Ali Oncel
Evania Afaganis
Kimtaj Mohar
Shbeg Grewal
Timothy Ulidan
LEGL 210 (Section 550)
June 13, 2010
Assignment #2: Cas...
2
)Background Summary
Post-secondary student Mabel Hardluck began her studies in the 2-year university
transfer program at...
3
studies resulted in a cumulative GPA of 3.5 and a lucrative job offer from the New
Arachnid Spider Ranch and Bingo Resor...
4
present. Following a closed-door discussion in a private room, the committee concluded
they did not have the jurisdictio...
5
registration and advising on other program matters based on the merit documents.
Helping students like Mabel is Ima’s pr...
6
with her “every step of the way”, she gives Mabel a false sense of assurance that she
knows what she is doing. Ima’s lac...
7
 Page 78 of the appeal book: “...there is an agreement between the parties that if
certain academic services are provid...
8
consult the Calendar of their chosen institution and verify the transferability of courses
taken. Judge Marshall comment...
9
course schedule, but the student is ultimately responsible for its accuracy.” As a result,
the initial ruling in favour ...
10
Fiduciary Duty
As a student advisor, Ima has a fiduciary duty to act in Mabel’s best interests. This means
that when Im...
11
wrong courses, however, she did lead Mabel to believe that she had an expert
understanding of the program requirements,...
12
from other cases seem to be in favour of the institution. (We should give a couple of
specific examples.)
References
Cr...
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Case Analysis - Mabel Hardluck v. College of Northern South Alberta (CNSA)

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Case Analysis - Mabel Hardluck v. College of Northern South Alberta (CNSA)

  1. 1. Ali Oncel Evania Afaganis Kimtaj Mohar Shbeg Grewal Timothy Ulidan LEGL 210 (Section 550) June 13, 2010 Assignment #2: Case Analysis - Mabel Hardluck v. College of Northern South Alberta (CNSA
  2. 2. 2 )Background Summary Post-secondary student Mabel Hardluck began her studies in the 2-year university transfer program at the College of Northern South Alberta (CNSA). Her ultimate goal was to complete her Bachelor of Arts degree (with a major in sociological entomology and a minor in bingo hall management) at the University of Southern North Alberta (USNA), located in Rosebud Alberta. In conversation with other students, Mabel soon learned that “transfers to other institutions could be tricky.” She wanted to ensure her course of study and the academic transition to USNA would go smoothly. Her limited savings meant that she would have only enough to cover 2 years of study at CNSA and an additional 2 years at USNA. Careful course planning would be crucial. Early in her program, Mabel met with Ima Bbusy, a CNSA Student Advisor known for her kind-hearted ways. Ima asked Mabel to complete a ‘student worksheet’ form, which included the following statement in large bold red letters: “You are responsible to complete this form accurately. Check the Transfer Guide (available on our website – www.alltheanswersatCNSA.org/obscurepages) and make sure the receiving institution knows about you.” When Mabel revealed to Ima that she didn’t understand the meaning of this statement, Ima’s response was “Don’t worry, be happy; I’ll help you every step of the way.” Ima recommended Mabel take 5 courses in entomology (starting with BUGS 101 and ending to BUGS 402). She also advised her to fulfill her minor course requirements, beginning with CARD 101 and progressing to BING 399. Mabel followed Ima’s recommendations, using the suggested courses to fill out the course planning worksheet. She continued to meet with Ima throughout her program, consulting with her after each mid-term period and final examination period. Mabel’s dedication to her
  3. 3. 3 studies resulted in a cumulative GPA of 3.5 and a lucrative job offer from the New Arachnid Spider Ranch and Bingo Resort. Recognizing the “rare combination” of her skill set, they offered her a starting annual salary of $80,000, a company car and health benefits. She planned to transfer to USNA, complete the remaining 2 years of her program, and begin working for the New Arachnid Spider Ranch and Bingo Resort immediately after graduation. When Mabel applied to the USNA, she received written correspondence informing her that she was missing 5 important courses. Additionally, the CARD 101 course she had taken on Ima’s recommendation had been decertified by the professional association 3 years earlier. In it’s place, Mabel should have completed CARD 111, which CSNA began offering 3 years ago. USNA’s letter stated that she could be admitted into the program on the condition that she complete a qualifying year to complete the missing courses. The additional year of study would result in her graduating 1 year later than previously planned. When Mabel confronted Ima with the news, Ima responded by saying she “had tried her best” and added, “No one can understand The Transfer Guide.” Ima told Mabel her only recourse would be to appeal to CNSA’s Appeal Committee. In an oral submission to the committee, Mabel stated that she trusted Ima and had relied on her completely. She requested a refund of all of her tuition money in order to pay for the additional expenses she would incur during her qualifying year at USNA. She finished by stating that she was upset because she would graduate 1 year later than expected, which would result in a 1 year delay in starting her promised $80,000 per year job. The committee did not allow Mabel to question Ima or any of the other College officials
