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FCA upholds tax ruling related to donations for bursaries scheme for TWU students

Several months after the debate surrounding academic freedom (University Affairs) at Trinity Western University (TWU) has left the public’s focus, TWU is back in the news, this time in connection the decision of the Federal Court of Appeal earlier this month in Ballard v. Canada (CanLII).  Here’s the version of the story from The Province  

An appeal court has ended a long-standing tax scheme in which students at Trinity Western University received scholarships or bursaries for their education in exchange for donations being funnelled by family members to a Christian charity.

 The court was asked to rule on a tax deduction in which Trinity Western University solicited family members to donate to a registered Christian charity in exchange for a tax receipt that would lower the income tax they paid, and allow the students to receive scholarships or bursaries for their education.

According to court documents students were told: “God does not want to see students graduate with huge burdensome student loans.”  

The dispute goes back to taxes filed as far back as 2002. During its peak, almost $5 million in tax receipts were issued for students at Trinity Western and other Christian colleges.

The federal tax agency maintained it was not a true gift if the donor is expecting and receiving a direct and possible equal financial benefit in return.

According to the facts determined by the court, the students involved with the case were enrolled at TWU, and they asked their parents and, in one case, grandparents to “donate” money to the National Foundation for Christian Leadership (NFCL), a registered Canadian charity (Canada Revenue Agency), which amounts were claimed by the “donors” as charitable tax credits (i.e. they were issued tax receipts and were able to therefore reduce the amount of tax they had to pay).  The students were then given a bursary by the NFCL in relation to their educational expenses and the amount of money donated by their relatives.
 
The catch? Anytime you give money to a charity and receive some benefit in return, you cannot get a charitable tax credit for the amount corresponding to the benefit.  The Canada Revenue Agency, our federal tax authority, explains the rule here.  The simplest example is a gala fundraising event put on by a charity.  If the tickets are $100 a piece, and you get a meal and a show normally valued at $75 per seat, then you will likely be issued a tax receipt for only $25 of the $100 you paid.  It makes sense – otherwise, charities could use their special status to sell things to individuals who would also be able to claim back a portion of the amount the paid.
 
The scheme highlighted in Ballard is likely more common than most of us may expect, which explains why charities engaged in these sorts of tactics are currently in the crosshairs of the Canada Revenue Agency.  It often gets complicated by the fact that many educational institutions are also registered charities (see the database of charities here).  The court in Ballard adopted a broad view of the notion of receiving a benefit, in the sense that a grandparent “donating” to a charity with the expectation that the charity would issue a educational bursary to his or her grandchild would constitute a “benefit”.  The same applies to private corporations “donating” in relation to a child of one of the shareholders.
 
Educational institutions that are also registered charities must be aware of their obligations under the applicable tax statutes.  Charities cost the government a lot in lost tax revenues, and despite their good works a charity must be dealt with harshly for not following the rules.  Parents, too, should understand the requirements a charity must obey and ensure that they do not get entangled in any risky or poorly thought out proposals from cash-strapped educational institutions. 
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Anti-abortion activists sue Carleton over arrest

The CBC reported recently that two of the anti-abortion activists arrested at Carleton University in the fall for engaging in an unauthorized protest on campus space have filed a lawsuit against the university.

According to the students’ legal documents (CBC), the students allege that Carleton’s refusal to allow a particular anti-abortion display to be presented in a central area of campus in the first place, and then having them arrested when several students went ahead and set up the display there anyways, amounted to discrimination that caused damage.  The students claim the following against the university:

  1. Carleton broke its own internal policies related to academic freedom.
  2. Carleton broke its fiduciary duties to students to provide an environment for free and open debate.
  3. Carleton had the students wrongfully arrested.
  4. Carleton broke its contract with the students by not protecting their right to free expression on campus.
  5. Carleton infringed many of the students’ rights under the Charter.

The students also named four university administrators as personal, rather than institutional, defendants, claiming they were  negligent in the performance of their duties.

This covers off nearly every possible conventional legal claim a student may bring against their university, namely contract, tort, breach of fiduciary duty, etc.  The only one missing is judicial review, which arises when a student pursued an opportunity to overturn a university decision through internal university bodies.  A claim based on the Charter is relatively novel in this context (see this post on the Pridgen decision).

We will see how far this one goes.

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SCC balks on two student grievance cases against universities

The Supreme Court of Canada announced this morning that it has dismissed separate applications by two students in claims against their universities for leave to appeal (Wikipedia) respective decisions of the Ontario Court of Appeal, each of which were discussed previously on this blog.  Both of the appellate court decisions are powerful statements on the approach of courts to student grievances and, more precisely, the limits of the jurisdiction of judges when confronted by a student claimant:

  1. In Gauthier c. Saint-Germain (CanLII), a graduate student in education at the University of Ottawa sued the university and her two thesis supervisors, alleging that her initial supervisor promised her a scholarship, acted inappropriately, negligently supervised her work and caused her mental distress, and claiming that her new supervisor was incompetent.  Additionally, she argued that the university breached her contract by not providing competent faculty.  The university responded that the court did not have jurisdiction to hear the student’s claim because it was essentially an academic issue to be resolved within the university’s internal processes.  The university won before the motions judge but lost at the appellate level, where the Ontario Court of Appeal found that the grievance could properly proceed within the jurisdiction of the court because it involved a claim in tort and contract, even though it arose from academic matters.
  2. In Jaffer v. York University (CanLII), a student with Down Syndrome claimed York University failed to properly accommodate his disability.  Similar to the student in Gauthier, Jaffer framed his arguments in terms of tort and contract; the Ontario Court of Appeal agreed that the court had jurisdiction because of how the claims were framed but held that the legal documents filed by the student (at least in their current condition) showed that the claims were untenable.

The issue at the heart of these cases - to what extent are disputes between students and universities involving academic matters beyond the jurisdiction of the courts – has been subject to a series of judgments over the decades that have left students and university administrators with a confused sense of the boundaries of the “internal autonomy” of universities.   These decisions, along with Nazik Amdiss and University of Ottawa, Ltd. (CanLII), indicate a renewed interest on the part of the courts to assert jurisdiction over student grievances when they are properly pleaded in tort or contract, despite the connection to academics.

None of the universities in these cases really got what they wanted, namely a declaration by the courts that despite the increasing integration of university life and mainstream society the traditional autonomy granted to universities to manage disputes related to academic affairs should be maintained.  Many (see, for example, McMillan LLP’s case comment here) had hoped for the Supreme Court of Canada to hear appeals to these decisions and clarify the line that should be drawn, but no such luck.

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UBC’s arguments in frozen sperm case fail to sway the SCC

The Supreme Court of Canada this week dismissed an application by the University of British Columbia (UBC) for leave to appeal to the high court the decision (CanLII) of the BC Court of Appeal regarding the certification of a class action against UBC connected to a freezer failure at a sperm bank within a UBC lab.  In Lam v. University of British Columbia, the appellate court agreed with Lam that his claim raised issues common to other related claimants, which met the criteria for certification.

Lam’s story had some staying power in the media this past summer because of the basis for his claim (plus, quite possibly, because any court decision that repeatedly uses the word “sperm” will be considered newsworthy).  Here is an excerpt from coverage in the Vancouver Sun:

The triggering event in the case was the freezer failure on May 24, 2002, when the supply of electricity to a Forma Scientific Inc. freezer was interrupted when an inadequate circuit breaker tripped.

The freezer was used for storing cells at a temperature below -130 degrees Celsius. The freezer contained sperm samples belonging to Lam and other men who were undergoing chemotherapy or other medical treatments that could adversely affect their reproductive capacity.

