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 ofTefler 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.

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, [2010] 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, 2010 ABQB 644 (CanLII), 2010 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 2010/2011, 39 students were brought before the committee; only one student among them appears to not have been disciplined in some way or another.  In 2009/2010, 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 2011and 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.  There is nothing there about political activism.  The rest about a student society – its’ purposes, the powers of its board, etc. – is generally contained in the constitution and bylaws, which on the whole either permit political activism or encourage it.

Sometimes, people in BC assume that what happens in Quebec, stays in Quebec.  Many of the laws are different, and the language may be different, but we would be foolish to ignore the lessons of their experiences that apply to us.

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).

UBC obtains Mareva injunction against former employee responsible for ObGyn finances

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The University of British Columbia was granted (CanLII) a Mareva injunction (Wikipedia) by the BC Supreme Court two weeks ago against Wanda Barbara Moscipan, the administrator responsible for finances in the Department of Obstetrics and Gynaecology, based on allegations from the university that she double-paid herself.

A Mareva injunction is a relatively harsh measure agreed to by the courts.  It is discussed at a hearing without the defendant (e.g. Moscipan) being present and before a judgment – that is, before the court has even concluded that the allegations from the plaintiff (e.g. UBC) are correct.  The plaintiff does have substantial hurdles to clear before a court will grant this type of injunction, namely it has to show:

  1. that it has, at least on the surface, a strong case that the allegations are correct; and
  2. that there is a real risk of assets disappearing before a final judgment is ordered (e.g. stolen money will be laundered), which will make it impossible or nearly impossible for the plaintiff ever getting back what was taken.

The law tries to balance the rights of both the plaintiff and the defendant to ensure that a fair process is followed and reasonable steps are taken to protect all the interests involved.  Educational institutions, like any other sophisticated organizations, need to have a sense of the wrongs that can happen and what tools, like a Mareva injunction, can be used when need be.

Interestingly, a news article describing this decision mischaracterized and overstated the court’s decision by wrongly affirming that Moscipan had been found “guilty”.  It may seem like a silly distinction, but the court never said she was guilty – only that the university had a “strong prima facie case” against her.  Another judgment may follow with a “guilty” verdict, but to my knowledge that hasn’t happened yet, and she could still somehow be cleared of the allegations.  “Guilty” sounds better in the headline, though.

Journalists have incredible time pressures to deal with and, especially younger journalists, are often tossed a complicated court decision and told to report on it without having enough of a legal background and without anyone to turn to with questions.  Also, some of the words in articles and headlines are tweaked by editors later down the line who did not actually read the underlying judgment, so there’s no need to hammer the point home. 

It is a good practice, however, for each journalist who may have to report on a legal event to have a series of lawyers in their rolodex to call before going to print.

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.

Flurry of recent court decisions impacting schools and universities

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There have been a series of recent court decisions effecting schools and universities.  They involve institutions in a variety of different provinces, which means slightly different rules may apply, and they touch on various different issues - but they should be kept in mind by any institution’s decision-maker or legal advisor. 

Here they are:

1.   Solicitor-Client Privilege (Alberta)

In Lana v. University of Alberta (CanLII), a university appeals tribunal penalized a student based on allegations of non-academic misconduct in connection with an allegation of sexual assault.  The student sued for judicial review.  A part of that lawsuit, he also claimed that the university should be required to produce all communications between the appeals tribunal and its lawyer.  Although normally lawyer-client communications are allowed to be withheld on the basis of “privilege” (Wikipedia), the student argued that either that privilege was waived or an exception to the rule should apply because the appeals tribunal broke rules of procedural fairness.  The court ruled against the student and upheld that the privilege should remain in place. 

