Posts tagged charter of rights and freedoms

Student leader at Western strikes out in defending harassment claim, loses Charter argument

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Student politics is a nasty business.  Universities, for their part, need to respect the process and keep a distance while having the courage and wisdom to act when a student’s conduct goes to far.

The case ofTefler v. The University of Western Ontario (CanLII) involves one student leader who was elected president of the graduate students’ society, only to have it slip through his fingers after the election was contested.  The speaker of the society – the one responsible for deciding these issues – ultimately found the election to have been invalid.  The almost-was president had sent a series of aggressive emails to the speaker (among other behavior described in the decision), who filed a harassment complaint against him. 

Several months later, the university charged him with violating the Code of Student Conduct, specifically the following:

Any conduct on the part of a student that has, or might reasonably be seen to have, an adverse effect on the reputation or the proper functioning of the University, or the health, safety, rights or property of the University, its members or visitors, is subject to discipline under this Code.

He was also charged with violating the following part of the school’s Non-Discrimination and Harassment Policy:

Conduct and/or behaviour also constitutes harassment, whether or not it is based on the prohibited ground of section 4.00, when it creates an intimidating, demeaning or hostile working or academic environment.

The charges then travelled the full length of Western’s internal disciplinary procedures, with a few interesting highlights:

  • The student was represented by a lawyer from the onset.  Not just any lawyer, mind you, but Clayton Ruby (Wikipedia), whose name should be known by every law student in the country.  Mr. Ruby provided written submissions in defense of the student, along with affidavits (Wikipedia) from several students connected to the dispute. 
  • There were three different steps in the process.  The student first met with Vice-Provost and was given a chance to defend himself (without a lawyer present, which was only allowed on appeal).  The Vice-Provost found him guilty and the student appealed to the University Student Discipline Committee, and then to the President – neither of which worked.  Many universities only have a two-step process.

At the court level, the student made three main arguments:

1.    Refusing to allow legal representation at the meeting with the Vice-Provost was unfair.  The student maintained that he should have been entitled to have Mr. Ruby present then because (1) the allegations against him were serious; and (2) the possible consequences included expulsion – so there were important interests at stake. 

But the court disagreed.  Inviting in lawyers would only complicate the process and make it more costly, and in this case the stakes were not nearly high enough.  The student had plenty of an opportunity to present his case in a fair process without having his lawyer standing in the room.  But the court issued a strong warning to universities that might prohibit lawyers from these sorts of hearings no matter the details:

However, this decision should not be taken to condone the prohibition of legal counsel in every disciplinary proceeding of the University at the initial stage.  In exceptional cases, …, where the stakes are not merely theoretically but realistically high for the student, the University may be well advised to consider permitting legal counsel to be present in the meeting with the Vice Provost or the Dean, as failure to do so may render the decision vulnerable to attack on the grounds of procedural unfairness.

2.    It was unreasonable to consider the student’s conduct to amount to harassment.  The student maintained that harassment involves repetition, coercion or the threat of coercion and an affront to another person’s dignity, thus the decision should be quashed.

The court disagreed and found that the university’s decision was reasonable in any event.

3.    The university’s decision infringed the student’s right to free speech under the Charter of Rights and Freedoms.  The student here referred to the Pridgen and Whatcott decisions, both of which relate to the application of the Charter to universities (see here for more discussion on that). 

The court disagreed that the Charter applied to Western and the issue stopped there.  Following Pridgen, universities have been concerned about the Charter applying to them, but several recent court decisions have distinguished Pridgen on the basis that the legislation connected to the University of Calgary is unique.

Here are the take-aways from this case for universities:

  • If your policies flatly prohibit a student from inviting a lawyer to participate in any internal hearing, that should be changed to make an exception (at the least) for situations where important interests are at stake.
  • Look at your governing legislation in light of Pridgen to try to anticipate whether the Charter argument is headed your way

Here are the take-aways from this case for students:

  • Not everything that happens in the political realm stays there.  The most successful politicans aren’t there by accident.  They are incredibly cautious in nearly everything they do, especially when it has to do with their opponents.  Watch yourself, particularly if you feel you’ve been wronged.
  • Sometimes it pays to hire a lawyer.  These types of cases generally result in a win for the university.  The ones that don’t wind up in court are the ones that are dealt with properly early on.