The freezer’s security alarm system failed to function and it was without electrical power for some time, rendering the sperm immobile and destroying genetic material.

The freezer was purchased by UBC in July 1987 and was initially used for kidney research. In 1993, it was transferred to the Andrology Lab at the Koerner Pavilion at UBC Hospital. It remained there until Feb. 22, 2001, when it was moved to the lab’s new location at Vancouver General Hospital.

UBC has denied it was negligent, maintaining it met the appropriate standard of care for a sperm storage facility and that sperm donors signed an agreement limiting liability.

Class actions are permitted for the sake of saving parties alot of time and money (see here for more information on class actions from the Canadian Bar Association).  The idea behind a class action is that rather than forcing individual claimants to hire their own lawyers, have separate trials, etc., if the claims are similar enough multiple claimants should be allowed to come together, cut down on legal fees, and go after a large organization that is accused of some wrongdoing through a single representative claimant.  UBC, in this case, argued that Lam’s claim should not be approved as a class action, allowing many others to jump on the bandwagon, while Lam, of course, disagreed. 

The Supreme Court of Canada’s decision here does not necessarily side with Lam in his essential claim against UBC, but rather denies UBC the opportunity to show the high court why the three judges sitting for the BC Court of Appeal got it wrong.  This might be based on whether other, more worthy appeals were thought should be given a chance before the supremes; it’s impossible to say.

Getting this far in litigation is costly for any plaintiff, but generally if certification is ordered the defendant is fairly motivated to settle.  It will be interesting to see whether Lam and others are able to pursue this matter much further, even as a class action, or whether the trip to Ottawa was enough to bring the parties together for a resolution.

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University of Saskatchewan medical student wins in court but fails to be reinstated in program

Medical school is difficult to get into and hard to finish.  It takes a great application to be admitted and an incredible amount of discipline to complete, not to mentioned the considerable student loans required for a program that long, which is why I have some sympathy for any med student who feels they have been wronged to the extent that they need legal help.

That is the basic story line in the recent decision of the Court of Queen’s Bench of Saskatchewan in Sahi v. University of Saskatchewan (CanLII), which is a textbook illustration of how courts treat student grievances against their universities.  Varinder Sahi was an undergraduate med student at the university who was forced to discontinue his studies for failing to meet the academic requirements for promotion.   He had to repeat certain previous phases of the program for academic reasons, and thus entered Phase C on academic probation.  Varinder twice failed to satisfy the academic requirements in Phase C and was told that he would not advance.  He was asked to leave the program.  Ouch.

Varinder appealed his expulsion, first to the College of Medicine Academic Appeals Committee, and then to the Bylaws Committee of Council, which is the process under internal university rules.  When he did not get the result he wanted, he brought the matter to court, alleging the med school and the internal bodies did not follow the proper procedures.

The court began its analysis with the following conceptual framework, which is important to know for any student considering a lawsuit against their university on account of bad grades:

The parties agree as to the legal approach to be adopted by the court in analysing this application. Both parties rely on the decision of Barclay J. in Houston v. University of Saskatchewan reflex, (1994), 117 Sask. R. 291, [1994] 4 W.W.R. 387 (Q.B.), where at para. 17 he states:

[17] An excellent review of the law with respect to matters involving grievances between students and a university is contained in the case of Polten v. University of Toronto(1975), 59 D.L.R. (3d) 197 (Div. Ct.). The dispute here arose as a result of a doctoral student’s refusal to change his thesis and the university’s eventual rejection of his formal paper. The judgment of Weatherston, J., is regularly cited as authority for the non-interventionalist approach of the courts towards such disputes. The court held that the standards for a University degree and the assessment of a student’s work are so clearly vested in the university that the courts have no power to intervene merely because it is thought that the standards are too high, or that the student’s work was inaccurately assessed. However, the prerogative writs of certiorari and mandamus are available to a student who has been denied natural justice in respect of his examinations. The university has been entrusted with the higher education of a large number of the citizens of the province. This is a public responsibility that should be subject to some measure of judicial control.

[7]                  The measure of judicial control referenced by Barclay J. in Houstonwas followed by Rothery J. in Mikkelsen v. University of Saskatchewan (Joint Senate-Council Board of Student Appeals), 2000 SKQB 45 (CanLII), 2000 SKQB 45, 191 Sask. R. 53, where she stated at para. 33:

[33]  In ordinary circumstances, upon finding a breach of natural justice on the basis of a denial to be heard, the court would quash the decision of the tribunal and order that the matter be heard according to law…

The court in this case went on to find that the Bylaws Committee of Council – as a reminder, the second internal university body the student confronted – had exceeded its jurisdiction by considering matters and making a decision beyond its scope.  As a result, the court did not comment on the substance of the student’s claim, but ordered the Bylaws Committee of Council to take another crack at it.  The student had asked the court to reinstate him within the program until this dispute could be resolved, but in light of the fact that this would essentially bump another innocent student out of the program the claimant’s request was denied.

Courts generally take the approach that universities know what they are doing.  They have specialized knowledge and are given the room to test students in those areas and make determinations about whether those students have the knowledge or abilities necessary to satisfy a program’s academic requirements.  It would be a waste of judicial resources to have judges double-check grading in areas they know very little about.  Any claim against a university on academic issues has to be procedural to succeed in court.

This look-at-the-process-not-the-grade approach is one of the traditional elements of student grievances.  This means that both students and universities should focus on internal bodies with a similar energy to how they would approach a lawsuit.

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UVSS triumphs over CFS in dispute over petition to withdraw membership

The University of Victoria Students’ Society celebrated (UVSS Chairperson’s Blog) last week’s decision (CanLII) of the Supreme Court of British Columbia overturning the decision of the National Executive of Canadian Federation of Students to decline to accept the petition of a student at the University of Victoria calling for a referendum at the school about continued membership.  Leaving aside the political issues, this case is interesting because it shows that the essential legal matter related to student representation has to do with procedure and the laws of societies.

As a brief background, all undergraduate students at UVIC, like the person behind the petition, are automatically members of the UVSS, a registered not-for-profit corporation or “society” under the Society Act (BCLaws).  The CFS is a national post-secondary student lobbying organization consisting of post-secondary student societies, including the UVSS.  Legally, the CFS is a registered society under the Canada Corporations Act (Department of Justice).  Since student organizations are distinct legal entities that act for social and not profit-driven purposes, they use the legal structure of a society, incorporating either under federal or provincial legislation.  This lets them own property, make contracts, have employees, and so on – just like regular corporations – but there are no shareholders (only “members”) and nothing that can be bought or sold like shares reflecting any ownership position.  Societies, either federal or provincial, are often confused with “registered charities” – that is, organizations registered with the Canada Revenue Agency and empowered to issue tax receipts for donations – but those are separate statuses.

Within the structure of the CFS, associations like the UVSS are “voting members” and the students within those associations, like the student behind the petition, are “individual members”.  Individual members pay an annual fee to their association, which passes the funds on to the CFS.  Students can’t opt out of membership in the CFS; this has to happen collectively by popular vote or referendum to end an association’s membership.

The story in this case is that while the student behind the petition was busy getting signatures, a separate group of students was preparing another petition effectively with the opposite purpose – to avoid any question about continued membership in the CFS.  This second petition played a significant role in the CFS deciding to reject the main petition.  The court, in this case, was asked to interpret the bylaws of CFS and decide whether the National Executive was able to decline to accept the main petition. 

