Posts tagged Canadian Charter of Rights and Freedoms
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.
Many university administrators and student leaders have been watching with interest as the legal dispute between anti-abortion activists and Carleton University winds it way through the courts (see here and here for background).
Specifically, the curiosity surrounds one issue: does the Canadian Charter of Rights and Freedoms apply to universities?
If the Charter does apply, then political activists, not to mention anyone else with a grievance against a university, have an incredible legal tool at their disposal, while universities have the nightmare of a possible deluge of Charter claims winding up on their doorsteps.
In a decision (CanLII) released last week, Madam Justice Toscamo Roccamo of the Ontario Superior Court of Justice ruled that the portion of the pleadings (Wikipedia) of the anti-abortion activists dealing with the Charter argument against Carleton should be struck because it fails to disclose a reasonable cause of action.
Translated into normal words: the Charter argument – in the court’s view – stinks and should not be allowed to form part of any ongoing litigation.
- the university, in its entirety, is fairly said to be an “organ of government” because of the degree of governmental control over it as an organization; or
- a specific activity of a university is fairly said to be “government” even though the rest of university’s activities would not be.
This approach makes sense: the Charter applies to government actors, and universities should not be subject to the Charter unless they are, or are doing something, governmental.
For a long time, universities liked this view, which was echoed repeatedly in court decisions. But the recent Pridgen decision (discussed more here and here) was reason for concern. In that case, the court reviewed the legislation behind the University of Calgary and found that the university “is not part of the government so as to make all of its actions subject to the Charter“ . That is, even though, among other things:
- universities in Alberta are established by legislation;
- various members of governing university bodies are appointed by the province; and
- the Lieutenant Governor in Council has the ability to restrict how those rights are used,
the court still did not consider the university to be “government” in its entirety. However, the court did find that the university “was implementing a specific statutory scheme or government program with respect to the actions” at issue, given that universities in Alberta generally function within that legislation hand-in-hand with government – at least as far as post-secondary education is concerned – to carry out what is essentially a government program. In that sense, the university operates as a “partner” with Alberta when it comes to educating (though not necessarily when hiring and firing employees, for example).
This is key:
When a university committee renders decisions which may impact, curtail or prevent participation in the post‑secondary system or which would prevent the opportunity to participate in learning opportunities, it directly impacts the stated policy of providing an accessible educational system as entrusted to it under the PSL Act. The nature of these activities attracts Charter scrutiny.
In Lobo v. Carleton University, the Ontario decision released last week, the court kicked aside any sort of precedent from Pridgen:
The Plaintiffs’ reference to the outcome in Pridgen v. University of Calgary, 2010 ABQB 644 (CanLII), 2010 ABQB 644, 497 A.R. 219, under appeal, fails to recognize that the Court made specific reference to the governing structure of the university in that case which involved significant government involvement. On this basis, the Court found the university was delivering a specific government program in partnership with the government. By contrast, the Carleton University Act, 1952 created an autonomous entity whose structure and governance is in no way prescribed by the government. Subsequent enactment of the Post‑secondary Education Choice and Excellence Act in no way derogates from that autonomy.
Here’s the take-over message: ultimately, whether the Charter applies to a particular university or university activity may depend on the legislation behind the university. Assuming neither Lobo nor Pridgen are appealed, universities and students will have more to work with when trying to find out whether the relevant legislation is on one side of the fence or the other.
Modern universities are founded, in part, on the basic principle of academic freedom. To benefit society our academics must be free to pursue any line of thought or inquiry, no matter how offensive it might seem to politicians, religious groups, business interests or anyone else, and no matter how meshuga it might sound to the average person on the street. Free expression is a moral imperative and a political necessity. It is vital to our survival as a democratic civilization. Nowhere is it’s presence and growth more important than on university campuses.
Free expression at universities does not only mean the unrestrained ability of professors to zig or zag left or right in classes on political theory. Course time is a small part of it. Free expression also covers the rest of the community of ideas living and breathing on campuses, from signs at student-organized protests to letters to the editor of student newspapers.
Like any other principle, it begs the question: what’s the status quo? How does free expression actually fare at Canadian universities?
