Reasons for Judgment of the Honourable Chief Justice Finch:

I.  INTRODUCTION

[1]                On 23 June 2005, we dismissed this appeal, with written reasons to follow.  These are those reasons.

[2]                The appellants, six former MBA students at the University of British Columbia (“UBC”), appeal the order of Madam Justice Boyd pronounced 8 October 2004 dismissing their action against UBC for damages for breach of contract.  The dispute arises from an increase in tuition fees for the MBA program at UBC from $7,000 to $28,000, approved by UBC’s Board of Governors on 14 March 2002 after the Provincial Government lifted a six year freeze on increases in tuition fees.  Before or within a day or two after the Board’s approval of the fee increase, five of the appellants accepted offers of admission to the MBA program in standard form.  The terms included a provision entitled “tuition fees” or “program fees.”  The fees set out were “$7,000 CAN for 15-month program (payable in four instalments of $1750)” and included a variation of the following clause:

Fees for the year are subject to adjustment and the University reserves the right to change fees without notice.

*Student activity fees are also assessed.  Please see attached information sheet and fees section of UBC Calendar.

[3]                The learned trial judge held that this term of contract expressly allowed the University to change the fees to be charged for the MBA program without notice (see 50 B.L.R. (3d) 71, 2004 BCSC 1299 at para. 29). 

[4]                The appellants assert that the trial judge erred in construing the clause because she failed to interpret the provision as a whole; gave no effect to the meaning of the word “adjustment”; and gave no effect to the parties’ intention at the time the contract was made.  Appellants’ counsel said that, properly read as a whole, the contractual term is clear and unambiguous.  He says a quadrupling of tuition fees cannot be said to be an “adjustment” of fees.  He contends that UBC breached its contracts with the appellants.  Alternatively, he says that if the term is ambiguous, it should be construed against the drafter (UBC), or struck out altogether.  Further alternative arguments were submitted on behalf of the appellants, Brendon Wilson and Joseph Yang, as discussed below.

[5]                In response, UBC says that at the time the contract was made it did not intend to depart from the ordinary and plain meaning of “change fees without notice”, nor to agree to any restraint of the Board of Governor’s statutory power to set and determine tuition fees.  It contends that the trial judge did not err in her interpretation of the words “change” and “adjustment” and that she interpreted the provision harmoniously with other terms of the contract and in light of the prevailing circumstances.

[6]                In my view, the trial judge did not err in construing the clause, nor would I give effect to the appellants’ alternative grounds of appeal.

II.  FACTS

[7]                With the exception of Joseph Yang, all the appellants were students in UBC’s 15-month MBA program (the “MBA-appellants”).  Mr. Yang enrolled in the 4-year joint MBA/LLB program.  The five MBA-appellants received offers of admission between 1 November 2001 and 26 February 2002.  Mr. Yang’s offer was dated 9 May 2002.

[8]                On 11 February 2002, the recently elected Liberal Provincial Government announced it would remove a tuition freeze that had been enacted in 1996 by the previous NDP Government.  The Government repealed the Access to Education Act, S.B.C. 2001, c. 1, s. 2, effective 31 March 2002: see Miscellaneous Statutes Amendment Act, S.B.C. 2002, c. 22.

[9]                Events giving rise to removal of the freeze and the increase in MBA tuition fees are described in the trial judge’s reasons as follows:

[4]        In May 2001, the B.C. Liberal party came into power.  During the course of the provincial election, the Liberal party’s policy platform included the maintenance of the tuition freeze for a period of one year, with no commitment to maintain the tuition freeze beyond that point.  When the Liberal party won the election, Dean Muzyka (“the Dean”) of the Faculty of Commerce (“the Faculty”) assumed the provincial government would reconsider the tuition freeze and that there was a good chance it would be lifted after the one-year period had expired.

[5]        Anticipating the possibility the tuition freeze would be lifted at some point, the Faculty prepared its draft “offer of admission” letters, to be forwarded to those individuals whose applications for admission had been approved.  The offer letter included a provision entitled “tuition fees” or “program fees” which provided as follows:

$7,000 CAN for 15-month program (payable in four instalments of $1750)

Fees for the year are subject to adjustment and the University reserves the right to change fees without notice.

*Student activity fees are also assessed.  Please see attached information sheet and fees section of UBC Calendar.

…

[9]        When the [11 February 2002] announcement was made, the Dean was advised by Dr. McBride, the Vice President Academic and Provost of the University, that the Board of Governors wished to deal with the issue of proposed tuition fees at its upcoming meeting scheduled for March 2002.