Conventionally, courts don’t touch disputes dealing with internal affairs of private organizations. Here’s what courts generally consider when deciding whether to intervene:

  • the potential for courts to be clogged with disputes about the internal business of voluntary organizations (see Street v. B.C. School Sports [CanLII]);
  • whether the dispute deals with the substance of an organization’s activities, or with processes of an organization’s activities (the latter the court will deal with); and
  • whether the dispute is “of sufficient importance to deserve the invention of the court and whether the remedy sought is susceptible of enforcement by the court” (see Lakeside Colony of Hutterian Brethren v. Hofer [CanLII]).

In this case, the court found it was important to intervene because “the interests at stake are sufficiently important”, pointing to, among other things, the amount of money being sent from the UVSS to the CFS in membership fees.  The court relied on the following passage from North Shore Independent School Society v. B.C. School Sports Society (CanLII) when scrutinizing the conduct of the National Executive, like any other decision-making in voluntary associations:

36        The narrow scope for judicial review of the decisions of a domestic tribunal were noted by Dohm J. in Vancouver Hockey Club Ltd. v. 8 Hockey Ventures Inc. 1987 CanLII 2461 (BC S.C.), (1987), 18 B.C.L.R. (2d) 372 (B.C. S.C.) at 375:

The review by the court of orders made by an unincorporated association such as the N.H.L. through its president and chief executive officer (a domestic tribunal as it were) is limited. The power in no way includes the right in the court to substitute its decision for that of the domestic tribunal. The court is not the court of appeal. Rather, its power is narrow and it may only interfere if the order was made without jurisdiction (or against the rules) or if it was made in bad faith or contrary to the rules of natural justice. In addition, the courts will be reluctant to interfere with the decisions of a domestic tribunal where it is shown that internal remedies have not been exhausted. And there is even greater reluctance to interfere if the decision is based upon opinions regarding the standards of propriety and conduct appropriate for members of a particular association. Dawkins v. Antrobus (1881), 17 Ch. D. 615 (C.A.); Lee v. Showmen’s Guild of Great Britain, [1952] 2 Q.B. 329, [1952] 1 All E.R. 1175 (C.A.); Harelkin v. Univ. Of Regina, 1979 CanLII 18 (S.C.C.), [1979] 2 S.C.R. 561, [1979] 3 W.W.R. 676, 96 D.L.R. (3d) 14, 26 N.R. 364 (Sask.]. These well-known principles provide the foundation for the court’s review.

37        These cases show that the courts are prepared to interfere with the decision of a domestic tribunal where it can be shown that the tribunal exceeded its jurisdiction or failed to comply with the rules of natural justice or otherwise acted in bad faith. What these cases also demonstrate is the reluctance of the courts to intervene by substituting the court’s judgment for the judgment of the tribunal on a matter of substance within the tribunal’s jurisdiction.

The court found against the CFS, arguing that it had no basis for considering the second petition in deciding whether to accept the main petition.

The important lesson to draw from this one: student organizations, particularly ones with lots of student power or money, should be very cautious to follow their own procedures and any other legal requirements, particularly rules of good faith and natural justice.  Whether any student actually has the time or money to sue them is a different matter.

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Teachers confronting the “new paparazzi”: protect your reputation

Vancouver lawyer Tony Wilson has an entertaining article in the current issue of Teacher Newsmagazine, a publication of the British Columbia Teachers’ Federation, with cautionary tales of public figures getting caught unaware within range of a microphone (leaving Gregor Robertson’s gaffe [Vancouver Sun] off the list) and how this technology may affect teachers.  This is how he concludes the article:

All this is interesting, but what applicability does it have to the teaching profession? A lot, actually.

In February 2010, two teachers at Winnipeg’s Churchill High School got carried away with the moment, and performed a raunchy and suggestive lap dance at a student pep rally in front of 100 students. The fully clothed performance included mock spanking and implied oral sex. A student with a cell phone filmed it and posted it the next day to YouTube, resulting in the suspension and firing of the teachers involved.

So the lesson is this: if you’re a teacher, you’re already being scrutinized minute by minute by your students. They all have cell phones these days. All the cell phones have video and still photo capabilities. You may be their teacher, but they are the new paparazzi. Make one slip up or error in judgment and you’ll find you’re suddenly Brittany Spears or Mel Gibson (but without all the money).

So protect your own reputations. Remember—every cell phone is a camera and every microphone is live. 

This certainly puts a lot of pressure on teachers.  My sense is that allowing students to record or take pictures of teachers while they teach may easily create an uncomfortable work environment.  Unless a student has a good reason (e.g. medical or otherwise) for needing to record a teacher, schools should have policies against students using recording devices in classrooms.  This is not because any teacher should be protected if they teach or say anything horrible - there are other ways to deal with that - but because any picture or video or audio recording can be used by students to hurt the teacher’s reputation (e.g. chop up what they say or do and reproduce it easily). 

Students today use computers and other devices with modems the way students used to use paper, and it’s incredibly easy to post something.  Teachers deserve at least some protection from the silly and often mean methods students use to poke fun.  Schools may be liable for not doing enough to ensure the classroom is not a hazardous location for a teacher’s online reputation.

Now, this is entirely different from the university context, where the cost of education increases, the level of classroom time decreases, the teaching material may be more difficult to wade through without oral interpretation, and a student’s livelihood may be more directly affected by getting something wrong. This is different also from online criticism of teachers and professors. 

The recent decision in Pridgen v. University of Calgary (CanLII), which involved comments by students on Facebook about a professor, affirmed that students should have a venue for criticising their educators.  This is how the Court of Queen’s Bench of Alberta presented the rationale:

I cannot accept that expression in the form of criticism of one’s professor must be restricted in order to accomplish the objective of maintaining an appropriate learning environments. I do not regard this particular kind of expression as being of little value. Students should not be prevented from expressing critical opinions regarding the subject matter or quality of the teaching they are receiving. As an educational institution, the University should expect and encourage frank and critical discussion regarding the teaching ability of professors amongst students, even in instances where the comments exchanged are unfavourable. While certain of the comments made about Professor Mitra were not particularly gracious and might have reflected a lack of maturity, the Facebook Wall does have utility as a forum of discussion. The commentary may assist future students in course selection as well as provide feedback to existing students and perhaps reassurance that one is not alone in finding that they are having difficulty appreciating instruction in a particular course. If Professor Mitra was concerned that she was being defamed, then she could have brought a civil action. 

The problem is when the online comments or representations of educators amount to harassment or bullying.  In the case of Windsor-Essex Catholic District School Board & Seguin v. Lentini et al., the Ontario Superior Court of Justice awarded damages to a principal and school board after students and others who were unhappy with one of the principal’s decisions about athletics created a Facebook group and posted comments accusing him of engaging in pedophilia on school property.   Imagine how much worse the harassment could have been if the students and others had access to mashed up audio or video material of the principal or an unflattering picture of him.  

I think Wilson’s phrase – the “new paparazzi” – because students more than any other group in our society rely on and function through social media.  Schools should acknowledge the implications of this reality for teachers and take the necessary steps to protect them from its abusive possibilities.

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The long, winding road between the principal’s office and the courtroom

One of the great benefits of this blog is that I get to hear from many people involved in education who have one common quality: they care.  Whether it is parents, teachers/professors, administrators – you name it – education brings together a community of caring.  But any group of concerned individuals dealing with complicated and sensitive issues normally carry the baggage of a multitude of disputes and nasty disagreements.   What should and shouldn’t be taught?  What is permissible and prohibited behaviour by educators and students?  What institutional response is appropriate?  And so on.  Particularly with respect to the pre-university stage, the world of education is pregnant with discord.

