February 6, 2019 5:07 pm
Updated: February 6, 2019 5:10 pm

Ex-PhD student gets OK to sue Western University; claims he was pushed out after supervisor died

The gothic tower of University College at Western University, December 4, 2018.

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TORONTO – A former student who claims that Western University pushed him out of a PhD program after his thesis supervisor died can press his claim for damages against the school, Ontario’s top court ruled on Wednesday.

The ruling overturns a lower court decision that threw out the claim pre-trial on the basis that Simon Lam should have used an internal university process rather than the courts.

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“There was nothing in law that required Superior Court to decline to deal with such a claim or to refuse remedies, such as damages, in favour of an internal university complaint process in which such remedies would not be available,” the court ruled unanimously.

Lam’s problems began when his supervisor passed away in 2012, leaving the doctoral science student without one. According to his statement of claim, Western constituted a supervisory committee that lacked expertise in his area of specialized biochemistry research and was unwilling to acquire such knowledge.

He also argued the committee misled him about funding available to him and unfairly denigrated his work to persuade him to transfer from his PhD program back to a master’s, which he did.

“He felt after his meetings with the supervisory committee that he had no alternative,” the Court of Appeal said in its decision. “He specifically stated that he relied on their statements about there being no funding available and that, if he had known there was such funding, he would not have transferred.”

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For its part, Western maintained that Lam’s claims for loss of income and other damages were “academic complaints dressed up as legal causes of action.”

In November 2017, Superior Court Justice Markus Koehnen agreed with the university in London, Ont.

Although the judge found there were genuine issues for a trial to sort out, he nevertheless ruled Lam should have first complained to Western and only then, if dissatisfied, sought help from the courts.

“The subject matter of the complaint involves academic advancement and administration of a university program,” Koehnen found. “That is well within the sphere of discretion universities enjoy – a sphere to which this court should defer.”

As a result, Koehnen struck down Lam’s claim without trial.

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In reviewing the case, the higher court agreed with the judge that there were issues requiring a trial to sort out. Those include whether the supervisory committee really did have problems with Lam’s work or were simply unwilling to get their heads around his research.

However, the Appeal Court parted company with Koehnen for finding in Western’s favour. The judge, the upper court said, was simply wrong in his interpretation of case law that gives schools rather than the courts purview over academic matters.

The real question Koehnen should have answered was whether Lam had grounds to press a breach of contract suit based on the facts of his case – not whether Western had an internal complaints process.

“It is not accurate to say the court is without jurisdiction to deal with a claim for breach of contract or tort because it arises out of a dispute of an academic nature,” the Appeal Court said. “It is the remedy sought that is indicative of jurisdiction.”

The court set aside Koehnen’s ruling and ordered the matter to proceed to trial. It also awarded Lam $12,500 in costs of the appeal.

Lawyer Selwyn Pieters, who acted for Lam, called the ruling significant for universities across the country.

“Students can sue for breach of contract unhindered by the claim that the matter should be litigated through the internal processes at the university,” Pieters said.

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© 2019 The Canadian Press

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