Civil Procedure - Pleadings - Statement of Claim - Application to Strike - Appeal, Civil Procedure - Queen’s Bench Rules, Rule 7-9(2)(a)
The appellant appealed from the decision of a Queen’s Bench chambers judge that granted three applications by different defendants to strike various portions of his statement of claim as disclosing no reasonable cause of action pursuant to Queen’s Bench rule 7-9(2)(a). The judge issued three fiats that, taken in aggregate, struck the appellant’s entire claim. The appellant was enrolled in a PhD program in microbiology at the University of Saskatchewan (University) in 2009. The defendants Vujanovic and Hamel, an associate and adjunct professor respectively, acted as his co-supervisors. The defendant Gan was also an adjunct professor and a member of the appellant’s advisory committee. Hamel and Gan asked the appellant to draft a research proposal and they later used the proposal to gain funding for a research project without giving him any credit. The appellant discovered possible commercial applications of certain fungi and found out in 2012 that Vujanovic and Hamel had published a paper containing his research and conclusions without his knowledge and without crediting him. The appellant pursued his complaint within the University’s system, but after a decision was rendered that was unsatisfactory to him, he commenced his action for damages in the Court of Queen’s Bench against (1) Vujanovic and Hamel for breach of their fiduciary duty to him and negligence; (2) Vujanovic individually for the tort of detinue, because he had failed to preserve the appellant’s fungi collection and had prevented the appellant from accessing it; (3) Hamel and Gan for breach of fiduciary duty; and (4) the University and Agriculture Canada for vicarious liability. The chambers judge granted three fiats and the appellant ostensibly appealed from all three, but the Court of Appeal noted that he had requested relief only with respect to the latter two: the fiats in response to the application of Hamel, Gan and Agriculture Canada and that of Vujanovic. The chambers judge had struck the claims against these parties on the basis that they concerned academic issues. In the first of the two fiats under appeal, the chambers judge dismissed some of the claims against Vujanovic, Hamel and Gan in negligence on the basis that they concerned academic issues and were not within the purview of the court. The judge further struck the appellant’s claim of breach of fiduciary duty by Hamel because it was an academic issue and against Vujanovic because the appellant failed to plead that Vujanovic had agreed to act in a fiduciary role. In the fiat concerning Vujanovic alone, the chambers judge struck the claims against Vujanovic for breach of fiduciary duty and in negligence for the same reasons given in the first fiat. Respecting the appellant’s claim against Vujanovic, Hamel and Gan for unlawful interference with economic interests, the judge wrote in both fiats that the principle of deferring to universities did not apply because the University’s policy did not provide relief in the form of the damages requested by the appellant. He found as well that there were no factual allegations in the statement of claim that could bring the actions of the three respondents within the scope of the tort.
HELD: The appeal was allowed in part. The appellant’s claim was allowed to the extent of reversing the chambers judge’s decision to strike the claims in negligence against Hamel, Gan and Vujanovic. The court denied the appellant’s application for leave to amend his statement of claim so as to permit the resurrection of the claims that were struck. The appellant had applied very late at the hearing of the appeal, besides which the court was not satisfied that the existing facts would support the necessary amendments and the appellant had not indicated how he might amend his pleadings to cure the defects identified by the chambers judge. With respect to the fiat relating to Hamel and Gan, and also to Vujanovic, the court allowed the appellant’s claim in negligence and found, with respect to the appellant’s claims related to negligence that were struck on the basis that they concerned academic issues, that it was not plain and obvious pursuant to Queen’s Bench rule 7-9(2)(a) that the resolution of an allegation about the appropriation of research and the damages said to flow from that appropriation was something that a student can be deemed to have agreed to leave for determination by the University through its internal proceedings. The chambers judge correctly struck the claim against Hamel and Vujanovic for breach of fiduciary duty. Regarding the second fiat, the chambers judge had correctly struck the claim against Vujanovic but erred again in striking the claim in negligence. Respecting the striking of the claims for unlawful interference with economic interests, the chambers judge’s decision was correct.