Posts tagged jurisdiction

UVSS triumphs over CFS in dispute over petition to withdraw membership

The University of Victoria Students’ Society celebrated (UVSS Chairperson’s Blog) last week’s decision (CanLII) of the Supreme Court of British Columbia overturning the decision of the National Executive of Canadian Federation of Students to decline to accept the petition of a student at the University of Victoria calling for a referendum at the school about continued membership.  Leaving aside the political issues, this case is interesting because it shows that the essential legal matter related to student representation has to do with procedure and the laws of societies.

As a brief background, all undergraduate students at UVIC, like the person behind the petition, are automatically members of the UVSS, a registered not-for-profit corporation or “society” under the Society Act (BCLaws).  The CFS is a national post-secondary student lobbying organization consisting of post-secondary student societies, including the UVSS.  Legally, the CFS is a registered society under the Canada Corporations Act (Department of Justice).  Since student organizations are distinct legal entities that act for social and not profit-driven purposes, they use the legal structure of a society, incorporating either under federal or provincial legislation.  This lets them own property, make contracts, have employees, and so on – just like regular corporations – but there are no shareholders (only “members”) and nothing that can be bought or sold like shares reflecting any ownership position.  Societies, either federal or provincial, are often confused with “registered charities” – that is, organizations registered with the Canada Revenue Agency and empowered to issue tax receipts for donations – but those are separate statuses.

Within the structure of the CFS, associations like the UVSS are “voting members” and the students within those associations, like the student behind the petition, are “individual members”.  Individual members pay an annual fee to their association, which passes the funds on to the CFS.  Students can’t opt out of membership in the CFS; this has to happen collectively by popular vote or referendum to end an association’s membership.

The story in this case is that while the student behind the petition was busy getting signatures, a separate group of students was preparing another petition effectively with the opposite purpose – to avoid any question about continued membership in the CFS.  This second petition played a significant role in the CFS deciding to reject the main petition.  The court, in this case, was asked to interpret the bylaws of CFS and decide whether the National Executive was able to decline to accept the main petition. 

Conventionally, courts don’t touch disputes dealing with internal affairs of private organizations. Here’s what courts generally consider when deciding whether to intervene:

  • the potential for courts to be clogged with disputes about the internal business of voluntary organizations (see Street v. B.C. School Sports [CanLII]);
  • whether the dispute deals with the substance of an organization’s activities, or with processes of an organization’s activities (the latter the court will deal with); and
  • whether the dispute is “of sufficient importance to deserve the invention of the court and whether the remedy sought is susceptible of enforcement by the court” (see Lakeside Colony of Hutterian Brethren v. Hofer [CanLII]).

In this case, the court found it was important to intervene because “the interests at stake are sufficiently important”, pointing to, among other things, the amount of money being sent from the UVSS to the CFS in membership fees.  The court relied on the following passage from North Shore Independent School Society v. B.C. School Sports Society (CanLII) when scrutinizing the conduct of the National Executive, like any other decision-making in voluntary associations:

36        The narrow scope for judicial review of the decisions of a domestic tribunal were noted by Dohm J. in Vancouver Hockey Club Ltd. v. 8 Hockey Ventures Inc. 1987 CanLII 2461 (BC S.C.), (1987), 18 B.C.L.R. (2d) 372 (B.C. S.C.) at 375:

The review by the court of orders made by an unincorporated association such as the N.H.L. through its president and chief executive officer (a domestic tribunal as it were) is limited. The power in no way includes the right in the court to substitute its decision for that of the domestic tribunal. The court is not the court of appeal. Rather, its power is narrow and it may only interfere if the order was made without jurisdiction (or against the rules) or if it was made in bad faith or contrary to the rules of natural justice. In addition, the courts will be reluctant to interfere with the decisions of a domestic tribunal where it is shown that internal remedies have not been exhausted. And there is even greater reluctance to interfere if the decision is based upon opinions regarding the standards of propriety and conduct appropriate for members of a particular association. Dawkins v. Antrobus (1881), 17 Ch. D. 615 (C.A.); Lee v. Showmen’s Guild of Great Britain, [1952] 2 Q.B. 329, [1952] 1 All E.R. 1175 (C.A.); Harelkin v. Univ. Of Regina, 1979 CanLII 18 (S.C.C.), [1979] 2 S.C.R. 561, [1979] 3 W.W.R. 676, 96 D.L.R. (3d) 14, 26 N.R. 364 (Sask.]. These well-known principles provide the foundation for the court’s review.

