Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
Posts by noahsarna
Changes coming to provincial law that applies to societies
02 days
by noahsarna
in Uncategorized
Societies, also known as “non-profits” or “not-for-profit corporations”, are the legal entities behind most of what goes on in the world of education. For example, the Ubyssey, the University of British Columbia’s student newspaper, is the name of the central activity of a British Columbia society called The Ubyssey Publications Society. This means the Society likely appears on the Ubyssey’s contracts and payroll slips.
The story of most societies usually begins something like this: a group of do-gooders want to do some particular good together, and they would prefer it if they could do this good as members of a collective that has a separate legal identity rather than as people who will be personally liable if something goes wrong. They visit a lawyer and are given the option of incorporating a society under provincial or federal laws, and since educational issues are province-based more often than not a provincial society will be created.
The society might then try to take the step of becoming a charity, which means that not only have the do-gooders incorporated, but the Canada Revenue Agency has decided (after a rigorous application process) that their society should have the ability to issue donation receipts to someone who has contributed cash or property to the society’s operating budget.
Recently, the provincial government decided – rightly – that it should have another look at the main law that applies to provincial societies, the Society Act (BCLaws). So, the Ministry of Finance started a consultation process, to see what was broken in the Society Act, what could be fixed and how that fix might play out, all with the recognition that the affairs and challenges of societies have changed much quicker than the Society Act has. This is the purpose of the review:
The purpose of the review is to identify and address any legislative obstacles that may prevent societies from functioning fully and efficiently, and ensure that the public interest is being protected. We are seeking your input on any problems, gaps, inconsistencies or ambiguities in the Society Act and any reforms you would like considered.
The review started at the end of 2009 (see this letter from the Deputy Minister of Finance), and since then many of the province’s 26,000 societies have chimed in with their thoughts.
Then, in December 2011, the Ministry put out a Discussion Paper going through proposed amendments that arose because of the consultations with societies. All of the amendments revolve around two basic issues:
- What corporate model is most appropriate for societies and, in particular, should a sophisticated business law framework be adopted?
- To what extent should the Society Act contain regulatory provisions or other rules that constrain the operation of societies?
Many of the proposals may sit well or poorly with societies in the educational community. Student societies, like other societies with a very large constituency of members, should pay particular attention to the items on the table, such as the idea of introducing new remedies for members, special regulatory requirements for further financial disclosure and accountability and creative dispute resolution tools.
Societies and other stakeholders are invited to send their comments on the Discussion Paper by April 30, 2012 to fcsp@gov.bc.ca.
Never get parenting advice from your lawyer
012 days
by noahsarna
in Uncategorized
We rely on experts – doctors, accountants, electricians, plumbers, lawyers, etc. - a great deal for a variety of reasons, though not always for reasons we are ready to admit.
We rely on them, obviously, because they know how to do something that we don’t, and the risk of us trying to do it anyways and failing miserably is far more concerning than devoting the right resources to get an expert involved.
But another reason we rely on experts is that we’re just plain freaked out or too riled up by the circumstances we find ourselves in, and we need someone who looks like they know what they’re talking about to calmly identify what needs to be fixed and to provide a plausible solution.
My experience is that the second reason is far more significant than we are prepared to accept. Occassionally, in those cases, the call to the expert is justified, but quite often the scope of their advice is not. I don’t mean dentists giving you accounting advice along with a routine cleaning, or an electrician suggesting you invest in shares of Walmart. The issue here isn’t necessarily with what they say or with them at all. I am talking about our failure to put their advice in perspective.
A dentist can suggest certain dental work be done, but ultimately it is on us to decide how that advice will affect the rest of our priorities (e.g. how much work will I need to miss, and how much will the work cost me?). A dentist can be really good at answering dental questions, but it doesn’t relieve us of the burden of trying to make the dentist’s answers fit with our other, possibly competing, responsibilities.
This concern applies specifically to legal advice. Dental work usually only affects the patient, but legal work is almost by definition something that is intended to impact others. I have been fortunate to see clients who treasure their family above all else, and who scrutinize legal advice to carefully consider how it will affect their family in the short-term and the long-term and whether any other relationships important to them can be harmed by legal action.
But, as parents, our reliance on lawyers in the appropriate circumstances should never involve delegating our responsibilities as parents to people who are not experts in parenting. Lawyers, even those that may be perfectly wonderful parents themselves, should only be expected to figure out one piece of the puzzle: to identify the legal problem and to provide a plausible solution that puts us, their client, in the best possible legal position, often to the detriment of others.
From what I understand (and I would love to be proven wrong), parenting never gets any easier, no matter how old your children become. Whether your child has a legitimate claim against an educational institution, or a dispute arises between family or community members, it is essential to remind yourself that a lawyer can make suggestions, but ultimately you are the one in the captain’s seat.
Does the Charter apply to universities? The plot thickens with recent decision
018 days
by noahsarna
in Uncategorized
Many university administrators and student leaders have been watching with interest as the legal dispute between anti-abortion activists and Carleton University winds it way through the courts (see here and here for background).
Specifically, the curiosity surrounds one issue: does the Canadian Charter of Rights and Freedoms apply to universities?
If the Charter does apply, then political activists, not to mention anyone else with a grievance against a university, have an incredible legal tool at their disposal, while universities have the nightmare of a possible deluge of Charter claims winding up on their doorsteps.
In a decision (CanLII) released last week, Madam Justice Toscamo Roccamo of the Ontario Superior Court of Justice ruled that the portion of the pleadings (Wikipedia) of the anti-abortion activists dealing with the Charter argument against Carleton should be struck because it fails to disclose a reasonable cause of action.
Translated into normal words: the Charter argument – in the court’s view – stinks and should not be allowed to form part of any ongoing litigation.
After a string of Supreme Court of Canada decisions dealing with this question (discussed more here), a university would be subject to the Charter if either of the following applied:
- the university, in its entirety, is fairly said to be an “organ of government” because of the degree of governmental control over it as an organization; or
- a specific activity of a university is fairly said to be “government” even though the rest of university’s activities would not be.
This approach makes sense: the Charter applies to government actors, and universities should not be subject to the Charter unless they are, or are doing something, governmental.
