Posts tagged judicial review
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.
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,  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.
Occasionally, universities are dragged to court by students in a way that makes me pity institutions of higher learning. One example of this type of event is reflected in the decision of the Ontario Superior Court of Justice released last month in Murray v. Lakehead University (CanLII), where the student-plaintiff started the lawsuit but didn’t even bother to show up to argue his case. The student, Robert Murray, apparently lived near the courthouse, and the court took a 20 minute break while people tried to reach him at home - but nothing.
Mr. Murray started the lawsuit by filing an incomplete “statement of claim” that, simply put, alleged his thesis supervisor negligently performed her duties by failing to provide him with the proper oversight. As a result, he demanded the university pay him the gross salary he would have earned had he decided not to spend two years on the degree, which he calculated was equal to $70,000.
Lakehead, which is located in northern Ontario, took the same procedural step commonly taken by universities when confronted with a claim by a student: an application to dismiss the claim on the basis that it does not “disclose a reasonable cause of action”. In this case, the university maintained that (1) the claim does not show the essential ingredients of a negligence claim; and (2) there is no viable claim because of the considerable discretion granted to universities in academic matters.
On the first point, the court clearly emphasized how an allegation of negligence must be structured:
As to the substantive law, a claim in negligence must establish that the defendant owed the plaintiff a duty of care; that the defendant breached that duty of care; and that damages resulting were caused by the breach of the duty of care.
On the second point, the court referred to Jaffer v. York University and Gauthier c. Saint-Germain, two recent decisions of the Ontario Court of Appeal (discussed here and here) that confirm the following rule regarding student claims again universities: the courts will dismiss such a claim unless the student can show that the subject matter of the claim falls outside the broad discretion granted to universities over academic matters.
Courts do not consider themselves to be appropriately situated to supervise academic issues at universities. The rationale for the broad discretion approach is set out in the following passage in Blasser v. Royal Institution for Advancement of Learning (CanLII):
In any university, … there are certain internal matters and disputes that are best decided within the academic community rather than by the Courts. This is so, not only because the Courts are not as well equipped as the universities to decide matters such as academic qualifications, grades, the conferring of degrees and so on, but also because these matters ought to be able to be decided more conveniently, more quickly, more economically and at least as accurately by those who are specialized in educational questions of that kind. In addition, of course, there is very good reason not to risk compromising the essential independence of universities by undue interference in their academic affairs.
This rationale may be problematic for a number of reasons, but the first step, which was not taken by the student in Murray, is to show up.
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.
The BC Court of Appeal recently released its decision in the case of Singh v. University of British Columbia (CanLII), showing just how far the court system can be stretched to give a fair shake to a student with a grievance against a university. Here is an excerpt of a news piece from CTV’s website on the facts:
A student who flunked four out of her five accounting classes at the University of B.C. has lost her legal battle to get the failing grades struck from her academic record.
Priya Singh took her academic complaint against the school all the way to the B.C. Court of Appeal, where a panel of judges upheld UBC’s decision to keep the blemishes on her file.
Singh, who suffers from an anxiety disorder, entered the UBC accounting diploma program on academic probation in 2007. Under the terms of the probation, she was required to maintain an average of 65 per cent in her classes during the first two terms.
In her first term, Singh took one course. She failed it.
She asked for permission to re-write the exam, saying that she had suffered a panic attack. After she provided a doctor’s note, that request was allowed — but she didn’t follow through on the scheduled re-write date.
During the next two terms, Singh enrolled in four more classes, passing just one of them — barely — with a grade of 50 per cent.
She was told she wouldn’t be allowed to continue in the program.
Singh filed an appeal with the university, arguing that her general anxiety disorder had affected her ability to write exams and she should be allowed to re-write them. The school’s appeal committee denied that request, but said she could retroactively withdraw from the failed classes.
The student claimed that the decision of UBC’s Senate Committee on Appeals of Academic Standing should be set aside under the doctrine of judicial review, which essentially is a doctrine that allows courts to invalidate decisions of administrative tribunals and other adjudicators or government officers. It is one of the most common types of claims used to bring student grievances before the courts, but it gives the claimant an uphill battle to fight because courts often defer to the wisdom of the tribunal that made the original decision absent some glaring error (see here for another post on other types of claims brought by students). The facebook case at the University of Calgary, for example, started primarily as a claim for judicial review.
