By Keith Norbury
Judge ruled that Ontario college misled students about requirements for obtaining freight forwarding credentials and related industry designations
A Toronto college is appealing a judge’s decision in a class-action lawsuit alleging the college misled students about how completing its international business program would enable them to obtain freight forwarding and related industry certifications. A three-judge panel of the Ontario Court of Appeal was scheduled to hear the appeal from George Brown College of Applied Arts and Technology on July 2, as this article was going to press. An hour and 40 minutes was set aside for the case, with an hour given to the appellant and 40 minutes for the respondent, the appeal court’s deputy registrar and manager of court administration, Sandra Theroulde, confirmed in an email.
The appeal stems “from the trial decision on the common issues,” Robert B. Bell, a lawyer for George Brown, said in an email. He was referencing the Nov. 16, 2012 decision by Mr. Justice Edward P. Belobaba of Ontario’s Superior Court of Justice. The judge ruled that the college had been negligent in its representations to students enrolled in its International Business Management Program and that those representations also violated Ontario’s Consumer Protection Act. Before expanding on his reasons, however, the judge cautioned that his findings “should not be taken out of context” and are not meant to “impugn the quality or integrity of” the college’s administration or teaching faculty.
Highly regarded college “made a mistake”
“George Brown College is highly regarded and deservedly so,” the judge wrote. “But on this one occasion they were careless and made a mistake. And, they should be held accountable.” How accountable the judgment did not say. That was to be left to the “damages” phase of the litigation, the judge wrote. That phase is on hold, pending the appeal.
The case was initiated by students enrolled in three cohorts of the college’s eight-month program from September 2007 to September 2008. About forty students were enrolled in each group for a total of about 120 students. About two-thirds were foreign students who paid just under $11,000 each in tuition, the judge noted. Tuition for the domestic students was about $3,000 each.
On April 8, 2010, Justice George R. Strathy, who has since been appointed to the Ontario Court of Appeal, certified the case as a class proceeding. Among the students’ claims was an allegation that the course calendars at those times misrepresented the course’s benefits and “falsely stated that it would enable them to obtain three industry designations in addition to the college’s certificate,” wrote Mr. Justice Belobaba, who ruled in the students’ favour.
Those promised industry designations included certificates from the Canadian International Freight Forwarders Association, a.k.a. CIFFA. Yet at the time, the judge noted, George Brown did not have an agreement with CIFFA to confer a CIFFA designation.
College and CIFFA now have a deal
It bears noting that the college and CIFFA now do have such an agreement. The wording on the college’s website and calendar also now notes that qualifying for the industry designations such as CIFFA’s requires “additional exams and/or related work experience.”
Stephen McDermott, CIFFA’s Senior Manager of Education and Training, was not comfortable talking about the case, which he said had nothing to do with CIFFA. Nor could he speak about arrangements CIFFA had or didn’t have with the college back before he joined the association two years ago. However, he did say that CIFFA approves content for the freight forwarding part of the George Brown program. “Then, should the students desire to achieve or to be granted the CIFFA certificate, they would do so through the school. And we would give them certificates based on the fee they would pay us for the certificate,” Mr. McDermott said. Students also write CIFFA exams on site at George Brown as part of the program, he said.
According to Mr. Justice Belobaba’s ruling, though, circumstances were different when students such as Katrina Ramdath and Zsolt Kovessy, the named plaintiffs in the lawsuit, were attending George Brown. The judge even noted that CIFFA sent an email on July 24, 2008 to instructors at the college pointing out that the association did not have an agreement with the college and that the program description might be misleading to students. “We have discussed the possibility of an agreement, but we have not agreed to the terms as of yet,” the email said. It went on to “strongly suggest” that the instructors “have discussions with your students, to clarify the issue and to avoid escalation.” CIFFA also asked that the college “remove the reference to CIFFA designation/certification, until an agreement is formalized.”
The judge acknowledged that one of the professors, Harmeet Kohli, “in his affidavit said that whenever he discussed the designations with students, he explained that the designations would not be automatically awarded at graduation and that discussions with the industry associations were still ongoing.” However, the judge wasn’t convinced that Professor Kohli was clear to the students “that no credit of any sort would be provided” and that they “would still have to satisfy all of the industry’s stand-alone requirements after graduation.” Mr. Kohli, coordinator of the International Business Management Program, said he couldn’t comment on the case and referred questions to his superior, Elizabeth Speers, academic Director for the college’s Faculty of Business Arts & Designs. She did not respond to phone and email requests to comment. “All I can say is we’re in good shape, good hands,” Mr. Kohli said. “Our involvements are much higher than when the lawsuit started. It’s not a big issue at all.” Enrollment in the program is about forty students each semester, with at least half applying for CIFFA certification, he said.
Mr. Kohli confirmed that George Brown has an agreement with CIFFA such as Mr. McDermott described. (However, his recollection is that the agreement predated the lawsuit.) Mr. Kohli also said the college changed the course description on the website after concerns were brought to his attention. In his ruling, the judge acknowledges that George Brown promptly made those changes in 2008 “to make clear that the requirements for the three industry designations could not be completed within the confines of the program.”
Some students were “devastated”
The judge also pointed out that the college “scrambled to arrange a reduced-pricing arrangement with CIFFA.” The Sept. 3, 2008 deal enabled students to take CIFFA courses for $1,000 instead of the regular fee of $2,968 so long as they registered by the end of that October. “The plaintiffs did not have the funds and did not do so,” the judge wrote. Elsewhere in his ruling, he said the students, some whom had travelled from China and India, were disappointed, even “devastated,” at discovering they would have to do additional course work and pay other fees. “Having paid a substantial tuition fee and related travel and living expenses, they could not afford the additional time or money needed to pursue the three accreditations on their own,” the judge wrote.
In the end, he settled for a “nuanced” interpretation of the matter: that the program would enable students to meet industry requirements but they would still have to pay for and write the final exams as well as any membership fees. The judge’s second key finding was that college students, even those enrolled in post-graduate business programs, are consumers as defined by the Consumer Protection Act.
Won Kim, one of the lawyers for the plaintiffs, didn’t respond to requests for comment. However, after the judge’s decision last November, the Toronto Star quoted two of the students in the program. “All of our hearts stopped when we learned we wouldn’t be getting those designations,” Ms. Ramdath told the paper. “Pretty well all of us had quit our jobs to take this full-time program.”
Case seen as potential “blueprint”
Despite the case being under appeal, Mr. Justice Belobaba’s ruling has already been cited in several other Canadian court cases. It has also prompted some Canadian lawyers to comment on the significance of the case in online articles. Writing on the website of Toronto firm McMillan LLP, lawyers Adrienne Boudreau and Stevie O’Brien, along with student at law Joshua Chad, said the judge’s decision “if upheld on appeal, may provide a ‘blueprint’ for other plaintiffs to advance misrepresentation claims in the context of a class proceeding.” It might also encourage a broader range of claims under the Consumer Protection Act, they wrote. Another lawyer, Allison McLean, an associate with Gowlings in Toronto, wrote in February that the ruling “should make Ontario university and college administrators consider their words very carefully in course descriptions and other communications.” Ms. McLean added that “the common issues decision was a rare example of the use of negligent misrepresentation in a class action, which will likely change the way both class counsel and defence counsel approach misrepresentation claims.”