  4. 4. 4 present. Following a closed-door discussion in a private room, the committee concluded they did not have the jurisdiction to return her tuition or award damages for the additional qualifying year. She would be required to find additional funds on her own. Mabel wants to sue. Objective In this paper, we will examine the impending case Mabel Hardluck v. College of Northern South Alberta (CNSA) in order to determine if CSNA is in breach of contract with Mabel. We will analyze the case through both tort and contract law, showing that there are a number of issues involved. These issues include negligence, breach of trust and fiduciary duty, professional and economic liability, misrepresentation and undue influence. As we explore the issues and possible remedies available, we will look at the case from a variety of perspective and refer to precedents that have recently been set by relevant cases within the Canadian Judicial System. Tort Law Analysis There is no indication that Ima was malicious or intended to harm Mabel, however there is much evidence to show that she has been negligent. Acting on behalf of CNSA, the organization hired her for the purpose of assisting students in all matters related to the program. As a student advisor, she serves as first point of contact and is regarded as an important source of information to current and prospective students. The student advisor role includes assisting students with the interpretation of policy, course planning,
  5. 5. 5 registration and advising on other program matters based on the merit documents. Helping students like Mabel is Ima’s primary duty. Students in a transfer program often experience difficulties with the interpretation of post-secondary policies and appropriate course planning. It is reasonably foreseeable that if a student were misinformed, errors could be made in course planning resulting in significant program deficiencies. Through the reasonably foreseeable test, we conclude that Ima owed a duty of care to Mabel because she could easily predict that carelessness in her advice would cause Mabel harm. As a student advisor, Ima is regarded as an expert. She is a source of information to interpret available transfer guide and students rely on her advice. The competent advisor possesses a specialized knowledge of the post-secondary programs offered, anticipates common pitfalls and warns students about them. A skilled advisor is adept at making students aware of policies, program guidelines and their implications. When unsure of any aspect of a program, the prudent advisor does research, seeking to gain a solid understanding of the point in question by consulting relevant publications, online resources or by dialoguing with internal/external staff. A reasonable advisor knows the stakes are high; in a transfer program, there is no room for program planning mistakes because the additional costs in time and money are far too high. As an expert, Ima is held to a high standard of care. If she truly did not understand the Alberta Transfer Guide, she should have requested training from her employer because the Guide is an essential resource used by all accredited post-secondary institutions throughout the province. Incompetence does not absolve her of her obligation to Mabel. There is a serious breach of standard of care present. By telling Mabel not to worry and adding that she would be
  6. 6. 6 with her “every step of the way”, she gives Mabel a false sense of assurance that she knows what she is doing. Ima’s lack of skill and her substandard job performance is a liability to the College. Due to the complexity of transfer agreements and her limited experience with post-secondary programs, it was not unreasonable for Mabel to place her trust in Ima. Mabel does not possess the required knowledge to do program planning on her own. As a direct result of planning errors based on Ima’s recommendation, Mabel experienced a measurable loss. She lost 1 year of time her life because five of her courses were not recognized. She lost 1 year of salary and benefits. She will be required to pay additional tuition fees, books and supply costs to fulfill the outstanding transfer agreement course requirements. She will also need to find money for living costs and incidentals. Mabel’s losses are a direct result of following Ima’s advice. Mabel is experiencing a high level of anxiety due to the monetary shortage and she will likely have to incur the cost of a student loan or be required to take on part-time employment in order to make ends meet. Her high GPA could be compromised if she has to find employment to cover her unexpected costs. In a remarkably similar case, Crerar v. Grande Prairie College (2004), heard by the Alberta Provincial Court, a student in a 2-year transfer program required an extra year to complete her degree due to not taking the proper courses based. This occurred despite consultation with a student advisor. The initial ruling was in favour of the student. The advisor was held responsible due to negligence and the student was to be awarded damages (I need specifics here. Does anyone have the case to add this in???) by provincial court due to a couple of facts against the university as in the following:
