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.
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.
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.
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.
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 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 cellphone0
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.
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:
 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.
 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.
 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.
 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, 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.
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.
The Ottawa Citizen reported last week that Carleton University, which is being sued by two anti-abortion student activists for shutting down an unauthorized protest on campus, has asked the court to toss out the students’ lawsuit on the basis that they did not disclose a reasonable cause of action – i.e. the claim is frivolous, vexatious, etc.
This sort of application is available to defendants who think the claim against them does not meet the minimum threshold necessary to justify using the court’s resources. Occasionally, it is brought up when the defendant feels their pursuer is using law as a public relations tool or for a malicious purpose, without actually having a truly legitimate issue to explore in court. In these situations, it would be a shameful waste on everyones’ time and money to let the legal fight continue.
Universities consistently make this application when confronted by lawsuits from students in the hopes that it will end the dispute shortly after the starting line (see here for more on this). The usual argument from the university is that the dispute is an internal, private one and – parenthetically – the claim against it is silly anyways.
In terms of Carleton, these are the claims made by the students that form the basis of the lawsuit:
- Carleton broke its own internal policies related to academic freedom.
- Carleton broke its fiduciary duties to students to provide an environment for free and open debate.
- Carleton had the students wrongfully arrested.
- Carleton broke its contract with the students by not protecting their right to free expression on campus.
- Carleton infringed many of the students’ rights under the Charter.
The university appears to have responded to each of these points in the legal documents, but the most interesting issue is whether this is, in fact, an internal matter between private parties. If the students in this case have rights under the Charter against the university, then it means at least for the purposes of free speech the university is a governmental actor (ala the Pridgen decision in Alberta). The dispute, then, would be private citizens vs. government actor, and not private citizens vs. private institution, the latter being more likely to be dismissed at this stage.
Ontario Superior Court Justice Giovanna Toscano Roccamo has not yet revealed her decision on the university’s application.
Seven words have been added to the University Act that will mean a new cost for on-campus businesses.
Roughly a year ago, the BC Court of Appeal interpreted section 54 of the University Act (BCLaws) to mean that commercial tenants in a student union building at the University of Victoria were not occupying space that should be subject to property tax so long as they were contributing meaningfully to student life on campus. The property tax exemption that applies generally to spaces devoted to academic pursuits should be applied to their business premises too.
The Legislature didn’t like the outcome of that decision, and rather than appeal to the Supreme Court of Canada the province simply re-wrote section 54 to clarify that on-campus businesses should not benefit from the tax exemption – only universities should. Here’s a comparison of the new and old versions of section 54(1):
(1) Unless otherwise provided in an Act, the property vested in a university and held or used for university purposes is exempt from taxation under the Community Charter, the Local Government Act, the School Act, the Vancouver Charter and the Taxation (Rural Area) Act.
54(1) Unless otherwise provided in an Act, the property vested in a university and held or used by or on behalf of the university for university purposes is exempt from taxation under the Community Charter, the Local Government Act, the School Act, the Vancouver Charter and the Taxation (Rural Area) Act.
The big difference? The occupant has to be either the university or an agent of the university in order to get the exemption. While an on-campus business could argue that the space it occupied was being “used for university purposes” (THE OLD), it will be much more difficult to argue that space is being “use by or on behalf of the university for university purposes” (THE NEW).
Nobody likes to pay more taxes. We’ll soon see what impact this has on for on-campus businesses and whether anybody steps up to challenge the change.
The Supreme Court of Canada announced this morning that it has granted leave to appeal the decision of the BC Court of Appeal in the case of Jeffrey Moore, which involved the claim that North Vancouver School District 44 had discriminated against him by failing to provide certain services aimed at special needs children. The Court of Appeal decision was a landmark in the legal treatment of students with special needs in relation to the nature of accommodations a school district and ministry of education are required to provide.
Given the important social issues connected to this case, it is unsurprising that the highest court in the land has agreed to hear it, and many educators and parents are looking forward to how it will be resolved.
