A doctoral student (“Tapics”) had enrolled in Dalhousie’s University department of oceanography to complete a PhD thesis involving sea turtles. However, a year and a half later, her field supervisor left the University and took data essential to her sea turtle research. Tapics changed her topic to right whales, but her faculty supervisor subsequently withdrew and no replacement supervisor was found by the faculty of graduate studies. Tapics sued Dalhousie and, on appeal, succeeded in establishing that her claim regarding the sea turtle “debacle” was not barred as an abuse of process.

22. September 2015 0

Administrative law – Decisions of administrative tribunals – University Committees – Universities – Fairness – Students – Judicial review – Abuse of process – Jurisdiction of court

Tapics v. Dalhousie University, [2015] N.S.J. No. 30, 2015 NSCA 72, Nova Scotia Court of Appeal, July 22, 2015, J.E. Fichaud, P. Bryson and J.E. Scanlan JJ.A.

In respect of Tapics sea turtle project, her faculty supervisor, Dr. Taggart, wrote to Dr. Michael James, her field supervisor, in June of 2012, indicating that the research collaboration between Dr. James and Tapics had to be terminated, and all unspent funds returned to the granting agencies. This was due to the refusal by Dr. James to provide access to data that was put forward in the research outline document, and other demands which were viewed as “unethical, unprofessional, and uncollegial.” Dr. Taggart described the situation as a “debacle generated by an external collaborator in the sea turtle project”.

Nonetheless, Tapics changed focus, to study right whales, this time she was associated with external researcher Dr. Mark Baumgartner. Her proposed PhD work was to integrate data on right whale locations and habitat variables, to improve modelling and prediction of right whale distributions. Tapics had high academic achievement in her PhD and Masters programs, and indications were, in January 2013, that the research project was proceeding satisfactorily.

However, at the end of January 2013, Dr. Taggart wrote to the chair of Dalhousie’s oceanography department, indicating that he could not meet the expectations of Tapics in terms of what a PhD advisor could be. Dr. Taggart then withdrew citing the fact that he and Tapics were unable to work well together. He indicated he would continue to use his NSERC Discovery Grant to support Tapics’ student stipend, for a month or two allowing her some time to determine how she might pursue her future interests.

Tapics was advised that funding for her scholarship would continue to the end of March 2013, and that it would be up to her to find a new supervisor. However, she was later advised that no supervisor could be located for her, and she concluded that she had been de facto dismissed from the program. In April 2015, she made her appeal to an ad hoc Committee of the Faculty of Graduate Studies, which issued a decision on July 12, 2013 dismissing her claims and found that the department of oceanography had taken all reasonable steps to allow her to continue in the graduate program. The remedies she sought, namely of having the department identify a suitable line of investigation, source of funding and research supervisor for her, was held not to be open to her. She was also denied the remedy of transfer to an interdisciplinary PhD program.

Tapics went on to the Universities Senate Appeal Panel. She sought, as relief, a replacement faculty supervisor. The Panel found that continuing Tapics’ stipend to March 31st created a notice period that sufficed for her to find a new supervisor, and that where a department has made a reasonable effort to find a supervisor and no supervisor is forthcoming the onus is upon the student to find a supervisor. The panel found that the evidence did not establish that there was a denial of justice but that there had been an unfair application of regulations and therefore the appeal would be granted in part. The parties agreed that Tapics was not dismissed from the university program and would therefore have an opportunity to find a supervisor and proceed in her program. The panel referred the matter back to the Faculty of Graduate Studies to explore the possibility of mediation, and, to facilitate that mediation, the panel ordered a six-month moratorium on any procedures to dismiss Tapics.

At that point, Tapic sued the University in tort and for breach of contract. The Supreme Court of Nova Scotia dismissed her claims as abuse of process, saying they were an attempt to relitigate matters that had already been determined or should have been determined by University’s internal appeal tribunals. Tapics appealed.

On appeal the court noted that the jurisprudence does not stand for a broad proposition that the court lacks jurisdiction solely because of breach of contract or negligence claimed arises out of an academic dispute within a university. Where the action is not simply an indirect attempt at judicial review, but the claim against the university is one regarding the student being owed various obligations in contract and tort, then its failure to meet its obligations may ground pecuniary and non-pecuniary damages and such claims fall within the jurisdiction of the Superior Court.

Further, a university may be liable to a student for either breach of contract, if the university failed to meet express or implied obligations to which it committed by approving the students registration, or in the tort of negligence (Young v. Bella [2006] 1 S.C.R. 108).

The courts have jurisdiction to hear a claim even on academic matters.

The student will have to demonstrate that the university overstepped any permitted discretionary parameter or the claim will fail on its merits.

An insufficiently pleaded claim may be struck for disclosing no cause of action, but this is not the same as an abuse of process.

Any attempt to overturn a decision of an internal university tribunal should be brought as a judicial review. A civil claim may not be an indirect attempt at judicial review, or it will be struck. To establish abuse of process, it is not necessary that the earlier decision be between the same parties. Abuse of process is based on fairness, avoidance of injustice and maintaining integrity in the administration of justice. Where litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined, it will be dismissed for abuse of process.

In this case, Tapics appeal challenged the judge’s ruling that the claim against Dalhousie should be struck as an abuse of process. There was no issue of insufficient pleading. Therefore, the appeal was governed by the principles of abuse of process.

Tapics’ issues with respect to the right whale project were appropriately determined by the internal tribunal, and ought to have been subject to judicial review if she wished to challenge those determinations on their substance. The issue with regard to the sea turtle debacle had not been resolved. Where the student’s claim extends beyond the issue heard by the University’s internal tribunal the litigation may be permitted to proceed. The internal university decision did not address Dr. James and the sea turtle project.

Tapics’ civil claim alleged that Dalhousie bore some contractual and tort based responsibility for the loss of her effort on the sea turtle project. Those allegations were not previously determined, and Tapics would be permitted to proceed with her claim regarding the sea turtle project, Dr. James’ involvement and Dalhousie’s responsibility (if any) for those matters.

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