IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Burton v. Kwantlen Polytechnic University,

 

2017 BCSC 1082

Date: 20170627

Docket: S172023

Registry: Vancouver

Between:

Robert Burton and Renaud E. Burton

Petitioners

And

Kwantlen Polytechnic University

Respondent

Before: The Honourable Mr. Justice Smith

Reasons for Judgment

Petitioners Appearing in Person:

R. Burton

R.E. Burton

Counsel for the Respondent:

R. Sieg

Place and Date of Hearing:

Vancouver, B.C.

June 15 and 16, 2017

Place and Date of Judgment:

Vancouver, B.C.

June 27, 2017

 

[1]             The petitioner Renaud Burton (“Renaud”), is a former student at the respondent Kwantlen Polytechnic University (“KPU”). He says that after he left KPU, he was erroneously registered in further courses that he never attended. He was given failing grades in those courses, with a resulting reduction of his grade point average (“GPA”).

[2]             In this judicial review petition, he says he was improperly denied a hearing when he sought cancellation of the recorded grades. The second petitioner is Renaud’s father, Robert Burton (“Robert”), who claims standing as the person financing his son’s education. Robert swore the affidavit in support of the petition and argued the matter.

[3]             KPU says Renaud knowingly registered for the courses and failed to withdraw within the time required. It says the university officials who declined to cancel the recorded grades acted reasonably in accordance with university policy and that, as of the date the petition was filed, the petitioners had not exhausted their internal remedies.

[4]             However, after the petition was filed but before it was heard, KPU President Dr. Alan Davis (“President Davis”) ordered removal of the disputed grades from Renaud’s transcript, with a consequent adjustment in his overall GPA. He also ordered cancellation of an outstanding account for unpaid tuition. KPU says the petitioners have therefore obtained the substantive relief they were seeking and the petition is now moot. The petitioners say that Renaud is still entitled to a “due process hearing” to fully correct the record and absolve him of any suggestion of wrongdoing.

[5]             Renaud was a student in KPU’s engineering program for three semesters in 2013. KPU’s registration system records that in mid-August 2014, he was registered for two mathematics courses, a biology course and a chemistry course for the upcoming fall semester, but those registrations were deleted on August 19. An email from KPU addressed to Renaud indicates they were deleted because of a failure to meet the deadline for payment of tuition and other fees, but there would be an opportunity for later registration and payment. The records show new registrations for those same courses on August 30 and 31, 2014.

[6]             At some point before the fall term began, Renaud was accepted at the University of British Columbia and decided to continue his studies there rather than return to KPU. In an email dated September 24, 2014, KPU said tuition and fees were still unpaid and immediate payment was required. The petitioners say they did not receive that email. Failing grades were entered in the four courses at the end of the fall term.

[7]             The petitioners say they were unaware of Renaud’s registration for the courses until after the academic term, when he received a letter dated January 13, 2015 containing a “final notice” of overdue tuition and fees in the amount $2,466.33.

[8]             On January 20, 2015, Renaud emailed KPU to say that he had not been in attendance during the fall semester. The university’s enrolment services department responded that the records showed he had enrolled and not withdrawn, but provided a link to a “policy variance form” that he could submit as part of a “formal request to ask that KPU waive the fees charged to you.”

[9]             Renaud submitted that form along with a letter dated January 21, 2015 in which he acknowledged paying a non-refundable registration fee of $250 but understood KPU had been notified through his parents that he would not be attending. He asked that all “adverse grades or notations” and charges be “stricken from all records.”

[10]         The affidavit from Robert, which is the only affidavit submitted in support of the petition, says that after the “final notice” letter was received “we ascertained that a malfunction of KPU’s registration system had erroneously enrolled my son”. There is no further evidence indicating the nature of this malfunction or how it was identified.

[11]         On May 7, 2015, an associate registrar of KPU wrote to Renaud denying “your request to drop your courses after the deadline with a refund.” The letter said the decision could be appealed “only on the basis of alleged unfairness or bias in the process of the first stage appeal.”

