Posts tagged ubc
Pamela Fayerman at the Vancouver Sun has been reporting over the past two weeks about accusations that high-profile or influential parents have crossed the line in their efforts to get their kids a seat in the University of British Columbia (UBC) medical school program.
The story began with a memo obtained by the Vancouver Sun that was written by Denis Hughes, a former admissions director, where Hughes criticizes certain allowances made to applicants, particularly where the parents of an applicant have intervened in an apparent effort to get special treatment.
Despite the concerns identified by Hughes in the memo, UBC appears to come off pretty well in the various news stories. The admissions people refused to accommodate MLA Ido Chong, who apparently sent a letter at the request of the CEO of the Vancouver Island Health Authority regarding the CEO’s son.
Universities need a certain amount of discretion when making decisions about who to admit. Absolute transperancy would be unreasonable, but – obviously – each student’s application should be subject to the same procedure and fairness must be paramount for the admissions process to have any integrity.
For its part, UBC has a relatively comprehensive set of rules and safeguards surrounding its admissions process. The UBC Calendar includes various admissions policies and there is even a two-level appeals process for unsatisfied applicants.
Of course, there can always be holes and even the right rules need to be followed to have any value. Plus, any allegations of impropriety should be scrutinized. But it’s important to keep things in perspective.
There have been a series of court decisions dealing with admissions that may be helpful for universities interested in revising their admissions policies or ensuring that institutional practices are kept in line (see here and here for examples from CanLII).
The University of British Columbia was granted (CanLII) a Mareva injunction (Wikipedia) by the BC Supreme Court two weeks ago against Wanda Barbara Moscipan, the administrator responsible for finances in the Department of Obstetrics and Gynaecology, based on allegations from the university that she double-paid herself.
A Mareva injunction is a relatively harsh measure agreed to by the courts. It is discussed at a hearing without the defendant (e.g. Moscipan) being present and before a judgment – that is, before the court has even concluded that the allegations from the plaintiff (e.g. UBC) are correct. The plaintiff does have substantial hurdles to clear before a court will grant this type of injunction, namely it has to show:
- that it has, at least on the surface, a strong case that the allegations are correct; and
- that there is a real risk of assets disappearing before a final judgment is ordered (e.g. stolen money will be laundered), which will make it impossible or nearly impossible for the plaintiff ever getting back what was taken.
The law tries to balance the rights of both the plaintiff and the defendant to ensure that a fair process is followed and reasonable steps are taken to protect all the interests involved. Educational institutions, like any other sophisticated organizations, need to have a sense of the wrongs that can happen and what tools, like a Mareva injunction, can be used when need be.
Interestingly, a news article describing this decision mischaracterized and overstated the court’s decision by wrongly affirming that Moscipan had been found “guilty”. It may seem like a silly distinction, but the court never said she was guilty – only that the university had a “strong prima facie case” against her. Another judgment may follow with a “guilty” verdict, but to my knowledge that hasn’t happened yet, and she could still somehow be cleared of the allegations. “Guilty” sounds better in the headline, though.
Journalists have incredible time pressures to deal with and, especially younger journalists, are often tossed a complicated court decision and told to report on it without having enough of a legal background and without anyone to turn to with questions. Also, some of the words in articles and headlines are tweaked by editors later down the line who did not actually read the underlying judgment, so there’s no need to hammer the point home.
It is a good practice, however, for each journalist who may have to report on a legal event to have a series of lawyers in their rolodex to call before going to print.
Just when you thought it was out of the media spotlight, Vancouver’s Stanley Cup riot is back in the news. The Globe and Mail reported last week that Premier Christy Clark is frustrated that not a single charge has been laid in connection with the riot. Police Chief Jim Chu responded that hearing about jailings of rioters in Britain should not spur further pressure of Vancouver police to make arrests, since it is important “to do this right” rather than rush things through.
Interestingly, Chu remarked that several rioters have confessed to minor misdemeanors to avoid being charged with more serious offences caught on video, and several rioters brought in by their parents have turned out to be innocent.
In other words, this is a mess.
Given the public spotlight on many of the crimes committed during the riot, none of the wrongdoers are entirely safe from punishment, which may be delivered by Chu’s police force or the internet vigilantes standing proudly on virtual soapboxes while oddly cloaked in anonymity. As previously discussed on this blog, many of those offenders are students, some of whom are returning to classrooms in the coming weeks, hoping that their acts of folly after the Stanley Cup loss will not trail them onto campus.
What happened on West Georgia, should stay on West Georgia, at least as far as educational institutions are concerned. Universities in particular should avoid relying on the riot as a premise for punishing a student. Many universities have comprehensive codes of conduct or general policies and regulations that detail the circumstances under which a student may be penalized for “non-academic behavior”.