2.    Anxiety Disorder (British Columbia)

In Singh v. University of British Columbia (CanLII), the Supreme Court of Canada denied a student leave to appeal in connection with her lawsuit for judicial review, which is discussed further here.  The student failed four courses and claimed her performance was due to an anxiety disorder.  She got unfriendly outcomes from university tribunals and took the issue to court, where she failed repeatedly.  This is cautious reminder about how far courts will go to try to give students a fair shake.

3.    Negligence (Ontario)

In Rollins v. English Language Separate School Board #39 (CanLII), the Ontario Court of Appeal upheld the decision of a lower court dealing with a claim of negligence resulting in injuries suffered by a student due to a rollerblade accident.  There was very little evidence about the event itself, and the initial judge refused to draw certain inferences that would establish the facts needed by the student to advance the claim.  That decision was validated.

4.    Negligence / Jury Direction (Nova Scotia)

In Marshall v. Annapolis County District School Board (CanLII), the Nova Scotia Court of Appeal ordered a new trial in connection with a school bus that hit a young child, causing serious injuries.  The first trial involved a determination by jury, and the child’s guardian successfully argued that the judge failed to give the jury the right guidance.  A further appeal of this decision will appear before the Supreme Court of Canada (CanLII).

5.    Religious Freedom

In S.L. v. Commission scolaire des Chenes (Lexum), Catholic parents wanted a local school board to exempt their children from receiving a mandatory ethics and religious culture educational program, which is required in Quebec schools.  They took the issue to the Supreme Court of Canada, which ruled that the parents had failed to show that the program interfered with their ability to pass along their faith to their children.  Rather, the court considered the program to expose students to a comprehensive overview of various faiths, which does not amount to an indoctrination of relativism but merely reflects a fact of modern life.

University presidents turn to focus on mental illness on campus

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Rosanna Tamburri at University Affairs reported the following welcome news last week:

Amid growing concerns over the mental health of students and other members of the university community, a group of university presidents has formed a working group to look at the role universities can play in addressing and dealing with mental illness on campus.

The article sets out some very important information about mental illness, the current role of universities and how educational institutions should shift their approach. 

There is a strong connection between mental illness and legal troubles confronting universities.  First, many students either enter university life with a mental illness or the illness comes to the fore during their time on campus.  Those students need to be accommodated, and they may have a valid claim against their university if the appropriate resources are not devoted to assisting them.  Second, many of the students and professors that start lawsuits against universities are or may be mentally ill, and having the right assistance in place could avoid litigation on other matters.

Mental illness is tragic because, among other reasons, it is often invisible.  Worse, those who suffer from a mental illness are often dismissed as difficult, troublesome or unenviable, and many of them (by definition) are not even aware of the very fact that they are ill. 

Universities – for their own self-interest and for the sake of the welfare of their students, faculty and community stakeholders – should have been moving in this direction long ago.  This is important progress in the right direction.

Changes coming to provincial law that applies to societies

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Societies, also known as “non-profits” or “not-for-profit corporations”, are the legal entities behind most of what goes on in the world of education.  For example, the Ubyssey, the University of British Columbia’s student newspaper, is the name of the central activity of a British Columbia society called The Ubyssey Publications Society.  This means the Society likely appears on the Ubyssey’s contracts and payroll slips.

The story of most societies usually begins something like this: a group of do-gooders want to do some particular good together, and they would prefer it if they could do this good as members of a collective that has a separate legal identity rather than as people who will be personally liable if something goes wrong.  They visit a lawyer and are given the option of incorporating a society under provincial or federal laws, and since educational issues are province-based more often than not a provincial society will be created.

The society might then try to take the step of becoming a charity, which means that not only have the do-gooders incorporated, but the Canada Revenue Agency has decided (after a rigorous application process) that their society should have the ability to issue donation receipts to someone who has contributed cash or property to the society’s operating budget.

