Posts tagged pridgen

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ontario court sides with U of Ottawa against MD accused of “unprofessional and disruptive behavior”

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The recent decision of the Ontario Superior Court of Justice in AlGhaithy v. University of Ottawa (CanLII) is an important one for universities to consider when setting up internal rules and procedures and addressing concerning behavior of students. 

Accordingly to the decision, Dr. AlGhaithy practiced in Saudi Arabia for several years before beginning a neurosurgery residency with the University of Ottawa.  As the years of his residency went by, others in the program expressed concern about his conduct.  The particulars are described in the decision, and Dr. AlGhaithy was eventually dismissed from the program.  He appealed the decision internally, and when that failed he looked for judicial review (i.e. for the internal decision to be undone) from the courts.

His claim led the court to emphasize several points relevant to all universities:

1.    Courts are reluctant to interfere with the academic decisions of universities unless there has been “manifest unfairness” in the procedure adopted or the decision is unreasonable.

This basic principle is relied on regularly by universities and is the single largest hurdle for student litigants to overcome.  If an internal decision connected to an academic issue is “reasonable”, then the courts will not fiddle with an internal university decision.  Here is how the task of the court in those circumstances is described:

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to    outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

In this case, even though the initial decision was made with a questionable procedure, the appeals process made up for it in terms of fairness, and the outcome was deemed to be reasonable.

2.     The Charter of Rights and Freedoms does not generally apply to universities.

Even since the Pridgen decision involving the University of Calgary (see here for more discussion on that), student litigants have routinely claimed that their university has infringed on the student’s rights under the Charter.  The idea is that even though the university is not, strictly speaking, part of the government, it should be considered to be implementing a government program, and thus while so doing it must respect the Charter rights of students. 

Many students, particularly political activists, were hoping that Pridgen meant a whole new world of possible claims against universities, but the courts seem to have played down the significance of the decision by limiting it to the unique legislation applicable to the Alberta universities.

In this case, here is how the court treats that argument:

The applicant relies on a decision of the Court of Queen’s Bench of Alberta, Pridgen v. University of Calgary, [2010] ABQB 644, which held that a decision of the University of Calgary to discipline students was subject to Charter scrutiny.  An appeal of that decision is under reserve at the Alberta Court of Appeal at this time.  In any event, the case is distinguishable, given that Alberta legislation requires universities to carry out a specific government objective of facilitating access to post-secondary education.  There is no equivalent legislation in Ontario.

 

The University was not implementing a government program or policy nor exercising a power delegated by the Royal College of Physicians and Surgeons of Canada or the College of Physicians and Surgeons of Ontario when it disciplined the applicant.  Instead, the Appeals Committee was making a decision about an internal matter, the dismissal of a student for a violation of standards of academic conduct.  Therefore, the Charter of Rights does not apply in the circumstances, and I need not consider the argument that s. 2(b) of the Charterwas infringed. 

This is similar to how the Charter argument is dealt with in Lobo v. Carleton University (CanLII):

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

Dr. AlGhaithy is also among the students who are suing (Calgary Herald) the University of Ottawa for over $150 million for various issues, including an allegation of discrimination.  Here is a link to their Statement of Claim.  Apparently, the group had filed a human rights complaint against the university roughly a year ago, but there is no information readily available with any indication of how that is progressing.

Does the Charter apply to universities? The plot thickens with recent decision

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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.

Carleton moves to dismiss claims of anti-abortion activists

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The Ottawa Citizen reported last week that Carleton University, which is being sued by two anti-abortion student activists for shutting down an unauthorized protest on campus, has asked the court to toss out the students’ lawsuit on the basis that they did not disclose a reasonable cause of action – i.e. the claim is frivolous, vexatious, etc. 

This sort of application is available to defendants who think the claim against them does not meet the minimum threshold necessary to justify using the court’s resources.  Occasionally, it is brought up when the defendant feels their pursuer is using law as a public relations tool or for a malicious purpose, without actually having a truly legitimate issue to explore in court.  In these situations, it would be a shameful waste on everyones’ time and money to let the legal fight continue.

Universities consistently make this application when confronted by lawsuits from students in the hopes that it will end the dispute shortly after the starting line (see here for more on this).  The usual argument from the university is that the dispute is an internal, private one and – parenthetically – the claim against it is silly anyways. 

In terms of Carleton, these are the claims made by the students that form the basis of the lawsuit:

  1. Carleton broke its own internal policies related to academic freedom.
  2. Carleton broke its fiduciary duties to students to provide an environment for free and open debate.
  3. Carleton had the students wrongfully arrested.
  4. Carleton broke its contract with the students by not protecting their right to free expression on campus.
  5. Carleton infringed many of the students’ rights under the Charter.

The university appears to have responded to each of these points in the legal documents, but the most interesting issue is whether this is, in fact, an internal matter between private parties.  If the students in this case have rights under the Charter against the university, then it means at least for the purposes of free speech the university is a governmental actor (ala the Pridgen decision in Alberta).  The dispute, then, would be private citizens vs. government actor, and not private citizens vs. private institution, the latter being more likely to be dismissed at this stage. 

Ontario Superior Court Justice Giovanna Toscano Roccamo has not yet revealed her decision on the university’s application.

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