Posts tagged contract

UBC medical school admissions procedures come under fire

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Pamela Fayerman at the Vancouver Sun has been reporting over the past two weeks about accusations that high-profile or influential parents have crossed the line in their efforts to get their kids a seat in the University of British Columbia (UBC) medical school program.

The story began with a memo obtained by the Vancouver Sun that was written by Denis Hughes, a former admissions director, where Hughes criticizes certain allowances made to applicants, particularly where the parents of an applicant have intervened in an apparent effort to get special treatment.

Despite the concerns identified by Hughes in the memo, UBC appears to come off pretty well in the various news stories.  The admissions people refused to accommodate MLA Ido Chong, who apparently sent a letter at the request of the CEO of the Vancouver Island Health Authority regarding the CEO’s son.

Universities need a certain amount of discretion when making decisions about who to admit.  Absolute transperancy would be unreasonable, but – obviously – each student’s application should be subject to the same procedure and fairness must be paramount for the admissions process to have any integrity.

For its part, UBC has a relatively comprehensive set of rules and safeguards surrounding its admissions process.  The UBC Calendar includes various admissions policies and there is even a two-level appeals process for unsatisfied applicants.  

Of course, there can always be holes and even the right rules need to be followed to have any value.  Plus, any allegations of impropriety should be scrutinized.  But it’s important to keep things in perspective. 

There have been a series of court decisions dealing with admissions that may be helpful for universities interested in revising their admissions policies or ensuring that institutional practices are kept in line (see here and here for examples from CanLII).

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.

Ontario court declines to characterize student grievance with U of O as contractual dispute

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Should the courts have the authority to resolve academic disputes between students and their universities?

On the one hand, everyone deserves to have their dispute heard by a competent adjudicator, particularly students who feel they have been wronged by their educational institutions.  If the courts don’t have the power to intervene in academic affairs when a true injustice has occurred, then what is the point of the court system and how else can a student expect to get a fair shake when dealing with a large organization like  a university?  On the other hand, if judges were expected to devote court resources to every student who didn’t the grade they felt they were entitled to on a mid-term, they would never see the light of day.  And it would prevent other, perhaps more important disputes from being addressed urgently.

It costs a lot to run a court system, but judicial efficiency is only part of the picture.  If students were told to take it to court every time they had a beef with a professor, then that wouldn’t do much good for the vast majority of students who wouldn’t have the time or the money to see it through.  The same would go for university resources, which would be overstretched.  On top of this, judges might find themselves having to make a decision about some complex area of study that they slept through or had absolutely no interest in during their own university days.

For these and other reasons, courts have repeatedly drawn a fine across what the types of disputes arising from university affairs they devote their attention to, and instead have encouraged universities to devise a system of internal procedures for allowing students to be heard without needing to march down to the courthouse.  The basic rules are set out in this post, but I will summarize them as follows: anything related to purely internal matters, like a claim about an academic issue (e.g. the decision of a PhD panel), must be reviewed by internal university bodies first, and only if there is a significant unfairness in those proceedings will the courts take a look and perhaps impose a different decision.  Claims about a university breaking its contract with a student, about a university’s negligence causing harm to a student – those items will get the full attention of the courts, as if the contract or tort was set in any other context.  In those cases, the thinking goes, the university has less specialized knowledge and is acting more like any other party in a common dispute.

The Ontario Superior Court of Justice released a judgment last month in Karam v. University of Ottawa (CanLII) that briefly touches on many of these issues.  The student in this case was hoping to graduate with a Bachelor of Commerce and a specialization in accounting, which requires that he get a certain grade point average in accounting courses.  The dispute turned on whether a particular course did or did not qualify as an accounting course.  The student, in one corner, felt that it was, in fact, an accounting course, and his grade in the course entitled him to the specialization in accounting.  The university, in the other corner, felt that the course did not make the cut, and despite the student’s grade the specialization was not deserved.

