Courts in Ontario and Alberta have recently considered lawsuits by students who claimed universities breached their rights under the Canadian Charter of Rights and Freedoms. In April, the Ontario Divisional Court held in AlGhaithy v University of Ottawa that the Charter does not apply to internal disciplinary decisions by universities.1 In a decision released on May 9, 2012, however, one of the judges on the panel in the Alberta Court of Appeal's decision in Pridgen v University of Calgary came to the opposite conclusion.2 This suggests that this issue will not be resolved without guidance from the Supreme Court of Canada.
Factual background to Pridgen
In 2007, students who were unhappy with a professor at the University of Calgary joined a Facebook group called "I no longer fear hell, I took a course with Aruna Mitra." Professor Mitra complained to the university's dean of the Faculty of Communication and Culture. The dean concluded that the student members of the Facebook group were guilty of non-academic misconduct, whether or not they had actually made any comments critical of Professor Mitra on the Facebook site.
Two of the students sanctioned, Keith and Steven Pridgen, appealed the dean's decision within the university's internal appeal process. After the university's Board of Governors refused to hear the Pridgens' appeal, they filed an application for judicial review in the Court of Queen's Bench. Although the Pridgens had not sought any remedy under the Charter, the chambers judge hearing the application concluded that the Charter applied to the university's decision and that the Pridgens' right to freedom of expression had been infringed. The chambers judge also found the university's decision that the students had engaged in non-academic misconduct was unreasonable.
At the Court of Appeal, the university challenged the chambers judge's decision on the basis of both administrative law principles and her approach to the question of the Charter's applicability. All three Court of Appeal judges agreed that the university's decision was unreasonable, and upheld the chambers judge's decision on that basis. However, each of the judges had a different view regarding the applicability of the Charter:
- Paperny J. agreed with the chambers judge that the Charter was
applicable to the university because, "The provision of
post-secondary education is a specific objective of the Alberta
legislature, [such] that universities are acting as government
agents in regard to the delivery of post-secondary education,"
and the imposition of disciplinary sanctions fits within the
analytical framework of statutory compulsion.3
- McDonald J. thought it was unnecessary to consider whether or
not universities are subject to the Charter on the facts of the
case. Since the university's discipline decision was clearly
unreasonable, the appeal could be decided on that basis
- O'Ferrall J. held that the chambers judge should not have even considered Charter arguments, because the Pridgens had not sought any remedies under the Charter in their application for judicial review or raised the issue of potential Charter breach during the university's internal appeal process.4
The inability of the three appellate judges who heard the Pridgen appeal to agree on the applicability of the Charter, as well as the competing case of AlGhaithy in Ontario, illustrates the need for direction from Canada's highest court on this issue.
The authors wish to thank Ms. Tami Fric and Ms. Jenna Anne de Jong, articling students, for their help in preparing this legal update.
1 AlGhaithy v University of Ottawa, 2012 ONSC 142 (CanLII). Leave for appeal has been sought.
2 Pridgen v University of Calgary, 2012 ABCA 139 [Pridgen].
3 Ibid. at para 101, 105.
4 Ibid. at para 180, 183.
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