Bob Mackin
A B.C. Supreme Court judge threw out a University of Victoria graduate’s bid for a class action lawsuit over the university’s refusal to refund parking passes when the pandemic hit.
In September 2019, fifth-year mechanical engineering student Aaron Timothy Elsser paid $568.05 for a parking permit lasting through the end of August 2020. In March 2020, after the World Health Organization declared the coronavirus pandemic, the university moved classes online and much of the campus closed.
Victoria courthouse (Court Libraries BC)
Elsser argued that because the university switched to remote learning, there was no reason to park on campus. Thus, his contract was “frustrated and/or breached” and pass holders should be reimbursed on a prorated basis.
The university refused to issue partial refunds. Had the pandemic affected operations during the first four months of the contract, Justice Catherine Murray said, Elsser would have been entitled to a refund.
Elsser did not dispute the decision to move to online learning and told the court that he did not attend the campus between March 23 and Aug. 31, 2020.
While the judge accepted switching to online learning and closing the campus made the parking contract less useful, it was not rendered fruitless.
“The plaintiff argues that it is common sense to conclude that only people that were attending the University or working there would buy an annual parking permit,” said Murray’s judgment. “That may be so, but it was not a term, either express or implied, of the contract. The plaintiff did not need a reason to park on campus to purchase a permit. Parking permits are not only available to people that work or attend classes on campus. The parking contract is quite simply that — a contract for a parking spot. The pandemic did not change the fundamental contractual obligations. The plaintiff could still park at the University after learning went online and the gym closed.”
Elsser contested the university’s application to quash the lawsuit, claiming it was premature because he had not received disclosure from the university. But Murray called that irrelevant. How or why the university chose not to offer refunds would not determine whether the contract was breached or frustrated.
“The University’s ‘decision-making process,’ the amount of parking permit money refunded, what the University did with the money it did not refund, or cost savings to the University during the pandemic do not need to be investigated in order for the plaintiff to put his best foot forward on this application or for the court to determine whether the breach of contract or frustration claims should be dismissed,” Murray wrote. “Nor will any of that disclosure raise a triable issue.”
Murray found the claim the parking contract was breached had no chance of success and dismissed the action with costs to the university.
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