For a long time, universities liked this view, which was echoed repeatedly in court decisions. But the recent Pridgen decision (discussed more here and here) was reason for concern. In that case, the court reviewed the legislation behind the University of Calgary and found that the university “is not part of the government so as to make all of its actions subject to the Charter“ . That is, even though, among other things:
- universities in Alberta are established by legislation;
- various members of governing university bodies are appointed by the province; and
- the Lieutenant Governor in Council has the ability to restrict how those rights are used,
the court still did not consider the university to be “government” in its entirety. However, the court did find that the university “was implementing a specific statutory scheme or government program with respect to the actions” at issue, given that universities in Alberta generally function within that legislation hand-in-hand with government – at least as far as post-secondary education is concerned – to carry out what is essentially a government program. In that sense, the university operates as a “partner” with Alberta when it comes to educating (though not necessarily when hiring and firing employees, for example).
This is key:
When a university committee renders decisions which may impact, curtail or prevent participation in the post‑secondary system or which would prevent the opportunity to participate in learning opportunities, it directly impacts the stated policy of providing an accessible educational system as entrusted to it under the PSL Act. The nature of these activities attracts Charter scrutiny.
In Lobo v. Carleton University, the Ontario decision released last week, the court kicked aside any sort of precedent from Pridgen:
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.
Here’s the take-over message: ultimately, whether the Charter applies to a particular university or university activity may depend on the legislation behind the university. Assuming neither Lobo nor Pridgen are appealed, universities and students will have more to work with when trying to find out whether the relevant legislation is on one side of the fence or the other.
Charges laid against apologetic UBC student in Stanley Cup riot
025 days
by noahsarna
in Uncategorized
The Globe and Mail reported this week that the Crown has approved charges (VPD) to be laid by the Vancouver Police Department against a UBC student, Camille Cacnio, who appeared from video footage and from an apparent confession to have participated in the Stanley Cup riot early this past summer.
Cacnio was caught on camera during the riot and her misdeeds were profiled in many of the name n’ shame website and social media chatter that cropped up with vigilante vengeance shortly thereafter. She ultimately responded by purportedly posting a half-apologetic, half-accusatory confession online.
Cacnio is not the first University of British Columbia (UBC) student (The Ubyssey) to be charged in connection with the riot, and she will probably not be the last. Despite getting some heat from donors and members of the public, UBC has been steadfast in affirming that it is not the university’s place to discipline students like Cacnio. According to Randy Schmidt, associate director of UBC Public Affairs, as reported in The Ubyssey:
While the university believes all persons involved should be called upon to account for their behaviour, it does not believe the student discipline system at the university is the appropriate forum to do so… The system of student discipline at the university is meant to address offences specifically committed against members and property of the university community.
This is the correct approach, for many reasons. Here is more information on this issue (University Affairs).
Similar pressure was applied to UBC over the past couple of years in relation to Sasan Ansari (Vancouver Sun), a West Vancouver man who stabbed a friend to death outside the Hollyburn Country Club in November 2008. The court considered Ansari to have committed the killing while in a “dissociative state”. He was released on parole last January and returned to taking courses at the UBC law faculty this past September.
McGill clarifying its brand by insisting on student club name changes
032 days
by noahsarna
in Uncategorized
Names, especially really, really old ones with very positive associations, have incredible value in the marketplace. Some companies are made or broken on their trademarks (Wikipedia), and some organizations spend years in court relying on the law to protect their brand. Universities, to a certain extent, are no exception and recognize the need at times to give a lesson on the ownership of names by curtailing how its brand is used in the public domain.
Karen Seidman at the Montreal Gazette reported last week that McGill University and the Students’ Society of McGill University (SSMU) concluded a Memorandum of Agreement regarding the use of the McGill name, which left many students unhappy, including the SSMU leadership, and has forced many student clubs to change their official names. Maggie Knight, SSMU President, admitted that SSMU, including its umbrella of clubs, had no legal rights to the McGill name, and now many clubs will have to adapt their materials to deal with the naming restrictions.
In response to discontent from students, McGill has emphasized that it is simply insisting that student organizations have names that specify they are students and not an arm of the university itself. Here are some examples:
- Elections Mc-Gill will now be Elections SSMU;
- TVMcGill will now be TVM: Student Television at McGill;
- McGill Walksafe will now be SSMU Walksafe;
- McGill Nightline will now be McGill Students Nightline;
- McGill First Aid Service will now be Student Emergency Response Team; and
- McGill Outdoors Club will now be McGill Students Outdoors Club.
It makes sense that the university would want to clarify what activities or services are being offered by students, who are vital to but independent of the administration of the university, and what activities or services are being offered by the university itself. The beef from students comes from the fact that they now have to scramble to adjust their promotional materials to different names imposed on them by the administration, and the fact that the process involved an imbalance in negotiating power.
Students also say that the administration wanting to reserve the sole word “McGill” for non-student affairs downgrades students as peripheral to the university’s mission and identity. Here is an editorial on this issue from the McGill Daily, which expresses concerns about a whitling away at what or who is included in the “McGill Community”. The editorial harps on the justification for the administration’s push being liability for damage caused by student groups (though that appears to be unconvincing from a legal perspective, so I doubt it was the main reason).
McGill has offered $25,000 to help cover the costs of any changes to banners, crests, T-shirts and so on featuring names that are no long permissible. Here is a list of new club name options for students approaching SSMU to create a new club.
SSMU seems to have gotten good legal advice: the university, not the student society, owns the name McGill whenever it is used in connection with the university. Canada’s Trade-marks Act (Department of Justice) includes special rules that favour universities, among other public bodies, when it comes to their names and emblems:
9. (1) No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for…
(n) any badge, crest, emblem or mark…
(ii) of any university…
in respect of which the Registrar has, at the request of Her Majesty or of the university or public authority, as the case may be, given public notice of its adoption and use…
In other words, if a university has asked the Registrar of Trade-marks to give notice of its use of a particular trademark (and the Registrar has done just that), then no one can adopt that trademark or any trademark that could be confused for the university’s trademark. Here is an example of one of McGill’s trademarks registered with the Canadian Intellectual Property Office (CIPO), and this is how CIPO defines a trademark:
A trade-mark is a word (or words), a design, or a combination of these, used to identify the goods or services of one person or organization and to distinguish these goods or services from those of others in the marketplace.
Have other universities gone the same route?
The University of British Columbia (UBC) does not seem to have the same restrictions in place; here is a list of student clubs from the Alma Mater Society (AMS) website, many of which appear to violate McGill’s rules. (The sample constitution provided to students to establish a club within the AMS envisions a name like “The ____ of UBC”.) The same seems to apply at the University of Toronto: here is a list of student clubs from the University of Toronto Students’ Union, many of which appear to violate McGill’s rules too.
