Posts tagged university act

Tips for students looking for advice on misconduct allegations

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Increasingly, students are calling lawyers when their degrees are in jeopardy. 

On a fairly regular basis, students at every educational institution are accused of academic or non-academic misconduct.  This includes cheating on exams, copy-and-pasting on essays without attribution, harassing another student, and so on.  Often, the professor or other staff member who notices or hears of it will let it go without a big fuss, but occasionally (and this varies by institution) a formal dispute resolution mechanism will be triggered, which involves potentially disastrous results for the student.

For example, the Office of the University Counsel at the University of British Columbia (UBC) shows comprehensive annual reports that detail the cases that went before UBC’s disciplinary committee.  In 2010/2011, 39 students were brought before the committee; only one student among them appears to not have been disciplined in some way or another.  In 2009/2010, 61 were accused and 58 were disciplined.  Many of the penalties were letters of reprimand, zeroes in a course, assignment or exam, or suspensions from UBC.

Each of those penalties can mean something different depending on the student, and they are there for a reason: if do something wrong, then you accept the consequences.  The president of each university has the legal authority (BC Laws) to impose disciplinary measures on students for academic and non-academic misconduct.  But the right safeguards have to be in place to ensure the punishment fits the crime, and so students are entitled to procedural fairness, which includes, generally and to varying degrees:

  • the right to be heard – this means the student must be able to participate meaningfully in the disciplinary process, to know what they are accused of, why and by whom, and to have a reasonable opportunity to respond to those accusations and address any supporting evidence; and
  • the right to be judged impartially – this means the student must be heard without bias, otherwise the right to be heard has no value.  As a result of this, many universities have multiple member panels composed of professors from various different faculties to reduce the likelihood of bias dictating the outcome.

Because of the implications of disciplinary measures on a student’s future, the legal requirements of procedural fairness in this area include the right to an appeal, which for universities means the right for the student to have the disciplinary committee’s decision reviewed by another committee of the university senate or the senate itself.  Also, there is a right to be represented or assisted by legal counsel, which few students can actually afford but which can be incredibly important depending on the circumstances.

These procedures don’t only have to be procedurally fair, they have to be substantially fair too.  The process is meaningless if the outcome is completely illogical or disconnected from the facts and arguments presented. 

These rules are reviewed in this recent decision (CanLII) from a court in Newfoundland involving Memorial University and this one (CanLII) from a couple of years ago involving UBC.  Students and universities regularly go through these procedures and wind up in court, where more often than not the judge defers considerably to the university.  Getting to that point costs the university a lot, so neither party really ends up happy in the end, which makes it essential for everyone involved to devote their resources to resolving these issues early on.

Universities, for their part, know this is simply a fact of doing business.  Students break codes of conduct all the time, so the right process has to be there and the issue has to be confronted.  The average student, however, will likely never have to know much about this part of the university experience, and if they do get a letter or email with the bad news there is a strong temptation to deny it’s a problem, to procrastinate in dealing with it or to think they can handle it on their own.

Big mistake. 

Instead, here are some general suggestions on how a student should approach the issue:

  1. Understand as soon as possible what is going on and prioritize it.  If a professor or anyone else has accused you of doing something wrong, try to speak to them.  Ask for a meeting – soon.  Review any correspondence you have received and think seriously about how to respond, especially if the professor or the university seems to be unaware of a key piece of information.  Be active and do not let it sit.  Confront it and make sure you do whatever needs to be done in the right time.  Look over your university calendar to see what the allegation means and how the process is supposed to unfold.
  2. Connect with a student advocacy office.  Most universities have relatively helpful advocacy centres generally maintained by student societies where students accused of misconduct can be assisted by a student advocate, who is often a law student.  For example, have a look at the AMS Advocacy Office site at UBC.  
  3. Try to understand where the university is coming from.  One of the hallmarks of maturity is putting your feet in someone else’s shoes.  Most people do not go through life looking for a fight.  Most university employees, including professors, believe in education; they want good students to get good grades and then to get good jobs and lead happy lives.  On the flip side, they want bad judgment to meet bad consequences; to show students that rules have meaning; and to prove to themselves, their superiors and their colleagues that they have integrity and are tough but fair.