[12]         The associate registrar was apparently referring to a written KPU policy on academic appeals. Where the appeal relates to grades, the policy (at the time) called for it to be considered at the “first stage” by a dean and faculty members. A “second stage” appeal could be made to a five member committee that includes faculty and student representatives, but only on grounds of alleged unfairness or bias in the “first stage” process. The third and final stage is an appeal of the committee’s decision to KPU’s academic vice-president.

[13]         It is not necessary to recount in detail the correspondence between the petitioners (primarily Robert) and KPU over the subsequent months. Although the petitioners filed a notice of appeal and KPU extended deadlines for filing additional material, the petitioners did not proceed with that appeal. The petitioners argue that there was nothing to appeal from because the review and decision by the associate registrar did not constitute the appropriate “first stage” consideration under the applicable policy.

[14]         Eventually, the matter was considered by KPU’s provost and academic vice-president under a different policy that relates to complaints about “instruction, services, employees or University policies.” The petitioners declined to provide written submissions to or meet with the provost and argue that he was purporting to act under an inapplicable policy and process.

[15]         On July 15, 2016, the provost issued a 35 page written decision dismissing “the student’s appeal and complaints”. The provost said Renaud failed to withdraw or complete courses he had registered for and the failing grades were consistent with KPU policies. The decision was delivered to the petitioners with a covering letter advising them of a right to refer the matter to President Davis.

[16]         In late September and early October 2016, the petitioners delivered a series of documents, including a “formal notice of appeal”, a demand that the matter go to a “senate-based appellate committee [to] adjudicate a first stage appeal”, and a demand that President Davis recuse himself. These were followed by delivery of a draft judicial review petition.

[17]         Following further correspondence, a meeting with President Davis, and some unsuccessful settlement discussions, Robert wrote to President Davis asking that a decision be made as soon as possible. His letter said that request was being made “as a practical matter”, but repeated the petitioners’ position that an administrative decision by President Davis was not a proper substitute for the due process Renaud was entitled to.

[18]         The petition for judicial review was filed on March 6, 2017 and President Davis’ decision was issued one week later on March 13, 2017. He ordered that the 2014 courses and the grades received be removed entirely from the transcript, the GPA adjusted accordingly and the outstanding tuition debt cancelled.

[19]         In his decision, President Davis said there was no error in the decision of the provost and he was critical of Robert’s conduct in the matter but found there were “extenuating circumstances” to justify relief in favour of Renaud.

[20]         In matters affecting a student’s status or educational standing, a university is required to act in accordance with the principles of natural justice, including the student’s right to be heard: Harelkin v. University of Regina, [1979] 2 S.C.R. 561 [Harelkin] – a case involving expulsion. In considering Renaud’s position, KPU was also required to follow its own stated policies.

[21]         There may be some merit to the petitioners’ submission that the initial response by the associate registrar did not constitute the proper “first stage” appeal that the applicable policy contemplates. If the petitioners had accepted that as a “first stage” appeal, they would also have been required to accept the limited grounds of appeal available to them at a “second stage” hearing. At the same time, the petitioners’ correspondence with KPU did not make their position on the appeal entirely clear and a less confrontational approach may have led to earlier resolution.

[22]         However, the court on judicial review is limited to considering the specific relief sought in the petition. As recently pointed out by the Supreme Court of Canada in Strickland v. Canada (Attorney General), 2015 SCC 37 at para. 37, the jurisdiction to grant relief on judicial review is always discretionary:

37        Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief: see, e.g., D. J. Mullan, "The Discretionary Nature of Judicial Review", in R. J. Sharpe and K. Roach, eds., Taking Remedies Seriously: 2009 (2010), 420, at p. 421; Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 575; D. P. Jones and A. S. de Villars, Principles of Administrative Law (6th ed. 2014), at pp. 686-87; Brown and Evans, at topic 3: 1100. Declarations of right, whether sought in judicial review proceedings or in actions, are similarly a discretionary remedy: "... the broadest judicial discretion may be exercised in determining whether a case is one in which declaratory relief ought to be awarded" (Dickson C.J. in Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at p. 90, citing S. A. de Smith, Judicial Review of Administrative Action (4th ed. 1980), at p. 513).