If you are interested in learning more about how UBC approaches this issue, here is a list of UBC trademarks, which includes regular trademarks and those under Section 9(1)(n)(ii) of the Trade-marks Act (discussed above). Here is a pamphlet put out by UBC’s Office of the University Counsel about its trademarks, and here is a related university policy.
According to the Montreal Gazette article cited above, two other major universities in Montreal may have policies similar to McGill.
If your child destroys school property, your insurance policy may not cover it
038 days
by noahsarna
in Uncategorized
A couple wanting having a child may bring up the pros and cons, the arguments for and against, the risks and the unknowables. What will it mean for their financial needs and goals to add the significant costs of parenthood while reducing the family income? What will it mean for their parents and grandparents to hold the next generation in their arms and watch them grow? How will they respond if the child is born with a severe illness or disability? Will the child care for them in their old age?
Everyone is someone’s child, whether you know them because of their successes or failures, their acheivements or improprieties. The miracle and nightmare of parenthood is that you can do everything or nothing right, and your child can end up loving you or hating you, making you proud or causing immeasurable sorrow and shame, burning through your money or providing for your in your retirement. You feel compelled to do everything you can (and there is a lot to do), but ultimately your actions are no more a determination of your child’s conduct as adults and young adults than your parents’ actions were or are a determination of your conduct today.
Kids are, in different ways at every stage of life, like bulls in a china shop. The question for parents is whether they end up barging, head-down, through the aisles, or moving responsibly on to the next challenge. For some parents, they think: at least I have insurance.
In the recent case of Durham District School Board v Grodesky (CanLII), a parent was told their insurance wouldn’t cut it when it came to their child’s misconduct. Here are the facts:
- In the spring of 2007, Colton James started a fire to the contents of his school’s plastic recycling bins that ultimately lead to damage to the school building.
- The school board sued Colton along with his father, Tood James, claiming that Todd failed to act in terms of providing/enforcing a curfew, supervising, disciplining and instilling in Colton a respect for private and public property.
- Todd tried to get his insurer, ING, to defend the claim against him and to reimburse him for any related costs, but ING denied coverage on the basis of the “exclusion clause” in Todd’ policy. This is the exclusion clause:
Exclusion Status Section II: We do not insure your claims arising from: (6) Bodily injury or property damage caused by any intentional or criminal act or failure to act by: (a) any person insured by this policy; or (b) any other person at the direction of any person insured by this policy.
In other words, even though Todd had comprehensive homeowner’s insurance that covered any personal liabilities connected to property damage anywhere in the world, his insurance company insisted this one fell outside the line.
The Ontario Superior Court of Justice agreed with the insurance company. Here is how Justice Gunsolus summarized the law in this area (at least in Ontario):
Where an insured [e.g. Todd] seeks to enforce a duty to defend [e.g. in the lawsuit against his son and him], the onus is on the insured to show that the claim, if proven, falls within the scope of coverage provided by the policy. Only when this threshold is met, does the onus shift to the insurer [e.g. ING] to show that the claim falls outside the coverage because of an applicable exclusion. Where it is clear from the pleadings that the claim falls outside of the coverage of the policy, by reason of an exclusion clause, the duty to defend does not arise.
Translating from legalese, this is the idea: based on the language of the policy, Todd would need to first show that if he lost the lawsuit with the school board the resulting liabilities would be covered by the policy. However, since in this case the lawsuit specifically claimed that Todd’s failure to act led to the property damage (and since that sort of conduct by Todd is outside the scope of the policy because of the exclusion clause), ING does not need to defend him.
At the end of the day, the court may find that Todd did everything right as a parent in connection with his son’s misconduct, in which case ING would likely return to the fray.
McGill report released by law dean on November tuition protest-turned-riot
047 days
by noahsarna
in Uncategorized
The dean of McGill University’s Faculty of Law, Daniel Jutras, released his report last week about a disturbing violent incident at the heart of McGill’s downtown campus on November 10, which grew out of a massive protest on impending tuition increases that involved tens of thousands of student marchers.
According to the CBC and the Montreal Gazette, several students occupied part of the administration building and the office of McGill’s principal, Heather Monroe-Blum (Wikipedia), but the most contentious issue appears to have been the involvement of riot police and the use of shields and pepper spray.
Justras was asked in mid-November by the Principal to investigate the events surrounding the violence and to make any recommendations he considered to be appropriate. It appears he went to considerable lengths to engage in a proper fact-finding mission, which adds to the legitimacy of an internal inquiry on a very divisive issue.
(Full disclosure: I had Jutras as a professor for several classes when I was at McGill, and I thought he was an excellent teacher, wonderfully brilliant and always willing to engage every perspective and argument – which appears to come through in the report.)
His recommendations are valuable to any university administrator intent on addressing concerning aspects of campus activism, particularly:
Recommendation 1: University authorities should provide and participate in a forum open to all members of the University community to discuss the meaning and scope of the rights of free expression and peaceful assembly on campus.
Jutras emphasizes that students at McGill have broad rights of free expression, which are reflected in Article 25 of the Charter of Students’ Rights:
Every student enjoys within the University the freedoms of opinion, of expression, and of peaceful assembly.
However, he also makes clear that there are administrative procedures in place to regulate free speech and assembly on campus, and there are limits on those rights to avoid harm from befalling other students or university staff or property. He teased apart the various challenges in defining the term “peaceful assembly”.
Again, this is an important read for anyone looking to have a sophisticated conversation about some of the legal issues connected to campus activism.
New report critical of universities’, student unions’ commitment to free speech
255 days
by noahsarna
in Uncategorized
Modern universities are founded, in part, on the basic principle of academic freedom. To benefit society our academics must be free to pursue any line of thought or inquiry, no matter how offensive it might seem to politicians, religious groups, business interests or anyone else, and no matter how meshuga it might sound to the average person on the street. Free expression is a moral imperative and a political necessity. It is vital to our survival as a democratic civilization. Nowhere is it’s presence and growth more important than on university campuses.
Free expression at universities does not only mean the unrestrained ability of professors to zig or zag left or right in classes on political theory. Course time is a small part of it. Free expression also covers the rest of the community of ideas living and breathing on campuses, from signs at student-organized protests to letters to the editor of student newspapers.
Like any other principle, it begs the question: what’s the status quo? How does free expression actually fare at Canadian universities?
The Justice Centre for Constitutional Freedoms released a report last week involving a critical analysis of the state of free speech at Canadian universities. As a brief bit of background, here is a glimpse of the JCCF’s approach from the group’s website:
The free and democratic society which the Canadian Charter of Rights and Freedoms holds out as our ideal can only be fulfilled by honouring and preserving Canada’s traditions of freedom of speech, freedom of religion, freedom of association, other individual rights, constitutionally limited government, the equality of all citizens before the law, and the rule of law.
