Flurry of recent court decisions impacting schools and universities
There have been a series of recent court decisions effecting schools and universities. They involve institutions in a variety of different provinces, which means slightly different rules may apply, and they touch on various different issues - but they should be kept in mind by any institution’s decision-maker or legal advisor.
Here they are:
1. Solicitor-Client Privilege (Alberta)
In Lana v. University of Alberta (CanLII), a university appeals tribunal penalized a student based on allegations of non-academic misconduct in connection with an allegation of sexual assault. The student sued for judicial review. A part of that lawsuit, he also claimed that the university should be required to produce all communications between the appeals tribunal and its lawyer. Although normally lawyer-client communications are allowed to be withheld on the basis of “privilege” (Wikipedia), the student argued that either that privilege was waived or an exception to the rule should apply because the appeals tribunal broke rules of procedural fairness. The court ruled against the student and upheld that the privilege should remain in place.
2. Anxiety Disorder (British Columbia)
In Singh v. University of British Columbia (CanLII), the Supreme Court of Canada denied a student leave to appeal in connection with her lawsuit for judicial review, which is discussed further here. The student failed four courses and claimed her performance was due to an anxiety disorder. She got unfriendly outcomes from university tribunals and took the issue to court, where she failed repeatedly. This is cautious reminder about how far courts will go to try to give students a fair shake.
3. Negligence (Ontario)
In Rollins v. English Language Separate School Board #39 (CanLII), the Ontario Court of Appeal upheld the decision of a lower court dealing with a claim of negligence resulting in injuries suffered by a student due to a rollerblade accident. There was very little evidence about the event itself, and the initial judge refused to draw certain inferences that would establish the facts needed by the student to advance the claim. That decision was validated.
4. Negligence / Jury Direction (Nova Scotia)
In Marshall v. Annapolis County District School Board (CanLII), the Nova Scotia Court of Appeal ordered a new trial in connection with a school bus that hit a young child, causing serious injuries. The first trial involved a determination by jury, and the child’s guardian successfully argued that the judge failed to give the jury the right guidance. A further appeal of this decision will appear before the Supreme Court of Canada (CanLII).
5. Religious Freedom
In S.L. v. Commission scolaire des Chenes (Lexum), Catholic parents wanted a local school board to exempt their children from receiving a mandatory ethics and religious culture educational program, which is required in Quebec schools. They took the issue to the Supreme Court of Canada, which ruled that the parents had failed to show that the program interfered with their ability to pass along their faith to their children. Rather, the court considered the program to expose students to a comprehensive overview of various faiths, which does not amount to an indoctrination of relativism but merely reflects a fact of modern life.