My experiences as a parent have taught me enough to know that your kids – and concerns about how they are influenced and treated by non-parents – become your life.  Nothing grabs more at your core than a sense of your child being handled unfairly or their potential being denied.  That’s why whenever a parent contacts me about an alleged wrongdoing about their child, I feel it.  I can understand it.  There are a thousand and one ways we can deal with certain issues, and calling a lawyer is one of them (and it’s often the most appropriate one).  But there is a long and winding road standing between a school-based dispute and the courtroom.

If something is very serious and involves a crime or the likelihood of a crime about to be committed, call the cops.  Otherwise, for public schools the legislature has set up an appeals procedure in the School Act (BCLaws) to deal with rank-and-file disputes (see Section 11 in particular, and check out the Appeals Regulation).  There is only one case to my knowledge, Hewko v. B.C. (CanLII), that involves a grievance which started within the Section 11 process.  The decision includes a helpful discussion on the legislative backdrop and shows an interesting example on how it plays out.  (My thanks to Judith Anderson at Harris & Company for an excellent presentation in the fall on the subject.)

The courts are there for a reason, and lawyers are important for making the issues clear to a judge.  But this system is in place for the handful of disputes, among the many, that truly need it.  I know very few lawyers who would prefer to pay the bills by playing the role of courtroom pitbull, rather than helping people resolve their disputes at an earlier stage.

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Students gone facebook stupid: nursing students reprimanded, then vindicated, for posting placenta picture

How would you feel if the nurse helping your wife through labour and delivery had just before finishing nursing school posted a photo of herself on Facebook posing and smiling broadly while holding a human placenta?

In yet another example of students going Facebook stupid, four students who posed for photos with a placenta were reportedly (insidehighered) kicked out of their suburban Kansas City nursing program at after one of the photos was posted on Facebook.  The students were attending a lab course at Olathe Medical Center when one asked the nursing instructor for permission to take pictures with the placenta to be shared on Facebook, which is exactly what they did.   The instructor denies the students asked for permission to post the pictures on Facebook.  The posted photo does not identify the woman from whom the placenta came.

Several hours after the photo was posted, the nursing instructor called the student who posted it and asked her to remove it, which she did immediately.  The four students were each expelled from the program the next day (or, more correctly, were kicked out and asked to reapply for the program this summer), and one of them started a lawsuit to force the school to readmit her immediately.  Here is a link to legal documents filed on behalf of the student.  Here is the press release with an explanation from Johnson County Community College, which includes a quote from the plaintiff’s letter of apology admitting she “should never have posted the photograph”.

Her claim went before a federal judge, who ruled (Huffington Post) against the college and noted that “I’m an uptight guy and I’m not offended [by the picture]“.   He focused on the fact that the particular mother was not identifiable, that there was implied consent by the instructor and that the school’s response was overkill, which denied the student due process.

Most of the opinions on these events involve criticism of the school.  Here is an interesting comment from blogger Eric Stoller (insidehighered):

I wonder if students at JCCC are taught how to use social media sites like Facebook in a manner that is respectful, ethical, and appropriate in terms of patient confidentiality. Posting and sharing all aspects of our daily lives via social media has become an accepted norm. As with most disciplines, students are not always inherently aware of what is and is not right. We have to teach them, not overly punish them when they make mistakes.

This story, which has been big in the news south of the border, raises issues about free expression of students and the power of educational authorities to take action against students for non-academic off-campus behavior.  My guess is that judges will eventually frown upon students arguing that schools should stay away from their online profiles, when those profiles are so easily accessible and the material posted there may be inflammatory and linked to the schools.  The Pridgen decision (see posts here and here) involving the University of Calgary is one example of a recent case that universities are looking to in an attempt to figure out what their response should be to Facebook posts by students that involve their educational experience.

There are several lessons, among others, that can be taken away from this story:

  • Privacy Is Dead, and You Killed It:  Students have to treat Facebook as a professional and educational hazard.  No matter who broad or narrow your class of “friends”, students should expect that anything they post anywhere on the internet may eventually be quoted in major news media.  It may also be taken (or mistaken, as the case may be) by an educational institution or employer as a reason to adopt certain measures against you.  Courts, like in the Pridgen decision, show an appreciation for the nature of interaction and communication on social media (i.e. it’s not exactly Oscar Wilde’s greatest hits), but if you do not want to attract attention, do not show your underwear, so to speak, in the public domain.
  • Students Are in for the Long Haul:  Courts understand that actions by educational institutions can severely impair a student’s ability to earn a livelihood, particular when the internet makes any incident – no matter that the context – almost impossible to keep off the radar of potential future employers.
  • Consider the Legal and Non-Legal Sides of Things:  The college may have overreacted and thus violated the student’s rights, but that doesn’t mean 10 years from now a smartphone-carrying mom-to-be in labour googling the names of attending nurses and physicians (I’ve seen it happen!) will be pleased to learn about these sorts of Facebook hijinks.

We – lawyers, academics, everyone! – are still trying to come to grips with the new reality imposed on us and what that means in terms of our rights and obligations.  If you want to stay out of trouble, tread carefully.

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Campus culture wars: who were are is about who we admit

 A surprising number of legal battles grow out of steps taken by a student union against student groups that they disagree with or disapprove of.  Most recently,  the unpopular flavour of the day is pro-life groups (see here).  Is a student union required to grant club status (usually involving special entitlements to funding, space, etc.)  to any group of students with a common campus purpose?

Who do we accept and who do we reject?  Illegal purposes or aims are definitely out of the question – a neo-nazi student awareness club, for example, might be easy to reject if laws against hate speech and/or violence would most likely be broken as a result.  But it gets more difficult to draw the line.  Consider any political or social issue on which the student body might be divided or substantial minorities might exist (e.g. the Arab-Israeli conflict).  And how should pluralism be valued?  Should the fact that a certain number of students hold a view (that you may find objectionable) make it worthy of being the focus of a club?

My own experience as a student activist taught me alot about this issue, and I was frustrated as a student watching my student union fail to properly articulate a clear justification for who was in and who was out (or, on a related topic, who should get more funding and who should get less).  Mark Mercer, chair of the philosophy department at Saint Mary’s University in Halifax, has an interesting opinion in University Affairs, arguing that the “safe” approach of denying club status where the perspective of the group may offend many people is a form of anti-intellectualism.  Agree with it or not, I’m happy to see someone take a strong, clear position on a political question that has produced severe legal consequences on campuses.

One note of caution, though, on Mercer’s comments on dealing with “anti-intellectual” student governments.  It is generally fairly difficult for a university administration to waive away or “dissolve” a student union, given that student unions are generally incorporated non-profit societies.  They have a legal status independent of the university.  And their members are the students and not the university itself.  Finally, they often have contracts with the universities, which the universities may not be able to walk away from.  This isn’t to say that universities have their hands tied; it just means they’ll have to work hard to deal with the challenge.

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Student claimants have to think about jurisdiction when appearing before BCHRT

The British Columbia Human Rights Tribunal (BCHRT) rendered an interesting decision last week in Ayotte v. Liberty University and another involving a human rights claim launched by a student in British Columbia attending an educational institution in the United States.

In a nutshell, in 2008 Bonnie Ayotte was enrolled at Liberty University in Virginia to complete a Master’s degree in Professional Counselling.  She also has a physical and mental disability, which did not stop her from acing her courses.  She had only one course and an internship left to finish the degree, when a problem arose.  As a distance learning student, she was responsible for finding an internship and getting all necessary insurance.  Ms. Ayotte was refused certain coverage because of her disability, and she lost the internship.  Liberty refused to let her join their group plan and pointed to a policy on its website stating that distance learning students have to get their own insurance.  She filed a complaint with the BCHRT against Liberty and the Ministry of Children and Social Development (her intended employer) alleging violations of the following provisions of the Human Rights Code (BCLaws):

8  (1) A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public

because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

13  (1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

The Tribunal handling Ms. Ayotte’s claim asked the parties for their arguments about whether this dispute was within the jurisdiction of the BCHRT, relying on the following test set out in Carlisle v. Law School Admissions Council, 2003 BCHRT 152:

It is not the location of the Respondent, but rather the location of the incidents giving rise to the Complaint, that will determine the Tribunal’s jurisdiction.

