Administrative law – Universities – Students – Assessment of grades – Evaluation – Educational malpractice – Abuse of process – test – Jurisdiction
Hozaima v. Perry,  M.J. No. 268, Manitoba Court of Queen’s Bench, July 10, 2008, M.M. Monnin C.J.Q.B.
Hozaima was a dentistry student at the University and was forced to resign from the dental program after failing to obtain a passing grade in one of her courses. She then sued the University, the Dean of the faculty and an individual professor alleging that the Defendants breached their contractual obligations, their fiduciary duty and their duty of care owed to her as a result of her position as a student in the faculty of dentistry at the University. Hozaima filed a Statement of Claim alleging, amongst other things, that the Defendants failed to provide an effective learning environment, failed to ensure fair treatment and failed to evaluate her academic performance in a fair and reasonable manner. The Defendants, including the University, brought a motion to dismiss the action for want of jurisdiction or striking it as being an abuse of process.
The Court noted that it was important to characterize the nature of the dispute between Hozaima and the Defendants as set out in her Statement of Claim as this would directly affect the issue of whether another remedy was available to her. The Defendants argued that Hozaima was seeking relief which she could obtain through the appeal procedure set out in the University regulations and the senate appeal process. The Court disagreed with this argument noting that Hozaima was no longer a student at the University. The Court found that the issue was not of an academic nature but rather related to a contractual dispute between Hozaima and the University citing Mohl v. The University of British Columbia, 2006 BCCA 70 and that, as such, the University’s appeal process was not the appropriate mechanism for resolving the dispute.
The University further argued that the action represented an abuse of process as it dealt with “educational malpractice” which was not a cause of action known at law. The Court noted that the term “educational malpractice” related to potential liability of educational institutions for their failure to educate their students. Citing the Mohl decision, the Court noted that an action might lie for claims that allege egregious conduct on the part of an educator that is offensive to the community standards and, consequently, refused to exercise its discretion to strike the pleadings.
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