Teachers in the private school system often enjoy the perk of being able to send their kids to the school they teach at with the help of a considerable discount on the tuition amounts normally paid by other parents. This usually involves getting to send a child to their school for half the amount other parents shell out, or in some cases being able to do it for free. Schools, as employers, do this for a number of reasons, including:
- Like any other employee perk, it incentivizes good job performance and attracts stronger teacher candidates.
- It shows other parents that teachers think highly enough of the school to send their own children there.
- It encourages teachers to feel more invested in the organization they work for, and without the discount they likely wouldn’t be able to enroll their children.
Other parents at the school often agree with the policy on the basis that teachers “don’t get paid enough anyways”. The problem is that when tax season comes, this perk isn’t a pure windfall for the teachers – like any perk that isn’t strictly necessary for job performance it will be taxable in the hands of the teacher, as if the value of the perk was added on to the teacher’s salary. Here is a link to the Canada Revenue Agency’s guide on taxable benefits. The basic idea is that anything an employer gives an employee because of their employment that is for a personal rather than profession purpose is generally going to be treated as if it was a bump in their salary (and hence they have to pay more tax than they would otherwise have to). For example, when an employer pays for an employee’s buspass, the amount the employer pays will be treated as if it was part of the employee’s salary. Paying for an employee to fly to Las Vegas and stay in a comfy hotel for the purpose of representing the company at a conference – generally not a taxable benefit.
The challenging part of the analysis for the courts isn’t whether some expense paid by an employer is a taxable benefit but how much that benefit was worth to the employee (and how much income tax they should have to pay on it).
When it comes to teachers, how do you put a value on a tuition discount?
The Federal Court of Appeal ruled last week (CanLII) that private school teachers who receive tuition discounts for their children’s enrollment have to pay tax on the full value of the discount. Jamie Golombek summarized the decision well in this article in the Financial Post. In a nutshell, he writes: “the value of the free tuition was the difference between the normal tuition fee less the amounts actually paid.”
The debate on this issue involves two different positions on the method of valuation. The first position, which was argued by the teachers in this case, is that the value of the taxable benefit should be the amount the benefit costs to the employer. In other words, suppose a private school charges $10,000 per student in tuition. If the cost of educating a teacher’s son costs the school an extra $6,000 and the teacher, with a tuition discount, pays $5,000, then the teacher should only be taxed on the balance ($1,000) and not on the amount they saved had they not been a teacher.
The other position in the debate, and the one accepted by the court, is that they teacher should be taxed on the whole $5,000, and the cost to the school is irrelevant. Here is how it is explained by tax professor Kim Brooks, who was cited in the decision:
Employers can often provide some goods or services to employees at very little cost to themselves. It is sometimes argued as a result that because these benefits are provided at no substantial cost to employers, they should not be taxed in the hands of employees. However, the obvious reason for discarding this test is that it is the employee’s income that is in issue. The employer’s cost of providing these goods is irrelevant to this issue.
The “cost to the employer” method assumes that the value of the benefit to the employee will equal the cost of the benefit to the employer. Both of these empirical assumptions are wrong. Employees may receive a huge personal benefit from employer-provided goods and services even though they cannot sell the goods and services, and there is no reason for supposing that the value of a benefit to an employee should be in any way related to its cost to the employer.
The court’s ruling overturned the earlier decision (CanLII) of the Tax Court of Canada, which disagreed with Professor Brooks in this context.
Since these tuition discounts can mean a big benefit for teachers, it is important that teachers understand the tax implications of accepting this perk. If they can’t otherwise afford to pay the regular tuition amount, they may possibly have trouble paying the tax on the perk, in which case it may be necessary for them to decline altogether. Their employers, too, should have a sense of how courts treat these discounts and, without giving their employees any tax advice, schools may want to alert teachers to this issue.
A week after the Stanley Cup game seven loss and the riot that followed, Vancouverites are thinking less about how our boys in blue were thumped by the Bruins and more about how our cityscape was bruised by the rioters. In terms of our pride as a city, the game pulled the rug out from under us, but the riot flat out beat us senseless, prompting the inevitable soul-searching and finger-pointing that happens when any group is shocked by the depravity of some of its members.