Under Section 61 of the University Act (BCLaws), the president of a university has the authority to “deal summarily with any matter of student discipline”, and when exercising that authority the president must provide a report to a standing senate committee on student discipline summarizing the president’s reasons. The president’s decision is final, though the student can appeal to the senate.
This is how Section 61 is applied in the University of British Columbia policies and regulations related to non-academic misconduct by students:
- “Non-academic misconduct” is not defined exhaustively, but is includes disrupting instructional activities, damaging university property or property belonging to a member of the university community, engaging in an act of hate or racism, and assaulting or threatening any member of the university community. These sorts of behaviors are considered by UBC to be “matters of student discipline” for the purposes of Section 61.
- An allegation of non-academic misconduct is generally reported to the Office of the University Counsel, which passes it on to the President’s Committee for a hearing according to its rules (UBC).
- The President’s Committee makes a recommendation to the President about what to do in the situation, and the President makes the final decision.
- If the student does not like the President’s decision, the student can appeal the decision to a senate committee.
The limits of the university’s jurisdiction for off-campus activities are not altogether defined clearly in the University Act or in UBC’s policies are regulations. In contrast, the UBC-Okanagan Code of Conduct addresses this point directly, by specifying that the Code applies to conduct that:
- occurs on or near the premises of the university;
- occurs elsewhere in the course of activities sponsored by the university, or where the conduct is alleged to adversely affect, disrupt or interfere with another person’s reasonable participation in university programs or activities; or
- occurs in the context of a relationship between the student and a third party that involves the student’s standing, status or academic record at the university.
Translation: UBC-O, along with other universities and educational institutions, should not be looking to punish students for their roles in the riot, no matter how long it takes for the Vancouver police to get moving on laying charges.
Many readers have expressed outrage (or, at the very least, mild dismay) at the legal principle set out by the BC Court of Appeal in Barbour v. University of British Columbia (CanLII) and discussed in a recent post on this blog: namely, that the legislature can pass laws that have the effect of retroactively altering the rules applicable to a dispute. As one person put it:
Someone’s driving on the highway at 100 km/hr in a 100 km/hr area. A cop pulls him over and accuses him of speeding for breaking the speed limit. He is given a big, fat ticket, which he contests. By the time the driver and the cop get before a judge, the speed limit has been changed to 90 km/hr. The judge hears them argue about how fast the driver was going, only to shut them up and find against the driver because, well, even if he was going 100 km/hr he was still breaking the law.
In the case of Mr. Barbour, UBC had imposed fines for breaking parking rules that had exceeded the powers of the university under the provisions of the University Act (BC) applicable at the time. UBC tried to enforce those parking rules, Mr. Barbour refused to comply with them, and a BC Supreme Court judge agreed (CanLII) with him about the lack of authority. After that decision was released, the provincial legislature passed amendments to the University Act that specifically granted UBC retroactive authority to impose the parking rules. As a result, even though Mr. Barbour was ordered to pay fines because he broke rules the university (at that time) had no authority to make, he has to pay those fines regardless because of the change in the law.
After the legislature got involved, Mr. Barbour argued that these changes should not apply to his case because of the principle of judicial independence. Effectively, the legislature was using its law-making power to overrule the decision of the Supreme Court, while the courts are supposed to serve as a check on the legislature and not the other way around. The BC Court of Appeal disagreed with this view:
We consider it is clear in Canada that the Legislature may enact legislation that has the effect of retroactively altering the law applicable to a dispute. While a Legislature may not interfere with the Court’s adjudicative role, it may amend the law which the court is required to apply in its adjudication. The difference between amending the law and interfering with the adjudicative function is fundamental to the proper roles of the legislature and courts in our parliamentary democracy.
The court pointed to several other decisions showing the legislature is not prevented from passing legislation that applies retroactively to change the laws applicable to events at issue in a lawsuit:
- Air Canada v. British Columbia (CanLII): In 1980, several airlines sued the provincial government for reimbursement of amounts paid in the mid-1970s as gasoline taxes. The law allowing the collection of these amounts was struck down by the courts because it was beyond the province’s constitutional authority. The legislature subsequently amended the law to make it within provincial jurisdiction and extended its application back to the time the airlines paid the taxes, which legalized the retention of the funds. Mr. Justice LaForest of the Supreme Court of Canada cited numerous policy concerns specific to enforcing retroactive legislation in the face of an unconstitutional statute, many of which were unique to a taxing authority (e.g. if these amounts had to be returned, then the government might have to introduce a new tax to recoup its losses).
