Jaffer v. York University, 2010 ONCA 654
In this case, the plaintiff was a student at York University who had a disability-related learning impairment. He commenced a civil action in response to the University’s decision to remove him from his program for not maintaining the required minimum standard of academic performance for the program.
In Jaffer, the defendant successfully moved to strike the plaintiff’s claim as not disclosing a cause of action. The defendant argued that the plaintiff was alleging a straightforward disability discrimination case, and that the plaintiff did not have a common law cause of action to satisfy the condition precedent in s. 46.1.
The plaintiff appealed from the dismissal of his action, and the Court of Appeal allowed his appeal in part. The plaintiff’s theory of the case is that, in addition to the statutory duty to accommodate contained in the Human Rights Code, the defendant University also had an express or implied contractual duty to accommodate his disability, and that the University breached that contractual duty when it expelled him from the program without offering adequate accommodation.
The Court of Appeal granted the plaintiff leave to more fully plead the breach of contract theory, and permitted him to continue to pursue his s. 46.1 remedy, alongside a properly pleaded breach of contract claim. The Court reasoned that a claim for breach of contract would, in theory, satisfy the requirement of a civil wrong in s. 46.1(2), so long as the breach of contract argument was properly explained in the claim.