Posts tagged student grievances

Coming up next, on all channels: students behaving badly


This month you really didn’t need to look far to find pictures of students somewhere in Canada appearing to break the rules.   The question is: what have their universities done about it?

The most obvious incident took place in London, Ontario, where students participated in an off-campus St. Patrick’s Day riot (CBC).  Late that day, parties in a dense student neighbourhood spilled out into the streets.  Over a dozen people were arrested, including many students of Fanshawe College

London is a relatively small university town, and the administration of Fanshawe College took action immediately, suspending six students.  But whenever students behave badly off-campus (consider this link), and their university imposes disciplinary measures independent of any action by police, many people ask whether the university is overstepping it’s authority.  Listen to this discussion on CBC’s The Current for some of the arguments on this issue.

The debate generally comes down to what the university’s internal rules say about off-campus conduct and whether those rules are consistent with the university’s powers.  For example, the Fanshawe College Policy Manual – Student Code of Conduct says that it applies to the following types of off-campus conduct:

  • at a “College sanctioned event or when the Student is acting as a designated representative… or under the… supervision of the College”; and
  • where the conduct “adversely affects the rights of a member of the college community to use and enjoy the College’s learning and working environment and facilities or conduct which could adversely affect the health and safety of a member of the College Community”.

The first one is a no-brainer.  The second one is where it gets complicated.  Would Fanshawe have the right to take out its gavel if two drunk dudes happen to get into a bar fight across town and they both happen to be Fanshawe students?

In BC, this issue arose in connection with the Stanley Cup riot last year (see here for more discussion on that).

The other incidents have centred primarily in Quebec, where student protests continue in opposition to tuition increases.  Several universities have ramped up disciplinary charges (Montreal Gazette) against various student protesters along with threats of further charges, though those appear to relate entirely to events on-campus.

Universities needs to have clear, exhaustive policies related to student conduct that are consistent with the authority they wield and that are enforced fairly.  Students need to understand what they are agreeing to by enrolling, especially in terms of their activities off-campus.

Ontario court dismisses “bad” claim from student-plaintiff


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.

Quebec decision highlights willingness of court to give platform to student claimants


Yet another decision was released recently showing the tendency of courts to go the extra mile in hearing out student claimants, even when they don’t seem to have much of a case or to be coming before the courts with clean hands.

In Azar c . Concordia University (CanLII), a former student brought an action to get a new hearing before an internal university body about an allegation of plagiarism.  Apparently, the student had admitted in 2004 to breaking and entering into a professor’s office and tampering with exams.

In short, the court considered the student’s attempt to be an abuse of process and had no patience for him but still provided him the forum to make his point:

[71]            In the case at hand, under the guise of a different title, Plaintiff is attempting to raise the same issues which were alleged in the 2007 Proceedings and adjudicated upon before all instances up to the Supreme Court of Canada. 

[72]             Unhappy about Concordia’s refusal to reinstate him or provide him with his degree despite the Decision to expel and the fate of his legal recourse, Plaintiff is making use of the legal system to threaten and pressure the University to reconsider its position, not without being aware of the resulting prejudice for Concordia in terms of costs and time, not to mention the burden imposed on the legal system in general.  All this, without even having assumed the legal costs associated with the previous dis­missals of his 2007 Proceedings. 

[73]            While the Court appreciates Plaintiff’s distress in the circumstances and the fact that he may be acting out of despair, it must also underline that Plaintiff is unfortunately the author of his own misfortune.

[74]            The Court is of the opinion that, in light of the principles set out by the Court of Appeal in the above-cited case of Acadia Subaru[38], Plaintiff’s use of procedure is unrea­sonable and vexatious, to the point where it is appropriate for this Court to declare his proceedings improper and dilatory within the meaning article 54.1 C.C.P.

Each university appears to have at least one student like this, who persists to use the legal system as a sounding board even though they do not have a leg to stand on.  Universities must take any steps they can to avoid finding themselves in situations like this.

Carleton moves to dismiss claims of anti-abortion activists


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.

Anti-abortion activists sue Carleton over arrest


The CBC reported recently that two of the anti-abortion activists arrested at Carleton University in the fall for engaging in an unauthorized protest on campus space have filed a lawsuit against the university.

According to the students’ legal documents (CBC), the students allege that Carleton’s refusal to allow a particular anti-abortion display to be presented in a central area of campus in the first place, and then having them arrested when several students went ahead and set up the display there anyways, amounted to discrimination that caused damage.  The students claim the following against the university:

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

The students also named four university administrators as personal, rather than institutional, defendants, claiming they were  negligent in the performance of their duties.

