ONTARIO SUPERIOR COURT OF JUSTICE Court File No. BETWEEN: (Court Seal) CHRIS AVENIR Plaintiff and RYERSON UNIVERSITY Defendant Proceedings under the Class Proceedings Act, 1992 TO THE DEFENDANT(S) STATEMENT OF CLAIM A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. The Claim made against you is set out in the following pages. IF YOU \NISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a Statement of Defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the Plaintiff's lawyer or, where the Plaintiff does not have a lawyer, serve it on the Plaintiff, and file it, with proof of service, in this court office, WITHIN TWENTY DAYS after this Statement of Claim is served on you, if you are served in Ontario. If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your Statement of Defence is forty days. If you are served outside Canada and the United States of America, the period is sjxty days. Instead of serving and filing a Statement of Defence, you may serve and file a Notice of Intent to Defend in Form 188 prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your Statement of Defence.
-2- IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE. Date ~ {f f vb Jo ( O Issued by ~=-+r-------" r_~ _. _, 1... a Address of court office: 393 niversity Avenue 1 Ot Floor Toronto, Ontario MSG 1E6 TO Ryerson University 350 Victoria Street Toronto, Ontario M5B 2K3 Defendant
-3- C LAI M 1. The Plaintiff Chris Avenir claims, on his own behalf and on behalf of all Class Members: (a) an Order pursuant to the Class Proceedings Act, 1992, S.O. 1992, c.6 (CPA) certifying this action as a class proceeding and appointing the plaintiff Chris Avenir as representative plaintiff; (b) a declaration that the Defendant breached the Contract (as defined below) with the Class Members; (c) damages from the Defendant for breach of the Contract in the amount of TEN MILLION DOLLARS ($10,000,000.00); (d) punitive damages in the amount of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000); (e) pre-judgment interest in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended; (f) post-judgment interest in accordance with section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended; (g) the costs of this proceeding on a substantial indemnity basis, plus goods and services tax; (h) pursuant to s. 26(9) of the CPA, the costs of notice and of administering the plan of distribution of the amounts recovered in his action; and,
-4- (i) Such further and other Relief as to this Honourable Court may seem just. The Parties 2. Ryerson is an Ontario university established pursuant to the Ryerson University Act, 1977. At all material times, Ryerson operated as a university providing various post-secondary degree programs to students. Ryerson is located in Toronto, Ontario. 3. Ryerson solicits the enrolment of post-secondary students in its various degree programs. Upon enrolment, Ryerson enters into a contract with each student that is iin part written and in part oral (the "Contract"). 4. It is an implied term of the Contract that each student must pay his or her tuition and abide by Ryerson's policies as set out in the various policy documents in force at the time or as otherwise communicated to students (the "Ryerson Policies"). Ryerson is obliged pursuant to an implied term of the Contract to provide post-secondary education and to act in accordance with the Ryerson Policies. The students and Ryerson are thereby duty-bound to each other to meet their respective obligations in the Contract 5. The Ryerson Policies are drafted by Ryerson and published to and imposed upon the students. The students have no opportunity to negotiate or vary the provisions of the Ryerson Policies. 6. The plaintiffs/ class members are those students who were enrolled at Ryerson from on or after March 4, 2003 (having paid tuition fees to Ryerson during that time) and who were subjected by Ryerson to disciplinary proceedings. The class members each individually entered into the Contract with Ryerson.