37        These cases show that the courts are prepared to interfere with the decision of a domestic tribunal where it can be shown that the tribunal exceeded its jurisdiction or failed to comply with the rules of natural justice or otherwise acted in bad faith. What these cases also demonstrate is the reluctance of the courts to intervene by substituting the court’s judgment for the judgment of the tribunal on a matter of substance within the tribunal’s jurisdiction.

The court found against the CFS, arguing that it had no basis for considering the second petition in deciding whether to accept the main petition.

The important lesson to draw from this one: student organizations, particularly ones with lots of student power or money, should be very cautious to follow their own procedures and any other legal requirements, particularly rules of good faith and natural justice.  Whether any student actually has the time or money to sue them is a different matter.


Student claimants have to think about jurisdiction when appearing before BCHRT

The British Columbia Human Rights Tribunal (BCHRT) rendered an interesting decision last week in Ayotte v. Liberty University and another involving a human rights claim launched by a student in British Columbia attending an educational institution in the United States.

In a nutshell, in 2008 Bonnie Ayotte was enrolled at Liberty University in Virginia to complete a Master’s degree in Professional Counselling.  She also has a physical and mental disability, which did not stop her from acing her courses.  She had only one course and an internship left to finish the degree, when a problem arose.  As a distance learning student, she was responsible for finding an internship and getting all necessary insurance.  Ms. Ayotte was refused certain coverage because of her disability, and she lost the internship.  Liberty refused to let her join their group plan and pointed to a policy on its website stating that distance learning students have to get their own insurance.  She filed a complaint with the BCHRT against Liberty and the Ministry of Children and Social Development (her intended employer) alleging violations of the following provisions of the Human Rights Code (BCLaws):

8  (1) A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public

because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

13  (1) A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.

(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.

The Tribunal handling Ms. Ayotte’s claim asked the parties for their arguments about whether this dispute was within the jurisdiction of the BCHRT, relying on the following test set out in Carlisle v. Law School Admissions Council, 2003 BCHRT 152:

It is not the location of the Respondent, but rather the location of the incidents giving rise to the Complaint, that will determine the Tribunal’s jurisdiction.

The Tribunal declined to reject Ms. Ayotte’s claim entirely at this stage.  But the decision raises the interesting issue of when exactly a student’s claim against an educational institution outside of British Columbia will be subject to the jurisdiction of the BCHRT. 

Disputes in the context of education are often resolved on the basis of the jurisdiction of the adjudicator that the parties appear before (e.g. a judge or panel) rather than which party has more justice on its side.  As a result, anyone involved in these sorts of grievances should first understand – before all else – the basis, if any, for arguing a claim before a particular court or tribunal.

My thanks to Vancouver lawyer and human rights expert Mike Weiler for sending me a link to this decision.


BC Court of Appeal finds against student claiming anxiety disorder

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:

  1. 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.
  2. 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”.
  3. 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.
  4. 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).

UBC succeeds in closing the door on teacher evaluation complaint of faculty association

The Supreme Court of Canada announced this morning that it has dismissed with costs the application of the University of British Columbia Faculty Association for leave to appeal to the high court the decision (CanLII) of the BC Court of Appeal regarding the policy of the UBC Senate on teaching evaluations.  The Faculty Association had claimed that the policy violated its collective agreement with the university and brought the matter before arbitration.  The arbitrator concluded that he did not have jurisdiction over the policy (see here for a previous post on the subject).

This is the second time in the past couple of years that the Supreme Court of Canada has dismissed with costs an application of the Faculty Association for leave to appeal – see here (CanLII).  The facts of the matter, as set out in the decision (CanLII) of the BC Court of Appeal, involve the recommendation of the UBC President not to promote a particular professor.  It appears the Faculty Association and UBC square off fairly regularly before the Labour Relations Board.


