Student leader at Western strikes out in defending harassment claim, loses Charter argument

Student politics is a nasty business.  Universities, for their part, need to respect the process and keep a distance while having the courage and wisdom to act when a student’s conduct goes to far.

The case of Tefler v. The University of Western Ontario (CanLII) involves one student leader who was elected president of the graduate students’ society, only to have it slip through his fingers after the election was contested.  The speaker of the society – the one responsible for deciding these issues – ultimately found the election to have been invalid.  The almost-was president had sent a series of aggressive emails to the speaker (among other behavior described in the decision), who filed a harassment complaint against him. 

Several months later, the university charged him with violating the Code of Student Conduct, specifically the following:

Any conduct on the part of a student that has, or might reasonably be seen to have, an adverse effect on the reputation or the proper functioning of the University, or the health, safety, rights or property of the University, its members or visitors, is subject to discipline under this Code.

He was also charged with violating the following part of the school’s Non-Discrimination and Harassment Policy:

Conduct and/or behaviour also constitutes harassment, whether or not it is based on the prohibited ground of section 4.00, when it creates an intimidating, demeaning or hostile working or academic environment.

The charges then travelled the full length of Western’s internal disciplinary procedures, with a few interesting highlights:

  • The student was represented by a lawyer from the onset.  Not just any lawyer, mind you, but Clayton Ruby (Wikipedia), whose name should be known by every law student in the country.  Mr. Ruby provided written submissions in defense of the student, along with affidavits (Wikipedia) from several students connected to the dispute. 
  • There were three different steps in the process.  The student first met with Vice-Provost and was given a chance to defend himself (without a lawyer present, which was only allowed on appeal).  The Vice-Provost found him guilty and the student appealed to the University Student Discipline Committee, and then to the President – neither of which worked.  Many universities only have a two-step process.

At the court level, the student made three main arguments:

1.    Refusing to allow legal representation at the meeting with the Vice-Provost was unfair.  The student maintained that he should have been entitled to have Mr. Ruby present then because (1) the allegations against him were serious; and (2) the possible consequences included expulsion – so there were important interests at stake. 

But the court disagreed.  Inviting in lawyers would only complicate the process and make it more costly, and in this case the stakes were not nearly high enough.  The student had plenty of an opportunity to present his case in a fair process without having his lawyer standing in the room.  But the court issued a strong warning to universities that might prohibit lawyers from these sorts of hearings no matter the details:

However, this decision should not be taken to condone the prohibition of legal counsel in every disciplinary proceeding of the University at the initial stage.  In exceptional cases, …, where the stakes are not merely theoretically but realistically high for the student, the University may be well advised to consider permitting legal counsel to be present in the meeting with the Vice Provost or the Dean, as failure to do so may render the decision vulnerable to attack on the grounds of procedural unfairness.

2.    It was unreasonable to consider the student’s conduct to amount to harassment.  The student maintained that harassment involves repetition, coercion or the threat of coercion and an affront to another person’s dignity, thus the decision should be quashed.

The court disagreed and found that the university’s decision was reasonable in any event.

3.    The university’s decision infringed the student’s right to free speech under the Charter of Rights and Freedoms.  The student here referred to the Pridgen and Whatcott decisions, both of which relate to the application of the Charter to universities (see here for more discussion on that). 

The court disagreed that the Charter applied to Western and the issue stopped there.  Following Pridgen, universities have been concerned about the Charter applying to them, but several recent court decisions have distinguished Pridgen on the basis that the legislation connected to the University of Calgary is unique.

Here are the take-aways from this case for universities:

  • If your policies flatly prohibit a student from inviting a lawyer to participate in any internal hearing, that should be changed to make an exception (at the least) for situations where important interests are at stake.
  • Look at your governing legislation in light of Pridgen to try to anticipate whether the Charter argument is headed your way. 

Here are the take-aways from this case for students:

  • Not everything that happens in the political realm stays there.  The most successful politicans aren’t there by accident.  They are incredibly cautious in nearly everything they do, especially when it has to do with their opponents.  Watch yourself, particularly if you feel you’ve been wronged.
  • Sometimes it pays to hire a lawyer.  These types of cases generally result in a win for the university.  The ones that don’t wind up in court are the ones that are dealt with properly early on.
 

The importance of having professional liability insurance legal experts

If you are a professional, it is essential that you carry a professional liability insurance policy. This is usually a requirement by state law or the licensing agency. This kind of policy is also known as errors and omissions insurance. For example, if you are working in the field of providing services or giving advice to clients, you might find yourself committing mistakes, giving the wrong information or even cases of errors and omissions. These types of errors might cause you a lot of trouble if you are not well represented by professional liability insurance legal professionals. The legal experts will act on your behalf in representing you to the insurance company and the court. Here are benefits of having professional liability insurance lawyer.

Hiring an experienced lawyer is very beneficial. Legal matters require someone who is highly skilled and knowledgeable. Make sure that you hire someone who has been working in the legal field for some years. Professional liability insurance legal professionals usually have a lot of knowledge in policy coverage. As such, they will ensure that you are highly compensated, and your case is well handled.

