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A recent decision of the BC Court of Appeal suggests that the door may be open for the courts to revisit the question of whether the Charter applies to BC universities.
Alter v. The University of British Columbia, 2026 BCCA 253 (Alter BCCA) is the latest decision in an action against UBC claiming breach of Charter rights. The BCCA revived the Charter claims against UBC that were previously struck, after UBC took the position that there was an arguable case that the Charter applies. The litigation thus far has dealt only with the pleadings; the merits of the plaintiffs’ case have still not been addressed.
In the underlying action, a group of UBC students brought a claim against UBC and the Province following UBC’s cancellation of an event hosted by the Free Speech Club for which the students had entered into a space rental contract with UBC. According to the plaintiffs’ claim, the stated reason for the cancellation was “concern about the safety and security of our campus community”.1 The plaintiffs claimed against UBC for breach of contract, deceptive acts and practices, unjust enrichment, and breach of the students’ Charter rights, and sought Charter damages from the Province.
On June 4, 2024, the first decision in this action, Alter v. The University of British Columbia, 2024 BCSC 961 (Alter BCSC) was released. The Court granted the Province’s application to strike the claims against it, finding that the “substantive claim that the Charter applies to the actions of UBC [was] not legally sustainable in light of the authorities”2 which conclusively establish that in BC, universities are not subject to Charter scrutiny. The University Act preserves the autonomy of universities over their core functions, and the provision of university education does not constitute implementation of a specific government policy.3 In particular, in the relatively recent decision of BC Civil Liberties Association v. University of Victoria, 2016 BCCA 162, our Court of Appeal held that “regulating or prohibiting space controlled by the University from being used for expressive purposes was not sufficient to constitute the performance of a government function.”4 Pursuant to these authorities, the Court in Alter BCSC ordered that the claim against the Province, and the Charter-based allegations against UBC that were the basis for the claim against the Province, be struck.
On appeal, the plaintiffs alleged that the Province’s control over UBC has increased significantly since the authorities relied on by the lower court. They pointed to a regulatory scheme, dubbed the “Control Scheme,” that they described as “routine, regular, and highly detailed … affecting all aspects of UBC’s assets and operations.”5 The plaintiffs further submitted that UBC is delivering two different government programs: university education and student safety.6
While UBC disagreed with the plaintiffs’ position that it is equivalent to “government” under the Control Scheme, it agreed that the position was at least arguable. UBC submitted that the question should be determined “after hearing the evidence at trial, so that the answer is informed by a factual matrix.”7
In light of UBC’s position, the Charter claims against UBC were reinstated, leaving the matter of Charter applicability under the Control Scheme to be determined at trial.8
BC universities will want to closely watch future decisions in the Alter action, not just for the substantive decision on Charter applicability, but also for the willingness of the Court to entertain this as an unsettled question in BC. As we have written about previously, Alberta courts have come to different conclusions regarding the applicability of the Charter in similar circumstances, and that jurisprudence seems likely to revive this as a perennial issue until the Supreme Court of Canada weighs in definitively on the matter.
Footnotes
1. Alter BCCA at para. 3.
2. Alter BCSC at para. 5.
3. See the review of the authorities in Alter BCSC at paras. 12-14.
4. Alter BCSC at para. 32.
5. Alter BCCA at para. 33.
6. Alter BCCA at para. 34.
7. Alter BCCA at para. 38.
8. Alter BCCA at paras. 62–64.
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