And yet these core principles of freedom and equality continue to be eroded by governments and by government-funded and government-created entities like Canada’s public universities, and human rights commissions at the federal and provincial levels.
The JCCF is a charity intent on promoting individual liberties, such as free expression, by promoting discourse on the subject and providing pro bono legal representation to Canadians who cannot otherwise afford legal costs associated with defending their rights under the Canadian Charter of Rights and Freedoms (Department of Justice). The JCCF’s political bent is obvious, but the group doesn’t pretend to be a politically neutral think tank, and reports like these – whether they are from the Fraser Institute or the Canadian Centre for Policy Alternatives – should be respected or dismissed on their own merits. The same goes for the fact that one of the report’s authors, John Carpay, represents anti-abortion student activists.
Here are some highlights from the report:
- The report sets out a “Campus Freedom Index” based on the policies and principles of universities and student unions (what they say) and on the actions and practices of universities and student unions (what they do). For example, a ”Good” rating on a university’s policies and principles means that the university has a clear and unequivocal commitment to free expression. A university with strong limits on free expression in its policies and principles, such as restrictions against “disrespectful” or “provocative” speakers or perspectives, get a “Poor” rating.
- The Index views favourably universities and student unions that share their respective resources, such as student union funding, equally among groups promoting various perspectives on political and social issues.
- Carleton University is criticized for its approach to anti-abortion student activists (see here). The University of Calgary is criticized for its approach to the Pridgen brothers (see here). The University of Ottawa is criticized for how it handled Ann Coulter’s Canadian tour (Globe and Mail). The best scores went to Simon Fraser University, the University of British Columbia and the University of New Brunswick.
Interestingly, the report denounces universities and student unions for actions or omissions taken against groups trying to advocate what are commonly thought of as left-wing views. For example, the authors were disappointed by the decision of Dalhousie University to cancel a speaking engagement with British MP George Galloway because the event’s organizers were unable to pay for extra security.
This report should be considered by anyone looking for a primer on free speech on campus.
Giving naming rights to donors may reduce the value of their gift for tax purposes
067 days
by noahsarna
in Uncategorized
Charity lawyer Mark Blumberg reported (GlobalPhilanthropy.ca) earlier this year about an interesting letter from the Canada Revenue Agency (CRA) in response to a question from an educational institution, which was raising funds to construct buildings on its campus to be used for its charitable purposes. The educational institution, like many other charities, wanted to give naming rights to donors according to donations levels; for example, you give us $10,000, we’ll name a classroom after whoever you want (including yourself), but if you give us $100,000, you’ll have naming rights to a pavilion, and for $1,000,000 you get a whole building.
This is a common practice in the world of philanthropy. Naming rights may be requested or expected by the donor, or may be offered by the charity. Sometimes the donor wants to honour their parents or another deceased family member by using the naming rights on them, other times the donor prefers their own name to be on the plaque. From the outside, this may seem silly or even narcissistic, but there are a lot of important considerations at play. Having one of your buildings sport the name of a well-known personality sends a message to your community, your other donors, the donor’s children and grandchild and so on, which could be invaluable.
Consider how impressive it may sound to some to hear about the “Jim Pattison Pavilion” at Vancouver General Hospital, and compare that to the ring of the ”Andy Dick Pavilion” (no offence to Andy Dick). On the other hand, Bernie Madoff (New York Times) must have had his name on an incredible number of charitable facilities before news of his crimes were made public, and my guess is taking that name down often is no easy (or inexpensive) feat.
The question from the educational institution that was addressed in the CRA’s letter was whether the amount of the donation for tax purposes should be reduced to reflect the “advantage” received by the donor in the form of naming rights, specifically where the donor carries on a business that may be connected in some meaningful way to the name that will appear at the end of the day. The legal discussion underlying this issue is the same one involved with any fundraising event: if the amount paid by a guest (e.g. $250) exceeds the actual cost of the “advantage” they receive (e.g. a nice meal), then the charity should give them a charitable receipt for the balance – that is, the specific amount the guest is “donating” to the charity without getting anything in return.
In the letter, this is how the CRA responded:
Where naming rights are provided in gratitude for a gift, the value of any advantage in respect of the gift would be determined at the time of the gift and based on the prospective economic benefit associated with the naming rights granted. If, having regard to the facts, there is no prospective economic benefit associated with the naming rights, it is our view that the amount of the advantage would be nil.
In non-tax language, if the donor is getting a business benefit from the naming rights, the value of the “gift” must be reduced accordingly.
This is how the conclusion of the letter was explained by Andrew Valentine at Miller Thomson LLP:
Charities need to ensure that they consider the economic value of any naming rights provided to donors, particularly where the donor is a corporation or partnership, or where the naming right identifies a business with which the donor has a connection. Where the naming rights have value, this value must be determined and subtracted from the value of the receipt. In some cases, the naming rights may vitiate the issuing of a receipt altogether if the gift was made with a view to advancing the economic interests of the donor rather than as a gift.
Bottom line: if you sense a donor will get a business benefit from naming rights, call your lawyer. Mishandling it will be bad for everyone, and the cost of the legal advice should be considered in light of the size of the donation.
SCC stops short appeal of ruling on donations for bursaries scheme
080 days
by noahsarna
in Uncategorized
The Supreme Court of Canada announced this morning that it denied an application for leave to appeal made by family members of students at Trinity Western University who were stung with a tax bill for their involvement with a donations for bursaries scheme (see here for background). They have reached the end of the road.
Here (CanLII) is the decision of the Federal Court of Appeal that the family members wanted to appeal. For what it’s worth, the charity involved in the scheme – the National Foundation for Christian Leadership – still appears as a registered charity with the Canada Revenue Agency, and it does not seem as though any formal action was taken against the charity.
Interestingly, the law firm acting for the family members was Benefic Group, which was profiled recently in the Vancouver Sun.
Pro-life students suing Carelton are forced to pay costs
082 days
by noahsarna
in Uncategorized
The lawsuit against Carleton University from two anti-abortion student activists is slowly (and expensively) winding its way through the courts.
The two students – Ruth Lobo and John McLeod – were arrested last fall for participating in an unauthorized protest on campus (see here and here for background information). Subsequently, they sued the university. The university responded by applying to the court to dismiss their claims on the basis that their pleadings (Wikipedia) did not disclose a reasonable cause of action (e.g. their claims were frivolous).
