Many university administrators and student leaders have been watching with interest as the legal dispute between anti-abortion activists and Carleton University winds it way through the courts (see here and here for background). 

Specifically, the curiosity surrounds one issue: does the Canadian Charter of Rights and Freedoms apply to universities? 

If the Charter does apply, then political activists, not to mention anyone else with a grievance against a university, have an incredible legal tool at their disposal, while universities have the nightmare of a possible deluge of Charter claims winding up on their doorsteps. 

In a decision (CanLII) released last week, Madam Justice Toscamo Roccamo of the Ontario Superior Court of Justice ruled that the portion of the pleadings (Wikipedia) of the anti-abortion activists dealing with the Charter argument against Carleton should be struck because it fails to disclose a reasonable cause of action. 

Translated into normal words: the Charter argument – in the court’s view – stinks and should not be allowed to form part of any ongoing litigation. 

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

  1.  the university, in its entirety, is fairly said to be an “organ of government” because of the degree of governmental control over it as an organization; or
  2. a specific activity of a university is fairly said to be “government” even though the rest of university’s activities would not be.

This approach makes sense: the Charter applies to government actors, and universities should not be subject to the Charter unless they are, or are doing something, governmental.

For a long time, universities liked this view, which was echoed repeatedly in court decisions.  But the recent Pridgen decision (discussed more here and here) was reason for concern.  In that case, the court reviewed the legislation behind the University of Calgary and found that the university “is not part of the government so as to make all of its actions subject to the Charter .  That is, even though, among other things:

  • universities in Alberta are established by legislation;
  • various members of governing university bodies are appointed by the province; and
  • the Lieutenant Governor in Council has the ability to restrict how those rights are used,

the court still did not consider the university to be “government” in its entirety.  However, the court did find that the university “was implementing a specific statutory scheme or government program with respect to the actions” at issue, given that universities in Alberta generally function within that legislation hand-in-hand with government – at least as far as post-secondary education is concerned – to carry out what is essentially a government program.  In that sense, the university operates as a “partner” with Alberta when it comes to educating (though not necessarily when hiring and firing employees, for example). 

This is key:

When a university committee renders decisions which may impact, curtail or prevent participation in the post‑secondary system or which would prevent the opportunity to participate in learning opportunities, it directly impacts the stated policy of providing an accessible educational system as entrusted to it under the PSL Act. The nature of these activities attracts Charter scrutiny.

In Lobo v. Carleton University, the Ontario decision released last week, the court kicked aside any sort of precedent from Pridgen:

The Plaintiffs’ reference to the outcome in Pridgen v. University of Calgary, 2010 ABQB 644 (CanLII), 2010 ABQB 644, 497 A.R. 219, under appeal, fails to recognize that the Court made specific reference to the governing structure of the university in that case which involved significant government involvement.  On this basis, the Court found the university was delivering a specific government program in partnership with the government. By contrast, the Carleton University Act, 1952 created an autonomous entity whose structure and governance is in no way prescribed by the government. Subsequent enactment of the Post‑secondary Education Choice and Excellence Act in no way derogates from that autonomy.

Here’s the take-over message: ultimately, whether the Charter applies to a particular university or university activity may depend on the legislation behind the university.  Assuming neither Lobo nor Pridgen are appealed, universities and students will have more to work with when trying to find out whether the relevant legislation is on one side of the fence or the other.