Recently, the provincial government decided – rightly – that it should have another look at the main law that applies to provincial societies, the Society Act (BCLaws).  So, the Ministry of Finance started a consultation process, to see what was broken in the Society Act, what could be fixed and how that fix might play out, all with the recognition that the affairs and challenges of societies have changed much quicker than the Society Act has.  This is the purpose of the review:

The purpose of the review is to identify and address any legislative obstacles that may prevent societies from functioning fully and efficiently, and ensure that the public interest is being protected. We are seeking your input on any problems, gaps, inconsistencies or ambiguities in the Society Act and any reforms you would like considered. 

The review started at the end of 2009 (see this letter from the Deputy Minister of Finance), and since then many of the province’s 26,000 societies have chimed in with their thoughts. 

Then, in December 2011, the Ministry put out a Discussion Paper going through proposed amendments that arose because of the consultations with societies.  All of the amendments revolve around two basic issues:

  1. What corporate model is most appropriate for societies and, in particular, should a sophisticated business law framework be adopted?
  2. To what extent should the Society Act contain regulatory provisions or other rules that constrain the operation of societies?

Many of the proposals may sit well or poorly with societies in the educational community.  Student societies, like other societies with a very large constituency of members, should pay particular attention to the items on the table, such as the idea of introducing new remedies for members, special regulatory requirements for further financial disclosure and accountability and creative dispute resolution tools.

Societies and other stakeholders are invited to send their comments on the Discussion Paper by April 30, 2012 to fcsp@gov.bc.ca.

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, 2010 ABQB 644 (CanLII), 2010 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.

Charges laid against apologetic UBC student in Stanley Cup riot

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The Globe and Mail reported this week that the Crown has approved charges (VPD) to be laid by the Vancouver Police Department against a UBC student, Camille Cacnio, who appeared from video footage and from an apparent confession to have participated in the Stanley Cup riot early this past summer. 

Cacnio was caught on camera during the riot and her misdeeds were profiled in many of the name n’ shame website and social media chatter that cropped up with vigilante vengeance shortly thereafter.   She ultimately responded by purportedly posting a half-apologetic, half-accusatory confession online. 

Cacnio is not the first University of British Columbia (UBC) student (The Ubyssey) to be charged in connection with the riot, and she will probably not be the last.  Despite getting some heat from donors and members of the public, UBC has been steadfast in affirming that it is not the university’s place to discipline students like Cacnio.  According to Randy Schmidt, associate director of UBC Public Affairs, as reported in The Ubyssey:

While the university believes all persons involved should be called upon to account for their behaviour, it does not believe the student discipline system at the university is the appropriate forum to do so… The system of student discipline at the university is meant to address offences specifically committed against members and property of the university community.

This is the correct approach, for many reasons.  Here is more information on this issue (University Affairs). 

Similar pressure was applied to UBC over the past couple of years in relation to Sasan Ansari (Vancouver Sun), a West Vancouver man who stabbed a friend to death outside the Hollyburn Country Club in November 2008.  The court considered Ansari to have committed the killing while in a “dissociative state”.  He was released on parole last January and returned to taking courses at the UBC law faculty this past September.

McGill clarifying its brand by insisting on student club name changes

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Names, especially really, really old ones with very positive associations, have incredible value in the marketplace.  Some companies are made or broken on their trademarks (Wikipedia), and some organizations spend years in court relying on the law to protect their brand.  Universities, to a certain extent, are no exception and recognize the need at times to give a lesson on the ownership of names by curtailing how its brand is used in the public domain.

Karen Seidman at the Montreal Gazette reported last week that McGill University and the Students’ Society of McGill University (SSMU) concluded a Memorandum of Agreement regarding the use of the McGill name, which left many students unhappy, including the SSMU leadership, and has forced many student clubs to change their official names.  Maggie Knight, SSMU President, admitted that SSMU, including its umbrella of clubs, had no legal rights to the McGill name, and now many clubs will have to adapt their materials to deal with the naming restrictions.