-5-7. Chris Avenir enrolled at Ryerson in 2007. At all times, Avenir paid his tuition and was entitled under the Contract to the full rights and protections provided under the Ryerson Policies. Ryerson's Academic Misconduct Policy 8. Ryerson's "Policy 60" relates to allegations of academic misconduct mad against Ryerson students. Policy 60 is published by the Ryerson University Senate and made available to faculty, students and any other member of the Ryerson community. The class members were and are subject to Policy 60 and were and are required to familiarize themselves with its terms. 9. Policy 60 defines academic misconduct, details the procedure to be followed for the holding of discussions, hearings and appeals where a student has been charged with academic misconduct and sets out the various punishments that may be handed down for acts of academic misconduct. Policy 60 further sets out the procedural rights afforded to those charged with academic misconduct. 10. Policy 60 was drafted by Ryerson and adopted by Ryerson's Senate. It was originally approved on March 4, 2003 and was subsequently amended. Policy 60, as amended, formed a part of the Contract Ryerson made with each class member individually. 11. The pre-amble to Policy 60 provides that, "the University [Ryerson] recognizes the gravity of a charge of academic misconduct and is committed to handling the disposition of such charges in a respectful, timely and thoughtful manner. The University
-6- will apply this policy in a manner that is consistent with the principles of natural justice and the rights of students to a timely and fair assessment of their academic performance." 12. Ryerson thereby committed itself to resolving academic misconduct charges in a fair manner and in accordance with the principles of natural justice. 13. Policy 60 provides the following procedure for the resolution of academic misconduct charges: (a) if academic misconduct is suspected, the suspected student must be notified of the suspicion in a timely manner; (b) the first step once a student is suspected of academic misconduct is to hold what is known as a "Facilitated Discussion"; (c) if the professor concludes that misconduct has occurred, the penalties available range from a mark of 0 on the tesu assignment through to more serious disciplinary measures, including disciplinary suspension all the way through to expulsion; (d) depending on the severity of the penalty, the professor either unilaterally imposes the penalty (from which the student can appeal) or recommends the penalty, which results in a Faculty Appeals Committee ("FAC") hearing being convened to consider whether the recommended penalty is appropriate. The FAC hearing is an adversarial, quasi-judicial procedure
-7- involving, inter alia, oral evidence from witnesses and oral and written submissions by the parties; and, (e) there is then a process for the Faculty Appeals Committee hearing and for appealing that tribunal's decision to the Senate Appeals Committee {"SAC"); 14. The University bears the burden of proving that misconduct occurred on the balance of probabilities. Policy 60 also provides that at all times while a particular case is making its way through the system, the student involved can remain enrolled in their courses while their case is under appeal. Procedural/ Fairness Rights 15. Policy 60 guarantees those charged with academic misconduct certain procedural and/ or fairness rights. Most importantly, Policy 60 provides that "all hearings shall be conducted in accordance with the Statutory Powers Procedure Act, [R.S.O. 1990, c. S.22] (the "SPPA")." 16. Thus, Policy 60 incorporates by reference the various procedural and other requirements of the SPPA, including, most fundamentally, the right to counsel and the right to cross-examine: s. 10 Right to Representation "A party to a proceeding may be reprt )sented by a representative."
-8- s. 10.1 Examination of Witnesses "A party to a proceeding may, at an oral or electronic hearing: (a) call and examine witnesses and present evidence and submissions; and, (b) conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding. 17. A "representative" in the SPPA is defined as a person authorized to act as such under the Law Society Act, R.S.O. 1990, c. L.8. 18. Although the SPPA allows a tribunal to make ciders, give directions and make rules to control its own process, the tribunal cannot, by virtue of ss. 25.01 and 25.1 of the SPPA, exclude a party's legal representative, and cannot make rules that are inconsistent with the SPPA. 19. Thus, by virtue of the SPPA, which is incorporated into Policy 60 by reference, the plaintiffs had the right to be represented by a lawyer in the course of an academic misconduct proceeding, including at any FAC, SAC or other hearings held in the course of such proceeding, and to cross-examine witnesses at such hearings. 20. The plaintiffs plead and rely on the provisions of the SPPA and state that these are terms of the Contract that Ryerson was obliged to meet. Ryerson's Breaches of Contract 21. Ryerson breached its own Policy 60 and deprived the plaintiffs of fundamental rights guaranteed to them in the SPPA and incorporated into Policy 60 in a myriad of ways.
-9-22. Most importantly, Ryerson's own procedural rules passed under and forming a part of Policy 60 have deprived and continue to deprive plaintiffs of the right to counsel at early and important stages of the academic misconduct process, including Faculty Appeals Committee hearings. The procedural rules include the provision that, "Students may be represented by an advocate who is not a lawyer at the Faculty Appeals Committee or Senate Appeals Committee level. Legal representation is permitted only at the Senate appeal level." 23. Thus, Policy 60 is internally contradictory. By expressly stating ~hat students are not permitted to be represented by a legal representative at the Faculty Appeals Committee level, Ryerson deprived the plaintiffs of the right to counsel guaranteed in the SPPA. Ryerson thereby breached its Contract with the plaintiffs, including Mr. Avenir. 24. In addition, as a matter of practice Ryerson did not allow cross-examination of witnesses at either the Faculty Appeals Committee or Senate Appeals Committee levels. This uniform practice also breached the Contract, which guaranteed the plaintiffs the right to cross examine witnesses by virtue of the incorporation of s. 10.1 of the SPPA. 25. Finally, Ryerson generally ignored the plaintiffs' rights and Ryerson's obligations as set out in the Ryerson Policies, all forming part of the Contract. 26. All of Ryerson's many breaches of the Contract were taken with a view to achieving administrative efficiency; in breach of Ryerson's commitment to implement a fair and respectful academic misconduct process.