If you found the advocacy office unhelpful or think you need further advice, it may be appropriate to call a lawyer with experience in the area.  Keep the following points in mind:

  • You get what you pay for.  University advocacy services are free, but lawyers are not.  They are professionals outside the university with years of legal training and experience.  It cost them a lot to get there, and their services have a value determined by the marketplace.  You can surf legal or university websites all you want, but an hour with an expert can give you infinitely more.  Also, older lawyers generally cost more than younger lawyers.  You have to do your own cost/benefit analysis.
  • Understand how lawyers work.  Most lawyers charge by the hour for their services.  This includes telephone conversations, meetings, doing research – any time they spend working for you will wind up on a bill.  Multiply that time by their hourly rate (which you should ask for in advance) and you end up with the amount you will have to pay, plus taxes and disbursements.  They need certain personal information from you, like your name, telephone number and address, and will usually insist on a retainer payment before spending much time. 
  • Try to make their job as simple as possible.  To cut down on lawyer fees, make sure you are as organized as possible and can clearly explain what you want from them.  Be prepared for meetings or scheduled telephone conversations by organizing documents or writing out what you want to say or ask in advance.  Always leave messages if you call them, and try to respond as promptly and exhaustively as possible to everything being discussed.
  • Listen to the caveats and disclaimers.  If meet a lawyer at a party, run through your circumstances over a beer, and then ask whether or not you are in the right, you can almost be sure that you shouldn’t bank on the answer.  That’s like asking a doctor for a diagnosis while sky-diving.  Legal services, like medical services, need to be comprehensive and delivered in the right setting to have any significant value.  Cutting corners will not get you far and shouldn’t help you sleep better at night.  A good lawyer will toss in enough caveats and disclaimers to avoid sounding awkward (e.g. “this is information, not advice”, “I can’t really give you an opinion without looking at the documents”, etc.) – pay attention to those.

Hiring a lawyer does not mean they can work magic or change the past, but it does mean you will have someone in your corner with expertise when it comes to your rights and obligations as a student.

Should the mandate of student societies exclude political activism?

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Universities in Quebec are in the midst of massive student protests (Montreal Gazette) and heated political debates surrounding the provincial government’s creeping tuition increases, which started in fall 2011and will continue for several years.   Some students at universities and CEGEPs held a one-day strike in November to protest the increase, but further opposition has grown steadily.  Earlier this month, many student societies, representing hundreds of thousands of students, confronted the possibility of a week-long strike (see this from Concordia’s the Link, for example).

In response, the provincial government has refused to budge.  Some professors have joined the protests and cancelled their classes.  Most universities have remained open, but some, like Concordia, have announced (the Link) they will be closed on the main day of the strike, March 22.

There are a number of interesting issues springing up from these events, even for students, faculty and university administrators far away from Quebec.

1.    What’s up with a “strike” as a tactic of protesting tuition hikes

The tactic of students refusing to attend classes to protest tuition hikes - but rather to meet on campus and voice opposition instead – is not unique to Quebec universities.  They have happened at plenty of universities across the country, including in BC.  But the scope of support and participation in the strike in Quebec have forced the whole notion of a student “strike” into mainstream consciousness, prompting questions about the underlying validity or goal of such a tactic.

These questions stem from the distinction between a student “union” (i.e. the main word for a student society in Quebec) and a labour union.  Labour unions are, naturally, subject to labour laws, which say, generally, that workers can unionize and, when a majority of members agree, a union can go on strike, forcing all members off the job and accepting strike pay.

The main differences between a student union and a labour union are obvious.  The rationale of a labour strike is that workers are essential in producing a good or providing a service.  By striking they throw a wrench in the works of their employer’s business, putting incredible pressure on the people in charge. 

Students, on the other hand, are essential to the purposes of a university but in a very different way than workers.  They pay, generally, for a service – to be educated.  By refusing to attend class, they are denying themselves what they already paid for, thereby possibly delaying graduations and summer or other employment opportunities for an indefinite period. 

So, are student strikes intimidating and disruptive?  Of course.   But are they rationally connected to the underlying greivance?  That’s questionable.

2.    How to go about “striking” and what does it mean for students

The process and implications of a student union’s decision to strike are also significant.  Labour unions generally have strict rules for how to they can go about striking because of the far-reaching implications of a strike on a worker, his/her family and the rest of the community. 

In that light, the sort of procedure followed by several student unions (see what happened at Concordia above, for example) would very likely fall short of the necessary threshold, where a small fraction of the student union’s membership shows up and has a show-of-hands vote. 

But, of course, it may not matter if the process is deficient because the implications may be nil in any event.  A strike vote by a labour union can compel every worker off the job, but it likely has zero legal pull for a student union.  According to an anti-”strike” student group called the Student Coalition for Free Association (SCFA), this is all beyond the powers of a student union:

A student association is mandated by its members to represent the study body before the University’s administration. By law, a student association cannot prevent or forbid students from attending their classes, cannot unilaterally decide to cancel university classes and has no legal right to “strike”.
 
