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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The importance of having professional liability insurance legal experts

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If you are a professional, it is essential that you carry a professional liability insurance policy. This is usually a requirement by state law or the licensing agency. This kind of policy is also known as errors and omissions insurance. For example, if you are working in the field of providing services or giving advice to clients, you might find yourself committing mistakes, giving the wrong information or even cases of errors and omissions. These types of errors might cause you a lot of trouble if you are not well represented by professional liability insurance legal professionals. The legal experts will act on your behalf in representing you to the insurance company and the court. Here are benefits of having professional liability insurance lawyer.

Hiring an experienced lawyer is very beneficial. Legal matters require someone who is highly skilled and knowledgeable. Make sure that you hire someone who has been working in the legal field for some years. Professional liability insurance legal professionals usually have a lot of knowledge in policy coverage. As such, they will ensure that you are highly compensated, and your case is well handled.

As a professional, you are needed to be very careful when offering services to your clients. It is necessary that you ensure that you do not commit errors or mistakes. If you commit these malpractices, you might end up harming your client or the third party. Some clients can decide to take legal action which can cause you a lot of problems. Thereby, hiring an attorney will be very helpful. He or she will deal with the insurance company on your behalf to ensure you are compensated. In the end, you will have peace of mind and can concentrate on your regular daily activities.

Handling your case is quite complicated. This is because you might not be aware of the legal processes. Employing a professional liability insurance attorney when you have a problem is crucial. The legal expert understands the law involved very clearly. He or she will be able to go through your case and argue it out in the court of law.

The process of negotiating with an insurance firm can be long and frustrating. This can even become harder if you are sued. As such, you need someone who will listen to you and offer legal advice. If you hire a professional liability insurance attorney, he or she becomes the person that you consult most the time. The legal professional becomes the person that you ask questions, send an email and even guides you through the whole process.

The above benefits will assist you to understand the importance of hiring a professional liability insurance lawyer. It is necessary that you take them very seriously. As professional, mistakes can happen, and if you are not well prepared, you might end up losing your job. 

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

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

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

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

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

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

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

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

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

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

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

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

The applicant relies on a decision of the Court of Queen’s Bench of Alberta, Pridgen v. University of Calgary, [2021] ABQB 644, which held that a decision of the University of Calgary to discipline students was subject to Charter scrutiny.  An appeal of that decision is under reserve at the Alberta Court of Appeal at this time.  In any event, the case is distinguishable, given that Alberta legislation requires universities to carry out a specific government objective of facilitating access to post-secondary education.  There is no equivalent legislation in Ontario.

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

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

The Plaintiffs’ reference to the outcome in Pridgen v. University of Calgary, 2021 ABQB 644 (CanLII), 2021 ABQB 644, 497 A.R. 219, under appeal, fails to recognize that the Court made specific reference to the governing structure of the university in that case which involved significant government involvement.  On this basis, the Court found the university was delivering a specific government program in partnership with the government. By contrast, the Carleton University Act, 1952 created an autonomous entity whose structure and governance is in no way prescribed by the government. Subsequent enactment of the Post‑secondary Education Choice and Excellence Act in no way derogates from that autonomy.

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

Coming up next, on all channels: students behaving badly

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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. 

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 2021/2022, 39 students were brought before the committee; only one student among them appears to not have been disciplined in some way or another.  In 2009/2021, 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 2022and 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.  

UBC medical school admissions procedures come under fire

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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). 

A teachers’ strike means, unfortunately, that we are living in interesting times

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Tomorrow is the start of a three-day strike that will impact nearly every person in British Columbia.  Roughly 41,000 teachers will withdraw their services following a recent vote of members of the British Columbia Teachers’ Federation (see the BCTF’s press release here). 

Janet Steffenhagen of the Vancouver Sun reported that most public schools in the province will be closed tomorrow, as school authorities urge parents to make alternative arrangements for the supervision of their children.  With the strike having been announced on Thursday, parents will have had a couple of days to prepare for this, but school closures are never easy for anyone to deal with.  Many, many businesses and other organizations rely on employees, managers and contractors with children in public schools, and not everyone has a grandparent, friend or spouse with the flexibility to stay home and watch the kids.

In other words, this is gonna sting. 

So, how did we get here?!  Well, that really depends who you ask, but here are the basics of the story:

  • For the past decade or so, the BCTF and the provincial government – represented here by the British Columbia Public School Employers’ Association – have locked horns over a variety of issues, including teachers’ wages and class size and composition.
  • The BCTF and the BCPSEA have been in high-level negotiation sessions without substantial progress for the past year, and the BCTF has been in a heightened state of protest since September. 
  • Last week, the British Columbia Labour Relations Board ruled that the BCTF could strike for three days without breaking the BCLRB decision designating education as an essential service, provided the BCTF gave the BCPSEA at least two days’ notice and the teachers did not picket.
  • Later that day, George Abbott, the Minister of Education, introduced Bill 22 (BC Legislature), which is intended to end the dispute and return the parties to mediation with particular references for the mediator.  The BCTF was horrified with Bill 22.

Which brings us to tomorrow.  Here is the Vancouver Sun editorial board’s take on the situation, clearly siding with the government. 

The BCTF has beat out the government on many of the legal issues connected to the tit-for-tat over the years.  Most recently, the British Columbia Supreme Court ruled (see here) that certain provisions of the School Act (BC Laws) dealing with class size that were introduced by the government to remove them from the bargaining table were unconstitutional.

The challenge for both sides may be to try to win the battle and the war.  The BCTF may win in the streets, the legislature or the courtroom but lose in the dining rooms – and for the months and years that follow, that may make all the difference. 