Madam Justice Toscano Roccamo of the Ontario Superior Court of Justice ruled over the summer against the university on this application and allowed the students’ lawsuit to continue but ordered (CanLII) that certain portions of their pleadings be amended. Also, she struck one claim made by the students, namely that the university owed the students a fiduciary duty. Finally, she recently ordered the students to compensate the university for a portion of its costs incurred in the application ($18,400.87 plus tax). Carleton Lifeline, the group Lobo and McLeod were a part of, has posted pleadings revised by the students.
Many students have been arrested before for unauthorized on-campus protests, but the interesting thing about this lawsuit is that the students are trying to assert the Charter of Rights and Freedoms (Department of Justice) applies to the university and protects the students’ actions, which is a novel claim prompted by the Pridgen decision. Justice Roccamo commented in her recent judgement that “this litigation raises matters of particular interest to these parties which may result in the evolution of jurisprudence having broad application to universities and students across the country…”
We’ll see where the next step leads.
SCC hyperlink decision has implications for educators
090 days
by noahsarna
in Uncategorized
The blogosphere has had two weeks now to digest the recent ruling of the Supreme Court of Canada in Crookes v. Newton (CanLII), where the high court ruled that simply the act of hyperlinking to defamatory material elsewhere on the internet does not alone constitute defamation. The decision upholds the rulings of two lower courts, so the outcome is not necessarily a surprise; however, the details of the decision have broad implications for anyone who posts commentary online.
Educators, in particular, should pay attention, given that teaching is increasingly shifting to become an online activity. More professors and teachers are blogging than ever before, and students are demanding more and more that materials be made available through the web.
Hyperlinking (Wikipedia) is an active connection or reference to another website through a sensitive word or phrase, allowing the reader to cut directly to additional information relevant to what they are currently reading. A hyperlink can be “shallow” – i.e. linking to page with relevant articles, like a newspaper’s homepage – or “deep” – i.e. linking directly to a relevant article.
The relationship of hyperlinking to defamation is timely because the internet, or more significantly the way we use the internet, has created an environment where defamation is easy, simple and common. In the past, if you wanted to defame an enemy, you generally had to use or be a member of the media. But current communication technologies provide nearly everyone with access to the tools of defamation.
Here is a summary (The Canadian Encyclopedia) of the ingredients of defamation from Lewis N. Klar, an expert in Canadian tort law:
In order to succeed in an action for defamation, the claimant must prove 3 things. First, that the material was defamatory. This means that it lowered the person’s reputation in the eyes of the “right-thinking” person. Second, it must be proved that the material referred to the claimant. In other words, people who heard or saw the material must have realized that it was the claimant whose reputation had been tarnished. This requirement prevents individual members of defamed groups from suing for defamation since it is the group itself that has been targeted. Third, it must be proved that the material was communicated to or published for someone other than the person actually defamed.
The specific issue in Crookes was the third item in this paragraph, namely whether the plaintiff had established that the defendant had conveyed defamatory meaning to a single third party that had received it. If nobody hears or reads it, then it’s not defamation.
The facts in this case are fairly straightforward: Crookes claimed that Newton had defamed him by having hyperlinks on Newton’s website to other websites containing allegedly defamatory material. On first blush, Crookes’ argument makes sense. If you aren’t allowed to call someone bad names, you shouldn’t be allowed to direct traffic to another site where those names are being tossed around. But, at the same time, you should be allowed to present a portal to possibly offensive material without taking ownership of everything that appears there. Freedom of expression vs. the right to protect one’s reputation. The stuff of interesting judgments.
Justice Abella, who wrote the majority decision in Crookes, had several important comments:
- The law should not create a presumption of liability for all “hyperlinkers”. That would seriously curb the free exchange of information.
- A hyperlink is generally used more as a reference than as a way to reproduce text conveying an idea – that is, it’s more like a footnote than an excerpt. It establishes a door and does not demonstrate any content set out on the other side. A hyperlink, then, is “content neutral”.
- A hyperlinker can select the destination of the hyperlink but has no control over the content, which may vary from time to time.
- Consequently, a hyperlinker only publishes hyperlinked material when they reproduce the defamatory content in some way.
The high court ruled that since all Newton did was hyperlink to allegedly defamatory material, his actions were not sufficient to establish “publication”.
Two other judgments were released by other members of the court, each of which agreed with Justice Abella’s conclusion but emphasized different concerns and arguments. For example, Justices McLachlin and Fish added that using a hyperlink as a reference should not constitute defamation, but where a secondary author endorses or recommends defamatory material through a hyperlink, well, that’s a different story. Justice Deschamps expressed concern that Justice Abella’s decision provided too great an exclusion to the rule of publication, and remarked that going after the originator and not the reporter (i.e. the hyperlinker) may be a challenge given the anonymity and global nature of the internet.
The lesson? Don’t think you can get away doing indirectly that would get you stung for doing directly. Trashing reputations is generally not a protected exercise of free expression. If you are going to play with fire by hyperlinking to potentially toxic material, use the hyperlink as a footnote without taking ownership over the material or sharing too much of it.
Here (The Court) is a link to additional analysis on the judgment.
Changes in the wings for teachers’ legislation
097 days
by noahsarna
in Uncategorized
Education Minister George Abbott introduced (BC Government) new legislation last week that will change the certification and regulation of teachers.
Here (BC Legislature) is a link to Bill 12, the “Teachers Act”, which will replace the Teaching Profession Act (BCLaws). Here is a summary of Bill 12 from Harris & Company. Here is a link to the BCTF’s response. Finally, here (Vancouver Sun) is coverage from Janet Steffenhagen, which provides more of the back story and general picture.
According to the government’s press release, the changes are a response to the concerns raised in Don Avison’s report (BC Ministry of Education). At the centre of the change is the BC College of Teachers, which will be dissolved and replaced with a different body.
Ontario court dismisses “bad” claim from student-plaintiff
0105 days
by noahsarna
in Uncategorized
Occasionally, universities are dragged to court by students in a way that makes me pity institutions of higher learning. One example of this type of event is reflected in the decision of the Ontario Superior Court of Justice released last month in Murray v. Lakehead University (CanLII), where the student-plaintiff started the lawsuit but didn’t even bother to show up to argue his case. The student, Robert Murray, apparently lived near the courthouse, and the court took a 20 minute break while people tried to reach him at home - but nothing.
