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Two students found guilty of non-academic misconduct by
university on account of Facebook postings derogatory towards
instructor. On judicial review, university decision quashed by
Alberta Court of Queen's Bench under administrative law
principles (unsupportable findings and inadequate reasons).
Additional finding that Charter applies to student
discipline process at Alberta universities, and that Charter right
of the two students to freedom of expression engaged and
breached. Court characterized university as an "agent of
the government" and as engaged in the "implementation of
specific government policy" in providing accessible
post-secondary education services under Alberta's
Post-Secondary Learning Act. Student discipline part of
delivery of post-secondary education. Charter
application via s. 32 of the Charter attracted.
On appeal to Alberta Court of Appeal: quashing of discipline
decision upheld on administrative law grounds only. Standard of
review was reasonableness. Reasons supporting discipline decision
were inadequate as failed to demonstrate how misconduct flowed from
the evidence heard -- no injury established or proven (and not to
be inferred).
Majority held not necessary to decide appeal by reference to
Charter.
Minority decision found Charter specifically applies to
student discipline matters and found a breach of students'
Charter right to freedom of expression. Charter
applicability attracted under s. 32 as student discipline
constitutes an exercise of "a power of statutory
compulsion" expressly authorized in governing universities
legislation. Minority decision also commented in obiter that the
finding in court below that Charter applies where
universities act as government agents was a "logical
approach"; as per SCC finding in Eldridge. SCC decision in
McKinney distinguished. However, application of Charter to
disciplinary proceedings does not mean university loses its
autonomy or independence from government, particularly in relation
to its core academic functions.
COMMENTARY:
Many media reports notwithstanding, the decision of
Alberta's Court of Appeal does not establish that "the
Charter applies to universities".
Justice Paperny's findings on the applicability of the
Charter were not adopted by Justices O'Ferrall and
McDonald. On this point, her decision stands as a non-binding
minority decision. Likewise, the decision of Justice Strekaf in the
Court of Queen's Bench (i.e. the finding of general Charter
applicability to the delivery of post-secondary education at
Alberta universities) has been displaced by the finding of the
Court of Appeal majority that it was not necessary to decide the
judicial review application brought by the students by reference to
the Charter.
On the other hand, the reasoning of Justices Paperny and
Strekaf will likely be argued as "persuasive" for other
Alberta courts in future cases.
Two recent Ontario Superior Court decisions (Lobo v.
Carleton University; Telfer v. The University of Western Ontario)
consider and reject arguments that Charter rights extend to student
discipline proceedings at Ontario universities. Each acknowledges
but distinguishes the Queen's Bench level decision in Pridgen
on the basis "Alberta's legislation is
unique".
Query the extent to which any "unique" intention
on the part of the Alberta government is reflected in Alberta's
universities legislation i.e. to treat Alberta universities
distinctly from how other provincial universities are treated and
regarded by other provincial governments.
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