr.

Hamel, is alleged to have breached a duty of care owed in ways described in paragraph 42 of the statement of claim. For ease of reference, the relevant part of paragraph 42 is repeated below: (

a) Failing to act in the plaintiff’s best interest throughout the scope of his studies; (

b) Refusing to provide their consent to [Mr. Taheri] seeking patent protection for the Research, and, in fact, actively dissuading [Mr. Taheri] from seeking such; (

c) Having obtained the Research by virtue of their capacities of [Mr. Taheri’s] Ph.D. co-supervisors, subsequently publishing the Research and conclusions [Mr. Taheri] had drawn from the Research in the Paper without [Mr. Taheri’s] consent, or without providing [Mr. Taheri] with proper credit; (

d) In effectively and intentionally pre-empting [Mr. Taheri’s] Research and his ability to seek patent protection for it; (

e) In continuing to prevent or hinder [Mr. Taheri] in his ability to publish the Research and to obtain post-doctoral or other employment. [ 49 ] The other claim struck in Fiat Three on the basis that it concerns academic issues is the claim against Dr. Vujanovic for breach of fiduciary duty.

The particulars of that breach are described in paragraph 42 of the statement of claim, quoted in the preceding paragraph of this decision. [ 50 ] The Chambers judge struck both the claim in negligence and the claim for breach of fiduciary duty by reasoning in this way: [11] It is clear that the complaints made against Vujanovic mirror the allegations of [Mr.

Taheri] made against Vujanovic and others as contained in the complaint made to him under the University of Saskatchewan research and integrity policy as discussed in the previous fiats (Taheri v Vujanovic (13 December 2017) Saskatoon, QBG 513/2014 (Sask QB); and Taheri v Vujanovic (10 January 2018) Saskatoon, QBG 513/2014 (Sask QB)). [Mr. Taheri’s] claims, no matter how he attempts to frame them, are fundamentally academic. I simply refer to the decision in Fraser v Timmons (6 July 2017) Regina, QBG 2505/2016 (Sask QB).

That decision of Kalmakoff J., referred to in the previous fiats, in essence determines this application as well. It makes the claim unsustainable. [ 51 ] I observe here that, as noted above, the Chambers judge went on to consider the viability of the claim for breach of fiduciary duty against Dr. Vujanovic as a distinct or freestanding issue. At paragraph 16 of Fiat Three , he found that, on the basis of the facts alleged in the statement of claim, the breach of fiduciary duty claim is not viable because Dr. Vujanovic is not said to have expressly or impliedly undertaken to act only in Mr. Taheri’s interest.

As detailed below, this conclusion is correct and, as a result, the claim against Dr. Vujanovic for breach of fiduciary duty must be struck regardless of whether the Chambers judge erred in striking it as being concerned with academic issues. It follows that I need not consider the “academic issues” point as it concerns the breach of fiduciary duty claim against Dr. Vujanovic. [ 52 ] That leaves the claim in negligence against Dr. Vujanovic. I find that the Chambers judge erred here just as he did in striking the same claim as it applied to Dr. Hamel.

In other words, he treated the student–professor relationship between Mr. Taheri and Dr. Vujanovic as being dispositive of the question of whether the claim should proceed when, in fact, it is not. The real question, for present purposes, is whether it is plain and obvious that the claim in negligence against Dr. Vujanovic concerns matters that Mr. Taheri can be taken to have agreed are ones that would be resolved through the internal processes and procedures of the University.

As explained earlier, I am not persuaded that this is the case. [ 53 ] Also, as indicated above, this claim is not well pleaded and could profit from clarifying amendments. [ 54 ] Before closing on this point, I note that Dr. Vujanovic, relying on Lobo v Carleton University , 2012 ONCA 498 , argues that a university is vicariously liable for the actions of a professor and that a claim against a professor personally cannot normally be entertained. In order to be personally liable for his or her conduct a professor must have acted, says Dr.

Vujanovic, in a way that is in and of itself tortious or that exhibits a separate identity or interest from that of the university. Dr. Vujanovic suggests that the claims against him can be struck on this basis as well. [ 55 ] This argument is not persuasive, at least not in the present context. First, Mr. Taheri is no longer suing the University, i.e., he has not appealed those aspects of the Chambers judge’s decisions that knocked out the claim against the University. Second, this is an application to strike pleadings as revealing no reasonable claim, not a final adjudication of the matters in issue.

