A University of British Columbia (“UBC”) student who had been assigned a failing grade for his Bachelor of Education practicum course (“Mohl”) was partly successful in appealing from a decision in Chambers that his action against UBC was an abuse of process because it raised claims that had already been decided against Mohl in an earlier judicial review proceeding

Administrative law – Universities – Students – Assessment of grades – Estoppel and res judicata – Decisions of administrative tribunals – Abuse of process – Judicial review – Appeals

Mohl v. University of British Columbia, [2006] B.C.J. No 335, British Columbia Court of Appeal, February 17, 2006, Low, Smith and Thackray JJ.A.

Mohl was assigned a failing grade in a UBC course, and his internal appeal was dismissed. He applied for judicial review of the dismissal, and that application was dismissed at both the Supreme Court and appellate levels. He subsequently brought an action against UBC including pleas of breach of contract, breach of fiduciary duty and negligence relating to the circumstances around being assigned the failing grade.

Mohl argued that the chambers judge erred in failing to dismiss the application to strike his Statement of Claim on the basis that issue estoppel and cause of action estoppel, upon which UBC relied, were not pleaded in their Statement of Defence. The Court of Appeal held that estoppel should have been pleaded, because it required proof of material facts other than those set out in the Amended Statement of Claim. However, Mohl’s appeal on this ground was not allowed because the Court felt that an amendment to the Statement of Defence, if sought, would have been permitted, and UBC had given Mohl notice that it would raise the estoppel issues at hearing, so he was not taken by surprise.

However, the Court of Appeal held that the Chambers judge erred in applying cause-of-action estoppel to the judicial review of the decision of the Senate Committee. The Court stated, at para. 25:

In my view, the judicial review of the decision of the Senate Committee was not an “action” for purposes of cause-of-action estoppel. The application for judicial review is the modern equivalent of the ancient prerogative writ of certiorari – its purpose in this case was to bring up the record of the proceedings of the Senate Committee for review by the Supreme Court in order to determine whether the Committee’s discretion was improperly exercised. It was an exercise of the superintending power of the superior court over a tribunal of lower rank rather than an adjudication of a dispute between parties. Nothing in the nature of a “remedy against another person” or “a proceeding in the nature of a litigation between a plaintiff and a defendant” was involved. The dissimilarity in these functions of the Supreme Court is reflected in the Rules of Court, which distinguish between a proceeding such as a judicial review and an “action”. The judicial review proceeding was an “originating application” commenced by petition, while an “action” must be commenced by a writ of summons: see Rule 1(8). Further, the remedies sought in the two proceedings differ. The objective of the judicial review proceeding was to have the administratively-assigned failing grade set aside. The objective of the appellant’s action, among other things, is an award of damages against the respondent. Thus, cause-of-action estoppel does not apply to the appellant’s action.

The Court of Appeal held that issue estoppel did bar the large part of the appellant’s Amended Statement of Claim. Issue estoppel, rather than abuse of process, was the appropriate doctrine to apply where the focus is primarily the interest of the litigants rather than the integrity of the judicial system. Because the administrative tribunals involved in the judicial review were “creatures of the respondent” UBC, there was sufficient mutuality for the doctrine of issue estoppel to apply.

Therefore, the issues in the Amended Statement of Claim seeking to set aside Mohl’s failing grade, and the allegations of failure of due process, bias and illegality of UBC appeal procedures were held to have been finally determined against Mohl on judicial review, and were therefore struck out.

The claims for breach of contract, breach of fiduciary duty and negligence remained intact. The Court did not accede to the argument that these claims were an abuse of process as they were a collateral attack on the judicial review decision of Macauley J. The Court held that the internal appeal bodies at UBC did not have anything to say about whether contractual or tortious fault of UBC, if proven, played a causal role in Mohl achieving only a failing grade. Given that Macauley J. only considered whether the decision of the UBC internal bodies was patently unreasonable, the breach of contract, breach of fiduciary duty and negligence causes of action had not been previously determined and were not a collateral attack on the judicial review decision.

The Court commented that the Supreme Court of Canada, in Young v. Bella, [2006] S.C.J. No. 2, had held that universities do owe general and contractual duties to their students. The Court further held that novel claims should not be struck at the pleadings stage, and that UBC had not met its burden under Rule 19(24) to show that it is plain and obvious that the remaining claims amounted to an abuse of process. The appeal was allowed to the extent that the order appealed from was set aside and substituted with an order that the paragraphs barred by issue estoppel were struck.

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