[10]      Approximately the [sic] one week after the provincial government’s announcement was made, the Dean determined the Faculty should seek an increase in tuition to the level of $28,000 for the MBA program.  Although a tuition fee of $28,000 was well below the cost to the Faculty of providing the MBA program and well below the market value for the program, he believed the $28,000 fee was a fair amount to charge for tuition.

[10]            The Board of Governors met on 14 March 2002 and, in accordance with its statutory power under s. 27(2)(m)(i) of the University Act, R.S.B.C. 1996, c. 468, approved an increase in fees for the MBA program to $28,000.  At the time the increase was approved, at least four of the MBA-appellants had already accepted the offer of admission containing the impugned clauses.  One of the MBA-appellants, Mr. Wilson, received a letter with a slightly different clause.  His letter read:

Tuition Fees: $7,000 for the 15-month program (payable in four instalments of $1,750).

^†Student activity fees are also assessed.  Fees for the year are subject to adjustment and the University reserves the right to change fees without notice.  Please see attached information sheet and fees section of UBC Calendar.

[11]            The evidence is unclear as to whether Mr. Wilson accepted the offer before 14 March 2002, or within a few days after that date.

[12]            Although Mr. Yang did not receive UBC’s offer to the joint MBA/LLB program until well over a month later, his offer letter did not state the higher tuition fees.  It said:

Tuition Fees: $4,215 CAN per year for four years (payable in two annual instalments of $2,107)

*Student activity fees are also assessed.  Fees for the year are subject to adjustment and the University reserves the right to change fees without notice.  Please see attached Grad Guide and fees section of UBC Calendar.

[13]            On 15 March 2002, the day after the Board of Governors meeting, Assistant Dean DeWolfe sent an e-mail notification to incoming students in the MBA program advising them of the change in fees:

The Board of Governors approved the proposed tuition fee of $28,000 CAD for the 15-month UBC MBA program for domestic and international students.  We understand that this increase may come as a surprise, particularly for the incoming domestic students.

[14]            One of the MBA-appellants, Mr. Kearns, did not receive the e-mail and did not learn of the increase in tuition fees until he began attending the MBA preparation course in August 2002.

[15]            The appellants said they were shocked by the increase in fees and they complained vigorously.  They eventually paid their fees under protest. 

[16]            The appellants, along with six other initial plaintiffs, commenced actions against UBC seeking damages for breach of contract or alternatively for negligent misrepresentation.  Each of the MBA-appellants claimed damages of $21,000.  Mr. Yang claimed $23,439.  The defendant moved under Rule 18A to dismiss the plaintiffs’ claims.  Madam Justice Boyd granted the application in reasons pronounced 8 October 2004.

[17]            The only ground of appeal is the learned trial judge’s ruling that there was no breach of contract.

III.  ISSUES ON APPEAL

[18]            The main issue on this appeal is the interpretation of the impugned clauses in the offer-of-admission letters: whether the trial judge erred in holding that the impugned clause expressly allowed the University to raise MBA tuition fees as it did, or alternatively, whether the clause is ambiguous.

[19]            The appellants Mr. Yang and Mr. Wilson raise an alternative question of ambiguity based on the different wording of their offer letters, specifically, whether it is tuition fees or student fees that are “subject to adjustment?”

[20]            The appellant Mr. Wilson also alleges in the alternative that the contract is unconscionable.

IV.  ANALYSIS

A. Meaning of the Impugned Clause

[21]            While different appellants received variations of the draft offer letter described at para. 9 above, the impugned contractual provision is essentially the same throughout:  “Fees for the year are subject to adjustment and the University reserves the right to change fees without notice.”

[22]            The appellants say the learned trial judge erred in failing to give these words their plain and ordinary meaning.  They say there is no ambiguity.  They say an “adjustment” is a modification of a minor nature.  The word “change” must be read in this context, so that any change must be in the nature of an adjustment.  They say that in effect, the judge interpreted the clause as though it did not contain the word adjustment.  They say a quadrupling of fees from $7,000 to $28,000 cannot be said to be an adjustment, and that the increase is therefore a breach of this contractual term.