Accordingly, the question is whether it is plain and obvious that Dr. Vujanovic’s alleged conduct does not fall within the realm of activity that, using the terms of his own argument, is either not tortious in and of itself or does not exhibit an identity or interest separate from the University. It is self-evident that Dr. Vujanovic has not cleared this hurdle. [ 56 ] Dr. Vujanovic also argues that the statement of claim primarily takes issue with how the University and its faculty handled Mr. Taheri’s complaint about research misconduct.

He says that the Integrity Policy provides a mechanism for dealing with such issues and

that such things are wholly governed by the Policy. Dr. Vujanovic refers, in this regard, to Tapics where, at paragraph 53 , the Court of Appeal for Nova Scotia indicated that “[a] civil claim that is just an indirect attempt at judicial review may be struck…The principles that would govern such an application engage either res judicata , particularly issue estoppel, or abuse of process”. See also: Gauthier at paras 46, 50 ; Jaffer at para 28 . Dr. Vujanovic submits that the claims against him are no more than a re-hash of the complaint that Mr.

Taheri advanced pursuant to the Integrity Policy and, therefore, should be struck. [ 57 ] I am not persuaded that this argument has enough strength to succeed in the present circumstances. Mr. Taheri does not seek to reverse or overturn the findings of the hearing board or the decision of Dr. Buhr. After all, they largely favoured him. Rather, Mr. Taheri seeks damages in respect of the loss and harm allegedly visited on him by Dr. Vujanovic.

Damages, of course, are a remedy not available under the Integrity Policy. [ 58 ] It must be plain and obvious that a claim of this sort cannot succeed before it can be struck pursuant to Rule 7-9(2)(a). Dr. Vujanovic has not met that burden. C. The claim in detinue [ 59 ] Mr. Taheri also takes issue with the Chambers judge’s decision, in Fiat Three , to strike his claim in detinue against Dr. Vujanovic. That claim is pled as follows at paragraph 50 of the statement of claim: 50. [Mr. Taheri] claims that in failing to preserve the Collection and in preventing him from accessing the same, despite [Mr.

Taheri] having certain property rights to the Collection and making requests for access and preservation, Dr. Vujanovic committed the tort of detinue. [ 60 ] In striking this claim, the Chambers judge wrote as follows: [20] This pleading does not satisfy the requirement for a claim in detinue. It neither provides the factual or legal background for such to exist. On this basis, once again, [Mr. Taheri’s] claim has no reasonable chance of success. [ 61 ] The tort of detinue concerns the wrongful detention of a chattel. Success in an action in detinue requires (

a) proof that the plaintiff had a better right to possession of the chattel than the defendant, and (

b) proof that, notwithstanding a demand by the plaintiff for the return of the chattel, the defendant refused to return it. See: Paulsen v Saskatchewan (Ministry of Environment) , 2013 SKQB 119 at para 15 , 418 Sask R 96; Lewis Klar, Tort Law , 6th ed (Toronto: Thomson Reuters, 2017) at 110. [ 62 ] Here, Mr. Taheri does not plead that he had a better right to possession of the fungi collection than did Dr. Vujanovic. He pleads only that he had “certain property rights” in the collection. In oral argument, when asked to clarify the nature of the property interest underpinning the detinue claim, Mr.

Taheri’s counsel advised that it was “not a right in physical property” but, rather, something in the nature of an intellectual property interest. It follows, therefore, that this claim is not concerned with a chattel. Further, Mr. Taheri did not plead that he had demanded the return of the collection or that Dr. Vujanovic had refused his request. He pled that Dr. Vujanovic had failed in his obligation to provide access to the collection and to preserve it. [ 63 ] As a result, I find that the Chambers judge made no error in striking the detinue claim. D.

The claims for unlawful interference with economic interests [ 64 ] Mr. Taheri also challenges the Chambers judge’s decision to strike those parts of the statement of claim that are framed as claims for unlawful interference with economic interests. [ 65 ] The first feature of the statement of claim in issue here is found at paragraphs 47–48 where Mr. Taheri pleads, most centrally, that in publishing his research and conclusions without his consent, and in refusing to provide their permission for him to seek certain patent protections, Drs.

Vujanovic and Hamel committed the tort of unlawful interference with economic interests. Paragraph 47 reads as follows: 47. [Mr. Taheri] relies on the facts hereinbefore pleaded, and states that the unlawful actions of Dr. Vujanovic and Dr. Hamel were done with the intent of injuring [Mr. Taheri’s] reputation in the academic and research community and of impacting his ability to publish the Research in the future or to pursue the economic, academic and employment opportunities that could follow publication and patent protection of his Research, and that said conduct amounts to an unlawful interference with [Mr.