The Tribunal declined to reject Ms. Ayotte’s claim entirely at this stage.  But the decision raises the interesting issue of when exactly a student’s claim against an educational institution outside of British Columbia will be subject to the jurisdiction of the BCHRT. 

Disputes in the context of education are often resolved on the basis of the jurisdiction of the adjudicator that the parties appear before (e.g. a judge or panel) rather than which party has more justice on its side.  As a result, anyone involved in these sorts of grievances should first understand – before all else – the basis, if any, for arguing a claim before a particular court or tribunal.

My thanks to Vancouver lawyer and human rights expert Mike Weiler for sending me a link to this decision.

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Access Copyright’s successes might lead to failure

The Copyright Board of Canada last week approved an interim tariff applicable to the educational licence granted by Access Copyright, a not-for-profit organization that represents authors and publishers, to post-secondary educational institutions.  According to the Copyright Board, more consultation is necessary before it will approve Access Copyright’s new proposed fee structure (Macleans Oncampus), which will significantly increase the cost for educational institutions to use the licence.

The new fee structure has prompted considerable criticism from universities and provincial governments and marked another chapter in the long-standing fued between the collective and educational institutions.  The additional costs to educators of the new structure are so great that some licencees, like the University of Alberta, have announced that they will let their contract with Access Copyright expire and make other arrangements to obtain copies of course materials (see this article at Macleans Oncampus).

Michael Geist, perhaps one of the leading intellectual property law experts in Canada, wrote a fascinating article on the implications of Access Copyright’s conduct, which is available on his blog here (scroll down for more links to get a better sense of the background, and you can find a previous post on mine of the subject here).  The basic idea behind Access Copyright and the photocopying licence for post-secondary educational institutions is that the creators of intellectual, intangible works should be compensated by the users or consumers of those works, which in this case are students and more generally members of the education community.  The Copyright Act (Canada) (Department of Justice) requires collectives like Access Copyright to submit their tariffs (i.e. the fees charged to users) to the Copyright Board for approval.  In his article, Geist argues that the new fee structure is excessive, and he highlights alternatives for universities and writers to get their needs met.  

You can find more background information from Howard Knopf, who represents a party opposed to Access Copyright, and Access Copyright’s website.

This current dispute follows a series of legal proceedings related to these tariffs, most recently involving a decision (CanLII) of the Federal Court of Appeal several months ago, which explains many of the issues at stake.

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Oy to the world

Wearing a yamulka this time of year means hearing a lot of this: “Merry… er, um… Hanukkah!”

Some of this: “Happy… er… Christ… um. Hey, did you ever see Elf?”

And at least one of these: “In case I don’t see you later, have a… er, um… Do you know my dentist? He had a Jewish candelabra thingy in his office during my appointment last week.”

Noticeable discomfort from many people I speak with, all of whom earnestly want to wish me and my family the best for the season.  But they are suddenly caught off guard by not knowing whether wishing me a proud “Merry Christmas!” will offend me, have me thinking they know diddly squat about Jews or Judaism – or worse – figure them for some cultural imperialist who expects everyone to get with the program, especially those members of minority faiths that take their beliefs seriously enough to turn them into outer-wear.

Just a couple of pointers, then, for any of you looking to avoid the experience:

  1. Relax! There are worse things you could do than try extending some yuletide joy to someone like me. In fact, I’d feel worse if you didn’t want to wish me anything.
  2. Hanukkah ended weeks ago. It’s also a very different kind of holiday. It has to do more with celebrating freedom from oppression than watching gently falling snow and drinking eggnog. Many Jews I know can’t stand the fact that Hanukkah’s proximity to Christmas has meant that a lot of the features of Christmas are presumed during Hanukkah. Gifts are always welcome, though.
  3. Many Jews have Christmas traditions that have nothing to do with celebrating Christmas. Elena Kagan, the newest addition to the US Supreme Court, earned Jon Stewart’s respect when she responded (youtube) as follows to a question during her confirmation hearing about where she was one Christmas day: “Y’know like all Jews I was probably at a Chinese restaurant.”  Japanese restaurants work too. Before I had kids, it was a day for volunteering at soup kitchens.
  4. Some Jews celebrate Christmas as a cultural event that they feel a part of. Not me, but I’ve heard of others that do.  I remember reading a column in the New York Times a couple of years ago by one of the creators of “Sex In The City” who explained how for the first time in her life she decided to put up a little Christmas tree.  My sense is she’s definitely in the minority.

My grandmother once told me how when she was a child Christmas was one of the scariest days of the year because Christian leaders in neighboring towns in Poland would use Christmas mass to pump their congregants full of antisemitic energy that spilled out into bad news for the Jews.  Even though I live in a very different world than she did, and my Christmas celebrants are effectively the opposite of hers, the association is hard to shake. And it’s hard for me to ignore the religious roots in the day or to find personal meaning in a holiday with “Christ” in its name.

Christmas stirs this and more in many people. In North America, Christmas is one of the most powerful cultural events of the year and, suitably, is a subject of considerable debate and controversy.

Here’s a glimpse of the tip of the iceberg:

  • Marion Cohen, a judge on the Ontario Court of Justice, caused an uproar (CBC) several years ago by sending out a memo ordering that a Christmas tree be moved from the courthouse lobby.  She viewed the tree as a Christian symbol, and its placement was inappropriate in a courthouse of a multicultural society.  Judges are generally restricted from speaking to the media on many issues (for good reason), and its unfortunate in this case that she was unable to participate in the debate that ensued.
  • More recently, Chilliwack School District #33 made headlines (Vancouver Sun) last month by passing a motion to call the school vacation in December the Christmas holidays, prompting criticism that the move fails to recognize non-Christian groups.  Here is the answer from SD #33, effectively arguing that Christmas is a secular Canadian holiday.   Here (Kamloops Daily News) is an interesting response from a school board in Kamloops.  The Ministry of Education calendar refers to it as “winter vacation”.
  • The government of Quebec decided (Globe and Mail) recently that publicly funded day cares that teach a particular faith to their tots will lose their government funding.  How will the government decide what is part of a “religion” as opposed to a secular culture that grows out of it?  Excellent question. I have no idea.  It is going to be interesting to hear government officials try to draw the line.  Which classic Christmas songs will be allowed in day cares operated in church basements?  Can a day care in a Jewish neighborhood tell the story of Hanukkah?  We’ll see.

Rightly or wrongly, the fact is that Christmas, like other traditionally Christian holidays, has the strength of the law of our province and country behind it. For example, the term “statutory holiday” is defined in our Employment Standards Act (BCLaws) to include “Good Friday” and “Christmas Day”.

My take on it: live and let live. There are problems with the system, but there are more important battles to fight and nothing that spreads goodwill, generosity and concern for our common humanity should be impaired unthinkingly. Individuals are complicated, and groups of individuals are exponentially more complicated – the law, if it can be improved, will take some time to catch up.