  7. 7. 7  Page 78 of the appeal book: “...there is an agreement between the parties that if certain academic services are provided to the student . . . those services will be sufficient to enable her to transfer to another like institution.”  Pages 254-255: “We agree that it is the student’s responsibility to do many things, but they should be something within the student’s expertise. After all, they have just completed Grade 12, they are wandering into the university atmosphere for the first time, what is to be expected of a student?”. As a result of the detail for the appeal court, Judge Marshall (JM) criticised the perspectives of the trial Judge as, “ These and other statements clearly show he held the College to a very high standard of care to ensure the Respondent obtained transfer to the U of L.”. JM underlined the important information of the website as well as on the top of the application form that is major claim by University as to student did not read the important information on the Alberta Transfer Guide stated as: First identify the receiving institution, the one to which you are planning to transfer. Carefully read its admission and transfer information in section 2 of this guide, then contact the institution directly for specific admission and program requirements. The telephone numbers and addresses are noted in section 2. Thus, JM noted that University claimed that she could expect the adviser to take all the responsibility for guiding her to a smooth transfer to another university. JM admitted that the student advisor made a mistake on her advice, but she interpreted as a reasonable evidence that shows the intricacies of the transfer guide; therefore, excused the misguidance of the student advisor as to that the accuracy of her advice is not being warranted. She connected inefficiency of student advisor to the important advisor on the College Calendar that states, the student must
  8. 8. 8 consult the Calendar of their chosen institution and verify the transferability of courses taken. Judge Marshall commented the decision of the trial court on her final statement as, “The trial Judge imposed too high a duty on the College and failed to adequately measure the role of the student. The student must act reasonably to succeed in actions of negligent misstatement, and it is certainly a factor in weighing negligence. The implied terms formulated by the Court also failed to accurately consider the student’s role.” According to the decision of JM, we can address that iIt is important to note that Mabel also owes a duty of care to herself. The transfer process is complex. When speaking became aware of the fact that transfer agreements can be “tricky”. She saw the red letters on the form warning her to make sure the other institution “knows all about her” and yet she failed to heed the warning, allowing Ima to convince her that it was not a concern. It would be reasonable for Mabel to check things over with the receiving institution USNA so she could be ensure a seamless transfer. A prudent learner would not wait 2 years to verify the appropriateness of her course of selections with the receiving institution. Had she contacted USNA mid-program, she would have had sufficient time to revise her schedule and complete the appropriate courses within the timelines she had anticipated. There could be contributory negligence on Mabel’s part. In Crocker v. Sundance Northwest Resorts Ltd. (1998), the Supreme Court of Canada ruled that due to his actions, Crocker was responsible for 25% for his loss. In the appeal of the Grande Prairie v. Crerar case, the Alberta Queen’s Bench also supported the notion of shared liability with the statement “a program advisor helps a student to plan and fill out a
  9. 9. 9 course schedule, but the student is ultimately responsible for its accuracy.” As a result, the initial ruling in favour of the student was overturned. (need more detail here!!!) Breach of Contract The Hazanavicious v. McGill University Case (check re: date and which court of law!!) established the fact that “when a student is admitted and registered into a university program, a “sui generis or (unique, or one of a kind) contract is formed between himself and the university.” In the contract between Mabel and the CNSA, Mabel paid tuition, material, and student fees in exchange for a 2-year program that would qualify her for 3rd year standing in the Bachelor of Arts program at USNA. Due to improper advice from Ima, she did not receive 3rd year standing at the end of her studies. Mabel fulfilled her obligations – (meeting with an advisor, completing a full course load based on the advice received by the advisor), but she did not receive all she had paid for. This is a fundamental breach of contract. As in the Grande Prairie Regional College v. Crerar case, CNSA is in breach of contract because Mabel received improper advice from the student advisor causing the consideration of a 2-year block transfer. Since CNSA did not fulfill all of their obligations, Mabel should be awarded damages as a remedy for the unmet terms. At minimum, her compensation should include fees for tuition, books, supplies and student fees to cover the cost of her qualifying year at USNA.