Mr. Murray started the lawsuit by filing an incomplete “statement of claim” that, simply put, alleged his thesis supervisor negligently performed her duties by failing to provide him with the proper oversight. As a result, he demanded the university pay him the gross salary he would have earned had he decided not to spend two years on the degree, which he calculated was equal to $70,000.
Lakehead, which is located in northern Ontario, took the same procedural step commonly taken by universities when confronted with a claim by a student: an application to dismiss the claim on the basis that it does not “disclose a reasonable cause of action”. In this case, the university maintained that (1) the claim does not show the essential ingredients of a negligence claim; and (2) there is no viable claim because of the considerable discretion granted to universities in academic matters.
On the first point, the court clearly emphasized how an allegation of negligence must be structured:
As to the substantive law, a claim in negligence must establish that the defendant owed the plaintiff a duty of care; that the defendant breached that duty of care; and that damages resulting were caused by the breach of the duty of care.
On the second point, the court referred to Jaffer v. York University and Gauthier c. Saint-Germain, two recent decisions of the Ontario Court of Appeal (discussed here and here) that confirm the following rule regarding student claims again universities: the courts will dismiss such a claim unless the student can show that the subject matter of the claim falls outside the broad discretion granted to universities over academic matters.
Courts do not consider themselves to be appropriately situated to supervise academic issues at universities. The rationale for the broad discretion approach is set out in the following passage in Blasser v. Royal Institution for Advancement of Learning (CanLII):
In any university, … there are certain internal matters and disputes that are best decided within the academic community rather than by the Courts. This is so, not only because the Courts are not as well equipped as the universities to decide matters such as academic qualifications, grades, the conferring of degrees and so on, but also because these matters ought to be able to be decided more conveniently, more quickly, more economically and at least as accurately by those who are specialized in educational questions of that kind. In addition, of course, there is very good reason not to risk compromising the essential independence of universities by undue interference in their academic affairs.
This rationale may be problematic for a number of reasons, but the first step, which was not taken by the student in Murray, is to show up.
Legislated revenue streams for student societies
0116 days
by noahsarna
in Uncategorized
Clark Wilson LLP released an excellent edition this morning of its “Campus Counsel” newsletter, which deals with the legislative autonomy granted to student societies. I reproduce it in full below.
The Vancouver Province newspaper has recently reported on problems of the Kwantlen Student Association (the student society at Kwantlen Polytechnic University), which is involved in three legal actions. At the centre of these problems are questions regarding financial management by Kwantlen Student Association. As the Vancouver Sun reports, controversy and litigation regarding the financial management of the student societies of British Columbia institutions of higher learning is not new, with past instances arising at Douglas College in 2006 and at the University of Victoria in 2001. This article is a brief review of the legal framework within which these controversies arise.
In both the University Act and the College and Institute Act, a “student society” is defined as an organization incorporated as a society under the Society Act whose purpose is to represent the interests of the general student body, but does not include a provincial or national student organization. By definition, all student societies in British Columbia are created under the Society Act and, as a result, they are legal entities which are separate and apart from their respective academic institutions, with internal governance which is different from that of their institutions.
Section 21 of the College and Institute Act and section 27.1 of the University Act deal with student fees and are almost identical. In essence, the boards of colleges, institutes and universities are required to collect and remit student society fees to the respective student societies of their institutions. Neither statute stipulates the purposes for which student fees may be collected or imposes any controls on how they are administered. Both statutes permit a student society to increase student fees if authorized by student referendum.
Section 27.1 of the University Act and section 21 of the College and Institute Act were introduced pursuant to the Miscellaneous Statutes Amendment Act (No. 3) 1999. Certainly, from the perspective of business efficacy, it makes sense that student fees be collected with tuition; however, according to Hansard, there was no legislative debate focused on these sections when they were grafted onto the legislation. Accordingly, the rationale behind these provisions is not clear, although the Vancouver Province reported that the changes were the result of lobbying by the Canadian Federation of Students, requesting more autonomy. One presumes that a key objective of the legislation regarding student fees was to ensure the independence of student societies and that they have the means to achieve student goals, as determined by the students, and not the administration.
Pursuant to both the University Act and the College and Institute Act, the board of a college, institute or university may only stop collecting and remitting student fees if its student society does not make audited financial statements available or if the student society is struck off the register pursuant to section 71 of the Society Act. Otherwise, an institution’s board has no right to direct the purposes for which student fees are collected or how the fees are administered after they have been remitted to its student society. From the perspective of most students, they pay one global amount to their institution for their education and related benefits and services and often do not distinguish the amount being paid over to a student society. Many students may wrongly assume that their institutions administer or at least monitor how student fees are handled. A failure on the part of a student society to properly administer its resources may therefore affect the reputation of the institution as a whole, even though it has limited ability to manage the situation. Nevertheless, absent legislative change, the boards of British Columbia academic institutions are not in a position to intervene in their student societies’ affairs.
Some student societies work closely with their institution’s administration and share resources or facilities and agree to make payments to their institutions in respect of such arrangements. Other student societies carefully guard their independence. The legislation does not provide a specific mechanism for academic institutions to recoup the cost of services of facilities that they provide to their student societies nor does it constrain the kinds of agreements that an academic institution may enter into with its student society. As the institutions and student societies are separate and independent legal entities, they are free to enter into legally binding agreements which govern their relationship. These agreements may include binding obligations on the part of a student society to pay funds derived from student fees to their institutions for services rendered or facilities provided by the institution to the student society. These agreements may also include mechanisms pursuant to which such obligations may be satisfied from the amounts to be remitted by the institution to its student society.
In light of the controversies that have arisen in recent years, it may be time to review the provisions of the University Act and College and Institute Act which apply to student fees.
Tis the season to accommodate traditional employees of minority religions and cultures
0123 days
by noahsarna
in Uncategorized
Labour Day – the first Monday in September – is widely recognized in Canada as summer’s swan song. Some people stretch out their three-day weekend into a four-or five-day weekend, but ultimately the days and weeks after Labour Day are generally about getting things back in gear after sunny and relatively relaxed work days of summer. School starts. Businesses pick up. Days get shorter and colder. Vacation season dies down.
But some Canadians reserve their vacation time for that particular window of time a couple of weeks after Labour Day, when the country’s calendar heads in the opposite direction and refocuses on getting back to business. Christian Canadians, or Canadians with cultural connections to traditionally Christian holidays, rarely need to worry about taking off time to participate in their religion or culture. In British Columbia, statutory holidays (BC Government) overlap with the holidays of Western Christians.