The most interesting thing about the past week (and to think, it’s only been a week) was not the violence itself, the response from the police or city officials or the identities of the rioters. Far and away, it has been the role of social media and, particularly, how the prevalence of cameras (primarily on cellphones) mixed with the unrestrained ability for anyone to reproduce pictures and videos at little or no cost has produced severe, and often legal, consequences for anyone mixed up in the riot. (Paradoxically, as Kent-Daniel Glowinsky pointed out in yesterday’s Vancouver Sun, in the age of Facebook often the most damning evidence is offered up by the law-breakers themselves, foolishly unaware that they are signing their own criminal confessions.)
The most prominent example of those that have been crucified by social media is Nathan Kotylak (Globe and Mail), the 17 year-old water polo star from Maple Ridge who was caught on camera during the riot trying to blow up a police car. Kotylak has apologized profusely. The implications for him and his family have been dire: they have had to leave their home because of threats, and his father – a surgeon – has had his professional reputation tarnished. Kotylak is just finished grade 12 at Meadowridge High School, though he did not attend his graduation ceremony (the Province). He was suspended from Canada’s junior water polo squad and it’s unlikely his school has taken any steps in response.
Another student spotlighted by the media is Camille Cacnio (the Ubyssey), a biology student at the University of British Columbia. She has not gone to the same extent as Kotylak to publicize her apology and regret (though, arguably, the crime she committed was not as obscene and she may simply have not been as appealing to news agencies), but similar issues will be plaguing her, perhaps even more so because of the racial element in much of the online chatter about her. UBC officials have said pretty definitely that since the riot did not happen at UBC and there was no material connection to UBC, they will not be getting involved.
Employers (Vancouver Sun) have an important decision to make about how to treat employees involved with the riot. A person who commits a crime should not necessarily be fired from their job unless there is some significant connection between the crime and the job or unless that sort of thing is covered by their employment agreement. The decision for education institutions is far more complex: should they take any steps against students who participated in the riot?
There are a couple of factors to consider:
- Teenagers vs. Adult. High schools should approach the riot differently than universities should. Nowadays, a teenagers caught committing a crime during a highly publicized event will likely be getting it from all sides: their family and friends will probably be furious with them and feel the effects themselves; the riot will probably show whenever their name is googled for the next decade or so (unless they happen to do something even more noteworthy, good or bad); they will have to explain themselves and apologize at interviews, etc. until they are old enough to have their own kids in high school… the list goes on. University students will probably go through the same, with even greater concern for their professional opportunities, but the chatter will likely affect teenagers in a more acute way because their identities and self-esteem may be more brittle. High schools are probably best served by using the riot as an educational opportunity, and they should keep in mind that the reactions (or over-reactions, as the case may be) to a crime can be more damaging than the crime itself. Of course, if they think it’s appropriate to take disciplinary steps against a student, they should keep in mind the legal implications of doing that.
- The Campus Connection. UBC officials hit the nail on the head by emphasizing that offenders are being pursued, students and non-students alike, and since there appears to be no material campus connection there is nothing that the university itself should do. Educational institutions are not parents. A student has many identities, and in this case the fact that a rioter also took classes at a certain school may be incidental to what happened. Schools and universities are concerned, but it’s not their problem any more than it is the problem of other local institutions and businesses. Students can get arrested or have criminal records, but as long as it is unrelated to their role as a student there is generally no need for the school to intervene. The question may get more complex if unique facts are involved, such as if university property located downtown (I am thinking of buildings belonging to UBC or Simon Fraser University) was damaged during the riot by students of those universities or if one student hurt another, and so on.
Teachers or professors rioting is a whole other ballgame, and in that case the factors to consider are more employment-related than anything else.
There are many lessons, legal and otherwise, that we can all take from the riot depending on our roles in society and our connection to the city. Above all, it’s not only about the law. What will prevent the next riot from happening, and accomplish the most to address the fallout from this one, will come from our internal sense of community or parental obligations and how they should be applied in these and similar circumstances.