The Singh decision is fairly straightforward and does not reveal any unique legal considerations or surprising twists and turns. The Court of Appeal, like the Supreme Court before it, simply did not accept the student’s claims. Even still, this decision is fascinating for several reasons:
- It held the attention of the Court of Appeal. It is incredibly challenging to get your claim heard by the highest court in the province. Universities generally know what they are doing when handling legal disputes with students. Any sort of problem is usually dealt with by the internal bodies of the university. If the student still feels justice was not served, then upon starting a lawsuit in the Supreme Court the university’s lawyers will often try to stop the claim in its tracks by showing that it has no merit and should be thrown out. If the claim actually makes it to a decision from a judge on the Supreme Court, then any sort of appeal will be vigorously contested and the Court of Appeal is free to decline to hear certain claims that have already been addressed by a lower court. It is downright surprising that the Court of Appeal agreed to hear this appeal. For example, Mr. Justice Groberman said in his decision that “the grounds set out in the petition border on the incomprehensible”. Unfriendly words.
- It forced UBC to go the distance. Like the Maughan case earlier this year (see here for an analysis), student claims that reach the Court of Appeal compel the defendant-universities to hire lawyers and deal with each step of the dispute. UBC’s legal fees must have been considerable, which it may not be able to retreive from the student as costs. This leaves aside the loss of public funds incurred by devoting the attention of two levels of courts to a claim the Court of Appeal noted was “incomprehensible”.
- It touches on the treatment of students with anxiety disorders. Last month a major controversy (National Post) erupted at the University of Manitoba about whether a student claiming she suffered from “extreme examination anxiety” could be awarded a PhD despite failing to meet the formal requirements. That case in Manitoba has not yet been resolved, but it did start a debate on whether students who claim they have certain stress levels should be dealt with flexibly.
- It could possibly have been brought as a Charter claim. The facebook case, mentioned above, showed that courts may be willing to extend the scope of the Canadian Charter of Rights and Freedoms to include certain university decisions that infringe the rights of students. In this case, I am curious whether the student could have argued that the university’s decision infringed on her rights under Section 15 of the Charter (Department of Justice).
Ontario Court of Appeal: Courts have jurisdiction over academic disputes grounded in contract or tort0
An interesting debate is popping up repeatedly in judgments from Ontario that may have an impact on universities in British Columbia, which centers around the issue of whether a student’s academic grievance may be heard by a court. The topic of jurisdiction is concerning for universities, which have traditionally been afforded the exclusive authority – akin to administrative agencies – to resolve academic disputes internally.
Earlier this year, the Ontario Court of Appeal, the decisions of which are generally binding on courts across the country, dealt with a dispute involving the scope of the court’s jurisdiction in the academic affairs of universities in Gauthier v. Saint-Germain (CanLII). The decision is published only in french, but there is a helpful discussion of Gauthier in Nazik Amdiss and University of Ottawa, Ltd. (CanLII). As quoted in Nazik Amdiss, Mr. Justice Rouleau in Gauthier stated several relevant principles:
(1) The Superior Court is a court of general jurisdiction and its jurisdiction may only be delimited by clear and express legislative or contractual provisions. If there are no such provisions, the court is competent to rule on the dispute (i.e. even in matters of an academic nature), (paragraph 29);
(2) Where the remedy sought is to alter an internal academic decision made by university authorities, the appropriate proceeding is normally judicial review. In that context, the court should be hesitant in becoming embroiled in the internal affairs of a university.
(3) There is a contractual aspect to a student’s relationship with the university and when a breach of contract is properly alleged, the court has jurisdiction to hear the case (paragraph 32).
In Nazik Amdiss, a student in her final year of an undergraduate psychology degree received a conditional acceptance to the French Language MD program at the University of Ottawa. She had excellent grades and was excited to start medical school in the 2010/2011 academic year. The conditions of acceptance involved the student successfully completing the 2009/2010 academic year, providing proof of citizenship, etc. But at the end of July, she received an email from the Faculty of Medicine advising her that the offer of acceptance was being withdrawn because she failed to maintain an average of 3.60. The student alleged that this was not a condition of acceptance and thus the withdrawal was a breach of contract.