For other Canadians, though, that’s a real concern: how am I going to celebrate fixed, weekday calendar events without compromising my business or employment obligations? Despite the increasing diversity of Canadian society, that same issue still needs to be acknowledged and respected by employers, even in the educational community: how should educational institutions deal with employees who don’t mind working on Christmas but need to take off days at different times of the year for their own cultural or religious holidays?
The central case on this issue in the educational context is Commission scolaire régionale de Chambly v. Bergevin (CanLII), which involved three Jewish teachers employed by a local school board who took a day off to celebrate Yom Kippur (Wikipedia). The school board had granted them a leave of absence without pay and the teacher’s union sought reimbursement for that amount. The Supreme Court of Canada ultimately found for the union, and maintained that the school board had a duty to accommodate the needs of the teachers, short of such accommodation resulting in undue hardship (i.e. being unreasonably costly) for the school board.
The high court determined that the calendar of statutory holidays is discriminatory against non-Western Christian employees:
In my view, the calendar which sets out the work schedule, one of the most important conditions of employment, is discriminatory in its effect. Teachers who belong to most of the Christian religions do not have to take any days off for religious purposes, since the Christian holy days of Christmas and Good Friday are specifically provided for in the calendar. Yet, members of the Jewish religion must take a day off work in order to celebrate Yom Kippur. It thus inevitably follows that the effect of the calendar is different for Jewish teachers. They, as a result of their religious beliefs, must take a day off work while the majority of their colleagues have their religious holy days recognized as holidays from work. In the absence of some accommodation by their employer the Jewish teachers must lose a day’s pay to observe their holy day.
Educational institutions should review Chambly and other decisions when drafting policies related to employees to ensure this issue is dealt with sensitively and in advance of any disputes arising. Outside of the employment and labour context, schools and universities should provide sufficient measures for students of minority cultures and religions to take their holidays without suffering significant hardship.
The Supremes dismiss two education-related leaves to appeal
0136 days
by noahsarna
in Uncategorized
The Supreme Court of Canada this morning dismissed two education-related applications for “leave to appeal” (i.e. requests to be heard by the high court). The Supremes can either:
- grant leave to appeal, in which case they will eventually hear the appeal;
- dismiss the application with costs, in which case the applicant will need to pay some amount of money to the other side for dragging them through the application process; or
- dismiss the application without costs.
The first education-related application, which was dismissed with costs, involved the request of the James Fowler High School and the Calgary Board of Education for the high court to overturn the decision of the Alberta Court of Appeal in Thompson v. James Fowler Senior High School (CanLII). Here is a summary provided by Eugene Meehan, Q.C.:
The Applicant Ms. Thompson was a 17-year-old grade 12 student with an impressive academic record at High School. On October 31, 2008, she became involved in a fight with a male student with whom she had a history of conflict. His mother and sister became involved in the fight, as did one of Ms. Thompson’s friends. The fight was broken up by some teachers. Ms. Thompson, the male student, and the friend were all suspended immediately. Ms. Thompson was expelled on November 17, 2008, and the suspension and expulsion were confirmed with no meaningful objection from Ms. Thompson or Ms. Allen. Attempts were made to allow Ms. Thompson to continue her education, but the disruption set her education back significantly. Ms. Thompson, by her mother and next friend, filed a Statement of Claim making numerous allegations and claims. The Respondents moved to strike the Statement of Claim, or, alternately, summary judgment. The motions judge struck portions of the Statement of Claim and summarily dismissed most other aspects of the claim. TheC.A.dismissed an appeal in part. It reinstated paras. 17, 18 and 30, but rejected claims of improper procedure, reasonable apprehension of bias, and unreasonable conclusions.
The second education-related application, which was dismissed without costs, involved the request of a disgruntled doctoral student to overturn the decision of the Quebec Court of Appeal in Dehkissia v. Kaliaguine (CanLII). Again, here is a helpful summary provided by Eugene Meehan, Q.C.:
The Respondent, a professor in the chemical engineering department at Université Laval, was the Applicant’s thesis supervisor and also headed a laboratory where the Applicant worked as a research assistant. In January 2002, after a dispute had arisen between them as a result of mutual dissatisfaction, the professor terminated his agreement to supervise the student’s doctoral thesis, fired the student from his laboratory and had the student removed by security officers. Since the student had a good academic record, the university resolved the situation by giving him another thesis supervisor and new research conditions. The Applicant received his doctorate in 2004. He then sued his former supervisor for $500,000 in damages. The Superior Court found the Applicant’s evidence to be insufficient to support his allegations, and the C.A.upheld that decision.
Interestingly, both students in these cases were not represented by lawyers, which is often the case with these sorts of claims. The Supreme Court of Canada has actually provided a substantial amount of resources on its website for self-represented litigants.
Saskatchewan Vice-Principal may be personally liable for communicating information learned from student’s confiscated cellphone
0144 days
by noahsarna
in Uncategorized
For most employees, , lawsuits connected to the workplace are someone else’s problem. Many people assume – and rightly so – that if the business gets sued because they were doing what they were hired to do, it will not affect them personally. If it was a screw-up, it may cost them their job, but their bosses will be the on’s calling lawyers, possibly going to court, stressing about a pay-out or settlement – not the employees.
This is usually good for plaintiffs with a grievance and not only the employees who may have had a hand in things. Most people looking to be compensated for an injury would rather have to set their sights on an active business with a substantial revenue stream and not a poor shmoe with a mortgage, three kids to feed and a car that needs repairs.
That’s how it usually works according to a legal principle called vicarious liability, which effectively provides that employers will be liable for injuries resulting from a harmful act or omission committed by an employee in the course of their duties. In Bazley v. Curry (CanLII), the leading Canadian case on vicarious liability, Chief Justice McLachlin wrote on behalf of the court that if there is no precedent showing vicarious liability to apply in a certain scenario, the following should be considered among other principles:
The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.
In other words, if an employee hangs out on the business premises after hours for no business reason, and then does something stupid to someone else, most likely the employer should not be liable. On the other hand, if an employee makes a mistake while doing what he or she was being paid to do, that’s a different story.
In the educational context, this is generally covered off by legislation. For example, consider section 69 of the University Act (BCLaws):
(1) An action or proceeding must not be brought against a member of a board, senate or faculties, or against an officer or employee of a university, in respect of an act or omission of a member of a board, senate or faculties, or officer or employee, of the university done or omitted in good faith in the course of the execution of the person’s duties on behalf of the university.
(2) In an action against a university, if it appears that the university acted under the authority of this Act or any other Act, the court must dismiss the action against the university.