Taheri’s] economic interest. [ 66 ] Mr. Taheri’s second claim for unlawful interference with economic interests is against Drs. Hamel and Gan. It is pled in these terms: 54. Further, or in the alternative, [Mr. Taheri] states that Drs. Hamel and Gan intentionally and unlawfully interfered with his economic interests. They unlawfully took credit for the Proposal, with the intention of preventing him from benefiting from the financial, academic and employment advantages that would have resulted from his being credited as the author of the research proposal. [Mr.

Taheri] suffered economic loss as a result, as will be particularized below. [ 67 ] Writing in Fiats Two and Three , the Chambers judge found that the principle of deferring to universities in the adjudication of academic issues did not apply to these claims because the Integrity Policy could not provide the relief, i.e., damages, requested by Mr. Taheri. However, relying on A.I. Enterprises Ltd. v Bram Enterprises Ltd. , 2014 SCC 12 at para 5 , [2014] 1 SCR 177 [ A.I. Enterprises ], he then found that there were no factual allegations in the statement of claim that could bring the actions of Drs.

Vujanovic, Hamel and Gan within the scope of the tort. [ 68 ] In my view, the Chambers judge made no bottom-line error in deciding as he did. The tort of unlawful interference with economic interests is committed only in third-party situations where the defendant commits an unlawful act against a third party and that

act intentionally causes economic harm to the plaintiff. See: A.I. Enterprises at para 5, and Saskatchewan Financial Services Commissionv Mallard, 2014 SKCA 78, 438 Sask R 316. [69] There is no third party on the playing field in this case. Mr. Taheri alleges that Drs. Vujanovic, Hamel and Gan acted directlyagainst him to cause harm. As a result, the Chambers judge quite correctly decided to strike these features of Mr. Taheri’s statement ofclaim. E. The claims for breach of fiduciary duty [70] Finally, Mr.

Taheri takes exception to the Chambers judge’s decision to strike aspects of his statement of claim on the basis thatthey do not properly plead a claim for breach of fiduciary duty. [71] The first claim in issue here is the one advanced against Dr. Vujanovic. He and Dr. Hamel are alleged to have owedunspecified fiduciary duties to Mr. Taheri by virtue of being the co-supervisors of his Ph.D. work. As explained above, they are said tohave breached their fiduciary duties in several ways, including by refusing to provide their consent to Mr.

Taheri to seek patent protectionfor certain matters, publishing his research and conclusions without his consent, intentionally pre-empting his research, and preventing orhindering him from publishing his research and obtaining post-doctoral or other employment. [72] As already explained, the Chambers judge struck this claim as it concerns Dr. Hamel on the basis that it concerned academicmatters. However, he took a different approach as it concerned Dr. Vujanovic by finding that, as pled, it revealed no reasonable claim.

Inthis latter regard, the Chambers judge wrote as follows in Fiat Three: [16] In the factual context of this case, but also generally speaking, the relationship between supervising professors and post-graduatestudents is not one where the professor forsakes the interests of all others in favour of the student. [Mr. Taheri] is seeking a post-graduatedegree. The university ostensibly is prepared to grant it to him if he completes the satisfactory components according to the university’spolicy of obtaining such a degree.

The supervising professor has an obligation to the university to ensure that the student meets thoserequirements before the degree or designation will be granted. The supervising professor has an obligation to the university whichsupersedes any requirement that he act in the interests of the fiduciary. As such, no fiduciary relationship has been created, and that part ofthe claim cannot be sustained. [73] The law in this area is well-settled. There are two kinds of fiduciary relationships. The first is per se relationships.

Theseinclude cestui que trust, executor–beneficiary, solicitor–client, agent–principal, director–corporation, guardian–ward, and parent–child.There is no suggestion that the relationship between Mr. Taheri and Dr. Vujanovic (or Drs. Hamel, Buhr or Chad as far as that goes) is afiduciary relationship of this sort. [74] The second kind of fiduciary relationship is ad hoc. Such relationships arise only where: (

a) the fiduciary has the authority toexercise power or discretion; (

b) the power or discretion is exercised unilaterally over the beneficiary, thereby affecting the beneficiary’slegal or practical interests; (

c) the beneficiary is peculiarly vulnerable to, or at the mercy of, the fiduciary; and (

d) the fiduciary hasundertaken to act in the best interests of the beneficiary and to forsake the interest of all others in favour of the beneficiary with regard tothe specific legal or practical interest at stake.

See: Alberta v Elder Advocates of Alberta Society, 2011 SCC 24 at paras 27–32, [2011] 2SCR 261. [75] In Professional Institute of the Public Service of Canada v Canada (Attorney General), 2012 SCC 71, [2012] 3 SCR 660, theSupreme Court emphasized the importance of the fourth element of an ad hoc fiduciary relationship: [124] It is now definitely a requirement of an ad hoc fiduciary relationship that the alleged fiduciary undertake, either expressly orimpliedly, to act in accordance with a duty of loyalty.