The BC Court of Appeal released its decision last week in the Hussack case (previously discussed here), largely dismissing the claims in appeal made by School District #33. Here is the coverage in the Vancouver Sun and here (BC Injury Law) and here (Injury Lawyers Blog) are commentaries on the outcome.
Hussack deals with a high school student, Devon, who was whacked in the face with a stick while playing a game of field hockey at school. The boy subsequently developed considerable challenges that leave Devon unable to complete many tasks on his own. The thrust of the appeal by SD #33 involved questioning whether the teacher’s failure to gradually prepare Devon for the sport exposed him to harm or, in other words, whether the absence of the preparation made the type of harm Devon eventually suffered reasonably foreseeable, such that had the teacher been exercising the appropriate care over him Devon never would have been encouraged to play. Here is what the Court of Appeal had to say to that:
Here, not only was it reasonably foreseeable that a student might be struck on the head or face with a field hockey stick, Mr. MacPhee did foresee that risk, as evidenced by his “no high sticking” rule. It was also reasonably foreseeable that a student would sustain an injury to his or her head if this occurred. The trial judge, having found the somatoform disorder was consequential to the post-concussion syndrome, properly concluded based on the evidence and authorities that the respondent had established the appellant’s negligence was the proximate cause of Devon’s injury.
The only place in the appeal that SD #33 got some relief was in the amount of damages awarded to Devon, which was reduced slightly. Otherwise, much of the decision affirms the views of the trial judge.
This case follows a string of recent decisions discussing teachers’ torts – that is, how a lapse by a teacher, particularly in gym class, can lead to a serious injury to a student and a major liability for a school board. The idea is that while no nobody is perfect, and hindsight is always 20/20, teachers should be expected to take reasonable steps to avoid certain bad things from happening to their students. And if those things happen, the school board should have to pay for it.
The B.C. Human Rights Tribunal (BCHRT) handed down a decision last week that put an end to an extended tenancy in student housing by a Victoria man who obtained his last degree from the university almost 15 years ago. Here is a summary of the event in a recent article in the Vancouver Sun:
Alkis Gerd’son argued the university’s attempts to evict him violated his human rights because he has a mental disability.
But in her decision handed down last week, tribunal member Barbara Humphreys dismissed Gerd’son’s complaint “because I find that it is not justified,” she wrote.
Gerd’son earned a bachelor’s degree in 1997 and hasn’t completed classes since then, but continued to live in a $655-a-month one-bedroom apartment on campus.
UVic repeatedly tried to evict Gerd’son, and served him an eviction notice in 2010, after winning its case against him in B.C. Supreme Court. The eviction process was put on hold pending the conclusion of the human rights case.
Gerd’son has been diagnosed with post-traumatic stress disorder, obsessive compulsive disorder and allergies. The province designated Gerd’son disabled in 2004, allowing him to collect monthly support, including a housing allowance.
UVic offers on-campus accommodation to students enrolled in a minimum of nine units of degree-track courses per calendar year. Once students finish classes, they’re expected to vacate residence rooms.
The university said that it allowed Gerd’son to remain in residence since 1997 out of compassion, even though he was no longer eligible.
But on Aug. 29, 2008, UVic served Gerd’son with an eviction notice based on his failure to maintain student status or pay rent.
UVic argued that it fulfilled its obligation to accommodate Gerd’son, but because he refused to move out of the residence, it had no choice but to begin eviction proceedings.
To make a long story short, the university got an order from the BC Supreme Court in September of last year requiring Gerd’son to leave (this was based on an earlier decision [CanLII] that Gerd’son was living there on a month-to-month tenancy arrangement), and the university took further steps to make that happen in December. Gerd’son has been out of the apartment since then, but the issue was still a live one until this decision was handed down.
