Noah Sarna on the issues, cases and events of interest to British Columbia's educational community
Posts tagged university act
Legislated revenue streams for student societies
0116 days
by noahsarna
in Uncategorized
Clark Wilson LLP released an excellent edition this morning of its “Campus Counsel” newsletter, which deals with the legislative autonomy granted to student societies. I reproduce it in full below.
The Vancouver Province newspaper has recently reported on problems of the Kwantlen Student Association (the student society at Kwantlen Polytechnic University), which is involved in three legal actions. At the centre of these problems are questions regarding financial management by Kwantlen Student Association. As the Vancouver Sun reports, controversy and litigation regarding the financial management of the student societies of British Columbia institutions of higher learning is not new, with past instances arising at Douglas College in 2006 and at the University of Victoria in 2001. This article is a brief review of the legal framework within which these controversies arise.
In both the University Act and the College and Institute Act, a “student society” is defined as an organization incorporated as a society under the Society Act whose purpose is to represent the interests of the general student body, but does not include a provincial or national student organization. By definition, all student societies in British Columbia are created under the Society Act and, as a result, they are legal entities which are separate and apart from their respective academic institutions, with internal governance which is different from that of their institutions.
Section 21 of the College and Institute Act and section 27.1 of the University Act deal with student fees and are almost identical. In essence, the boards of colleges, institutes and universities are required to collect and remit student society fees to the respective student societies of their institutions. Neither statute stipulates the purposes for which student fees may be collected or imposes any controls on how they are administered. Both statutes permit a student society to increase student fees if authorized by student referendum.
Section 27.1 of the University Act and section 21 of the College and Institute Act were introduced pursuant to the Miscellaneous Statutes Amendment Act (No. 3) 1999. Certainly, from the perspective of business efficacy, it makes sense that student fees be collected with tuition; however, according to Hansard, there was no legislative debate focused on these sections when they were grafted onto the legislation. Accordingly, the rationale behind these provisions is not clear, although the Vancouver Province reported that the changes were the result of lobbying by the Canadian Federation of Students, requesting more autonomy. One presumes that a key objective of the legislation regarding student fees was to ensure the independence of student societies and that they have the means to achieve student goals, as determined by the students, and not the administration.
Pursuant to both the University Act and the College and Institute Act, the board of a college, institute or university may only stop collecting and remitting student fees if its student society does not make audited financial statements available or if the student society is struck off the register pursuant to section 71 of the Society Act. Otherwise, an institution’s board has no right to direct the purposes for which student fees are collected or how the fees are administered after they have been remitted to its student society. From the perspective of most students, they pay one global amount to their institution for their education and related benefits and services and often do not distinguish the amount being paid over to a student society. Many students may wrongly assume that their institutions administer or at least monitor how student fees are handled. A failure on the part of a student society to properly administer its resources may therefore affect the reputation of the institution as a whole, even though it has limited ability to manage the situation. Nevertheless, absent legislative change, the boards of British Columbia academic institutions are not in a position to intervene in their student societies’ affairs.
Some student societies work closely with their institution’s administration and share resources or facilities and agree to make payments to their institutions in respect of such arrangements. Other student societies carefully guard their independence. The legislation does not provide a specific mechanism for academic institutions to recoup the cost of services of facilities that they provide to their student societies nor does it constrain the kinds of agreements that an academic institution may enter into with its student society. As the institutions and student societies are separate and independent legal entities, they are free to enter into legally binding agreements which govern their relationship. These agreements may include binding obligations on the part of a student society to pay funds derived from student fees to their institutions for services rendered or facilities provided by the institution to the student society. These agreements may also include mechanisms pursuant to which such obligations may be satisfied from the amounts to be remitted by the institution to its student society.
In light of the controversies that have arisen in recent years, it may be time to review the provisions of the University Act and College and Institute Act which apply to student fees.
Saskatchewan Vice-Principal may be personally liable for communicating information learned from student’s confiscated cellphone
0144 days
by noahsarna
in Uncategorized
For most employees, , lawsuits connected to the workplace are someone else’s problem. Many people assume – and rightly so – that if the business gets sued because they were doing what they were hired to do, it will not affect them personally. If it was a screw-up, it may cost them their job, but their bosses will be the on’s calling lawyers, possibly going to court, stressing about a pay-out or settlement – not the employees.
This is usually good for plaintiffs with a grievance and not only the employees who may have had a hand in things. Most people looking to be compensated for an injury would rather have to set their sights on an active business with a substantial revenue stream and not a poor shmoe with a mortgage, three kids to feed and a car that needs repairs.
