Kwantlen Student Association threatens human rights claim over credit card tuition decision

Bradley Head, Director of Academic Affairs for the Kwantlen Student Association, announced (BClocalnews.com) recently that the KSA is considering taking legal action against the Kwantlen Polytechnic University over its recent decision to refuse to accept credit cards for tuition payments.  Kwantlen’s decision appears to reflect a position shared with other major universities in the province.

The exception to this restriction: international students.  They can continue to pay tuition by credit card.  The university justifies this distinction on the basis that international student do not have the same banking options as non-international students given their immigration issues.  The KSA is now considering out loud whether this distinction amounts to discrimination that violates principles of human rights law.  Whether the KSA actually commences a lawsuit on this basis is another matter, but the threat does raise the question of what human rights legislation would apply.  The news piece refers to a lawyer suggesting that Kwantlen’s decision amounts to a violation of “the Charter of Rights and Freedoms and B.C. Human Rights Code”.

Universities, particularly those in British Columbia, are likely familiar with how the Canadian human rights regime applies to public bodies and private bodies and where universities and other educational institutions fall among those categories.   In addition to other potential issues that may be raised by the KSA, the question of whether the Canadian Charter of Rights and Freedoms applies to universities has been considered in several prominent decisions:

• In McKinney v. University of Guelph (CanLII), eight professors and a librarian applied for a declaration that the university’s policy of mandatory retirement at age 65 was a violation of the equal protection provision of the Charter.  La Forest J. of the Supreme Court of Canada found that the Charter does not apply to the university’s decision and even if it did the policy was justified.
• In Harrison v. University of British Columbia (CanLII), there was a similar claim and a similar outcome.  Former employees of UBC who were let go through a mandatory retirement policy at age 65 sought a declaration that the policy violated s. 15 of the Charter.  Dickson C.J. of the Supreme Court of Canada applied the tests set up in McKinney and denied that the Charter applied to the university.
• In Maughan v. University of British Columbia (CanLII), which I discuss in a previous post, a graduate student alleged that she suffered discrimination at the hands of the university and tried to turn it into a Charter claim.  The British Columbia Court of Appeal soundly rejected her argument, saying that UBC is not a government actor.

The rationale behind this position is that the Charter is structured to serve as a check on government power; it doesn’t apply to every institution, organization or business.  Universities, by and large, fall outside the scope.  Accordingly, La Forest wrote as follows in McKinney:

The government thus has no legal power to control the universities even if it wished to do so…

The fact is that the universities are autonomous, they have boards of governors, or a governing council, the majority of whose members are elected or appointed independent of government.  They pursue their own goals within the legislated limitations of their incorporation…

The legal autonomy of the universities is fully buttressed by their traditional position in society.  Any attempt by government to influence university decisions, especially decisions regarding appointment, tenure and dismissal of academic staff, would be strenuously resisted by the universities on the basis that this could lead to breaches of academic freedom.  In a word, these are not government decisions.  Though the legislature may determine much of the environment in which universities operate, the reality is that they function as autonomous bodies within that environment.  There may be situations in respect of specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government, but there is nothing here to indicate any participation in the decision by the government …

The human rights law that may apply is the Human Rights Code (UBC), which sets out the following at s. 8(1) (BCLaws):

(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.

It is always challenging to try to learn legal information from the media.  Regardless what KSA decides to do in these circumstances, they would be wise to explore each possible law that may apply in terms of crafting a human rights complaint.