The legal point to be decided on by the BCHRT was whether the university had discriminated against Gerd’son on the basis of mental disabilities pursuant to sections 8-10 of the Human Rights Code (BCLaws). Ultimately, the BCHRT concluded that since Gerd’son was not in a degree-granting program, and student housing was devoted toward students in a degree-granting programs, he could not have been denied student housing on the basis of his disabilities.
The decision includes several powerful quotables about the nature of student housing and the essential identity of a university as being “in the business of granting degrees” rather than providing housing. The adjudicator clearly acknowledged that universities have enough trouble arranging housing for first-year students, for whom housing is guaranteed, let alone others who are no longer in degree-granting programs. This decision serves as a reminder that although universities may be seen as quasi-municipalities, they are fundamentally about granting degrees and moving students through their buildings and out into the rest of society.
The Supreme Court of Canada earlier this month granted leave for an appeal of the Alberta Minister of Education from the decision of the Federal Court of Appeal in Alberta (Education) v. Access Copyright (CanLII).
In a nutshell, the dispute pits ministries of education and school boards against Access Copyright, a copyright collective. Access Copyright successfully argued before the Copyright Board of Canada that unauthorized reproduction of certain materials by schools was a violation of its copyright, which did not fall within the fair use provisions of the Copyright Act (Department of Justice). The Board also ordered that certain copying entitled Access Copyright to royalties.
Should the courts have the authority to resolve academic disputes between students and their universities?
On the one hand, everyone deserves to have their dispute heard by a competent adjudicator, particularly students who feel they have been wronged by their educational institutions. If the courts don’t have the power to intervene in academic affairs when a true injustice has occurred, then what is the point of the court system and how else can a student expect to get a fair shake when dealing with a large organization like a university? On the other hand, if judges were expected to devote court resources to every student who didn’t the grade they felt they were entitled to on a mid-term, they would never see the light of day. And it would prevent other, perhaps more important disputes from being addressed urgently.
It costs a lot to run a court system, but judicial efficiency is only part of the picture. If students were told to take it to court every time they had a beef with a professor, then that wouldn’t do much good for the vast majority of students who wouldn’t have the time or the money to see it through. The same would go for university resources, which would be overstretched. On top of this, judges might find themselves having to make a decision about some complex area of study that they slept through or had absolutely no interest in during their own university days.
For these and other reasons, courts have repeatedly drawn a fine across what the types of disputes arising from university affairs they devote their attention to, and instead have encouraged universities to devise a system of internal procedures for allowing students to be heard without needing to march down to the courthouse. The basic rules are set out in this post, but I will summarize them as follows: anything related to purely internal matters, like a claim about an academic issue (e.g. the decision of a PhD panel), must be reviewed by internal university bodies first, and only if there is a significant unfairness in those proceedings will the courts take a look and perhaps impose a different decision. Claims about a university breaking its contract with a student, about a university’s negligence causing harm to a student – those items will get the full attention of the courts, as if the contract or tort was set in any other context. In those cases, the thinking goes, the university has less specialized knowledge and is acting more like any other party in a common dispute.
The Ontario Superior Court of Justice released a judgment last month in Karam v. University of Ottawa (CanLII) that briefly touches on many of these issues. The student in this case was hoping to graduate with a Bachelor of Commerce and a specialization in accounting, which requires that he get a certain grade point average in accounting courses. The dispute turned on whether a particular course did or did not qualify as an accounting course. The student, in one corner, felt that it was, in fact, an accounting course, and his grade in the course entitled him to the specialization in accounting. The university, in the other corner, felt that the course did not make the cut, and despite the student’s grade the specialization was not deserved.
The student took the matter to the University of Ottawa Senate Appeals Committee, which is empowered to review and deal with these sorts of decisions, and it found in favour of the university. The student sought judicial review (Wikipedia) of the decision; a “judicial review” is a type of lawsuit that invites a court to review the decision of a government agency or administrative tribunal with variable levels of scrutiny, which range depending on how much deference the agency or tribunal is entitled to. In particular, the student claimed this was a decision about whether the university had honoured their contract, which should attract a high level of scrutiny by the courts and relatively little deference, while the university claimed this was about a basic academic issue (i.e. when to award a certain degree), and little scrutiny and much deference should be applied.