That’s how it usually works according to a legal principle called vicarious liability, which effectively provides that employers will be liable for injuries resulting from a harmful act or omission committed by an employee in the course of their duties. In Bazley v. Curry (CanLII), the leading Canadian case on vicarious liability, Chief Justice McLachlin wrote on behalf of the court that if there is no precedent showing vicarious liability to apply in a certain scenario, the following should be considered among other principles:
The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employer be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.
In other words, if an employee hangs out on the business premises after hours for no business reason, and then does something stupid to someone else, most likely the employer should not be liable. On the other hand, if an employee makes a mistake while doing what he or she was being paid to do, that’s a different story.
In the educational context, this is generally covered off by legislation. For example, consider section 69 of the University Act (BCLaws):
(1) An action or proceeding must not be brought against a member of a board, senate or faculties, or against an officer or employee of a university, in respect of an act or omission of a member of a board, senate or faculties, or officer or employee, of the university done or omitted in good faith in the course of the execution of the person’s duties on behalf of the university.
(2) In an action against a university, if it appears that the university acted under the authority of this Act or any other Act, the court must dismiss the action against the university.
F.R. v. D.T. (CanLII), a recent decision of the Queen’s Bench for Saskatchewan, discussed a similar provision in Saskatchewan legislation in terms of the immunity of a teacher or principal. According to section 232(1) of The Education Act:
Where a board of education, the conseil scolaire, a principal or a teacher approves or sponsors activities during school hours or at other times on school premises or elsewhere, no teacher, principal or other person responsible for the conduct of the pupils is liable for damage caused by pupils to property or for personal injury suffered by pupils during those activities.
In that case, a student, through guardians, sued a school board and a vice-principal for negligence and breach of privacy in connection with events stemming from a teacher confiscating the student’s cell phone during class. The teacher gave the cell phone to the vice-principal, who read through the messages on the phone and asked the student about someone identified as having stolen a car. The police were informed, questioned the student, located the car, and now the student lives in fear of retaliation from the person identified in the messages.
The vice-principal brought an application to strike the claim because he is immune under section 232(1), which the court flat out rejected:
The pupil’s misbehaviour in using a cell phone during class, and the resulting confiscation by the teacher is not an activity approved or sponsored by the teacher in accordance with s. 232(1) of the Act. T.’s reading of the cell phone messages and his resulting contact with the police is not an activity approved or sponsored as contemplated by s. 232(1) of the Act.
While the vice-principal was required, by virtue of his position, to administer any legal disciplinary measures he considered proper, the execution of that obligation is not, in and an of itself, subject to the immunity, leaving this issue to be resolved at trial.
Court of Appeal, satisfied with changes by legislature, sides with UBC in parking ticket class action
0622 days
by noahsarna
in Uncategorized
Roughly a year ago, Daniel Barbour’s crusade against UBC got him where he hoped it would: with a court pronouncing that he was right and UBC was wrong. Now, that victory has crumbled beneath his feet, thanks to a legislative amendment.
In March 2004, Mr. Barbour, an accountant, had parked his car legally to visit a campus dental clinic. University parking enforcement officials ordered the car to be towed away on account of unpaid fines for previous parking violations on campus. The decision led to a violent altercation between the accountant and the tow-truck driver.
Revenge was sweet for Mr. Barbour, though, five years later, when the BC Supreme Court ordered (CanLII) that it was ultra vires (i.e. beyond the powers or authority) for UBC to tow vehicles or issue fines for parking violations. Since 1990, UBC had collected over $4 million in fines and towing fees, storing charges and other expenses for violations of its parking regulations. The action was commenced by Mr. Barbour on his own behalf and on behalf of everyone from whom UBC had collected parking fines.
The case was, simply, that UBC did not have the authority to do this. UBC, of course, disagreed; tens of thousands of people traversed the UBC campus daily, and it had the power to establish general traffic rules. It acknowledged that the basis was not the University Act (BC). UBC maintained that this power came from:
- contracts it had entered into with, or licenses it had granted to, members of the campus community related to the use of parking facilities on campus; and
- its’ rights as property-owner of the campus area, under which it could remove vehicles parked on its property without its consent and fine trespassers accordingly.
The Supreme Court dismissed these arguments and found against UBC, holding that its authority for ticketing must be found in the University Act. UBC was required to return the fines and fees.
The first sign of trouble for Mr. Barbour came in July 2009, when the BC Court of Appeal granted (CanLII) a stay of the decision – that is, it suspended the effect of the Supreme Court’s decision until an appeal could be heard.