The university argued that the court did not have jurisdiction over the subject matter identified by the student. Even though this is a framed as a contractual dispute (i.e. whether the university had a contractual obligation to accept her into the program, her sudden poor grades notwithstanding), the student’s claims are essentially academic in nature and are therefore within the exclusive jurisdiction of the court, and courts have long accepted the principle that they should not interfere with the core academic functions of universities, including setting admissions policies (see Mulligan v. Laurentian University - CanLII).
This was quickly rejected by the court because the student’s claims went to whether those policies were followed. However, the court found that the average grade criteria was part of the conditional acceptance even though it had been poorly communicated to the student by the university, and the student was unsuccessful.
Another Ontario judgment involving similar issues was released by the Ontario Court of Appeal last month. The following is a summary by Allison MacIsaac in The Court of the background to Jaffer v. York University (CanLII):
After gaining admission to York University, Ashif Jaffer and his mother approached the school to discuss accommodation measures to address his Trisomy 21 Down Syndrome disability. No formal agreement was ever reached. At the culmination of Jaffer’s first year, a professor offered Jaffer the opportunity to resubmit a paper and confirmed he would grant Jaffer deferred status for that course. Assuming this meant his status as a student would be granted a deferred status, Jaffer enrolled in second year. He was soon informed however, that he no longer qualified as a student since he had failed to obtain a D+ academic average. Jaffer then initiated a claim against the University seeking damages, arguing a contractual breach – specifically, a breach of good faith and negligent misrepresentation. York responded by claiming the matter was academic in nature and outside the court’s jurisdiction, and also that Jaffer had initiated a human rights claim, which fell within the exclusive jurisdiction of the Ontario Human Rights Commission.
At the Superior Court of Justice, the University brought a Rule 21 motion (of the Rules of Civil Procedure) for an order striking out the appellant’s Statement of Claim on the basis that it failed to plead a known cause of action within the jurisdiction of the Superior Court of Justice. Pitt J. agreed with the University’s counsel, finding that the issue was academic and fell within the university’s discretion. He also found that Jaffer was effectively making a human rights claim, which must be heard before the provincial human rights tribunal.
Fundamentally, the motion judge maintained that if the core of a student’s grievance involves academic conduct, then it cannot be heard by the courts, even if there are embedded issues involving contract or tort. This essentially summarizes the university’s position: the student’s claim arises out of academic decisions and procedures of the university, the substance of which are beyond the jurisdiction of the court. (The only way these sorts of claims can reach the courts is by a process of judicial review – that is, the student has to take their grievance to every relevant adjudicative body within the university and, if they are still unsatisfied, they must then approach the court and ask that the zone of deference owed to a university and surrounding those decisions be demolished. A claim for judicial review is far more difficult to argue than a fresh cause of action. And, as the court in Mulligan said above, courts should not interfere with decisions relating to the core academic functions of universities.)
However, Madam Justice Karakatsanis, in a unanimous decision, rejected that position and stated clearly on the basis of Gauthier that:
where the elements of a breach of contract or negligence are properly pleaded, the Superior Court will have jurisdiction to hear a claim even if the dispute is academic in nature and arises out of the academic activities of the university.
Courts have rejected similar claims by other students not because the court lacked jurisdiction or because procedurally the claims should have been made in the form of judicial review but because the claims were untenable. It is as simple as that. Here is an unofficial translation in Jaffer of a key passage in Gauthier:
In my opinion, to determine whether the court has jurisdiction it is more useful to look at the remedy claimed by the plaintiff. When a party is seeking to have the internal academic decision of a university reversed, the proper procedure is judicial review. However, if the plaintiff is alleging the basis for a cause of action in tort or breach of contract and claiming damages, the court will have jurisdiction even if the dispute arises out of the scholastic or academic activities of the university in question.
This does not necessarily mean it will be easy to students to simply head off to court if they disagree with the decision of a professor or associate dean. By enrolled with a university, they agree to submit themselves to the discretion of the university on academic affairs. To get the attention of the court, they will have to show that they have a valid claim in contract or tort. As well, the court will try to sniff out whether the claim is “simply an indirect attempt at judicial review”, like what amounts to an appeal of a determination of grades or admission.