Ontario Court of Appeal: Courts have jurisdiction over academic disputes grounded in contract or tort

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:

  1. 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
  2. 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.


How should school administrators respond to cyberbulling?

There was an interesting article by Jan Hoffman over the weekend in the New York Times discussing the legal implications of cyberbulling, particularly for schools and parents.  There may be certain variations in the legal tests that apply in the United States and British Columbia but I think the article is important because it explores the sociological phenomenon of cyberbulling and how it is being treated by lawyers and judges. 
One issue to consider is whether cyberbulling is more likely to result in litigation than ”traditional” bullying and, if so, why that is the case. As well, cyberbullying raises the common question for schools about the limits of their jurisdiction and whether (or to what extent) schools are responsible for off-campus activities of students.
The article is fairly long, and I reproduce below the portion dealing with legal battles arising from cyberbulling.

Tony Orsini, the Ridgewood principal, learned about a devastating Facebook group last November, two months after it started.

“I had a 45-year-old father crying in my office,” Mr. Orsini said. “He kept asking, ‘Why would someone do this to my son?’ ”

A Facebook page had sprung up about the man’s son, who was new in town. The comments included ethnic slurs, snickers about his sexuality and an excruciating nickname. In short order, nearly 50 children piled on, many of them readily identifiable. “Kids deal with meanness all the time and many can handle it,” said Mr. Orsini, 38, a father of two children. “But it never lasts as long as it does now, online.”

The boy could not escape the nickname. At soccer and basketball games around town, opposing players he’d never met would hoot: “Oh, you’re that kid.”

The boy began missing school. He became ill. After weeks, he reluctantly told his parents.

“We don’t always get to address these problems until the damage is done,” Mr. Orsini said.

Because the comments had been made online and off-campus, Mr. Orsini believed that his ability to intervene was limited.

Rulings in a handful of related cases around the country give mixed signals.

A few families have successfully sued schools for failing to protect their children from bullies. But when the Beverly Vista School in Beverly Hills, Calif., disciplined Evan S. Cohen’s eighth-grade daughter for cyberbullying, he took on the school district.

After school one day in May 2008, Mr. Cohen’s daughter, known in court papers as J. C., videotaped friends at a cafe, egging them on as they laughed and made mean-spirited, sexual comments about another eighth-grade girl, C. C., calling her “ugly,” “spoiled,” a “brat” and a “slut.”

J. C. posted the video on YouTube. The next day, the school suspended her for two days.

“What incensed me,” said Mr. Cohen, a music industry lawyer in Los Angeles, “was that these people were going to suspend my daughter for something that happened outside of school.” On behalf of his daughter, he sued.

Last November, Judge Stephen V. Wilson of Federal District Court found that the off-campus video could be linked to the school: J. C. told perhaps 10 students about it; the humiliated C. C. and her mother showed it to school officials; educators watched it and investigated.

But the legal test, he wrote in his 57-page decision, was whether J. C.’s video had caused the school “substantial” disruption. Judge Wilson ruled in favor of the young videographer, because the disruption was only minimal: administrators dealt with the matter quietly and before lunch recess.

This legal test comes from a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, in which a school suspended students for wearing black armbands to protest the Vietnam War.

The court overturned the suspension, but crafted a balance between a school’s authority and a student’s freedom of expression. When a student’s speech interferes substantially with the school’s educational mission, a school can impose discipline.

The district had to pay J. C.’s costs and lawyers’ fees: $107,150.80.

Judge Wilson also threw in an aside that summarizes the conundrum that is adolescent development, acceptable civility and school authority.

The good intentions of the school notwithstanding, he wrote, it cannot discipline a student for speech, “simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.”

The lesson Mr. Cohen hopes his daughter learns from the case is about the limits on governmental intrusion. “A girl came to school who was upset by something she saw on the Internet,” Mr. Cohen said in a telephone interview, “and these people had in their mind that they were going to do something about it. The school doesn’t have that kind of power. It’s up to the parents to discipline their child.”

He did chastise his daughter, saying, “That wasn’t a nice thing to do.”

He describes her video as “relentlessly juvenile,” but not an example of cyberbullying, which he said he did not condone. His daughter offered to remove it from YouTube. But Mr. Cohen keeps it posted, he said, “as a public service” so viewers can see “what kids get suspended for in Beverly Hills.”

