In the recent decision of Gaucher v. British Columbia Institute of Technology (“BCIT”), 2021 BCSC 289, the Supreme Court of British Columbia dismissed an action that was brought by a former student against BCIT. While this decision relates to a post-secondary institution established under the College and Institute Act, RSBC 1996, Chapter 52 (the “Act”), the findings made by the court in this case may assist other post-secondary institutions in having “academic” claims by students struck or summarily dismissed.
The Plaintiff in this case was a former student that received a failing grade in a clinical course. She went through the internal appeals process, and within that process was permitted an opportunity to achieve a passing grade through an alternative grading process. If she was successful in that alternative process, she would receive a passing grade and then a certificate in the program. The student was successful in the alternative process, applied for and received the certificate for the program. The former student also filed a harassment complaint against her instructors, which she pursued through the post-secondary institution’s internal procedures. The decision-makers in that process found that there was no evidence to support the complaint. The student did not appeal through the internal appeals procedures that were available to her. Instead, the student commenced an action against BCIT for breach of the “educational contract”, negligence, infliction of mental or emotional distress, and what appeared to be the tort of harassment.
An application was then made to have the claim struck on the basis that it failed to plead a cause of action known to law, was unnecessary, frivolous, vexatious and an abuse of process. In the alternative, BCIT applied for summary judgment on the basis that there was no genuine issue and the Plaintiff was bound to fail as the pith and substance of the Plaintiff’s claim was in relation to academic judgments and/or relating to matters that are academic in nature.
The court agreed with the post-secondary institution’s arguments and struck the Plaintiff’s claim without further leave to amend. No appeal was taken on this decision.
- This is the first case where a judge has considered in one decision all of legal principles found in BC cases: Williams v. Simon Fraser University, Albu v. University of British Columbia (both which were affirmed by our Court of Appeal) and Ontario cases: Shafique v. University of Waterloo and Abara et al v. Georgie, regarding a student’s ability to sue post-secondary institutions on matters that are “academic” in nature;
- The court clarified that these types of claims are no longer novel, and that there is no doubt that matters arising from the manner of evaluation of a student, a student’s dismissal from an educational institution, the conduct of the student’s instructors during a course, academic requirements set by the institution, and rules and regulations that educational institutions apply to their students are academic matters which the court has no jurisdiction over, except by way of an application for judicial review;
- In considering the tort claims, the court confirmed that a student pleading negligence against an academic institution must also plead facts which take the alleged behavior beyond the discretionary scope granted to academic institutions. The court also confirmed that the tort of harassment is not a tort recognized in Canada; and
- The court also found that the claim was a collateral attack on the decisions already made in the harassment complaint process under the post-secondary internal policies and procedures, and as such, was an abuse of process.
This decision is noteworthy because it clarifies the legal principles relating to claims by students involving academic matters. While this decision relates to a post-secondary academic institution under the Act, we anticipate that the court’s strong endorsement of the recent BC cases of Williams and Albu, and the consideration of the legal principles found in those cases, will be very helpful to other post-secondary academic institutions in future matters.