-10-27. In the case of the plaintiff Chris Avenir, his academic misconduct charges proceeded through the Ryerson disciplinary system in early-2008. He was required first to attend a Facilitated Discussion, after which the professor recommended the maximum possible penalty: expulsion. 28. The recommendation of expulsion triggered an automatic Faculty Appeals Committee hearing. Mr. Avenir was greatly disturbed and upset by the prospect of being expelled from his studies at Ryerson. He retained counsel to assist him in contesting the charges and attempting to prevent his expulsion. 29. Ryerson then breached the guarantee of the right to counsel ins. 10 of the SPPA by denying Mr. Avenir the right to be represented by counsel at the Faculty Appeals Committee hearing. Ryerson refused even to hear any argument from Mr. Avenir's counsel on the subject of his right to representation. These breaches of the Contract were made by Ryerson purportedly pursuant to the terms of Policy 60 and were consistent with the approach taken by Ryerson with all other students charged with academic misconduct, which approach was to prefer in all cases administrative efficiency over the students' rights. 30. Ryerson's misfeasance also deprived the plaintiffs of the ability to know that Ryerson had breached the Contract. By prohibiting the plaintiffs from obtaining legal counsel until the late-stages of the academic misconduct process, Ryerson prevented the plaintiffs from knowing that it had breached their rights and that they had suffered damages. The plaintiffs were therefore not aware that they had suffered a loss and that a legal proceeding would be the appropriate means of achieving redress.
-11-31. The plaintiff pleads that the Contract was a peace of mind Contract between Ryerson and the plaintiffs, pursuant to which Ryerson assured the plaintiffs that any academic misconduct charges would be handled fairly and in a manner that recognized the grave consequences that such charges posed for the plaintiffs. Damages 32. Ryerson's breaches of contract have caused and will continue to cause Mr. Avenir and the other plaintiffs damages. 33. Policy 60 provides for the various sanctions that can be imposed where a student is found to have committed academic misconduct. These range from a grade of zero on a particular assignment through to expulsion. Many of the sanctions also carry a longlasting or permanent record on a student's transcript evidencing that the student was disciplined for academic dishonesty. 34. Ryerson's breaches of contract caused damages as follows: (a) the plaintiffs faced serious and disturbing academic misconduct charges without proper representation, which caused or contributed to significant emotional and/ or mental distress; (b) the plaintiffs were deprived of the opportunity to have legal representation and therefore to adequately defend themselves during important steps of the academic misconduct process, including formal hearings at which significant sanctions up to and including expulsion could be assigned.
-12- The denial of representation caused or contributed to adverse outcomes at such hearings; (c) the plaintiffs were deprived of the opportunity to cross-examine witnesses during the material misconduct hearings; which contributed to adverse outcomes in such hearings; (d) the plaintiffs consequently incurred sanctions that have impaired and will continue to impair their ability to compete in the marketplace for employment; and, (e) the plaintiffs consequently suffered a loss of dignity and respect in the community. 35. All of these damages were foreseeable as a result of Ryerson's negligence and breach of Contract. 3'6. Ryerson has denied the plaintiffs the fundamental right to counsel and the right to cross-examine to suit its own desire for administrative efficiency, with little to no regard for the students' rights or interests. The plaintiffs are entitled to the damages that inevitably flowed from this wrongful conduct. Punitive Damages 37. Ryerson was aware from at least April 2008 and possibly well before then that its own policies were inconsistent with the plaintiffs' rights under the SPPA and breached the Contract. Ryerson nonetheless did nothing to address the breaches and continued
-13- to deny the plaintiffs' the procedural protections to which they were entitled, with knowledge that such deprivation was wrongful. 38. Ryerson's conduct in knowingly breaching the Contract via the denial of fundamental rights was arbitrary, capricious and high-handed. Such conduct shocks the community's conscience and warrants the imposition of a punitive damages award. 39. The Plaintiffs propose that this action be tried at Toronto, Ontario. ADAIR MORSE LLP Barristers & Solicitors One Queen Street East Suite.1800 Toronto ON IM5C 2W5 John J. Adair (52169V) Tel: 416.863.1230 Fax: 416.863.1241 Lawyers for the Plaintiffs RCP-E 14A (July 1, 2007)
Plaintiff -and- (, \j - l,0 ~~T-7-fl OOcf RYERSON UNIVERSITY, et al Defendant Court File No. ONTARIO SUPERIOR COURT OF JUSTICE PROCEEDING COMMENCED AT TORONTO STATEMENT OF CLAIM ADAIR MORSE LLP Barristers & Solicitors One Queen Street East Suite 1800 Toronto ON MSC 2W5 John J. Adair (52169V) Tel: 416.863.1230 Fax: 416.863.1241 Lawyers for the Plaintiff RCP-E 4C (July 1, 2007)