In the meantime, I enjoy each Christmas with a dose of Hanukkah, appreciating that I live in a place and time of exceptional freedom and security relative to other places and times, where the issues I mentioned above are debated freely, where Christmas cakes have kosher symbols on them and the worst that can happen to me after a Christmas party is a hangover rather than a hanging.  That’s what makes me happy.  I’m lucky to live among people that give me a reason to look forward to time off, whether called “winter holidays”, “Christmas break” or anything in between.

On a related note, this marks just over a year of this blog.  Thanks to every reader who has contributed to it’s success, especially my family, colleagues and clients who have shown nothing but support and, more importantly, constructive criticism. Enjoy the break.  Take a breather, if possible.  I am fortunate to have you.  All the best for 2011.

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BC Court of Appeal finds against student claiming anxiety disorder

The BC Court of Appeal recently released its decision in the case of Singh v. University of British Columbia (CanLII), showing just how far the court system can be stretched to give a fair shake to a student with a grievance against a university.  Here is an excerpt of a news piece from CTV’s website on the facts:

A student who flunked four out of her five accounting classes at the University of B.C. has lost her legal battle to get the failing grades struck from her academic record.

Priya Singh took her academic complaint against the school all the way to the B.C. Court of Appeal, where a panel of judges upheld UBC’s decision to keep the blemishes on her file.

Singh, who suffers from an anxiety disorder, entered the UBC accounting diploma program on academic probation in 2007. Under the terms of the probation, she was required to maintain an average of 65 per cent in her classes during the first two terms.

In her first term, Singh took one course. She failed it.

She asked for permission to re-write the exam, saying that she had suffered a panic attack. After she provided a doctor’s note, that request was allowed — but she didn’t follow through on the scheduled re-write date.

During the next two terms, Singh enrolled in four more classes, passing just one of them — barely — with a grade of 50 per cent.

She was told she wouldn’t be allowed to continue in the program.

Singh filed an appeal with the university, arguing that her general anxiety disorder had affected her ability to write exams and she should be allowed to re-write them. The school’s appeal committee denied that request, but said she could retroactively withdraw from the failed classes.

The student claimed that the decision of UBC’s Senate Committee on Appeals of Academic Standing should be set aside under the doctrine of judicial review, which essentially is a doctrine that allows courts to invalidate decisions of administrative tribunals and other adjudicators or government officers.  It is one of the most common types of claims used to bring student grievances before the courts, but it gives the claimant an uphill battle to fight because courts often defer to the wisdom of the tribunal that made the original decision absent some glaring error (see here for another post on other types of claims brought by students).  The facebook case at the University of Calgary, for example, started primarily as a claim for judicial review.

The Singh decision is fairly straightforward and does not reveal any unique legal considerations or surprising twists and turns.  The Court of Appeal, like the Supreme Court before it, simply did not accept the student’s claims.  Even still, this decision is fascinating for several reasons:

  1. It held the attention of the Court of Appeal.  It is incredibly challenging to get your claim heard by the highest court in the province.  Universities generally know what they are doing when handling legal disputes with students.  Any sort of problem is usually dealt with by the internal bodies of the university.  If the student still feels justice was not served, then upon starting a lawsuit in the Supreme Court the university’s lawyers will often try to stop the claim in its tracks by showing that it has no merit and should be thrown out.  If the claim actually makes it to a decision from a judge on the Supreme Court, then any sort of appeal will be vigorously contested and the Court of Appeal is free to decline to hear certain claims that have already been addressed by a lower court.  It is downright surprising that the Court of Appeal agreed to hear this appeal.  For example, Mr. Justice Groberman said in his decision that “the grounds set out in the petition border on the incomprehensible”.  Unfriendly words.
  2. It forced UBC to go the distance.  Like the Maughan case earlier this year (see here for an analysis), student claims that reach the Court of Appeal compel the defendant-universities to hire lawyers and deal with each step of the dispute.  UBC’s legal fees must have been considerable, which it may not be able to retreive from the student as costs.  This leaves aside the loss of public funds incurred by devoting the attention of two levels of courts to a claim the Court of Appeal noted was “incomprehensible”.
  3. It touches on the treatment of students with anxiety disorders.  Last month a major controversy (National Post) erupted at the University of Manitoba about whether a student claiming she suffered from “extreme examination anxiety” could be awarded a PhD despite failing to meet the formal requirements.  That case in Manitoba has not yet been resolved, but it did start a debate on whether students who claim they have certain stress levels should be dealt with flexibly.
  4. It could possibly have been brought as a Charter claim.   The facebook case, mentioned above, showed that courts may be willing to extend the scope of the Canadian Charter of Rights and Freedoms to include certain university decisions that infringe the rights of students.  In this case, I am curious whether the student could have argued that the university’s decision infringed on her rights under Section 15 of the Charter (Department of Justice).
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Government report raises serious concerns about the BCCT

The big news in education this week surrounded the report (Ministry of Education) of Don Avison, a lawyer and former NDP deputy education minister, who claimed that the British Columbia Teachers’ Federation has interfered with the affairs of the British Columbia College of Teachers (BCCT) and that the BCCT is mired in dysfunction and government intervention and reform is essential.   The report, which isn’t lengthy,  should be read by anyone with an interest in education in BC or the self-regulation of the teaching profession.

Mr. Avison was appointed (The Province) by current Education Minister Margaret MacDiarmid following a series of allegations before the summer by the chairman of the BCCT about the conduct of the BCTF in relation to the functions of the BCCT.  The BCTF has started a defamation lawsuit againt the chairman in May (see here for more information), but it’s unclear whether that claim is ongoing.

One interesting element of this story, which like anything else has considerable political elements, is what legal instruments the province has decided to use to regulate teachers.  The BCCT is governed by the Teachers Profession Act (BC Laws), which sets out, for example, in section 5 how the council will be composed:

5 (2) The council consists of the following:

(a) 12 members elected to serve on the council as the representatives of the zones;

(b) 7 persons appointed by the Lieutenant Governor in Council on the recommendation of the minister, at least 3 of whom must be members;

(c) one person, nominated jointly by the deans of the faculties of education in British Columbia, who is appointed by the minister to hold office during pleasure.

One of the recommendations of the report involves enhancing government control and control generally is one of the re-occuring themes running.  Who should control the BCCT: teachers or the government?  Should the council be composed entirely of government appointees?  Who should ultimately be responsible?  Who should be able to make final decisions on all matters, other than the courts? 

These are often political decisions that require legal implementation.  See the positions of the Vancouver Sun here and the BCTF here.

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Nanaimo teachers start lawsuit against school district on class sizes

I have considerable sympathy for good teachers.  From my experience as a parent, taking care of two kids is overwhelming.  Although my son (the elder) is talented at saying “no” to me in multiple language, with different accents, etc., he isn’t yet at the stage where he thinks he knows more than me, thinks I’m just plain uncool, and thinks my time with him is a like a punishment for him, when he has to sit and listen to me try to teach him things he prefers not to be taught.  No one else is looking over my shoulder asking why he can’t recite this or that, why I haven’t used this or that learning approach, or – worst of all – questioning my true motivations as an adult for wanting to spend so much time with children.

After a friend of mine had a third child, he said him and his wife went from playing “man-to-man” defense to zone.  You’re outnumbered, so just take choose space between them and try to juggle until they fall asleep without you being defeated.  Teachers, in my mind, are always playing zone.  They have a different role than parents – of course – but they share certain obligations and expectations.  Also, the purpose of their time is to educate, not just to babysit.  Not easy to do it well. 

