University Disciplinary Decisions: Are they Reasonable? Are they Subject to the Charter?
Date: May 14, 2012
On May 9, 2012, the Alberta Court of Appeal released its judgment in the case of Pridgen v. University of Calgary. Justice Paperny identified the issue before the Court as follows: “Are students at public universities entitled to use social networking sites to criticize the instruction they receive? The University of Calgary said “no” and disciplined the students who did.” Both the reviewing court and the Court of Appeal found that decision to be unreasonable, but disagreed as to the need to address the Canadian Charter of Rights and Freedoms (“Charter“).
This FTR Now discusses the approach taken by the two levels of court and the implications of the Court of Appeal decision for the university sector.
The case arose out of comments made by students about a course taught by one Professor Aruna Mitra at the University of Calgary. The Pridgens, along with a number of other students, posted comments critical of the course to a public wall on Facebook. One student – not the Pridgens – created a Facebook group entitled “I no longer fear hell, I took a course from Aruna Mitra.” Steven Pridgen posted a comment: “some how I think she just got lazy and gave everybody a 65…that’s what I got. does anybody know how to apply to get it remarked?”
His brother Keith Pridgen subsequently posted a comment: “…So I am quite sure mitra is NO LONGER TEACHING ANY COURSES WITH THE U OF C!!!!! Remember when she told us she was a long-term professor? Well actually she was only sessional and picked up our class at the last moment because another prof wasn’t able to do it…lucky us. Well anyways I think we should all congratulate ourselves for leaving a Mitra-free legacy for future LWSO [the course] students.”
Professor Mitra complained. The Dean concluded that the students were guilty of non academic misconduct. Following an appeal to an ad hoc committee appointed by the General Faculties Council, a sanction of probation was imposed.
THE COURT DECISIONS
The Pridgens sought judicial review, arguing the University acted unreasonably and infringed their right to freedom of expression guaranteed by the Charter. The reviewing judge decided that the decision was unreasonable under administrative law principles but also breached the students’ Charter rights to freedom of expression and could not be saved by section 1.
The Alberta Court of Appeal concluded that the University’s decision was unreasonable on a number of grounds, including the denial of the right of the students to appeal to the Board of Governors. In addition, there was no satisfactory explanation of how or why the students’ posting constituted “non-academic misconduct.” The reasons, said Justice Paperny, do not disclose any consideration of what exactly constituted the misconduct: Was it the existence if the site? The fact of the postings? The content of the postings, viewed independently or as a whole? If the misconduct was the content of the postings broadly, there is no discussion as to whether a defence of justification or fair comment would apply in the circumstances.”
With respect to the Charter, Justice Paperny referred to the particular language of the Alberta Post Secondary Learning Act which specifically deals with the authority of the university to discipline students. After conducting an extensive review of the jurisprudence determining who is a “government actor” under section 32 of the Charter, Justice Paperny found that the “nature of the activity being undertaken by the University here, imposing disciplinary sanctions, fits more comfortably within the analytical framework of statutory compulsion.” Thus “in exercising its statutory authority to discipline students for non-academic misconduct, it is incumbent on the Review Committee to interpret and apply the Student Misconduct Policy in light of the students’ Charter rights, including their freedom of expression.”
The two other judges on the panel agreed that the University’s decision was unreasonable. However both of them concluded that because the decision could be simply based on administrative law grounds, there was no need to resort to a Charter analysis and they declined to do so.
IMPLICATIONS OF THE DECISION
Where are we as a result of the case, particularly with respect to university tribunals in Ontario? First, because two members of the Court of Appeal of Alberta specifically declined to deal with the Charter issue, the comments of the other judge are obiter. Second, the language of the Alberta statute contains a number of provisions – including those governing student discipline – which are not normally found in the language of governing statutes for Ontario universities so that the reasoning is not readily applicable to Ontario universities. Third, although Justice Paperny did not consider that the Supreme Court of Canada’s judgment in McKinney v. University of Guelph provided the answer – because it did not address the relationship between the university and its students – the Ontario Court of Appeal has treated student discipline as an issue independent of government in Freeman – Maloy v. York University and the Divisional Court has recently reached the same conclusion in Telfer v. University of Western Ontario.
However, quite apart from the Charter, the comments made by the Alberta Court on the “reasonableness” of the university decision are important because they emphasize how decisions of tribunals like university disciplinary bodies must be ones which demonstrate “justification, transparency and intelligibility” in accordance with the Supreme Court’s judgment in Dunsmuir and its more recent judgment in the Newfoundland Nurses case.
Nevertheless we can anticipate that there will be further litigation in various provinces with respect to the issue of the application of the Charter to university student discipline and perhaps at some point the Supreme Court of Canada will be asked to address the matter.
Should you have any questions regarding this decision, please contact your regular Hicks Morley lawyer.
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