In response to discontent from students, McGill has emphasized that it is simply insisting that student organizations have names that specify they are students and not an arm of the university itself.  Here are some examples:

  • Elections Mc-Gill will now be Elections SSMU;
  • TVMcGill will now be TVM: Student Television at McGill;
  • McGill Walksafe will now be SSMU Walksafe;
  • McGill Nightline will now be McGill Students Nightline;
  • McGill First Aid Service will now be Student Emergency Response Team; and
  • McGill Outdoors Club will now be McGill Students Outdoors Club.

It makes sense that the university would want to clarify what activities or services are being offered by students, who are vital to but independent of the administration of the university, and what activities or services are being offered by the university itself.  The beef from students comes from the fact that they now have to scramble to adjust their promotional materials to different names imposed on them by the administration, and the fact that the process involved an imbalance in negotiating power. 

Students also say that the administration wanting to reserve the sole word “McGill” for non-student affairs downgrades students as peripheral to the university’s mission and identity.  Here is an editorial on this issue from the McGill Daily, which expresses concerns about a whitling away at what or who is included in the “McGill Community”.  The editorial harps on the justification for the administration’s push being liability for damage caused by student groups (though that appears to be unconvincing from a legal perspective, so I doubt it was the main reason).

McGill has offered $25,000 to help cover the costs of any changes to banners, crests, T-shirts and so on featuring names that are no long permissible.   Here is a list of new club name options for students approaching SSMU to create a new club. 

SSMU seems to have gotten good legal advice: the university, not the student society, owns the name McGill whenever it is used in connection with the university.  Canada’s Trade-marks Act (Department of Justice) includes special rules that favour universities, among other public bodies, when it comes to their names and emblems:

9. (1) No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for…

(n) any badge, crest, emblem or mark…

 

(ii) of any university…

 

in respect of which the Registrar has, at the request of Her Majesty or of the university or public authority, as the case may be, given public notice of its adoption and use…

In other words, if a university has asked the Registrar of Trade-marks to give notice of its use of a particular trademark (and the Registrar has done just that), then no one can adopt that trademark or any trademark that could be confused for the university’s trademark.  Here is an example of one of McGill’s trademarks registered with the Canadian Intellectual Property Office (CIPO), and this is how CIPO defines a trademark:

A trade-mark is a word (or words), a design, or a combination of these, used to identify the goods or services of one person or organization and to distinguish these goods or services from those of others in the marketplace.

Have other universities gone the same route? 

The University of British Columbia (UBC) does not seem to have the same restrictions in place; here is a list of student clubs from the Alma Mater Society (AMS) website, many of which appear to violate McGill’s rules.   (The sample constitution provided to students to establish a club within the AMS envisions a name like “The ____ of UBC”.)  The same seems to apply at the University of Toronto: here is a list of student clubs from the University of Toronto Students’ Union, many of which appear to violate McGill’s rules too.

If you are interested in learning more about how UBC approaches this issue, here is a list of UBC trademarks, which includes regular trademarks and those under Section 9(1)(n)(ii) of the Trade-marks Act (discussed above).  Here is a pamphlet put out by UBC’s Office of the University Counsel about its trademarks, and here is a related university policy. 

According to the Montreal Gazette article cited above, two other major universities in Montreal may have policies similar to McGill.

If your child destroys school property, your insurance policy may not cover it

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A couple wanting having a child may bring up the pros and cons, the arguments for and against, the risks and the unknowables.  What will it mean for their financial needs and goals to add the significant costs of parenthood while reducing the family income?  What will it mean for their parents and grandparents to hold the next generation in their arms and watch them grow?  How will they respond if the child is born with a severe illness or disability?  Will the child care for them in their old age?

Everyone is someone’s child, whether you know them because of their successes or failures, their acheivements or improprieties.  The miracle and nightmare of parenthood is that you can do everything or nothing right, and your child can end up loving you or hating you, making you proud or causing immeasurable sorrow and shame, burning through your money or providing for your in your retirement.  You feel compelled to do everything you can (and there is a lot to do), but ultimately your actions are no more a determination of your child’s conduct as adults and young adults than your parents’ actions were or are a determination of your conduct today.