The current political context, in which students’ opinion is divided over the hike in tuition fees, has polarized and simplified this debate. In light of this, student associations have taken a political stance against the hike, and have thereby exceeded their mandates to the detriment of a large percentage of the students they represent.

3.    Should student unions even have a mandate to engage in political issues

Like any strong political movement, the “striking” students have spurred the creation of their own opposition, which may ultimately be more successful.  SCFA, for example, was founded by a group of law students (Montreal Gazette) at the Universite de Sherbrooke, with the following self-description:

The Student Coalition for Free Association (“SCFA”) aims to promote a voluntary, transparent, unbiased, and more democratic debate. To achieve this goal, the SCFA proposes the following: a clear separation between representing student interests from a political perspective and representing student interests from academic and student life perspectives. Accordingly, the student activities and interests pertaining to academic and student life would be represented exclusively by a General Student Association (“GSA”) specific to each university, while the political activities and interests of students would be represented by independent Student Political Associations (“SPA”‘s).
 
As such, the SCFA invites you:
 
- to revoke your current student association membership;
- to depolarize the debate concerning student tuition fees;
- to encourage and further develop this debate;
- to elaborate and establish legitimate and representative Student Political Associations. 

The head of SCFA, Philippe-Olivier Daniel, is fairly media savvy and articulate.  His group takes a very deliberate and carefully crafted position, which is better laid out in its french language site and in this petition posted on the website of the provincial legislature.  The SCFA doesn’t necessarily advocate in favour of the tuition hike but rather approaches the debate more generally in terms of whether student unions should even have the mandate to adopt a position on this issue.

When I started as an undergrad in Quebec, the student union leadership at my university was overwhelmingly focused on political issues.  It struck me very quickly that my student union leaders were claiming to act on behalf of all students when they took positions on questions that had very little to do with campus life.  I was stunned that someone I apparently hadn’t even had the opportunity to vote for or against (elections were held the previous year, long before I set foot on campus) was using the membership dues of all enrolled students to register opinions on external political issues that only a fraction of their constituents probably agreed with.

The more I looked into the issue, the more concerned I was.  I saw that out-going students had a say in elections, even though they would no longer be enrolled when the elected leaders took power.  I also saw that student union leaders with relatively unpopular political views in terms of society at large were relatively content with low voter turn-out in student elections.  My sense was that, to them, the student union was, oddly enough, a platform for a minority of students to advance their narrow political agendas and to lecture the majority of student on the minority’s fringe political views, while using the dues and representative authority of all students to accomplish those goals.

4.    What does this mean for British Columbia

The student politics at many universities across Canada involve the questions raised by the SCFA at some level.  Often, in student elections, one main slate is almost exclusively focused on local, campus issues (e.g. student transportation and housing), while the other main slate is also focused on broader political positions, including those that relate in some meaningful way to campus life (e.g. tuition hikes). 

The primary justification for student societies having a mandate for political activism is that, like any other group, students need a collective vehicle to exclusively protect their interests.  They won’t get that from any other organization or government, which means in terms of issues like tuition hikes, where there is a strong connection to campus life, the SCFA may have an uphill battle.   An easier issue for the SCFA, however, is whether that mandate should include political activism on issues largely unrelated to campus life where substantial differences of opinion exist among students, like (as a random example) Canada’s role in Afghanistan. 

That’s not to say that students shouldn’t be urged to become politically active or engage in any and every political issue, but it does raise the question of whether student societies themselves, which (unlike individual student clubs) represent and serve all students, should be wound up in those issues.

Currently, laws in BC are silent on this issue.  Under section 1 of the University 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 undergraduate or graduate student body, or both, but does not include a provincial or national student organization

In other words, a student society is a provincially incorporated non-profit organization intended to look out for students’ interests.  The University Act goes on in section 27.1 to say that each university must collect student society fees for particular societies until a given society fails to meet certain financial disclosure requirements or ceases to exist.  There is nothing there about political activism.  The rest about a student society – its’ purposes, the powers of its board, etc. – is generally contained in the constitution and bylaws, which on the whole either permit political activism or encourage it.

Sometimes, people in BC assume that what happens in Quebec, stays in Quebec.  Many of the laws are different, and the language may be different, but we would be foolish to ignore the lessons of their experiences that apply to us.

Legislated revenue streams for student societies

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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

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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

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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:

  1. 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
  2. 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

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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.

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