The J. C. decision has ignited debate. Nancy Willard, an Oregon lawyer who consults with schools, said that the judge could have applied another, rarely cited prong of the Tinker standard: whether the student’s hurtful speech collided with “the rights of other students to be secure.”

The Supreme Court has not yet addressed online student speech. Lower-court judges in some districts have sided with schools that have disciplined students for posting threatening videos about educators from their home computers.

In two recent cases, students were suspended for posting parodies of their principals. Each case reached the Court of Appeals for the Third Circuit. But one three-judge panel sided with a school for disciplining a student whose site suggested the principal was a pedophile; another panel sided with its case’s student, whose site suggested the principal used steroids and smoked marijuana. To resolve the contradictory rulings, both cases were re-argued earlier this month before 14 judges on the Third Circuit, whose jurisdiction includes New Jersey, Delaware, Pennsylvania and the United States Virgin Islands.

Nationwide, principals have responded to students who demean others online in dramatically different ways.

In January, 28 Seattle middle school students who wrote noxious comments on Facebook about one student received suspensions. The school also held assemblies about digital citizenship.

But when the mother of a seventh-grade boy in Fairfax County, Va., who requested anonymity to protect her son’s identity, sent his principal the savage e-mail messages and Facebook jeers that six boys posted about her son, the principal wrote back that although the material was unacceptable, “From a school perspective this is outside the scope of our authority and not something we can monitor or issue consequences for.”

Many principals hesitate to act because school discipline codes or state laws do not define cyberbullying. But Bernard James, an education law scholar at Pepperdine University, said that administrators interpreted statutes too narrowly:

“Educators are empowered to maintain safe schools,” Professor James said. “The timidity of educators in this context of emerging technology is working to the advantage of bullies.”

Whether suspension is appropriate is also under discussion. Elizabeth Englander, a psychology professor at Bridgewater State College in Massachusetts and founder of the Massachusetts Aggression Reduction Center, believes that automatic discipline for cyberbullies is wrong-headed.

“We tend to think that if there’s no discipline, there’s no reaction,” she said. “But discipline should never be the only thing we consider in these cases. There are many things we can do with children first to guide and teach them about behavior and expectations.”

Tony Orsini wanted to help his middle school student who was being teased mercilessly on Facebook. But he believed he had to catch the bullies at school.

He alerted teachers. At lunch, they spotted the three ringleaders as they forced the boy from their table.

“I called them into my office,” Mr. Orsini said, “and talked to them strongly about the lunchroom incident. Then I lied. I said I heard that the cops were looking at a Facebook group they had posted.

“It came down the next day.”

He rubbed his face in his hands. “All we are doing is reacting,” he said. “We can’t seem to get ahead of the curve.”


Court of Appeal sides with UBC over faculty association in dispute over limits of collective agreement

Before I went to law school, “jurisdiction” was a very boring word.  It made me think of old action movies, where the hero would brush aside a lack of “jurisdiction” to bring the bad guys to justice.  Jurisdiction seemed like a harness; an impersonal line, likely drawn arbitrarily, that got in the way of getting things done. 

But movies are just movies.

Jurisdiction is a fundamental concept at the heart of our system of laws.  We accept the rule of government provided it does not exceed the powers we have granted to it for the purpose of maximizing its utility.  We agree to live under the thumb of a tremendous number of different authorities – from police officers, to driver’s licensing bureaus, to professional regulatory bodies, and so on – that are defined by the slivers of control they are permitted to exert over our affairs.  Presumably, the system works when each authority does a decent job of exercising the powers within its jurisdiction.

Many significant events are determined based on jurisdiction.  Laws that were previously followed are struck down because the legislative bodies that enacted them over-reached.  Defendants accused of certain offences often throw up hail mary arguments during trials – sometimes successfully! – that they should be let off the hook because the laws at the core of the allegations against them were put in place by the wrong body.