Then the tides were reversed completely. The legislature amended sections 27 and 51 of the University Act. Section 27(2)(t), in particular, now reads:
[A university's board of governors has the power to] regulate, prohibit and impose requirements in relation to the use of real property, buildings, structures and personal property of the university, including in respect of
(i) activities and events,
(ii) vehicle traffic and parking, including bicycles and other conveyances, and
(iii) pedestrian traffic;
More significantly, these changes were determined to be applied retroactively. Because universities had relied on the belief that these fines and fees could be validly collected, the amendment was deliberately designed to prevent any of them from being forced to issue refunds. The Court of Appeal quoted from a speech made by the Minister of Advanced Education during the debates in the legislature to show the intention behind the change:
Without the retroactive provisions, the institutions could possibly have to pay refunds from within their operating budgets and increase fees for students, negatively impacting programs and services for students and increasing the financial burden on students. This unexpected expense for those institutions would also negatively affect institutions’ financial position.
….It was felt that it was not reasonable or fair for students to bear the unreasonable burden of the expenses of people who chose not to obey the parking regulations.
Mr. Barbour saw this as a clear violation of the principle of judicial independence. Legislatures make laws, people are supposed to follow them, and judges have to apply the laws to peoples’ conduct without any influence by government. In this case, it seems the legislature effectively overturned the Supreme Court’s decision.
The Court of Appeal disagreed:
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 government has maintained (Vancouver Sun) that the decision of the Supreme Court exposed a hole in the legislation that the legislature never intended to leave there – all they were doing here was repairing a gap.
The trials and tribulations of Mr. Barbour have raised many interesting legal issues surrounding UBC. Given the cost of the class action and the negative results, it is unlikely that he will step up to bat again and the university can rest easy with its victory.
Court upholds property tax exemption for student union space leased to commercial tenants
0628 days
by noahsarna
in Uncategorized
Universities in British Columbia own land of considerable value. Should that land be subject to property tax and a university be assessed like any other landowner?
The answer is found in s. 54 of the University Act (BC Laws):
(1) Unless otherwise provided in an Act, the property vested in a university and held or used for university purposes is exempt from taxation under the Community Charter, the Local Government Act, the School Act, the Vancouver Charter and the Taxation (Rural Area) Act.
(2) If land vested in a university is disposed of by lease to a college affiliated with the university, so long as it is held for college purposes, the land continues to be entitled to the exemption from taxation provided in this section.
The issue then involves defining what it means for a university to hold or use property “for university purposes”.
In Assessors of Areas #1 and #10 v. University of Victoria, the BC Supreme Court held (CanLII) that student union buildings owned by a university but leased to commercial tenants were held for university purposes and thus exempt from taxation. In the decision, the court considered buildings used by the student unions of UVIC and SFU, particularly portions of those buildings leased to commercial tenants, like Travel Cuts, fast food outlets, medical and dental clinics, etc. These are businesses designed to cater directly to students but they are distinct from other businesses owned and operated by the student unions.
Hence the question: are those portions of the buildings used by commercial tenants being held or used “for university purposes”?
In one corner, the Assessor argued that a university purpose involves academic pursuits or, at the very lease, those non-academic activities that are critical to facilitating academic goals. In the other corner, the universities and student unions argued that these businesses provide an ancillary benefit to students and form part of the multi-faceted elements of modern university life; in this way, the spaces in which they operate are being held for university purposes.
To interpret the meaning of the words “university purposes”, the court went back to the basics and discussed what it means to be a university:
Canadian universities today are multifaceted institutions that require a diverse array of services to advance their broad objectives. They operate in a competitive environment. In order to achieve their objectives and perpetuate as relevant institutions, they must reasonably service the needs and aspirations of their faculty and their diverse student bodies. Student and faculty recruitment and retention play a significant role in the success of a university. It is surely trite to observe that the attendance of students is the most vital component of a university; without them, a university is little more than a languishing collection of resources, vacant classrooms and idle professors. I agree with the Board’s remarks that student societies play an important role in assisting universities in recruiting students by contributing to a student’s enjoyment of university life in a variety of ways. To that end, universities need to provide more than the rudimentary features of higher learning; more than lecture halls and labs. Modern universities commonly have extensive athletic and recreational facilities, as well as facilities aimed at promoting social interaction among the students, the faculty, and the students and faculty together. As observed by the Board, universities also require considerable human support services such as housing, transportation, food services and health care clinics to reasonably attend to the needs of their students and faculty.
The court went on to reject a narrow view of the purposes of a university. Student unions are responsible for managing student affairs, and they are often granted space in buildings owned by universities for that purpose. Accommodating student needs frequently requires inviting commercial tenants to rent space and set up shop on university property. The court rightly saw this fact as a simple element of what it means to be a university today.
