his approach. The following propositions from those cases demon-
(a) The relationship between a student and a university has
a contractual foundation, giving rise to duties in contract and
tort: Jaffer, at para. 30. This is important here because one
of the causes of action asserted by the appellant is breach of
contract. The terms of the contract and the organizing prin-
ciples of contract law are important to determine whether
a breach of contract by the University (a legal cause of
action) would be made out if the facts determined at trial
favoured the appellant. The motion judge did not analyze this.
(b) A student who enrolls at a university agrees to be subject to
the institution’s discretion in resolving academic matters,
including the assessment of the quality of the student’s work
and the organization and implementation of university programs: Gauthier, at para. 47; and Jaffer, at para. 27. The
motion judge referred to this, but not in the proper context.
Given the contractual basis of the relationship between student and university, this proposition is best understood as an
implied term of the contract between student and university.
The implied term is relevant because it goes to whether
what the appellant complains of is a breach of contract, that
is, whether there is a viable cause of action because the
impugned conduct falls outside the broad discretion of the
University. As with any implied term, it must be considered
in light of the contract’s express terms and the legal obligations any contract entails. The motion judge failed to consider the matter this way.
(c) It is not accurate to say the court is without jurisdiction to
deal with a claim for breach of contract or tort because
it arises out of a dispute of an academic nature. It is the remedy sought that is indicative of jurisdiction. Where the claim
by the student is for damages for a breach of contract or tort,
jurisdiction exists to deal with the claim “even if the dispute
arises out of an academic matter” (emphasis added): Jaffer,
at para. 26. This is in contradistinction to a claim to reverse
an internal academic decision, which would be pursued by
judicial review: Gauthier, at para. 46; and Jaffer, at para. 26.
The motion judge failed to approach the matter this way.
He did not treat the remedy sought as indicative of the
court’s jurisdiction even though damages, not reversal of
an academic decision, were sought. And without considering
whether the facts that might be found at trial would show