The Justice Centre for Constitutional Freedoms released a report last week involving a critical analysis of the state of free speech at Canadian universities. As a brief bit of background, here is a glimpse of the JCCF’s approach from the group’s website:
The free and democratic society which the Canadian Charter of Rights and Freedoms holds out as our ideal can only be fulfilled by honouring and preserving Canada’s traditions of freedom of speech, freedom of religion, freedom of association, other individual rights, constitutionally limited government, the equality of all citizens before the law, and the rule of law.
And yet these core principles of freedom and equality continue to be eroded by governments and by government-funded and government-created entities like Canada’s public universities, and human rights commissions at the federal and provincial levels.
The JCCF is a charity intent on promoting individual liberties, such as free expression, by promoting discourse on the subject and providing pro bono legal representation to Canadians who cannot otherwise afford legal costs associated with defending their rights under the Canadian Charter of Rights and Freedoms (Department of Justice). The JCCF’s political bent is obvious, but the group doesn’t pretend to be a politically neutral think tank, and reports like these – whether they are from the Fraser Institute or the Canadian Centre for Policy Alternatives – should be respected or dismissed on their own merits. The same goes for the fact that one of the report’s authors, John Carpay, represents anti-abortion student activists.
Here are some highlights from the report:
- The report sets out a “Campus Freedom Index” based on the policies and principles of universities and student unions (what they say) and on the actions and practices of universities and student unions (what they do). For example, a ”Good” rating on a university’s policies and principles means that the university has a clear and unequivocal commitment to free expression. A university with strong limits on free expression in its policies and principles, such as restrictions against “disrespectful” or “provocative” speakers or perspectives, get a “Poor” rating.
- The Index views favourably universities and student unions that share their respective resources, such as student union funding, equally among groups promoting various perspectives on political and social issues.
- Carleton University is criticized for its approach to anti-abortion student activists (see here). The University of Calgary is criticized for its approach to the Pridgen brothers (see here). The University of Ottawa is criticized for how it handled Ann Coulter’s Canadian tour (Globe and Mail). The best scores went to Simon Fraser University, the University of British Columbia and the University of New Brunswick.
Interestingly, the report denounces universities and student unions for actions or omissions taken against groups trying to advocate what are commonly thought of as left-wing views. For example, the authors were disappointed by the decision of Dalhousie University to cancel a speaking engagement with British MP George Galloway because the event’s organizers were unable to pay for extra security.
This report should be considered by anyone looking for a primer on free speech on campus.
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.
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.
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.
In the past couple of weeks, school authorities in British Columbia have suffered two significant losses in court:
- In British Columbia Teachers’ Federation v. British Columbia (BC Courts), the Honourable Madam Justice Griffin of the BC Supreme Court ruled that the legislation brought in to remove class size from bargaining but rather to insert provisions on class size directly into the School Act (BCLaws) violated the Canadian Charter of Rights and Freedoms. Here (GlobeandMail) is a discussion of the decision and its implications, and here is the response of the BCTF (calling the decision “huge”). Here is the response of the BC Public School Employers’ Association.
- In Riazi v. Vancouver School District No. 39 (CanLII), the Honourable Madam Justice Dardi of the BC Supreme Court certified as a class action an application by parents regarding fees charged by a school board in relation to certain summer school courses. Here (Global) is a discussion of the decision and its implications.
Each of these decisions represent a significant threat to the province and school districts and should be treated with great care.
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:
- 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 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.
Students gone facebook stupid: nursing students reprimanded, then vindicated, for posting placenta picture0
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.
University administrators raised their eyebrows this week to news of the decision of the Court of Queen’s Bench of Alberta in Pridgen v. University of Calgary (CanLII), specifically the declaration of the Honourable Madam Justice Strekaf that the university is “not a Charter-free zone”.
The case (which was previously discussed in this post) involves separate statements by University of Calgary students Steven and Keith Pridgen – identical twins – on a facebook wall entitled “I NO Longer Fear Hell, I Took a Course with Aruna Mitra”. One comment mused about whether Professor Mitra “got lazy and gave everybody a 65″ while the other celebrated her departure and alleged she lied about being a “long-term professor”. Professor Mitra complained. The Interim Dean of the Faculty of Communication and Culture determined that the ten students who contributed to the wall, including the Pridgens, had committed non-academic misconduct and should be sanctioned. Keith Pridgen was advised that he was placed on probation for two years with certain other conditions and Steven Pridgen was mainly required that he write an unqualified letter of apology to Professor Mitra but no probation was applied. Letters from the Interim Dean maintain that the statements have caused “unwarranted professional and personal injury” to Professor Mitra and satisfy the criteria for non-academic misconduct. (The Statement of Principles of Conduct in the University Calendar defines non-academic misconduct to include “conduct which causes injury to a person”.)