[23]         That discretion is also set out in s. 8(1) of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241:

Power to refuse relief

8 (1)     If, in a proceeding referred to in section 2, the court had, before February 1, 1977, a discretion to refuse to grant relief on any ground, the court has the same discretion to refuse to grant relief on the same ground.

[24]         The relief sought in this petition includes:

1.     An order that the KPU registrar permanently restore Renaud’s  GPA, and all other records, to the status quo as of the 2013 date on which he was last in attendance at KPU.

2.     An order that the registrar’s demand for $2,466.33, or any other amount, be rendered null and void, ab initio.

[25]         The petitioners also seek a number of declarations to the effect that KPU has dealt with the matter in a way that denied due process.

[26]         In his affidavit in support of the petition, Robert states:

21.       At this late stage, the only equitable remedy would be the immediate restoration of my son’s GPA, from the debased 2.68 to the original 3.45, which would be an application of fundamental justice, and hardly a windfall to him. ...

[27]         The cancellation of the adverse grades, restoration of the GPA, and the cancellation of the outstanding alleged debt have all been achieved through the decision of President Davis, which came after the petition was filed. Apart from the court’s general discretion in matters of judicial review, that raises the question of mootness.

[28]         The applicable principles were explained by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 [Borowski] at paras. 15 and 16:

15        The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. …

16        The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. …

[Emphasis added]

[29]         At paragraph 26, the court in Borowski said a matter becomes moot when the “substratum” of the litigation disappears. I agree with KPU that this is what has happened here. The restoration of Renaud’s academic record to what it was before September 2014 and the cancellation of the claimed fees has eliminated the principal basis of the petitioners’ complaint and ended any “live controversy” between the parties.

[30]         Borowski also states that the court may exercise its discretion to hear and determine a matter that is moot in certain circumstances, including where a decision will still have some practical effect on the rights of the parties or will have some other collateral consequences. In this case, the petitioners say they are still entitled to “due process” in order to obtain vindication for Renaud’s conduct and correct the record. I take that to mean, at least in part, that they want a hearing committee to find that there was nothing irresponsible or blameworthy in Renaud’s conduct and that the registration of the failing grades was an error by KPU.

[31]          There is no evidence that Renaud is likely to suffer any adverse consequences now that President Davis has taken the action he has. There is no evidence that the now-cancelled marks will appear on any transcript or records that will ever be produced to other parties, such as other academic institutions to which Renaud may apply or potential employers.

[32]         Robert said in argument that Renaud may face situations where he will have to disclose the failing grades in answer to questions about whether he has ever been subject to disciplinary proceedings by an academic institution. For example, he says Renaud now wants to study law and such a question appears on the Law Society of British Columbia’s application form. In my view, the failing marks that have now been removed from the record do not constitute the type of discipline that would have to be disclosed in such a context, nor do the results of the internal proceedings that Renaud initiated.

[33]         In short, the substantive result sought has already been obtained. The adverse consequences alleged to remain as a result of KPU’s conduct are hypothetical and unsupported by evidence. As the court in Harelkin said at 582, referring to a somewhat different situation, “justice [has] already been done” and there is no point in compelling the university to reconsider the matter except “inflicting upon the university a symbolic rebuff from the Court.” Indeed, even if the matter were referred back to a university committee, it would be open to such a committee to dismiss the complaint on grounds of mootness.

[34]         For the same reasons, I decline to make the declarations sought – effectively declarations that there was a denial of due process in KPU’s handling of the matter. Declaratory relief is always discretionary and, in view of the fact that the most important substantive relief has already been obtained, I find that no practical purpose would be served in making such declarations.

[35]         I understand the petitioners believe they have suffered financial losses in pursuing the matter and that KPU officials have made defamatory statements. Those matters are not properly the subject of a judicial review application and could only be pursued in a separate action.

[36]         The petition must be dismissed.

[37]         Rule 14-1(9) of the Supreme Court Civil Rules provides that costs of a proceeding must be awarded to the successful party unless the court otherwise orders. In this case, it is reasonable to assume that filing of the petition played a role in KPU’s decision one week later to agree to the substantive relief being sought. The respondent will therefore have costs from March 13, 2017.

“Smith J.”