Family Law Blog

Can My College Keep Charging Me Tuition Even Though My Classes Were Cancelled Due to COVID-19?

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When the Ontario Government ordered the shutdown of universities and colleges in March due to COVID-19, many students suddenly switched from in-class to online learning.  However, for many programs, especially programs related to healthcare, applied sciences and other programs that required practicing skills, that education was put on hold entirely.  Many students in those programs are still waiting to resume their programs.  Their education has been delayed, they cannot start their careers and there are very few student jobs during the pandemic.  

 

Despite this many colleges are insisting that students continue to pay the tuition, on the original schedule.  Others are even asking for additional tuition since students are continuing their education over “extra semesters” to complete the studies that were put on hold in the spring.  That seems particularly unfair in these difficult times.  It can also be illegal and students may want to consider whether they want to confront their college before completing their program.

 

Private career colleges often have contracts with their students that set out the terms for payment of tuition.  Sometimes, these contracts also set out precisely what kind of education the college will provide. However, some colleges have contracts that state that tuition is still owed regardless of the quality of program the college provides.  Some contracts set out the terms in which a student will be entitled to a refund, or when a student can get a tuition adjustment because the student is not attending school.  Very few of these contracts contemplate situations where the college is forced to temporarily stop providing the program all together, or is not able to provide the program required for the students to get certified in their chosen profession.

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49 - Can Parents Get Private School Tuition Back Due to COVID-19?

Often publicly funded colleges have their own sets of rules for tuition and how they provide their programs.  Some require students to accept a specific set of terms.  Other colleges or programs follow external standards for the programs they provide, sometimes to meet accreditation criteria. 

 

In many cases, what is happening in the pandemic is far from what the contract with college contract contemplated.  Many accreditation bodies have struggled with how, or even whether, to adjust their standards due to COVID19.  Should they relax those standards because the pandemic prevents students from completing the previously required educational program? 

 

In situations where the parties to a contract cannot perform their obligations under the contract due to circumstances beyond their control, the contract is said to be “frustrated.”  Ontario’s Frustrated Contracts Act applies to contracts between colleges and students. 

 

The ordered closure of the colleges, and the continued public health orders and insurance requirements prohibiting students from completing certain aspects of their educations (such as labs, apprenticeships, and clinical placements) have prevented colleges from providing the education they promised on the timeline that they promised to provide it.  However, that was not the colleges' fault.  It was not the students’ fault either.  When the parties to a contract cannot complete the terms of the contract, that contract is said to be “frustrated” and the Frustrated Contracts Act applies. 

 

Although there have not yet been any court decisions on this issue, it is difficult to see how a college could charge additional fees for a program when a contract has been frustrated.  The Frustrated Contracts Act implies that students should get money back when the college has been forced to cancel classes, unless the college was able to find another suitable way to deliver the required education.

 

Section 3 of the Frustrated Contract Act says that payments are no longer owing for frustrated contracts.   The college contracts were frustrated when the colleges were forced to cancel classes, labs and placements due to the pandemic.   With the contract frustrated, students do not have to pay anything that they continue to owe the college under their current contract for their program. (They may owe something under a new contract to restart their education again after the shutdown.)  The same rules can apply to the college with regard to not paying anything back, even though a student’s education may have no value if the student cannot complete the requirements to be certified to enter their chosen profession. 

 

However, where students have already paid for their program but they are not receiving the education they were promised, particularly where there is some kind of contract setting that out (that can be just a promise or an advertisement that the college will give the student the opportunity to achieve certification), there may be a breach of contract and the students may be able to demand repayment.  Section 18(2) of the Consumers Protection Act allows consumers to recover any payment that exceeds the value of goods or services provided to the consumer.  So, if a student is not able to do anything at all because they cannot achieve certification, there may be a question whether what the college provides had any value at all. 

 

However, as this is a matter of contract law, the best option is for students to speak to an Education Lawyer about their rights under the contract to see if they can get any money back. 

 

Students must consider their relationship with their college, particularly colleges that play a role in the certification process and so can try to prevent a particular student from getting their professional certification.  Pushing back against the college too hard may mean that the college may be “uncooperative” in assisting the student to complete the requirements for certification.  If a student challenges the college, the student may find that he or she has to start their education over someplace else.  In that case, the student may be pursuing a claim in court for a full refund because the partial education he or she received has no real value.

 

But, starting college over from scratch can delay a student's entry into the workforce.  It may not be worth it.  Or it may be better to try to negotiate a resolution with the college. Sometimes it may be necessary for a student to get a lawyer to assist with those negotiations so the student does not get pushed around or forced into an unfair deal that does not benefit them.

 

Sometimes, colleges will not negotiate and will just pass on the unpaid tuition to a collection agency.  However, because of the terms of the Frustrated Contracts Act and the Consumer Protection Act, as set out above, the student may not actually owe any money.  Section 22(1) of Ontario Regulation 74 under the Collection and Debt Services Act says that a collection agency cannot contact someone any further if that person emails or sends registered mail to the collection agency stating: 

  1. the person disputes owing anything; and
  2. the alleged creditor (e.g. the college) or the collection agency can take the person to court.

 

Section 22 of the same Regulation says that the collection agency cannot contact the person any further if a lawyer advises the collection agency in writing that all communication must go through that lawyer. 

 

If a college were to take a student to court for unpaid tuition, or for “extra tuition” due to COVID-19, then the Frustrated Contracts Act and the Consumer Protection Act, and potentially the contract with the college, may offer defences that the student could use in court.  That could result not only in getting the alleged tuition debt erased, but perhaps also getting a tuition refund, the college having to pay some of the student’s legal fees, and in some cases the college paying the student for damages.  But, to know for sure, the student should speak to a good education lawyer. To set up a consultation with us, fill out this form.

 

If you are experiencing difficulties with a college or university, it is important to figure out what rights you may have, and how the law might help you. Contact Education Lawyer, John Schuman, by emailing him, calling 416-446-5080, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

 

For more information about Ontario Education Law, and other education law issues, such as assistance for students with special needs and discipline such as academic sanctions, suspensions and expulsions, check out the Education Law section of this website.

 

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