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.

University of Calgary appeals facebook charter decision

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The Globe and Mail reported over the weekend that the University of Calgary has filed an appeal regarding a recent decision (CanLII) of the Alberta Court of Queen’s Bench that found that the university had violated the rights of two students under the Canadian Charter of Rights and Freedoms by punishing them for criticizing a professor on facebook.  For a comprehensive review of the decision, please see here.

In an article by the Toronto Sun, University of Calgary spokesperson James Stevenson said the purpose of the appeal was not to further punish the students but rather:

[to seek] clarity on the extent to which the Charter applies to its own operations and those of other post-secondary institutions in Canada… As such, the reason for filing the notice of appeal goes well beyond the specific individuals involved… Filing the notice to appeal allows the university more time to study the decision, and how it fits with other similar cases currently before the courts in other Canadian jurisdictions.

Jacob Serebin opined in his blog on Macleans OnCampus that at the moment “no one outside Alberta has any idea how the charter applies to their university” and he welcomes an appeal for the sake of clarifying some of the more ambiguous comments of the court regarding the scope of the Charter’s application.  He writes:

That’s why I’d like to see this case go to appeal. When it comes to these sorts of decisions, appeals courts tend to clarify and think about how their ruling will impact similar cases that lower courts will see in the future, not just the one in front of them.

Consider the following comments by the court in the Pridgen decision:

While the hiring and firing of employees by a university is non‑governmental in nature… 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.e. it is more likely to be governmental in nature].

…The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act…. [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.

These comments appear to draw lines in the sand around what spheres of university conduct are subject to the Charter.  Treatment of employees: no.  Disciplinary measures imposed because of student conduct: yes.  But some further clarification would be helpful.  

The students’ lawyer told the Calgary Herald that before this case the general impression among the legal community was that the Charter did not apply to universities, even though courts have never said that in such absolute terms.  That’s true – it just so happens that all the decisions involving charter claims against universities have been rejected or have never properly addressed the issue.  The decision turned some heads and serves as a landmark case but at the end of the day it simply fit within a neatly set out conceptual window created by the courts, where the right facts finally came along to demonstrate what type of university activities of an autonomous institution will be subject to the Charter.  

Let’s see what the Alberta Court of Appeal has to say.

Treatment of Catholic school teacher raises questions about the appropriate limits of autonomy for religious institutions

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Vancouver music teacher Lisa Reimer announced (Vancouver Sun) this week that she was effectively fired from Little Flower Academy, a Catholic girls’ high school, after parents heard that she was a lesbian parent.  Reimer was preparing to return to work after taking a three-week leave following the birth of her son when she was informed she would work from home for the duration of her one-year employment contract.

Education Minister Margaret MacDiarmid responded to the announcement with concern, saying “Stepping way back, there are labour laws, human rights laws in British Columbia and they have to be followed.  They apply to everyone. The law is the law.”

A more precise question is which law, if any, was broken by the school and how will Reimer pursue a remedy, if at all.  She may have a valid claim under labour and employment law, but that depends on a variety of factors, and she may be able to claim the school violated the terms of her contract, but that depends on the terms she originally agreed to.  She has already mentioned (CBC) that she will not be filing a human rights complaint against the school. 

The most interesting legal aspect of this event is how the school’s freedoms should be reconciled with Reimer’s, a question emphasized by the contract Reimer apparently signed preventing her from endorsing homosexuality in the classroom.  Vancouver Sun columnist Douglas Todd highlighted the dilemma posed by the application of Canadian human rights law to religious institutions, particularly with respect to employment and discrimination on the basis of sexual orientation:

On one hand, Reimer has a right to escape discrimination based on her sexual orientation. 

On the other, the Catholic school has the right to “freedom of association,” which permits members of religious and other non-profit groups to hire only people who follow their moral teachings.

Despite a widespread belief in tolerance in our culture, Canadians are slowly becoming aware of this stark anomaly in human-rights law: Privately funded religious and other charitable groups are exempt from certain anti-discrimination codes.

How much autonomy should be provided to religious institutions that preach discrimination based on sexual orientation?  Where should the law draw the line between the rights of a group to condemn a certain lifestyle and the rights of individuals to freely express their commitment to that lifestyle?