As a professional, you are needed to be very careful when offering services to your clients. It is necessary that you ensure that you do not commit errors or mistakes. If you commit these malpractices, you might end up harming your client or the third party. Some clients can decide to take legal action which can cause you a lot of problems. Thereby, hiring an attorney will be very helpful. He or she will deal with the insurance company on your behalf to ensure you are compensated. In the end, you will have peace of mind and can concentrate on your regular daily activities.

Handling your case is quite complicated. This is because you might not be aware of the legal processes. Employing a professional liability insurance attorney when you have a problem is crucial. The legal expert understands the law involved very clearly. He or she will be able to go through your case and argue it out in the court of law.

The process of negotiating with an insurance firm can be long and frustrating. This can even become harder if you are sued. As such, you need someone who will listen to you and offer legal advice. If you hire a professional liability insurance attorney, he or she becomes the person that you consult most the time. The legal professional becomes the person that you ask questions, send an email and even guides you through the whole process.

The above benefits will assist you to understand the importance of hiring a professional liability insurance lawyer. It is necessary that you take them very seriously. As professional, mistakes can happen, and if you are not well prepared, you might end up losing your job. 

Ontario court sides with U of Ottawa against MD accused of “unprofessional and disruptive behavior”

The recent decision of the Ontario Superior Court of Justice in AlGhaithy v. University of Ottawa (CanLII) is an important one for universities to consider when setting up internal rules and procedures and addressing concerning behavior of students. 

Accordingly to the decision, Dr. AlGhaithy practiced in Saudi Arabia for several years before beginning a neurosurgery residency with the University of Ottawa.  As the years of his residency went by, others in the program expressed concern about his conduct.  The particulars are described in the decision, and Dr. AlGhaithy was eventually dismissed from the program.  He appealed the decision internally, and when that failed he looked for judicial review (i.e. for the internal decision to be undone) from the courts.

His claim led the court to emphasize several points relevant to all universities:

1.    Courts are reluctant to interfere with the academic decisions of universities unless there has been “manifest unfairness” in the procedure adopted or the decision is unreasonable.

This basic principle is relied on regularly by universities and is the single largest hurdle for student litigants to overcome.  If an internal decision connected to an academic issue is “reasonable”, then the courts will not fiddle with an internal university decision.  Here is how the task of the court in those circumstances is described:

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to    outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

In this case, even though the initial decision was made with a questionable procedure, the appeals process made up for it in terms of fairness, and the outcome was deemed to be reasonable.

2.     The Charter of Rights and Freedoms does not generally apply to universities.

Even since the Pridgen decision involving the University of Calgary (see here for more discussion on that), student litigants have routinely claimed that their university has infringed on the student’s rights under the Charter.  The idea is that even though the university is not, strictly speaking, part of the government, it should be considered to be implementing a government program, and thus while so doing it must respect the Charter rights of students. 

Many students, particularly political activists, were hoping that Pridgen meant a whole new world of possible claims against universities, but the courts seem to have played down the significance of the decision by limiting it to the unique legislation applicable to the Alberta universities.

In this case, here is how the court treats that argument:

The applicant relies on a decision of the Court of Queen’s Bench of Alberta, Pridgen v. University of Calgary, [2010] ABQB 644, which held that a decision of the University of Calgary to discipline students was subject to Charter scrutiny.  An appeal of that decision is under reserve at the Alberta Court of Appeal at this time.  In any event, the case is distinguishable, given that Alberta legislation requires universities to carry out a specific government objective of facilitating access to post-secondary education.  There is no equivalent legislation in Ontario.

The University was not implementing a government program or policy nor exercising a power delegated by the Royal College of Physicians and Surgeons of Canada or the College of Physicians and Surgeons of Ontario when it disciplined the applicant.  Instead, the Appeals Committee was making a decision about an internal matter, the dismissal of a student for a violation of standards of academic conduct.  Therefore, the Charter of Rights does not apply in the circumstances, and I need not consider the argument that s. 2(b) of the Charterwas infringed. 

This is similar to how the Charter argument is dealt with in Lobo v. Carleton University (CanLII):

The Plaintiffs’ reference to the outcome in Pridgen v. University of Calgary, 2010 ABQB 644 (CanLII), 2010 ABQB 644, 497 A.R. 219, under appeal, fails to recognize that the Court made specific reference to the governing structure of the university in that case which involved significant government involvement.  On this basis, the Court found the university was delivering a specific government program in partnership with the government. By contrast, the Carleton University Act, 1952 created an autonomous entity whose structure and governance is in no way prescribed by the government. Subsequent enactment of the Post‑secondary Education Choice and Excellence Act in no way derogates from that autonomy.

Dr. AlGhaithy is also among the students who are suing (Calgary Herald) the University of Ottawa for over $150 million for various issues, including an allegation of discrimination.  Here is a link to their Statement of Claim.  Apparently, the group had filed a human rights complaint against the university roughly a year ago, but there is no information readily available with any indication of how that is progressing.