A recent court judgment demonstrates the importance of jurisdiction in the university context.  The BC Court of Appeal last month released its decision in Faculty Association of the University of British Columbia v. University of British Columbia, rejecting the Faculty Association’s appeal to a determination by a labour arbitrator that its hands were tied when dealing with a new policy of the university Senate.  The Faculty Association had been upset by a policy implemented by the Senate surrounding student evaluations of teachers and filed a grievance under the collective agreement.  Here are the legal arguments of the Faculty Association.  Here is an interesting comment on the decision from Léo Charbonneau, a deputy editor and blogger at University Affairs, and here is one of his blog posts on the subject.

There are several actors in these events with jurisdiction that is tightly defined:

  1. UBC is a corporation operating under a bicameral model of governance – that is, under the University Act (BC), the Board of Governors has jurisdiction over business affairs and the Senate has jurisdiction over academic affairs, including improving the quality of teaching at UBC.
  2. The Faculty Association is a trade union that must represent the interests of a certain class of UBC employees and has been recognized by UBC as a bargaining agent on behalf of those employees. 
  3. Where the Faculty Association files a grievance against UBC under the collective agreement, the jurisdiction of the labour arbitrator is limited to providing a remedy to those actions of the employer that are “arbitrable” – that is, the labour arbitrator may only render a decision on those actions committed by UBC within the scope of the collective agreement.

The Faculty Association argued that the “university is the university is the university”.  In other words, the Senate is part of UBC – the employer under the collective agreement – and the agreement applies to the policy.  If the two items conflict, the collective agreement must prevail, and the labour arbitrator has the jurisdiction to give effect to that relationship.

The court disagreed and maintained that the jurisdiction of the Board of Governors and the Senate were distinct, and the Board could not bind the Senate to the terms of a collective agreement that conflicted with the terms of the policy.  The Board could not overrule the decision of the Senate on matters within the Senate’s jurisdiction, and vice versa.  Otherwise, the Board could use a collective agreement to step into the Senate’s domaine and exercise powers not granted to the Board under the University Act

This approach rekindled the debate in Kulchyski v. Trent University, where due to financial difficulties the Board decided to close and sell off two campuses in downtown Peterborough.  The Senate opposed this decision and argued it had jurisdiction.  Two professors began a lawsuit on this basis.  The Ontario Court of Appeal ultimately ruled in favour of the Board and maintained that the Board, not the Senate, had jurisdiction to make this decision.

In British Columbia, many of our universities effectively demonstrate their abilities to maintain a powerful bicameral governance structure.  University bodies must be keenly aware of the boundaries of their jurisdiction at all times or else risk contestation that may result in considerable costs and delays.


Choosing the right forum is half the battle

Gone are the days when getting justice in your dispute meant you had to face the regular court system.  Now, it seems like everybody is a judge of something and quasi-judicial entities abound.  Organizations have internal panels to handle complaints.  Administrative agencies have specialized tribunals to deal with industry-specific issues.  Courts appreciate the wisdom of a less expensive and uniquely-oriented body having first crack at an issue that can only reach a judge on appeal.

In the educational context, the common first move in court by counsel for institutions is to argue the dispute should not be heard by the court; that is, the court should decline to exercise its jurisdiction in this matter because it is more properly dealt with elsewhere.  Where a dispute has already been heard before a specialized tribunal (e.g. a university senate committee), courts will defer largely to that tribunal’s judgment.

Many of the issues that arise within education law involve an apparent overlap in jurisdiction between several adjudicative bodies.  Several recent judgments show courts declining jurisdiction when they determine the core of a dispute to lie within the jurisdiction of another body:

  • In Jaffer v. York University, a student with Down syndrome alleged a tort and breach of contract by the university for its failure to accommodate him.  The Ontario Superior Court of Justice agreed with counsel of the university that the student was effectively making a human rights claim, which should be heard before the provincial human rights tribunal.
  • In Abrams v. Johnson, a teacher brought a defamation claim against principals and school board administrators.  The Alberta Court of Queen’s Bench agreed with the defendants that the claim involved, in essence, an employment dispute.

In both Jaffer and Abrams the claims by the plaintiffs involved elements that were within the jurisdiction of the courts, but upon scrutiny in each case the courts determined that they were more properly dealt with by other bodies. 

To reduce legal fees and proceed quickly, parties to disputes within the world of education must make sure their claims are brought before the right adjudicator.