F.R. v. D.T. (CanLII), a recent decision of the Queen’s Bench for Saskatchewan, discussed a similar provision in Saskatchewan legislation in terms of the immunity of a teacher or principal. According to section 232(1) of The Education Act:
Where a board of education, the conseil scolaire, a principal or a teacher approves or sponsors activities during school hours or at other times on school premises or elsewhere, no teacher, principal or other person responsible for the conduct of the pupils is liable for damage caused by pupils to property or for personal injury suffered by pupils during those activities.
In that case, a student, through guardians, sued a school board and a vice-principal for negligence and breach of privacy in connection with events stemming from a teacher confiscating the student’s cell phone during class. The teacher gave the cell phone to the vice-principal, who read through the messages on the phone and asked the student about someone identified as having stolen a car. The police were informed, questioned the student, located the car, and now the student lives in fear of retaliation from the person identified in the messages.
The vice-principal brought an application to strike the claim because he is immune under section 232(1), which the court flat out rejected:
The pupil’s misbehaviour in using a cell phone during class, and the resulting confiscation by the teacher is not an activity approved or sponsored by the teacher in accordance with s. 232(1) of the Act. T.’s reading of the cell phone messages and his resulting contact with the police is not an activity approved or sponsored as contemplated by s. 232(1) of the Act.
While the vice-principal was required, by virtue of his position, to administer any legal disciplinary measures he considered proper, the execution of that obligation is not, in and an of itself, subject to the immunity, leaving this issue to be resolved at trial.
Quebec decision highlights willingness of court to give platform to student claimants
0157 days
by noahsarna
in Uncategorized
Yet another decision was released recently showing the tendency of courts to go the extra mile in hearing out student claimants, even when they don’t seem to have much of a case or to be coming before the courts with clean hands.
In Azar c . Concordia University (CanLII), a former student brought an action to get a new hearing before an internal university body about an allegation of plagiarism. Apparently, the student had admitted in 2004 to breaking and entering into a professor’s office and tampering with exams.
In short, the court considered the student’s attempt to be an abuse of process and had no patience for him but still provided him the forum to make his point:
[71] In the case at hand, under the guise of a different title, Plaintiff is attempting to raise the same issues which were alleged in the 2007 Proceedings and adjudicated upon before all instances up to the Supreme Court of Canada.
[72] Unhappy about Concordia’s refusal to reinstate him or provide him with his degree despite the Decision to expel and the fate of his legal recourse, Plaintiff is making use of the legal system to threaten and pressure the University to reconsider its position, not without being aware of the resulting prejudice for Concordia in terms of costs and time, not to mention the burden imposed on the legal system in general. All this, without even having assumed the legal costs associated with the previous dismissals of his 2007 Proceedings.
[73] While the Court appreciates Plaintiff’s distress in the circumstances and the fact that he may be acting out of despair, it must also underline that Plaintiff is unfortunately the author of his own misfortune.
[74] The Court is of the opinion that, in light of the principles set out by the Court of Appeal in the above-cited case of Acadia Subaru[38], Plaintiff’s use of procedure is unreasonable and vexatious, to the point where it is appropriate for this Court to declare his proceedings improper and dilatory within the meaning article 54.1 C.C.P.
Each university appears to have at least one student like this, who persists to use the legal system as a sounding board even though they do not have a leg to stand on. Universities must take any steps they can to avoid finding themselves in situations like this.
Vancouver riot raises questions about scope of schools’ jurisdiction
0168 days
by noahsarna
in Uncategorized
Just when you thought it was out of the media spotlight, Vancouver’s Stanley Cup riot is back in the news. The Globe and Mail reported last week that Premier Christy Clark is frustrated that not a single charge has been laid in connection with the riot. Police Chief Jim Chu responded that hearing about jailings of rioters in Britain should not spur further pressure of Vancouver police to make arrests, since it is important “to do this right” rather than rush things through.
Interestingly, Chu remarked that several rioters have confessed to minor misdemeanors to avoid being charged with more serious offences caught on video, and several rioters brought in by their parents have turned out to be innocent.
In other words, this is a mess.
Given the public spotlight on many of the crimes committed during the riot, none of the wrongdoers are entirely safe from punishment, which may be delivered by Chu’s police force or the internet vigilantes standing proudly on virtual soapboxes while oddly cloaked in anonymity. As previously discussed on this blog, many of those offenders are students, some of whom are returning to classrooms in the coming weeks, hoping that their acts of folly after the Stanley Cup loss will not trail them onto campus.
What happened on West Georgia, should stay on West Georgia, at least as far as educational institutions are concerned. Universities in particular should avoid relying on the riot as a premise for punishing a student. Many universities have comprehensive codes of conduct or general policies and regulations that detail the circumstances under which a student may be penalized for “non-academic behavior”.
Under Section 61 of the University Act (BCLaws), the president of a university has the authority to “deal summarily with any matter of student discipline”, and when exercising that authority the president must provide a report to a standing senate committee on student discipline summarizing the president’s reasons. The president’s decision is final, though the student can appeal to the senate.
This is how Section 61 is applied in the University of British Columbia policies and regulations related to non-academic misconduct by students:
- “Non-academic misconduct” is not defined exhaustively, but is includes disrupting instructional activities, damaging university property or property belonging to a member of the university community, engaging in an act of hate or racism, and assaulting or threatening any member of the university community. These sorts of behaviors are considered by UBC to be “matters of student discipline” for the purposes of Section 61.
- An allegation of non-academic misconduct is generally reported to the Office of the University Counsel, which passes it on to the President’s Committee for a hearing according to its rules (UBC).
- The President’s Committee makes a recommendation to the President about what to do in the situation, and the President makes the final decision.
- If the student does not like the President’s decision, the student can appeal the decision to a senate committee.
The limits of the university’s jurisdiction for off-campus activities are not altogether defined clearly in the University Act or in UBC’s policies are regulations. In contrast, the UBC-Okanagan Code of Conduct addresses this point directly, by specifying that the Code applies to conduct that:
- occurs on or near the premises of the university;
- occurs elsewhere in the course of activities sponsored by the university, or where the conduct is alleged to adversely affect, disrupt or interfere with another person’s reasonable participation in university programs or activities; or
- occurs in the context of a relationship between the student and a third party that involves the student’s standing, status or academic record at the university.
Translation: UBC-O, along with other universities and educational institutions, should not be looking to punish students for their roles in the riot, no matter how long it takes for the Vancouver police to get moving on laying charges.