What, then, is a reasonable cause of action on the part of a student against a university in contract or tort? In a claim for breach of contract, the student has to show:
- the existence of an implied or express term in the contract between the student and the university that arose by virtue of the student’s enrolment; and
- a breach of that term by the university that resulted in harm to the student.
In Jaffer, the student failed to show that it was a term of the contract with the university that the university would accommodate the student’s disabilities. The student skipped that step in the arguments, instead focusing on how the university failed to accommodate the student’s disabilities.
A similar test should be applied in a claim in tort against a university. The student must raise the same elements – duty of care, causation, etc. – that appear in any successful tort claim. In Jaffer, the student failed to do that, so the claim was rejected by the court.
These cases contain a roadmap for how a student can mount a successful claim against a university without the disadvantages of proceeding by way of judicial review. They also show the arguments a university should raise in trying to stifle such a claim before reaching a trial.
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.
The latest facebook-got-your-tongue litigation making national headlines (Vancouver Sun) popped up this week from the University of Calgary, where twins – both students – were placed on probation two years ago for stinging comments they made in November 2007 about a professor on a facebook page entitled “I no longer fear Hell, I took a course with [the Professor's name]“. The comments on the site include suggestions that the professor “got lazy and gave everybody a 65″.
The professor complained to the interim dean that this was an assault on the professor’s reputation, and the interim dean determined that the twins had used facebook to commit non-academic misconduct and handed down a penalty accordingly. The Board of Governors declined to hear an appeal of the decision and grant them a formal hearing. The twins are now seeking judicial review before the Court of Queen’s Bench in Alberta. Arguments before the court began this past Friday and were adjourned to another date.
The university maintains that the twins made unsubstantiated allegations that violated the school’s student code of conduct. No formal hearing was required given the nature of the penalty handed down. In contrast, the twins claim they wrote nothing wrong and the university’s actions smack of procedural unfairness. The university is trying to place a muzzle on legitimate criticism of professors.
This is a sad picture for a number of reasons:
- The university appears to have done a miserable job of explaining its position in the court of public opinion. While the demands of journalists to write short, punchy news pieces on a tight deadline means that much of the essential facts may get chewed up in the process, there does not seem to be any clear response by the university to several basic questions. By what authority did the school punish the twins for comments they made online in a non-academic forum? How broad is this power and how else has it been used? Does the university consider the comments to be defamation or a milder form of wrongdoing that nonetheless violated the student code? What sort of online criticism of professors is permitted under the code? You cannot control how much of your side of the story the media decides to tell, but you better use any resources you have to stream it into the marketplace. The U of C website showed no recent press release asserting its view of the matter.
- The twins are in the uneasy position of having to justify publicly why they made seemingly juvenile comments that have likely impacted the professor’s livelihood in a meaningful way. Many students use facebook the way baby boomers, in their student days, used – well – talking. Students have traditionally made fun of unpopular professors and criticized them unfairly, but usually only in a somewhat private setting – students nowadays would never dream of splashing those comments across the national media, which is exactly what has happened in this case. As much as the university has to justify its response to the comments, the twins have to defend the comments as legitimate.
The best advice I have ever heard about making online commentary is never post anything that you would not want to see appear after your name on the front page of a major newspaper. Facebook has entered the courtroom in many ways, particularly to the detriment of student users. For example, in MacIntyre v. Pitt Meadows Secondary School (CanLII), a recent decision of the Supreme Court of British Columbia involving a student’s claim for compensation for an injury suffered in shop class, the court relied heavily on photos posted on facebook as evidence showing the student shortly after the accident being physically and socially active.
Students have the freedom to criticize their professors in public, but it has never been easier for those comments to cross the line into something more troublesome and they must be aware not only of the rules surrounding a tort like defamation but also the rules of the school they attend that form part of their educational contract. School administrators must establish policies governing this new venue for commentary. Although it is difficult to glean from the media reports enough information to draw concrete conclusions in this case, universities – in Alberta, British Columbia and the rest of Canada – are looking to a court decision arising from the University of Calgary’s travails that will provide further guidance in setting the appropriate course.