[23]            In support, appellants’ counsel refers to the definition of “adjust” defined by the Concise Oxford Dictionary as to “alter slightly in order to achieve a correct or desired result”, as well as other dictionaries which similarly describe an adjustment as a small change allowing for circumstances (see Concise Oxford Dictionary, 10^th ed., Revised (Oxford: Oxford University Press), Canadian Oxford Dictionary (Toronto: Oxford University Press, 1998), The New Shorter Oxford Dictionary, Vol 1. (Oxford: Clarendon Press, 1993), and Webster’s Third New International Dictionary, Vol. 1 (Springfield: G. & C. Merriam Company)).

[24]            The appellants also refer to the principle expressed in Booth v. British Columbia Life & Casualty Co., 2004 BCCA 113 at para. 19, that a court should attempt to give meaning to all the words parties have used to express their intention.

[25]            In response, UBC says that the trial judge correctly attributed to all the words of the impugned provision their plain and ordinary meanings.  UBC relies on Attaran v. The University of British Columbia (1998), 4 Admin. L. R. (3d) 44 (B.C.S.C.) at 51, where Holmes J. said:

[39]      There clearly exists a contractual relationship between a student and the University. The student at registration is accepting the tuition fee contained in the Calendar and does accept the fees may change without specific notice.

[40]      The amount of the fee is however not a matter of contractual bargaining. The fees to be charged, and thereby form part of any contract between the student and University, arise from exercise of a statutory power vested in the Board under the University Act. Section 27(1)(m)(i) empowers the Board “to set, determine and collect the fees to be paid for instruction, research and all other activities of the University”.

[26]            UBC also says it is not the function of the courts to search for ambiguity.  The starting point for contractual interpretation, it says, is the plain and ordinary meaning of the words.

[27]            UBC relies on the Board of Governors’ statutory authority to set fees, and says that it did not intend at the time of making the contract to limit in any way the changes that it could make to tuition fees.  Furthermore, UBC says students were not obliged to pay the fees and attend the program if they did not wish to, and the cost of the program was known to the appellants before they commenced their studies.

[28]            Although I have sympathy for the appellants in this case, they have not established a reversible error on the part of the trial judge.  The trial judge cannot be said to have erred in giving the words “change fees without notice” their plain and ordinary meaning.  In doing so, she did not fail to give meaning to the word “adjustment.”  Indeed, her reasons (at paras. 22-24) show that she did consider the meaning of “adjustment.”

[29]            The impugned clause is not ambiguous.  The interpretation of the learned trial judge reflects, objectively, the parties’ intentions at the time the contracts were made.  It gives effect to all of the language contained in the offer letters.  The objective meaning of the contract must prevail.  I would not give effect to this ground of appeal.

B. Ambiguity

[30]            In the alternative, the appellants argued that the impugned clause is ambiguous and that as a result, the term should either be struck, or construed against the drafter: Consolidated-Bathurst Export Ltd. v. Mutual Boiler & Machinery Insurance Co., [1980] 1 S.C.R. 888.

[31]            In my view, this alternative argument is not tenable.  All language in the impugned clause is capable of unambiguous meaning.

[32]            In respect of the alternative wording of Mr. Wilson and Mr. Yang’s letters, the differences are not sufficiently significant to create ambiguity.  A reasonable reading of “fees” is those fees addressed in the contract, whether tuition fees or student fees.

[33]            I would not give effect to this ground of appeal.

C. Unconscionability

[34]            Mr. Wilson argues in the further alternative that UBC’s contract with him was unconscionable and that it deviated from the standard of “commercial morality.”  He says UBC had all the power in this contractual relationship.  He says he was not sent the e-mail notification sent to other incoming students on 15 March 2002 until 22 March 2002, after the university had confirmed his acceptance.  Mr. Wilson characterizes this as a “bait and switch” tactic worthy of rebuke.

[35]            In response, UBC points to a conflict in the evidence of Mr. Wilson and Assistant Dean DeWolfe concerning the date on which incoming students were notified of the fee increase.  It says there is no evidence that it misled Mr. Wilson and emphasizes that the appellants were all advised of the respondent’s express right to change fees.

[36]            In my view, it is not necessary to deal with evidentiary conflicts or the allegation of “bait and switch” tactics.  In light of the fact that the appellant was expressly advised of UBC’s reserved right to change fees, one cannot say the contract was unconscionable.

[37]            I would not give effect to this ground of appeal.

V.  CONCLUSION

[38]            In the result, I would dismiss the appeal.

“The Honourable Chief Justice Finch”

I Agree:

“The Honourable Mr. Justice Lowry”

I Agree:

“The Honourable Madam Justice Kirkpatrick”