Ontario Civil

Civil Procedure


Appeal of change to class composition allowed

Students enrolled in post-graduate program at GBC commenced class action for unfair practice under Consumer Protection Act, 2002 based on misleading statement in course calendar that program graduates would have opportunity to complete industry designations but additional courses, work experience and exams at students’ expense, were required. Course calendar statement found to be breach of unfair practices provision of CPA. Court awarded aggregate damages but removed third cohort of students from class. Third cohort was orally advised about correction and given opportunity to withdraw and receive tuition refund. Trial judge reiterated that student enrolling in program after unfair practice occurred entitled to damages, whether or not student relied on representation. Students’ appeal of change to class composition allowed. GBC’s cross-appeal of aggregate damages award denied. Trial judge acknowledged it was not necessary to prove reliance or even knowledge of unfair practice to establish claim but erred in relying on fact course calendar corrected before third cohort entered program. To extent conclusion suggested the students were only subject to unfair practice because they relied on misrepresentation, it was error of law. Students entered into agreements after unfair practice occurred and before correction; claim had crystallized. Class Proceedings Act, 1992 allows court to assess and award aggregate damages. Trial judge analyzed components of award to properly compensate each class member and assessed on aggregate basis. He erred in attributing motive of representative plaintiffs to all members. Trial judge also erred by suggesting that causation established because of group reliance. Compensation based on plaintiffs’ change in position, not reliance. Since aggregate damages award based on entering into agreement and not reliance, errors did not affect outcome. Open to trial judge to accept parties’ agreement to use tort measure of damages and apply agreed formula to put plaintiffs back into position they were in before they entered into agreement, except for having taken course and paid what it was actually worth. Students who either failed or withdrew from program qualified for damages because they entered into agreements with GBC following unfair practice and their direct costs were same as other class members. Their damages to be reduced by any tuition refunds. Trial judge entitled to consider reliable evidence to reasonably determine components of aggregate damages and to make evidentiary decisions relating to value of GBC program; his conclusions were entitled to deference. No basis to interfere.

Ramdath v. George Brown College of Applied Arts and Technology (Dec. 24, 2015, Ont. C.A., K. Feldman J.A., E.A. Cronk J.A., and Grant Huscroft J.A., File No. CA C59349) Decision at 242 A.C.W.S. (3d) 554 was affirmed. Decision at 242 A.C.W.S. (3d) 94 was reversed.  261 A.C.W.S. (3d) 322.

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