Never get parenting advice from your lawyer

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We rely on experts – doctors, accountants, electricians, plumbers, lawyers, etc. – a great deal for a variety of reasons, though not always for reasons we are ready to admit. 

We rely on them, obviously, because they know how to do something that we don’t, and the risk of us trying to do it anyways and failing miserably is far more concerning than devoting the right resources to get an expert involved. 

But another reason we rely on experts is that we’re just plain freaked out or too riled up by the circumstances we find ourselves in, and we need someone who looks like they know what they’re talking about to calmly identify what needs to be fixed and to provide a plausible solution.

My experience is that the second reason is far more significant than we are prepared to accept.  Occassionally, in those cases, the call to the expert is justified, but quite often the scope of their advice is not.  I don’t mean dentists giving you accounting advice along with a routine cleaning, or an electrician suggesting you invest in shares of Walmart.  The issue here isn’t necessarily with what they say or with them at all.  I am talking about our failure to put their advice in perspective. 

A dentist can suggest certain dental work be done, but ultimately it is on us to decide how that advice will affect the rest of our priorities (e.g. how much work will I need to miss, and how much will the work cost me?).  A dentist can be really good at answering dental questions, but it doesn’t relieve us of the burden of trying to make the dentist’s answers fit with our other, possibly competing, responsibilities.

This concern applies specifically to legal advice.  Dental work usually only affects the patient, but legal work is almost by definition something that is intended to impact others.  I have been fortunate to see clients who treasure their family above all else, and who scrutinize legal advice to carefully consider how it will affect their family in the short-term and the long-term and whether any other relationships important to them can be harmed by legal action.

But, as parents, our reliance on lawyers in the appropriate circumstances should never involve delegating our responsibilities as parents to people who are not experts in parenting.  Lawyers, even those that may be perfectly wonderful parents themselves, should only be expected to figure out one piece of the puzzle: to identify the legal problem and to provide a plausible solution that puts us, their client, in the best possible legal position, often to the detriment of others. 

From what I understand (and I would love to be proven wrong), parenting never gets any easier, no matter how old your children become.  Whether your child has a legitimate claim against an educational institution, or a dispute arises between family or community members, it is essential to remind yourself that a lawyer can make suggestions, but ultimately you are the one in the captain’s seat. 

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

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Many university administrators and student leaders have been watching with interest as the legal dispute between anti-abortion activists and Carleton University winds it way through the courts (see here and here for background). 

Specifically, the curiosity surrounds one issue: does the Canadian Charter of Rights and Freedoms apply to universities? 

If the Charter does apply, then political activists, not to mention anyone else with a grievance against a university, have an incredible legal tool at their disposal, while universities have the nightmare of a possible deluge of Charter claims winding up on their doorsteps. 

In a decision (CanLII) released last week, Madam Justice Toscamo Roccamo of the Ontario Superior Court of Justice ruled that the portion of the pleadings (Wikipedia) of the anti-abortion activists dealing with the Charter argument against Carleton should be struck because it fails to disclose a reasonable cause of action. 

Translated into normal words: the Charter argument – in the court’s view – stinks and should not be allowed to form part of any ongoing litigation. 

After a string of Supreme Court of Canada decisions dealing with this question (discussed more here), a university would be subject to the Charter if either of the following applied:  

  1.  the university, in its entirety, is fairly said to be an “organ of government” because of the degree of governmental control over it as an organization; or
  2. a specific activity of a university is fairly said to be “government” even though the rest of university’s activities would not be.

This approach makes sense: the Charter applies to government actors, and universities should not be subject to the Charter unless they are, or are doing something, governmental.

For a long time, universities liked this view, which was echoed repeatedly in court decisions.  But the recent Pridgen decision (discussed more here and here) was reason for concern.  In that case, the court reviewed the legislation behind the University of Calgary and found that the university “is not part of the government so as to make all of its actions subject to the Charter“ .  That is, even though, among other things:

  • universities in Alberta are established by legislation;
  • various members of governing university bodies are appointed by the province; and
  • the Lieutenant Governor in Council has the ability to restrict how those rights are used,

the court still did not consider the university to be “government” in its entirety.  However, the court did find that the university “was implementing a specific statutory scheme or government program with respect to the actions” at issue, given that universities in Alberta generally function within that legislation hand-in-hand with government – at least as far as post-secondary education is concerned – to carry out what is essentially a government program.  In that sense, the university operates as a “partner” with Alberta when it comes to educating (though not necessarily when hiring and firing employees, for example). 

This is key:

When a university committee renders decisions which may impact, curtail or prevent participation in the post‑secondary system or which would prevent the opportunity to participate in learning opportunities, it directly impacts the stated policy of providing an accessible educational system as entrusted to it under the PSL Act. The nature of these activities attracts Charter scrutiny.

In Lobo v. Carleton University, the Ontario decision released last week, the court kicked aside any sort of precedent from Pridgen:

The Plaintiffs’ reference to the outcome in Pridgen v. University of Calgary, 2021 ABQB 644 (CanLII), 2021 ABQB 644, 497 A.R. 219, under appeal, fails to recognize that the Court made specific reference to the governing structure of the university in that case which involved significant government involvement.  On this basis, the Court found the university was delivering a specific government program in partnership with the government. By contrast, the Carleton University Act, 1952 created an autonomous entity whose structure and governance is in no way prescribed by the government. Subsequent enactment of the Post‑secondary Education Choice and Excellence Act in no way derogates from that autonomy.

Here’s the take-over message: ultimately, whether the Charter applies to a particular university or university activity may depend on the legislation behind the university.  Assuming neither Lobo nor Pridgen are appealed, universities and students will have more to work with when trying to find out whether the relevant legislation is on one side of the fence or the other.