The twins appealed the sanctions to the General Faculties Council’s Review Committee, where they were unsuccessful in quashing the Interim Dean’s decision and instead were given a six- and four-month probation respectively. They went a step further to the university’s Board of Governors, but they were rebuffed.
The first issue the court considered was whether the Charter applied to the disciplinary actions taken by the university. The Pridgens alleged that the university’s position infringed their rights under the Charter of freedom of expression and association. In contrast, the university argued that the Charter only applies to government institutions, which the university is not, despite being a creature of statute that performs a public service.
The essential source for determining whether the Charter applies to an entity is the Charter itself at section 32(1):
This Charter applies:
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament…; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province [which includes education].
But does the term “legislature and government” include universities? There have been several significant decisions of the Supreme Court of Canada since the advent of the Charter that interpret this provision. The initial guiding light came in RWDSU v. Dolphin Delivery Ltd. (CanLII), where the issue was whether secondary picketing in a labour dispute is protected as freedom of expression under the Charter. The most relevant point of the decision is that the court held that the Charter applies to “government action” and not to “private activity”. More importantly, the court implied that the Charter might apply to “creatures of Parliament and the Legislatures”.
Several years later, the Supreme Court of Canada released a series of decisions dealing with claims of Charter infringements by universities and hospitals. In McKinney v. University of Guelph (CanLII), the issue was whether mandatory retirement policies of several universities infringed the right to equality under the Charter. The claimants asserted that the Charter applied because the universities were creatures of statute intended to carry out a public service of providing education – i.e. they are essentially degree-granting companies incorporated by acts of provincial legislatures to complete a government objective. The court held that the Charter did not apply because the universities were not part of the government apparatus; they are legally autonomous and are not organs of government despite their dependence of government funds. The fact that the universities were incorporated by statute or carry out a government objective does not make them part of government. (A similar decision was rendered that year, but the court found there that the Charter in fact applied because of greater control by government in university affairs.)
Significantly, the Honourable Mr. Justice La Forest ruled that the origins or purpose of an entity are not alone sufficient to render it subject to the Charter, but rather courts should look to the degree of involvement or influence of government in a given activity that gives rise to a Charter claim to determine whether the Charter applies. Nonetheless, he did not shut the door to the Charter possibly applying to universities, but left in place a “control test”. The Honourable Madam Justice L’Heureux-Dube concluded in a separate decision that while certain functions of universities could be subject to the Charter, the activity of hiring and firing employees is not.
The court’s view was clarified in Eldridge v. British Columbia (CanLII), where deaf claimants argued that the failure of the province to provide sign language interpreters as an insured benefit under the Medical Services Plan violated the right to equality under the Charter. In defining the scope of the Charter’s application, the court (in a unanimous decision) approached the issue from the perspective that legislatures cannot escape their constitutional responsibilities under the Charter by delegating the implementation of their policies to otherwise private entities. As a result, for the Charter to apply either the private entity in its entirety must be considered to be “government” (i.e. based on the degree of governmental control exercised over it as an organization, it is clearly an organ of government) or the particular activity at issue must be considered to be “government” (i.e. the implementation of a certain government program) even though other activities of the private entity (e.g. hiring and firing employees) are not.
In McKinney, the court declared that the statutes of the universities did not show them to be organs of government, given the degree of autonomy they were granted to manage their affairs without government intervention. In Pridgen, the court reached the same conclusion about the University of Calgary, but noted that it is implementing a specific government policy:
The University is tasked with implementing a specific government policy for the provision of accessible post secondary education to the public in Alberta… The structure of the PSL Act [i.e. the statute governing the University of Calgary] reveals that in providing post‑secondary education, universities in Alberta carry out a specific government objective. Universities may be autonomous in their day‑to‑day operations… however, they act as the agent for the government in facilitating access to those post‑secondary education services contemplated in the PSL Act…
While the hiring and firing of employees by a university is non‑governmental in nature as seen in McKinney, 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 am satisfied that the University is not a Charter free zone. The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act. As in Eldridge, 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.
After concluding that the Charter applied, the court continued to address the content of the students’ expressions:
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.