The student failed:
The applicant submits that his entitlement to be awarded a degree with accounting specialization is substantially a contractual issue, thus attracting a correctness standard of review. We disagree. We accept the respondent’s argument that a substantive decision of a university body on an academic matter (in this case, entitlement to be awarded a degree), if it is open to review at all, is to be accorded very significant deference. The standard of review is reasonableness.
In our opinion, the record before this Court amply demonstrates the reasonableness of the respondent’s decision that the applicable university regulations justify the original decision of the business school, upheld by the appeals committee, that the ADM 4311 course was not an accounting specialization course and was not eligible for inclusion in the minimum grade point average calculation. Even if the applicant was correct in his position that the degree requirements, or explanatory information on the university website, was unclear or contained an element of ambiguity on this issue, it was for the Appeals Committee to rule on the applicant’s entitlement to be awarded the specialized degree, provided that its decision was reasonable. As noted, we are of the view that the committee’s decision was reasonable.Jud
Judgments like Karam are important for students and universities to consider when deciding on how to deal with a grievance that does not appear to have been settled with the decision of an internal university body.
An educator’s workplace involves constant exposure to reputational hazards. Teachers and professors spend their days in front a generation of students committed to broadcasting their opinions, thoughts and whims about anything and, more importantly, anyone across the indelible medium of the internet. For professors, in particular, their students are often using their laptops in class, discreetly maintaining their active online social lives and standing ready and willing to comment to anyone who will listen about any particular component of a professor’s presentation, among other things.
Schools, universities and other educational institutions are increasing concerned about how easy, and how common, it is for students to use the internet as a tool to defame, harass and otherwise manipulate their educators by careless, disrespectful or malicious online activity. Students nowadays use the internet and related technologies the way students used to use, well, nearly everything. Passing notes is now texting. Doodled pictures can be posted on facebook. Rumors are spread by student blogs, not whispered at lunch tables.
In this context, it is tempting for employers to take any and all steps necessary to spare their employees from an online assault. In the recent case of Windsor-Essex Catholic District School Board & Seguin v. Lentini et al, 2010 ONSC 6364 (see here foran excellent analysis of the case by Shibley Righton LLP), a principal and a school board were awarded damages and costs in relation to harmful comments posted by a student on facebook. The principal had made an unpopular decision abouta school hockey team, and disgruntled students and parents began voicing their frustrations on facebook. Those comments quickly devolved into juvenile accusations that the principal had engaged in pedophilia.
The school board stepped in and sent notices of defamation to all offending individuals, nearly all of whom retracted their comments. One former students who had posted most of the comments refused to comply. The school board then commenced an action in defamation against the student, which was successful.
In contrast, the recent case of Pridgen v. University of Calgary (CanLII) demonstrates the failure of an educational institution to respond appropriately to online comments about an employee. The plaintiffs were twin brothers who had both taken a course with an unpopular professor and were dissatisfied. The brothers each posted comments on facebook about the course and the professor; the comments were childish and disrespectful but not necessarily defamatory. The professor saw the comments and complained to her superiors. Subsequently, internal university bodies found the brothers had committed non-academic misconduct, placing them each on probation.
The brothers applied for judicial review on the basis that the disciplinary measures taken against them violated their right to free expression under the Canadian Charter of Rights and Freedoms. The Alberta Court of Queen’s Bench agreed that the university had in fact violated the brothers’ right to free expression, acknowledging that online comments by students about the quality of their education should be encouraged within reasonable limits. Additionally, the Court noted that if the professor had felt defamed she could have commenced an action in defamation against the brothers, an option that neither she nor her employer pursued.
Educational institutions seeking to protect the reputation of their employees must accept that imposing disciplinary measures against students who post critical comments is not necessarily the appropriate response. While such measures might have been imposed in Pridgen in an attempt to prevent the nature of the comments from taking a turn for the worse, those comments had not passed the threshold required to justify the university’s response.