That’s why any news of class size issues raises my ears.  Derek Spalding of the Vancouver Sun reported over the weekend that the Nanaimo District Teachers’ Association filed a petition in the BC Supreme Court against the Nanaimo-Ladysmith School District relating to its approval of certain classroom sizes, which the NDTA alleges involves a misinterpretation of the School Act (see a link to another post on class sizes here).  I haven’t seen any of the documents filed with the court, so it’s hard to get a perfect sense of the legal issues being raised, but I presume it reaches back to the debate about Bill 33 (BC Legislative Assembly), which deals directly with class sizes.  Here is some background information on class sizes put out by the British Columbia Teachers’ Federation.

The statutory framework of the this issue involves section 76.1 of the School Act and the Class Size RegulationThis is a link to an index of the laws related to K to 12 education put out by the Ministry of Education, which points to different relevant provisions that may be useful for anyone interested in learning more. 

Far more lawsuits start than end with a judgment.  We’ll see where this one goes.

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University of Calgary appeals facebook charter decision

The Globe and Mail reported over the weekend that the University of Calgary has filed an appeal regarding a recent decision (CanLII) of the Alberta Court of Queen’s Bench that found that the university had violated the rights of two students under the Canadian Charter of Rights and Freedoms by punishing them for criticizing a professor on facebook.  For a comprehensive review of the decision, please see here.

In an article by the Toronto Sun, University of Calgary spokesperson James Stevenson said the purpose of the appeal was not to further punish the students but rather:

[to seek] clarity on the extent to which the Charter applies to its own operations and those of other post-secondary institutions in Canada… As such, the reason for filing the notice of appeal goes well beyond the specific individuals involved… Filing the notice to appeal allows the university more time to study the decision, and how it fits with other similar cases currently before the courts in other Canadian jurisdictions.

Jacob Serebin opined in his blog on Macleans OnCampus that at the moment “no one outside Alberta has any idea how the charter applies to their university” and he welcomes an appeal for the sake of clarifying some of the more ambiguous comments of the court regarding the scope of the Charter’s application.  He writes:

That’s why I’d like to see this case go to appeal. When it comes to these sorts of decisions, appeals courts tend to clarify and think about how their ruling will impact similar cases that lower courts will see in the future, not just the one in front of them.

Consider the following comments by the court in the Pridgen decision:

While the hiring and firing of employees by a university is non‑governmental in nature… the disciplining of students and the placement of restrictions on a student’s ability to exercise his or her freedom of expression in the context of pursuing an education at a public post‑secondary institution is altogether different. In order to successfully attend the University, students are compelled to adhere to its rules and policies. The regulation of freedom of expression as a condition of attendance cannot be properly classified as day‑to‑day operations [i.e. it is more likely to be governmental in nature].

…The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act…. [The] source of the alleged Charter violation is the conduct of the University as opposed to the legislation itself. While the University is free to construct policies dealing with student behavior which may ultimately impact access to the post-secondary system, the manner in which those policies are interpreted and applied must not offend the rights provided under the Charter.

These comments appear to draw lines in the sand around what spheres of university conduct are subject to the Charter.  Treatment of employees: no.  Disciplinary measures imposed because of student conduct: yes.  But some further clarification would be helpful.  

The students’ lawyer told the Calgary Herald that before this case the general impression among the legal community was that the Charter did not apply to universities, even though courts have never said that in such absolute terms.  That’s true – it just so happens that all the decisions involving charter claims against universities have been rejected or have never properly addressed the issue.  The decision turned some heads and serves as a landmark case but at the end of the day it simply fit within a neatly set out conceptual window created by the courts, where the right facts finally came along to demonstrate what type of university activities of an autonomous institution will be subject to the Charter.  

Let’s see what the Alberta Court of Appeal has to say.

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UBC succeeds in closing the door on teacher evaluation complaint of faculty association

The Supreme Court of Canada announced this morning that it has dismissed with costs the application of the University of British Columbia Faculty Association for leave to appeal to the high court the decision (CanLII) of the BC Court of Appeal regarding the policy of the UBC Senate on teaching evaluations.  The Faculty Association had claimed that the policy violated its collective agreement with the university and brought the matter before arbitration.  The arbitrator concluded that he did not have jurisdiction over the policy (see here for a previous post on the subject).

This is the second time in the past couple of years that the Supreme Court of Canada has dismissed with costs an application of the Faculty Association for leave to appeal – see here (CanLII).  The facts of the matter, as set out in the decision (CanLII) of the BC Court of Appeal, involve the recommendation of the UBC President not to promote a particular professor.  It appears the Faculty Association and UBC square off fairly regularly before the Labour Relations Board.

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The threshold for suing a school board for bullying

Parents of a bullied child are in a horrible bind.  For those who are aware of the situation, they send their children off to school each day knowing that the taunting, the insults and the rest of it will be waiting.  They can take an active role in trying to diffuse the problem – meeting with teachers and other staff, contacting the parents of the bullies, making the home environment more supportive to give children the right tools to respond – but all too often the only thing that works is switching schools.  Or letting time pass.

Schools also have a difficult role to play with respect to bullying.  A principal can introduce an anti-bullying policy, teachers can discuss the harmful and immoral aspects of bullying, students caught bullying others can be reprimanded, and so on.  But, ultimately, bullying is nearly impossible to stamp out entirely. 

What should a parent do when they feel the school isn’t doing enough?  And what should a school do when it feels it has done enough but the problem persists?

As with many other areas of human interaction, the courts will only get involved with incidents of bullying when things get pretty bad.  But where is that threshold?  The cases are few, but the news stories are many:

  • CBC reported last August that a mother was suing a Winnipeg school board because she alleges her son suffered brain damage as a result of a bullying incident at school while an educational assistant looked on.  No news since, and no judgment either.
  • CBC reported last February that a mother was suing an Ottawa school board because she alleges her daughter suffered (and continues to suffer from) depression and anxiety as a result of repeated bullying and harassment.  She was seeking over $300,000 in damages arising from the school board’s failure to protect her daughter from these events, but news broke yesterday that a settlement was reached.
  • Law Times reported last month that four families were suing a school board in southwestern Ontario because they allege their children were harassed, tormented and abused by teachers and students.  They were seeking $35 million in damages.  The article also notes the trend among parents to start lawsuits against school boards in small claims court involving these sorts of issues (see here for a previous post on the subject).

These types of claims are a relatively recent phenomenon, and there do not appear to be any cases on the books (at least not in BC) that can be relied on as a direct precedent.  Traditionally, it has been expected that parents of a bullied child could only seek a remedy through human rights legislation – that is, bullying could only be resolved by legal means if there was an element of discrimination and the educators failed to take all measures short of “undue hardship”. 

The most well-known bullying case is School District No. 44 (North Vancouver) v. Jubran (CanLII), where the BC Court of Appeal ruled on a claim in the context of homophobic bullying at a public school.  Mr. Jurban, who did not self-identify as gay, had suffered through five years of homophobic insults and harassment by other students.  Before he graduated, he complained to the BC Human Rights Commission, which took up his claim.  The BC Human Rights Tribunal held that he had been subject to harassment on the basis of sexual orientation, and the school board was liable for not providing an educational environment free from this harassment.  This decision was upheld by the BC Court of Appeal and the Supreme Court of Canada.  They school board was liable because it was determined that it had not done enough to stop the harassment.  Jubran should be studied by schools to determine what measures were insufficient in responding to bullying that involves discrimination.

Another human rights complaint related to bullying is the subject of a very recent decision of the BC Human Rights Tribunal.  In JT v. School District No. 36 (CanLII), a father filed a human rights complaint on his daughter’s behalf claiming that a school board in Surrey discriminated against her on the basis of physical and mental disability (she has cerebral palsy and a mental disability).  The father claims that three students taunted and insulted his daughter about her condition and in one instance physically assaulted her, while the school response was insufficient.  His daughter suffered from serious depression as a result.  The school board had tried unsuccessfully to prevent the claim from being filed on the basis that a time limit had expired, but the Tribunal ruled that the bullying and the school’s response constituted a “continuing contravention”, which extended the time limit.