These issues were discussed most prominently by the Supreme Court of Canada in Trinity Western University v. British Columbia College of Teachers.  TWU had applied to the BCCT to assume full responsibility for its teacher education program, many graduates of which would thereby be qualified to teach in public schools.  The BCCT rejected the application, in part, based on the fact that all students, faculty and staff at TWU had to sign a contract committing to refrain from “biblically condemned” activities, including “homosexual behavior”.  TWU brought the matter to court.

The Supreme Court of Canada held that while the BCCT did have jurisdiction to consider discriminatory practices in relation to the TWU application, the BCCT did not properly weigh the rights involved in its assessment and it acted unfairly by focusing only on the religious precepts of TWU rather than the actual impact of those beliefs on the public school environment.  The court acknowledged that as a private institution TWU was largely exempt from the application of British Columbia human rights legislation and the Canadian Charter of Rights and Freedoms.  But the heart of the matter is how to reconcile religious freedoms – i.e. the right of a minority group to their religious beliefs free from a “tyranny of the majority” – with equality rights of individuals, specifically to protect individuals from discrimination or inequality on the basis of their sexual orientation:

[This] is a case where any potential conflict should be resolved through the proper delineation of the rights and values involved.  In essence, properly defining the scope of the rights avoids a conflict in this case.  Neither freedom of religion nor the guarantee against discrimination based on sexual orientation is absolute… 

In addition, the Charter must be read as a whole, so that one right is not privileged at the expense of another…

Consideration of human rights values in these circumstances encompasses consideration of the place of private institutions in our society and the reconciling of competing rights and values.  Freedom of religion, conscience and association coexist with the right to be free of discrimination based on sexual orientation…

[The] proper place to draw the line in cases like the one at bar is generally between belief and conduct.  The freedom to hold beliefs is broader than the freedom to act on them.  Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected. 

TWU could ban certain conduct but it could not ban certain belief.  The BCCT’s role was to determine whether the ban on conduct meant that teachers from this program would be unable to teacher properly.

Little Flower Academy was free to require Reimer to sign a contract preventing her from endorsing homosexuality in the classroom because it limited her conduct and not her beliefs.  The validity of the school’s decision to send her home without her having crossed that line is a different matter altogether.

Unreasonable accommodation or unreasonable accommodators?

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Should a school offer an ultimatum to a devout Muslim woman who cover her face with a niqab: our way or the highway?

Over the past two weeks, there has been a fascinating story emerging in Quebec that cuts to the heart of how we think our educational institutions should respond to demands imposed by students with different cultural values.  Here is a summary from Margaret Wente of the Globe and Mail:

Naema Ahmed, a 29-year-old pharmacist from Egypt, joined a language class for immigrants last August. She insisted on wearing a face veil and she sat at the back of the class so that the men wouldn’t be able to see her. (There were three men in the class of 20). For private instruction, she would retreat to a corner with the female instructor.

Tensions reportedly mounted in the class, which was also designed to help integrate the students into Quebec society. The next part of the course required the students to sit around a U-shaped table and converse. She didn’t want to do it because of the men. The school couldn’t guarantee her another female instructor. It also decided she couldn’t be taught properly unless the instructor could see her mouth. So it asked her to leave.

Faced with this ultimatum, Ms. Ahmed chose to leave and subsequently lodged a human rights complaint with Quebec’s Human Rights Commission.  The provincial government endorsed the school’s position and argued vehemently in favour of its underlying premise: our values are irreconcilable with your values – when it comes to public services, you should accommodate us, not the other way around.  This is part of a larger government initiative unrestricted to public-funded academic institutions.  Last week, the Montreal Gazette reported that the government intends to insist that all citizens uncover their faces when dealing with public officers and receiving state services.

This story has sent commentators buzzing.  Wente argued that the divide over Quebec’s position has followed linguistic lines: English Canada is disgusted, French Canada the reverse.  Julius Grey, a local lawyer that Montreal media love to quote because of his involvement with high profile human rights cases, has turned heads by delivering support for the ultimatum: “I think this is an illustration of when an accommodation becomes unreasonable”.  Face-covering is inconsistent with our values.  Integretation and developing relationships in our society require we see each other’s faces.

This debate has yet to reach educational institutions in British Columbia in the same way, but it won’t be long before it does. 

See here for more background (National Post); and here (CBC); and here (Globe and Mail).

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