  10. 10. 10 Fiduciary Duty As a student advisor, Ima has a fiduciary duty to act in Mabel’s best interests. This means that when Ima assisted Mabel in her course planning, she was acting as an agent on her behalf and was therefore obligated to disclose all of the information to Mabel. Yet, she failed to explain the disclaimer on the student worksheet form even when Mabel expressed that she did not know the meaning of the warning. When Ima told Mabel not to worry about it, she did not fulfill her duty to disclose. By failing to warn Mabel of the implications of the statement, she was not acting in Mabel’s best interests, and this had a detrimental effect on Mabel’s program progression. Failure to warn Mabel makes her liable. This principle is supported by the Fletcher v. Manitoba Public Insurance Corp. (1990), in which Supreme Court Madam Justice Wilson determined that “businesses or professionals whose business or profession is to provide information or advice are under a duty of care to see that their customers receive all relevant information to enable them to make intelligent decisions.” Misrepresentation When Ima first met with Mabel, she led Mabel to believe that she was well versed in knowledge regarding CNSA’s Bachelor of Arts transfer program. She assured her by telling her not to worry and promising Mabel that “she would be with [her] every step of the way,” This gave Mabel a false sense of security; Mabel felt assured that Ima had a higher level of competency than she actually possessed. There is a significant discrepancy between Ima’s initial statements to Mabel and her subsequent declaration that “nobody could understand The Transfer Guide.” She did not intentionally lead Mabel to choose the
  11. 11. 11 wrong courses, however, she did lead Mabel to believe that she had an expert understanding of the program requirements, when in fact she did not. This is an example of negligent misrepresentation, as such, the remedy should include rescission and damages. Undue Influence As established by Rochdale Credit Union Ltd. v. Barney Case (p. 251 text – add citation details – year, court, etc), undue influence is presumed due to the nature of the relationship between Ima and Mabel. Ima has a greater balance of power because she possesses a more specialized knowledge of post-secondary program and Mabel is new to the post-secondary environment. Due to her inexperience and limited knowledge, Mabel trusts Ima with her academic future and is induced to follow her advice. As she stated in her appeal committee hearing, Mabel “trusted Ima and relied on her.” (remedy???) Conclusion We have substantial evidence that Mabel should be compensated. As suggested by the cases we have explored Though we uunderstand that the student had a duty of care to herself and as a result she is contributory negligent. Even though we have come across cases where the student has not been compensated, due to the shared responsility to the st Once we have supporting details from the research cases added, we could follow Travis’ recommendation that the principles of the cases seem to support the student primarily. However the student shares responsibility for her predicament and precedence
  12. 12. 12 from other cases seem to be in favour of the institution. (We should give a couple of specific examples.) References Crerar v. Grande Prairie Regional College, [2004] A.J. No. 905 (prov. Ct.), rev’d [2004] A.J. 905 (Q.B.) Crocker v. Sundance Northwest Resorts Ltd., [1998] 1S.C.R.1186 Fletcher v. Manitoba Public Insurance Corp. [1990] CarswellOnt 56; 30 M.V.R. (2d) 260, 5 C.C.L.T. (2d) 1, 1 C.C.L.I. (2d) 1, 71 Man. R. (2d) 81, [1990] 3 S.C.R. Keith Plumbing & Heating Co. v. Newport City Club Ltd., (Micron Construction Ltd. v. Hong Kong Bank of Canada) [2000] 184 D.L.R. (4th) 75 (B.C.C.A.) Rochdale Credit Union Ltd. v. Barney [1984], 14 D.L.R. (4th) 116 (Ont.ca)

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