Osgoode Labour & Employment Law Society

It looks like the other shoe finally dropped, meaning someone is finally suing York over their decision to suspend classes when CUPE went on strike.  But this isn’t just someone, it’s someones - a class action has been filed.  Interested litigants can read about it at www.yorktookmymoney.com.  They can also read a copy of the statement of claim that’s been filed here.

Note:  Nothing in this post should be construed to constitute a recommendation that potential class members sign up for the aforementioned class action.  Interested litigants should receive independent legal advice before signing up for any class action.  Nothing in this post should be considered legal advice with respect to the class action, or in any respect whatsoever.

The interesting thing to note is that the plaintiff class is relying on provisions of the Consumer Protection Act which govern ‘quality of service’, and is seeking to apply to them to education.  In terms of services, the CPA usually covers things like lawn mowing services, plumbers, or personal trainers at the gym.  Is education a bit of a stretch then?

For the CPA to apply, do you think “student” fits into the following definition of “consumer”, and  ”university” fits into the definition of “supplier”?

“consumer” means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes;

“supplier” means a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying goods or services, and includes an agent of the supplier and a person who holds themself out to be a supplier or an agent of the supplier;

Even if the CPA applied, which it may not because the CPA could have been “contracted out” of, the plaintiffs would still have to get around the very explicit disclaimer in the York Undergrad Calendar.  Take a look at the second last paragraph.  Also, per the last time someone tried to sue York over a strike/lockout, the class will likely have to show that damages have, in fact, been incurred.  In that decision, Winkler J. (now Chief Justice of Ontario) also emphasized that educational institutions have wide discretion in how their services are delivered.

The emphasis on the CPA this time around may be because of its numerous provisions for contract rescission (basically, getting a refund of what you paid).  In that case, the question will be whether students, under the CPA, “still got substantially what they bargained for” with respect to their education as a whole.  If damages can’t be proven (yet), the lawyers handling this class action could still do very well for themselves by taking a 25% cut of each of 50,000 students’ tuition reimbursement.  

Perhaps the more important question of all is whether each student deserves to receive 75% of any potential refund (with the aggregate of 25% of each going to those two lawyers…), or whether any funds York “stole” should remain with the University in light of worsening economic conditions and substantially diminished enrollment.  Perhaps the best of both worlds would be for York to use these funds to set up a “relief fund” for students… unless, of course you, happen to be one of the class action lawyers, in which case that idea is terrible.