This covers off nearly every possible conventional legal claim a student may bring against their university, namely contract, tort, breach of fiduciary duty, etc.  The only one missing is judicial review, which arises when a student pursued an opportunity to overturn a university decision through internal university bodies.  A claim based on the Charter is relatively novel in this context (see this post on the Pridgen decision).

We will see how far this one goes.

SCC balks on two student grievance cases against universities


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

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

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

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

University of Saskatchewan medical student wins in court but fails to be reinstated in program


Medical school is difficult to get into and hard to finish.  It takes a great application to be admitted and an incredible amount of discipline to complete, not to mentioned the considerable student loans required for a program that long, which is why I have some sympathy for any med student who feels they have been wronged to the extent that they need legal help.

That is the basic story line in the recent decision of the Court of Queen’s Bench of Saskatchewan in Sahi v. University of Saskatchewan (CanLII), which is a textbook illustration of how courts treat student grievances against their universities.  Varinder Sahi was an undergraduate med student at the university who was forced to discontinue his studies for failing to meet the academic requirements for promotion.   He had to repeat certain previous phases of the program for academic reasons, and thus entered Phase C on academic probation.  Varinder twice failed to satisfy the academic requirements in Phase C and was told that he would not advance.  He was asked to leave the program.  Ouch.

Varinder appealed his expulsion, first to the College of Medicine Academic Appeals Committee, and then to the Bylaws Committee of Council, which is the process under internal university rules.  When he did not get the result he wanted, he brought the matter to court, alleging the med school and the internal bodies did not follow the proper procedures.

The court began its analysis with the following conceptual framework, which is important to know for any student considering a lawsuit against their university on account of bad grades:

The parties agree as to the legal approach to be adopted by the court in analysing this application. Both parties rely on the decision of Barclay J. in Houston v. University of Saskatchewan reflex, (1994), 117 Sask. R. 291, [1994] 4 W.W.R. 387 (Q.B.), where at para. 17 he states:

[17] An excellent review of the law with respect to matters involving grievances between students and a university is contained in the case of Polten v. University of Toronto(1975), 59 D.L.R. (3d) 197 (Div. Ct.). The dispute here arose as a result of a doctoral student’s refusal to change his thesis and the university’s eventual rejection of his formal paper. The judgment of Weatherston, J., is regularly cited as authority for the non-interventionalist approach of the courts towards such disputes. The court held that the standards for a University degree and the assessment of a student’s work are so clearly vested in the university that the courts have no power to intervene merely because it is thought that the standards are too high, or that the student’s work was inaccurately assessed. However, the prerogative writs of certiorari and mandamus are available to a student who has been denied natural justice in respect of his examinations. The university has been entrusted with the higher education of a large number of the citizens of the province. This is a public responsibility that should be subject to some measure of judicial control.

[7]                  The measure of judicial control referenced by Barclay J. in Houstonwas followed by Rothery J. in Mikkelsen v. University of Saskatchewan (Joint Senate-Council Board of Student Appeals), 2000 SKQB 45 (CanLII), 2000 SKQB 45, 191 Sask. R. 53, where she stated at para. 33:

[33]  In ordinary circumstances, upon finding a breach of natural justice on the basis of a denial to be heard, the court would quash the decision of the tribunal and order that the matter be heard according to law…

The court in this case went on to find that the Bylaws Committee of Council – as a reminder, the second internal university body the student confronted – had exceeded its jurisdiction by considering matters and making a decision beyond its scope.  As a result, the court did not comment on the substance of the student’s claim, but ordered the Bylaws Committee of Council to take another crack at it.  The student had asked the court to reinstate him within the program until this dispute could be resolved, but in light of the fact that this would essentially bump another innocent student out of the program the claimant’s request was denied.

Courts generally take the approach that universities know what they are doing.  They have specialized knowledge and are given the room to test students in those areas and make determinations about whether those students have the knowledge or abilities necessary to satisfy a program’s academic requirements.  It would be a waste of judicial resources to have judges double-check grading in areas they know very little about.  Any claim against a university on academic issues has to be procedural to succeed in court.

This look-at-the-process-not-the-grade approach is one of the traditional elements of student grievances.  This means that both students and universities should focus on internal bodies with a similar energy to how they would approach a lawsuit.

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