JT and the news stories cited above point to an increasing reliance by parents on the legal system to address a percieved insufficient response by schools to bullying.  School board should take note of these developments and understand the standard their schools should meet to prevent these sorts of claims from arising.

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Ontario Court of Appeal: Courts have jurisdiction over academic disputes grounded in contract or tort

An interesting debate is popping up repeatedly in judgments from Ontario that may have an impact on universities in British Columbia, which centers around the issue of whether a student’s academic grievance may be heard by a court.  The topic of jurisdiction is concerning for universities, which have traditionally been afforded the exclusive authority – akin to administrative agencies – to resolve academic disputes internally.

Earlier this year, the Ontario Court of Appeal, the decisions of which are generally binding on courts across the country, dealt with a dispute involving the scope of the court’s jurisdiction in the academic affairs of universities in Gauthier v. Saint-Germain (CanLII).  The decision is published only in french, but there is a helpful discussion of Gauthier in Nazik Amdiss and University of Ottawa, Ltd. (CanLII).   As quoted in Nazik Amdiss, Mr. Justice Rouleau in Gauthier stated several relevant principles:

(1)   The Superior Court is a court of general jurisdiction and its jurisdiction may only be delimited by clear and express legislative or contractual provisions.  If there are no such provisions, the court is competent to rule on the dispute (i.e. even in matters of an academic nature), (paragraph 29);

(2)   Where the remedy sought is to alter an internal academic decision made by university authorities, the appropriate proceeding is normally judicial review.  In that context, the court should be hesitant in becoming embroiled in the internal affairs of a university.

(3)   There is a contractual aspect to a student’s relationship with the university and when a breach of contract is properly alleged, the court has jurisdiction to hear the case (paragraph 32).

In Nazik Amdiss, a student in her final year of an undergraduate psychology degree received a conditional acceptance to the French Language MD program at the University of Ottawa.  She had excellent grades and was excited to start medical school in the 2010/2011 academic year.  The conditions of acceptance involved the student successfully completing the 2009/2010 academic year, providing proof of citizenship, etc.  But at the end of July, she received an email from the Faculty of Medicine advising her that the offer of acceptance was being withdrawn because she failed to maintain an average of 3.60.  The student alleged that this was not a condition of acceptance and thus the withdrawal was a breach of contract. 

The university argued that the court did not have jurisdiction over the subject matter identified by the student.  Even though this is a framed as a contractual dispute (i.e. whether the university had a contractual obligation to accept her into the program, her sudden poor grades notwithstanding), the student’s claims are essentially academic in nature and are therefore within the exclusive jurisdiction of the court, and courts have long accepted the principle that they should not interfere with the core academic functions of universities, including setting admissions policies (see Mulligan v. Laurentian University - CanLII). 

This was quickly rejected by the court because the student’s claims went to whether those policies were followed.  However, the court found that the average grade criteria was part of the conditional acceptance even though it had been poorly communicated to the student by the university, and the student was unsuccessful.

Another Ontario judgment involving similar issues was released by the Ontario Court of Appeal last month.  The following is a summary by Allison MacIsaac in The Court of the background to Jaffer v. York University (CanLII):

After gaining admission to York University, Ashif Jaffer and his mother approached the school to discuss accommodation measures to address his Trisomy 21 Down Syndrome disability.  No formal agreement was ever reached.  At the culmination of Jaffer’s first year, a professor offered Jaffer the opportunity to resubmit a paper and confirmed he would grant Jaffer deferred status for that course.  Assuming this meant his status as a student would be granted a deferred status, Jaffer enrolled in second year.  He was soon informed however, that he no longer qualified as a student since he had failed to obtain a D+ academic average.  Jaffer then initiated a claim against the University seeking damages, arguing a contractual breach – specifically, a breach of good faith and negligent misrepresentation.  York responded by claiming the matter was academic in nature and outside the court’s jurisdiction, and also that Jaffer had initiated a human rights claim, which fell within the exclusive jurisdiction of the Ontario Human Rights Commission.

At the Superior Court of Justice, the University brought a Rule 21 motion (of the Rules of Civil Procedure) for an order striking out the appellant’s Statement of Claim on the basis that it failed to plead a known cause of action within the jurisdiction of the Superior Court of Justice.  Pitt J. agreed with the University’s counsel, finding that the issue was academic and fell within the university’s discretion.  He also found that Jaffer was effectively making a human rights claim, which must be heard before the provincial human rights tribunal.

Fundamentally, the motion judge maintained that if the core of a student’s grievance involves academic conduct, then it cannot be heard by the courts, even if there are embedded issues involving contract or tort.  This essentially summarizes the university’s position: the student’s claim arises out of academic decisions and procedures of the university, the substance of which are beyond the jurisdiction of the court.  (The only way these sorts of claims can reach the courts is by a process of judicial review – that is, the student has to take their grievance to every relevant adjudicative body  within the university and, if they are still unsatisfied, they must then approach the court and ask that the zone of deference owed to a university and surrounding those decisions be demolished.  A claim for judicial review is far more difficult to argue than a fresh cause of action.  And, as the court in Mulligan said above, courts should not interfere with decisions relating to the core academic functions of universities.)

However, Madam Justice Karakatsanis, in a unanimous decision, rejected that position and stated clearly on the basis of Gauthier that:

where the elements of a breach of contract or negligence are properly pleaded, the Superior Court will have jurisdiction to hear a claim even if the dispute is academic in nature and arises out of the academic activities of the university.

Courts have rejected similar claims by other students not because the court lacked jurisdiction or because procedurally the claims should have been made in the form of judicial review but because the claims were untenable.  It is as simple as that.  Here is an unofficial translation in Jaffer of a key passage in Gauthier:

In my opinion, to determine whether the court has jurisdiction it is more useful to look at the remedy claimed by the plaintiff. When a party is seeking to have the internal academic decision of a university reversed, the proper procedure is judicial review. However, if the plaintiff is alleging the basis for a cause of action in tort or breach of contract and claiming damages, the court will have jurisdiction even if the dispute arises out of the scholastic or academic activities of the university in question.

This does not necessarily mean it will be easy to students to simply head off to court if they disagree with the decision of a professor or associate dean.  By enrolled with a university, they agree to submit themselves to the discretion of the university on academic affairs.  To get the attention of the court, they will have to show that they have a valid claim in contract or tort.  As well, the court will try to sniff out whether the claim is “simply an indirect attempt at judicial review”, like what amounts to an appeal of a determination of grades or admission.

What, then, is a reasonable cause of action on the part of a student against a university in contract or tort?  In a claim for breach of contract, the student has to show:

  1. the existence of an implied or express term in the contract between the student and the university that arose by virtue of the student’s enrolment; and
  2. a breach of that term by the university that resulted in harm to the student.

In Jaffer, the student failed to show that it was a term of the contract with the university that the university would accommodate the student’s disabilities.  The student skipped that step in the arguments, instead focusing on how the university failed to accommodate the student’s disabilities.

A similar test should be applied in a claim in tort against a university.  The student must raise the same elements – duty of care, causation, etc. – that appear in any successful tort claim.  In Jaffer, the student failed to do that, so the claim was rejected by the court.

These cases contain a roadmap for how a student can mount a successful claim against a university without the disadvantages of proceeding by way of judicial review.  They also show the arguments a university should raise in trying to stifle such a claim before reaching a trial.

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