- Highland Valley Copper v. British Columbia (CanLII): In the mid-1990s, a mining company paid certain amounts in PST on electrical consumption and claimed a portion of it back as a refund. When the government denied the claim, the company obtained a declaration by the BC Supreme Court that it was entitled to the refund. Legislation was brought in as an immediate response to the court’s decision and to deny that right. Mr. Justice Hall of the BC Court of Appeal agreed with the province and rejected the refund, commenting as follows:
One can, I suppose, feel a measure of sympathy for the appellant and its advisers, who had achieved some success under existing legislation only to see this success reversed by subsequent legislation. However, if the legislative will is clearly manifested in legislation, the courts are bound to construe it according to its language and tenor.
In British Columbia v. Imperial Tobacco Canada Ltd. (CanLII), Mr. Justice Major of the Supreme Court of Canada dealt with this issue by setting out the appropriate relationship between the courts and the legislature:
It follows that the judiciary’s role is not, as the appellants seem to submit, to apply only the law of which it approves. Nor is it to decide cases with a view simply to what the judiciary (rather than the law) deems fair or pertinent. Nor is it to second-guess the law reform undertaken by legislators, whether that reform consists of a new cause of action or procedural rules to govern it. Within the boundaries of the Constitution, legislatures can set the law as they see fit. “The wisdom and value of legislative decisions are subject only to review by the electorate”: Wells v. Newfoundland, 1999 CanLII 657 (S.C.C.),  3 S.C.R. 199, at para. 59.
The moral of the story? First, this principle of law, right or wrong, points to the supremacy of the legislature and the limits of the judiciary. Courts exist to interpret and uphold laws and to make sure those laws are consistent with each other, specifically with the constitution. The legislature is elected to make the laws (or revise them, as the case may be). Second, this should be considered whenever anyone decides to go up against a public body like a university, particularly when there is a refund at stake. The exercise may be futile and counter-productive. If you claim the public body had no authority to do something, and there is the political will to allow them to do it, then all you might get at the end of the day is an explicit change to the law, stating that the public body does in fact have that authority.
Court of Appeal sides with UBC over faculty association in dispute over limits of collective agreement0
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:
- 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.
- 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.
- 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.
The storm of controversy and commentary surrounding Cynthia Maughan, the UBC student who alleged discrimination by the university and several professors on the basis of her Christian beliefs, reached what many think is an ultimate conclusion a couple of weeks ago. The BC Court of Appeal for British Columbia released its decision in Maughan v. University of British Columbia et al, which capped something of a litigation nightmare for UBC. The court’s decision on CanLII is here.
Here’s a brief summary of the facts. Maughan was an Anglican Christian pursuing a Masters of Arts degree in English at UBC, during which time she alleged several incidents of discrimination occurred:
- An email was sent to the English graduate student listserv, where a student jokingly suggested Christians should be stoned; and
- She experienced what she said amounted to discrimination in a seminar course, where she asserted an anti-religious bias motivated the course’s professor to treat her poorly.
The professor had agreed to schedule a course event on a Sunday, refused to grant Maughan an extension on her final paper, provided negative comments on that paper, and awarded her an unsatisfactory grade, all of which Maughan attributed to the professor’s opposition to her religious beliefs.
Maughan, disturbed by her experience with the professor and disappointed with her grade, pursued redress through the avenues available within UBC, including an appeal to the Senate Committee, which ultimately ruled against her. She subsequently commenced an action against the professor, UBC and other professors who she alleged facilitated or ignored the discrimination she experienced.
The Court of Appeal emphatically rejected Maughan’s claims. The court held that Maughan presented no evidence to demonstrate that her treatment by the professors was based on her religion. Similarly, Maughan failed to show that they were acting in bad faith, which is a requirement under the University Act (BC) to establish negligent conduct in this sort of relationship.
The decision included a couple of important points for parties involved in these sorts of disputes:
- There is a high standard to meet for claimants attempting to win against a university or professor where something was done while executing duties on behalf of a university (see this provision of the University Act, from BCLaws). They must demonstrate bad faith – like malice or a dishonest purpose - which can be very difficult to prove.
- The strength and legitimacy of internal bodies devoted to dispute resolution is significant. The court referred to UBC’s Senate Committee approvingly as a “quasi-judicial body”.
- Despite the court’s conclusion, the fact that Maughan’s claim received the attention and resources of two judicial levels – requiring UBC to respond with counsel at every turn – shows the degree of concern courts have for university students, particularly ones pursuing advanced degrees. Maughan’s claim consumed a considerable degree of time, money and effort just to be dismissed for no evidence.
This article in University Affairs discusses the decision and other examples of student lawsuits and how universities and their lawyers are confronting them.