Kids are, in different ways at every stage of life, like bulls in a china shop.  The question for parents is whether they end up barging, head-down, through the aisles, or moving responsibly on to the next challenge.  For some parents, they think: at least I have insurance.

In the recent case of Durham District School Board v Grodesky (CanLII), a parent was told their insurance wouldn’t cut it when it came to their child’s misconduct.  Here are the facts:

  • In the spring of 2007, Colton James started a fire to the contents of his school’s plastic recycling bins that ultimately lead to damage to the school building. 
  • The school board sued Colton along with his father, Tood James, claiming that Todd failed to act in terms of providing/enforcing a curfew, supervising, disciplining and instilling in Colton a respect for private and public property.
  • Todd tried to get his insurer, ING, to defend the claim against him and to reimburse him for any related costs, but ING denied coverage on the basis of the “exclusion clause” in Todd’ policy.  This is the exclusion clause:

Exclusion Status Section II: We do not insure your claims arising from: (6) Bodily injury or property damage caused by any intentional or criminal act or failure to act by: (a) any person insured by this policy; or (b) any other person at the direction of any person insured by this policy.

In other words, even though Todd had comprehensive homeowner’s insurance that covered any personal liabilities connected to property damage anywhere in the world, his insurance company insisted this one fell outside the line.

The Ontario Superior Court of Justice agreed with the insurance company.  Here is how Justice Gunsolus summarized the law in this area (at least in Ontario):

Where an insured [e.g. Todd] seeks to enforce a duty to defend [e.g. in the lawsuit against his son and him], the onus is on the insured to show that the claim, if proven, falls within the scope of coverage provided by the policy.  Only when this threshold is met, does the onus shift to the insurer [e.g. ING] to show that the claim falls outside the coverage because of an applicable exclusion.  Where it is clear from the pleadings that the claim falls outside of the coverage of the policy, by reason of an exclusion clause, the duty to defend does not arise.

Translating from legalese, this is the idea: based on the language of the policy, Todd would need to first show that if he lost the lawsuit with the school board the resulting liabilities would be covered by the policy.  However, since in this case the lawsuit specifically claimed that Todd’s failure to act led to the property damage (and since that sort of conduct by Todd is outside the scope of the policy because of the exclusion clause), ING does not need to defend him. 

At the end of the day, the court may find that Todd did everything right as a parent in connection with his son’s misconduct, in which case ING would likely return to the fray.

McGill report released by law dean on November tuition protest-turned-riot

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The dean of McGill University’s Faculty of Law, Daniel Jutras, released his report last week about a disturbing violent incident at the heart of McGill’s downtown campus on November 10, which grew out of a massive protest on impending tuition increases that involved tens of thousands of student marchers.  

According to the CBC and the Montreal Gazette, several students occupied part of the administration building and the office of McGill’s principal, Heather Monroe-Blum (Wikipedia), but the most contentious issue appears to have been the involvement of riot police and the use of shields and pepper spray.

Justras was asked in mid-November by the Principal to investigate the events surrounding the violence and to make any recommendations he considered to be appropriate.  It appears he went to considerable lengths to engage in a proper fact-finding mission, which adds to the legitimacy of an internal inquiry on a very divisive issue. 

(Full disclosure: I had Jutras as a professor for several classes when I was at McGill, and I thought he was an excellent teacher, wonderfully brilliant and always willing to engage every perspective and argument – which appears to come through in the report.)

His recommendations are valuable to any university administrator intent on addressing concerning aspects of campus activism, particularly:

Recommendation 1:  University authorities should provide and participate in a forum open to all members of the University community to discuss the meaning and scope of the rights of free expression and peaceful assembly on campus.