Although this decision has surprised many who presumed that the Charter does not apply to university decisions – period – Strekaf J.’s take on certain university activities being subject to the Charter, but others not, has been raised before. In Blaber v. University of Victoria (CanLII), a computer science student used an email account supplied by the university to send a message to a listserve and addressed to a student politician accusing her of incompetence (or worse) and quoting a passage from the Book of Ezekiel involving “vengeance” (ala Pulp Fiction). The student politician complained and argued the email breached a university harrassment policy. The university responded on that basis by threatening to shut off the account. The student commenced a law suit and maintained that this threat from the university violated his Charter right to freedom of expression. The Honourable Mr. Justice Owen-Flood of the Supreme Court of British Columbia considered whether the Charter applies to the harrassment policy and referred to the following comment by Sopinka J. in McKinney:
[I] would not go so far as to say that none of the activities of a university are governmental in nature.
The court’s discussion on this issue in Blaber is obiter but it does highlight that McKinney should not be used to assert as a blanket rule that the Charter does not apply to universities, even those universities that pass a “control test”.
For this reason, the decision in Pridgen may turn some heads and serve as a landmark case but at the end of the day it simply fits within a neatly set out conceptual window created in McKinney, where the right facts finally came along to demonstrate what type of university activities of an autonomous institution will be subject to the Charter. (In my research for this post, I was unable to find a decision where a court found that the Charter applied to such a university.)
Ultimately, the court’s decision may reflect its view of the offensiveness of the university’s conduct. Apparently, University of Calgary officials have not yet indicated whether they will file for appeal. In any event, universities should take the time to evaluate their governing statutes and consider which areas of its affairs may be subject to the Charter and what changes, if any, should be adopted as a result.
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.
CBC reported that Quebec’s Liberal government plans to reintroduce legislation to replace Bill 104, which the Supreme Court of Canada ruled over the summer was unconstitutional. This marks the beginning of another chapter in the ongoing drama surrounding the language of instruction debate in Quebec.
As a very brief history, the linguistic legal battles in Quebec began around the language of legislation and the administration of justice. Consider section 133 of the Constitution Act:
Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec… The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.
In 1977, the Parti Québécois government of René Lévesque (links to wikipedia) brought in The Charter of the French Language, which defined French as the sole official language of Quebec and created broad language rights for every person in the province, particularly related to commercial signs and the language of instruction for schoolchildren. During the late 1970s and early 1980s, English-speaking lawyers in Quebec succeeded in having the Supreme Court of Canada strike down certain provisions of the Charter of the French Language as unconstitutional, specifically those dealing with the language of legislation and the administration of justice.
Chapter VIII of the Charter of the French Language deals with the language of instruction and includes in s. 73 criteria enabling certain children to receive education in English. After the advent of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada, in Quebec (AG) v. Quebec Protestant School Boards, ruled that some of the provisions contained in the original version of s. 73 were unconstitutional. The provincial government revised the eligibility criteria, and in Gosselin v. Quebec (AG) the Supreme Court of Canada held that those revised criteria were constitutionally valid. Section 73 now reads as follows:
The following children, at the request of one of their parents, may receive instruction in English:
(1) a child whose father or mother is a Canadian citizen and received elementary instruction in English in Canada, provided that that instruction constitutes the major part of the elementary instruction he or she received in Canada;
(2) a child whose father or mother is a Canadian citizen and who has received or is receiving elementary or secondary instruction in English in Canada, and the brothers and sisters of that child, provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada;
(3) a child whose father and mother are not Canadian citizens, but whose father or mother received elementary instruction in English in Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received in Québec;
(4) a child who, in his last year in school in Québec before 26 August 1977, was receiving instruction in English in a public kindergarten class or in an elementary or secondary school, and the brothers and sisters of that child;
(5) a child whose father or mother was residing in Québec on 26 August 1977 and had received elementary instruction in English outside Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received outside Québec…
Bill 104 was enacted to tighten the loopholes used by some parents to squeeze their children into the English school system. In October of this year, the Supreme Court of Canada ruled in Nguyen v. Quebec (Education, Recreation and Sports) that Bill 104 is unconstitutional. This recent announcement by the provincial government will continue the debates carried out in these decisions.
A footnote for those unfamiliar with Quebec linguistic politics: a language law remains a “Bill” in public discourse among English publications in Quebec because even after it is passed it is hotly contested.