The student took the matter to the University of Ottawa Senate Appeals Committee, which is empowered to review and deal with these sorts of decisions, and it found in favour of the university.  The student sought judicial review (Wikipedia) of the decision; a “judicial review” is a type of lawsuit that invites a court to review the decision of a government agency or administrative tribunal with variable levels of scrutiny, which range depending on how much deference the agency or tribunal is entitled to.  In particular, the student claimed this was a decision about whether the university had honoured their contract, which should attract a high level of scrutiny by the courts and relatively little deference, while the university claimed this was about a basic academic issue (i.e. when to award a certain degree), and little scrutiny and much deference should be applied.

The student failed:

The applicant submits that his entitlement to be awarded a degree with accounting specialization is substantially a contractual issue, thus attracting a correctness standard of review.  We disagree.  We accept the respondent’s argument that a substantive decision of a university body on an academic matter (in this case, entitlement to be awarded a degree), if it is open to review at all, is to be accorded very significant deference.  The standard of review is reasonableness.

In our opinion, the record before this Court amply demonstrates the reasonableness of the respondent’s decision that the applicable university regulations justify the original decision of the business school, upheld by the appeals committee, that the ADM 4311 course was not an accounting specialization course and was not eligible for inclusion in the minimum grade point average calculation.  Even if the applicant was correct in his position that the degree requirements, or explanatory information on the university website, was unclear or contained an element of ambiguity on this issue, it was for the Appeals Committee to rule on the applicant’s entitlement to be awarded the specialized degree, provided that its decision was reasonable.  As noted, we are of the view that the committee’s decision was reasonable.Jud

Judgments like Karam are important for students and universities to consider when deciding on how to deal with a grievance that does not appear to have been settled with the decision of an internal university body.

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.

SCC balks on two student grievance cases against universities

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The Supreme Court of Canada announced this morning that it has dismissed separate applications by two students in claims against their universities for leave to appeal (Wikipedia) respective decisions of the Ontario Court of Appeal, each of which were discussed previously on this blog.  Both of the appellate court decisions are powerful statements on the approach of courts to student grievances and, more precisely, the limits of the jurisdiction of judges when confronted by a student claimant:

  1. In Gauthier c. Saint-Germain (CanLII), a graduate student in education at the University of Ottawa sued the university and her two thesis supervisors, alleging that her initial supervisor promised her a scholarship, acted inappropriately, negligently supervised her work and caused her mental distress, and claiming that her new supervisor was incompetent.  Additionally, she argued that the university breached her contract by not providing competent faculty.  The university responded that the court did not have jurisdiction to hear the student’s claim because it was essentially an academic issue to be resolved within the university’s internal processes.  The university won before the motions judge but lost at the appellate level, where the Ontario Court of Appeal found that the grievance could properly proceed within the jurisdiction of the court because it involved a claim in tort and contract, even though it arose from academic matters.
  2. In Jaffer v. York University (CanLII), a student with Down Syndrome claimed York University failed to properly accommodate his disability.  Similar to the student in Gauthier, Jaffer framed his arguments in terms of tort and contract; the Ontario Court of Appeal agreed that the court had jurisdiction because of how the claims were framed but held that the legal documents filed by the student (at least in their current condition) showed that the claims were untenable.

The issue at the heart of these cases – to what extent are disputes between students and universities involving academic matters beyond the jurisdiction of the courts – has been subject to a series of judgments over the decades that have left students and university administrators with a confused sense of the boundaries of the “internal autonomy” of universities.   These decisions, along with Nazik Amdiss and University of Ottawa, Ltd. (CanLII), indicate a renewed interest on the part of the courts to assert jurisdiction over student grievances when they are properly pleaded in tort or contract, despite the connection to academics.

None of the universities in these cases really got what they wanted, namely a declaration by the courts that despite the increasing integration of university life and mainstream society the traditional autonomy granted to universities to manage disputes related to academic affairs should be maintained.  Many (see, for example, McMillan LLP’s case comment here) had hoped for the Supreme Court of Canada to hear appeals to these decisions and clarify the line that should be drawn, but no such luck.

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