Jutras emphasizes that students at McGill have broad rights of free expression, which are reflected in Article 25 of the Charter of Students’ Rights:

Every student enjoys within the University the freedoms of opinion, of expression, and of peaceful assembly.

However, he also makes clear that there are administrative procedures in place to regulate free speech and assembly on campus, and there are limits on those rights to avoid harm from befalling other students or university staff or property.  He teased apart the various challenges in defining the term “peaceful assembly”.

Again, this is an important read for anyone looking to have a sophisticated conversation about some of the legal issues connected to campus activism.

New report critical of universities’, student unions’ commitment to free speech

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Modern universities are founded, in part, on the basic principle of academic freedom.   To benefit society our academics must be free to pursue any line of thought or inquiry, no matter how offensive it might seem to politicians, religious groups, business interests or anyone else, and no matter how meshuga it might sound to the average person on the street.  Free expression is a moral imperative and a political necessity.  It is vital to our survival as a democratic civilization.  Nowhere is it’s presence and growth more important than on university campuses.

Free expression at universities does not only mean the unrestrained ability of professors to zig or zag left or right in classes on political theory.  Course time is a small part of it.  Free expression also covers the rest of the community of ideas living and breathing on campuses, from signs at student-organized protests to letters to the editor of student newspapers. 

Like any other principle, it begs the question: what’s the status quo?  How does free expression actually fare at Canadian universities?

The Justice Centre for Constitutional Freedoms released a report last week involving a critical analysis of the state of free speech at Canadian universities.  As a brief bit of background, here is a glimpse of the JCCF’s approach from the group’s website:

The free and democratic society which the Canadian Charter of Rights and Freedoms holds out as our ideal can only be fulfilled by honouring and preserving Canada’s traditions of freedom of speech, freedom of religion, freedom of association, other individual rights, constitutionally limited government, the equality of all citizens before the law, and the rule of law.

 

And yet these core principles of freedom and equality continue to be eroded by governments and by government-funded and government-created entities like Canada’s public universities, and human rights commissions at the federal and provincial levels.

The JCCF is a charity intent on promoting individual liberties, such as free expression, by promoting discourse on the subject and providing pro bono legal representation to Canadians who cannot otherwise afford legal costs associated with defending their rights under the Canadian Charter of Rights and Freedoms (Department of Justice).  The JCCF’s political bent is obvious, but the group doesn’t pretend to be a politically neutral think tank, and reports like these – whether they are from the Fraser Institute or the Canadian Centre for Policy Alternatives – should be respected or dismissed on their own merits.  The same goes for the fact that one of the report’s authors, John Carpay, represents anti-abortion student activists.

 Here are some highlights from the report:

  • The report sets out a “Campus Freedom Index” based on the policies and principles of universities and student unions (what they say) and on the actions and practices of universities and student unions (what they do).  For example, a ”Good” rating on a university’s policies and principles means that the university has a clear and unequivocal commitment to free expression.  A university with strong limits on free expression in its policies and principles, such as restrictions against “disrespectful” or “provocative” speakers or perspectives, get a “Poor” rating.
  • The Index views favourably universities and student unions that share their respective resources, such as student union funding, equally among groups promoting various perspectives on political and social issues.
  • Carleton University is criticized for its approach to anti-abortion student activists (see here).  The University of Calgary is criticized for its approach to the Pridgen brothers (see here).  The University of Ottawa is criticized for how it handled Ann Coulter’s Canadian tour (Globe and Mail).  The best scores went to Simon Fraser University, the University of British Columbia and the University of New Brunswick.

Interestingly, the report denounces universities and student unions for actions or omissions taken against groups trying to advocate what are commonly thought of as left-wing views.  For example, the authors were disappointed by the decision of Dalhousie University to cancel a speaking engagement with British MP George Galloway because the event’s organizers were unable to pay for extra security.

This report should be considered by anyone looking for a primer on free speech on campus.