It is critical that the purported beneficiary be able to identify a forsaking of theinterests of all others on the part of the fiduciary, in favour of the beneficiary, in relation to the specific interest at issue. [76] I see no error in the Chambers judge’s treatment of the fiduciary duty issue in and of itself. The statement of claim does notplead that Dr. Vujanovic (or Drs. Hamel, Buhr or Chad) undertook, either expressly or impliedly, to forsake the interests of all others infavour of Mr. Taheri.

In broad terms, it is apparent that, while professors have obligations to their students, they have overlapping orcoincident obligations to the University as well. Not all power-dependency relationships are fiduciary in nature. See: Galambos v Perez,2009 SCC 48 at para 74, [2009] 3 SCR 247. [77] Let me add, by way of a concluding comment on this issue, that I would not want what I have just said to be taken as being adetermination that no aspect or dimension of a student–professor relationship could possibly be fiduciary in nature. We are concerned hereonly with the adequacy of Mr. Taheri’s pleadings.

I offer no comment one way or the other on the larger question of whether, as a generalproposition, professors might owe some kinds of fiduciary obligations to their students. VI. The Question of Amendments [78] Mr.

Taheri asks that, if he is unsuccessful in overturning the decisions of the Chambers judge, he be granted leave to amend hisstatement of claim and thereby resurrect the claims that are struck. [79] The general approach to the question of allowing amendments when a claim is struck were explained as follows bySherstobitoff J.A. in Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 (CA): [17] Rule 173 permits amendment rather than striking out in appropriate cases.

Bullen and Leake’s Precedents of Pleadings, 12th Ed.,summarizes the practice this way at p. 143: “Where the statement of claim or defence as pleaded discloses no reasonable cause of action or defence because some material averment

has been omitted or because the pleading is defectively stated or formulated, the court, while striking out the pleading, will not dismiss the action or enter judgment, but will give the party leave to amend and if necessary to serve a fresh pleading to correct or cure the defects appearing in the original pleading.

On the other hand, if the court is satisfied that the pleading discloses no reasonable cause of action or defence, as the case may be, and that no amendment, however ingenious, will correct or cure the defect, the pleading will be struck out and the action dismissed or judgment entered accordingly.” (footnotes omitted) [ 80 ] I note that Mr. Taheri’s request for leave to amend came very late in the game—in oral argument before this Court. He apparently did not seek leave in the proceedings before the Chambers judge.

Neither did he indicate, in his notice of appeal, that he would seek leave to amend his pleadings as a part of the relief requested from this Court. Nor, for that matter, is the question of amendments raised in Mr. Taheri’s factum. None of this is necessarily fatal. Indeed, there is authority for the proposition that a judge or a court may, on its own initiative, decide to allow a plaintiff to make amendments when a claim is struck, i.e., in circumstances where the plaintiff has not even sought such relief.

See: Thirsk v Saskatchewan (Public Guardian and Trustee) , 2017 SKQB 66 at para 11 ; and A v Canada (Attorney General) , 2018 SKQB 103 at para 89 . [ 81 ] However, Mr. Taheri raises the prospect of amendments in only the most general way. He does not indicate how his pleadings with respect to detinue, breach of fiduciary duty and unlawful interference with economic interests might be amended to cure the problems identified by the Chambers judge and does not provide any suggested wording in that regard.

Moreover, and more importantly, it is by no means clear that the underlying facts can accommodate the necessary amendments. [ 82 ] In the end, therefore, I am not inclined to give Mr. Taheri leave to amend his statement of claim with respect to these claims. This is not a situation where the problem is a simple defect in a pleading that can be put right with an amendment. In the absence of anything further from Mr. Taheri, it looks to be a situation where the root facts simply cannot sustain claims in detinue, unlawful interference with economic interests, and breach of fiduciary duty. VII. CONCLUSION [ 83 ] Mr.

Taheri’s appeal is allowed to the extent of reversing the Chambers judge’s decisions to strike the claims in negligence against Drs. Hamel, Gan and Vujanovic. It follows that the claim against Agriculture Canada must also stand to the extent it is grounded in vicarious liability for the claims in negligence against Drs. Hamel and Gan. In all other respects, Mr. Taheri’s appeal is dismissed. [ 84 ] In light of the mixed success achieved by Mr. Taheri, there will be no order with respect to costs. “Richards C.J.S.” Richards C.J.S. I concur. “Leurer J.A.” Leurer J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.