Posts tagged carleton university

Ontario court sides with U of Ottawa against MD accused of “unprofessional and disruptive behavior”

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The recent decision of the Ontario Superior Court of Justice in AlGhaithy v. University of Ottawa (CanLII) is an important one for universities to consider when setting up internal rules and procedures and addressing concerning behavior of students. 

Accordingly to the decision, Dr. AlGhaithy practiced in Saudi Arabia for several years before beginning a neurosurgery residency with the University of Ottawa.  As the years of his residency went by, others in the program expressed concern about his conduct.  The particulars are described in the decision, and Dr. AlGhaithy was eventually dismissed from the program.  He appealed the decision internally, and when that failed he looked for judicial review (i.e. for the internal decision to be undone) from the courts.

His claim led the court to emphasize several points relevant to all universities:

1.    Courts are reluctant to interfere with the academic decisions of universities unless there has been “manifest unfairness” in the procedure adopted or the decision is unreasonable.

This basic principle is relied on regularly by universities and is the single largest hurdle for student litigants to overcome.  If an internal decision connected to an academic issue is “reasonable”, then the courts will not fiddle with an internal university decision.  Here is how the task of the court in those circumstances is described:

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to    outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

In this case, even though the initial decision was made with a questionable procedure, the appeals process made up for it in terms of fairness, and the outcome was deemed to be reasonable.

2.     The Charter of Rights and Freedoms does not generally apply to universities.

Even since the Pridgen decision involving the University of Calgary (see here for more discussion on that), student litigants have routinely claimed that their university has infringed on the student’s rights under the Charter.  The idea is that even though the university is not, strictly speaking, part of the government, it should be considered to be implementing a government program, and thus while so doing it must respect the Charter rights of students. 

Many students, particularly political activists, were hoping that Pridgen meant a whole new world of possible claims against universities, but the courts seem to have played down the significance of the decision by limiting it to the unique legislation applicable to the Alberta universities.

In this case, here is how the court treats that argument:

The applicant relies on a decision of the Court of Queen’s Bench of Alberta, Pridgen v. University of Calgary, [2010] ABQB 644, which held that a decision of the University of Calgary to discipline students was subject to Charter scrutiny.  An appeal of that decision is under reserve at the Alberta Court of Appeal at this time.  In any event, the case is distinguishable, given that Alberta legislation requires universities to carry out a specific government objective of facilitating access to post-secondary education.  There is no equivalent legislation in Ontario.

 

The University was not implementing a government program or policy nor exercising a power delegated by the Royal College of Physicians and Surgeons of Canada or the College of Physicians and Surgeons of Ontario when it disciplined the applicant.  Instead, the Appeals Committee was making a decision about an internal matter, the dismissal of a student for a violation of standards of academic conduct.  Therefore, the Charter of Rights does not apply in the circumstances, and I need not consider the argument that s. 2(b) of the Charterwas infringed. 

This is similar to how the Charter argument is dealt with in Lobo v. Carleton University (CanLII):

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.

Dr. AlGhaithy is also among the students who are suing (Calgary Herald) the University of Ottawa for over $150 million for various issues, including an allegation of discrimination.  Here is a link to their Statement of Claim.  Apparently, the group had filed a human rights complaint against the university roughly a year ago, but there is no information readily available with any indication of how that is progressing.

Does the Charter apply to universities? The plot thickens with recent decision

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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. 

After a string of Supreme Court of Canada decisions dealing with this question (discussed more here), a university would be subject to the Charter if either of the following applied:  

  1.  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
  2. 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.

Pro-life students suing Carelton are forced to pay costs

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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.

Carleton moves to dismiss claims of anti-abortion activists

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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:

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

The 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.

Anti-abortion activists sue Carleton over arrest

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

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

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

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

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

We will see how far this one goes.

Pro-life students arrested at Carleton

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The Ottawa Citizen reported earlier this week that five pro-life student activists were arrested at Carleton University for staging a protest that featured graphic images of bloody fetuses and comparisons to historical genocides in a certain common area of campus.  The students had requested permission from the university two months prior to use the space for the protest, but that request was denied and the university instead offered a less prominent location.  The protest and arrests are captured in this video (youtube).

The abortion debate has returned to the center stage on Canadian campuses over the past couple of years, with anti-abortion activists making headlines and attracting responses from both university administrators and student union representatives.  See here for a discussion of recent events on BC campuses.

This particular incident, as represented in the youtube video, involves a well-spoken student leader and gives the university a black eye because of the legal issues raised by the university’s decision to summon police to carry out the arrests:

  • Did the students trespass?  Trespass is a broad legal term that, at least under the Trespass Act (BC) (BCLaws), includes a person engaging in an activity on certain property after the occupier of that property has told them that the activity is prohibited.  Presumably, the students paid their tuition – though one of the five was not a student at Carleton – and in return the university gives them the right (called a “licence”) to use the university’s property in certain ways (e.g. to access classrooms) under certain conditions (e.g. so long as they act within some defined series of rules applicable to student conduct).  In this case, the university seems to be saying that situating the protest in that space was a prohibited activity and so, technically, the students may have trespassed.
  • Is university property public or private?  This issue always sounds to me more like a political than legal argument for the following reason: just because property may be owned by a public body does not mean individuals have the right (or should have the right) to use that property for political protest at any time and of any form.  Freedom of speech is important, but so is regulating traffic, maintaining law and order, respecting local businessowners, etc.  The centre of the intersection at Burrard and Robson may be owned by the City of Vancouver, but that does not entitle five Vancouver residents to stand there with placards and a soapbox after failing to get a permit to do so.
  • Does the public have the right to be exposed to graphic images only with prior consent?  This is an interesting issue because it touches on the need to balance competing rights and values – e.g. the right to political protest vs. the right to go about your business without being forced to stare at pictures you consider offensive.

These issues have long histories related to political protest, particularly on campuses.  However, the most salient point appears to me to be whether the university is exercising its powers to discriminate against a group on account of having certain political views.  In many respects, a code of student rights and responsibilities acts like a student’s contract with a university, and if the university is breaking that contract a student should be able to point that out.

The tactical issues for the university and perhaps the police are another matter as well.  For example, lawful or not, did the students need to be handcuffed?  My guess is they could have been ushered away without resorting to cuffs, but there may be some criminal law requirement I am unaware of.  University administrators, quite reasonably, have an interest in maintaining order on campus – there would be little benefit if political groups could simply protest where, when and how they wanted to.  But universities have been notoriously unprepared to deal with these issues, especially where the media is involved (e.g. despite the video’s prominence of youtube, I don’t think Carleton even has a press release about the event up on its website). 

As a first step, universities and student groups engaged in these issue should have sufficient legal advice to persuasively explain their positions.

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