Giving naming rights to donors may reduce the value of their gift for tax purposes

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Charity lawyer Mark Blumberg reported (GlobalPhilanthropy.ca) earlier this year about an interesting letter from the Canada Revenue Agency (CRA) in response to a question from an educational institution, which was raising funds to construct buildings on its campus to be used for its charitable purposes.  The educational institution, like many other charities, wanted to give naming rights to donors according to donations levels; for example, you give us $10,000, we’ll name a classroom after whoever you want (including yourself), but if you give us $100,000, you’ll have naming rights to a pavilion, and for $1,000,000 you get a whole building.

This is a common practice in the world of philanthropy.  Naming rights may be requested or expected by the donor, or may be offered by the charity.  Sometimes the donor wants to honour their parents or another deceased family member by using the naming rights on them, other times the donor prefers their own name to be on the plaque.  From the outside, this may seem silly or even narcissistic, but there are a lot of important considerations at play.  Having one of your buildings sport the name of a well-known personality sends a message to your community, your other donors, the donor’s children and grandchild and so on, which could be invaluable. 

Consider how impressive it may sound to some to hear about the “Jim Pattison Pavilion” at Vancouver General Hospital, and compare that to the ring of the ”Andy Dick Pavilion” (no offence to Andy Dick).  On the other hand, Bernie Madoff (New York Times) must have had his name on an incredible number of charitable facilities before news of his crimes were made public, and my guess is taking that name down often is no easy (or inexpensive) feat.

The question from the educational institution that was addressed in the CRA’s letter was whether the amount of the donation for tax purposes should be reduced to reflect the “advantage” received by the donor in the form of naming rights, specifically where the donor carries on a business that may be connected in some meaningful way to the name that will appear at the end of the day.  The legal discussion underlying this issue is the same one involved with any fundraising event: if the amount paid by a guest (e.g. $250) exceeds the actual cost of the “advantage” they receive (e.g. a nice meal), then the charity should give them a charitable receipt for the balance – that is, the specific amount the guest is “donating” to the charity without getting anything in return.

In the letter, this is how the CRA responded:

Where naming rights are provided in gratitude for a gift, the value of any advantage in respect of the gift would be determined at the time of the gift and based on the prospective economic benefit associated with the naming rights granted.  If, having regard to the facts, there is no prospective economic benefit associated with the naming rights, it is our view that the amount of the advantage would be nil.

In non-tax language, if the donor is getting a business benefit from the naming rights, the value of the “gift” must be reduced accordingly.

This is how the conclusion of the letter was explained by Andrew Valentine at Miller Thomson LLP:

Charities need to ensure that they consider the economic value of any naming rights provided to donors, particularly where the donor is a corporation or partnership, or where the naming right identifies a business with which the donor has a connection.  Where the naming rights have value, this value must be determined and subtracted from the value of the receipt.  In some cases, the naming rights may vitiate the issuing of a receipt altogether if the gift was made with a view to advancing the economic interests of the donor rather than as a gift. 

Bottom line: if you sense a donor will get a business benefit from naming rights, call your lawyer.  Mishandling it will be bad for everyone, and the cost of the legal advice should be considered in light of the size of the donation.

SCC stops short appeal of ruling on donations for bursaries scheme

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The Supreme Court of Canada announced this morning that it denied an application for leave to appeal made by family members of students at Trinity Western University who were stung with a tax bill for their involvement with a donations for bursaries scheme (see here for background).  They have reached the end of the road.

Here (CanLII) is the decision of the Federal Court of Appeal that the family members wanted to appeal.  For what it’s worth, the charity involved in the scheme – the National Foundation for Christian Leadership – still appears as a registered charity with the Canada Revenue Agency, and it does not seem as though any formal action was taken against the charity. 

Interestingly, the law firm acting for the family members was Benefic Group, which was profiled recently in the Vancouver Sun.

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