Slides for a three hour workshop to Canadian post secondary student conduct administrators.

1. Canadian Association of College and
University Student Services 2013
Canadian Case Law Review
Dan Michaluk
June 17, 2013

2. CACUSS 2013 – Case Law Review
Outline
• Charter application to colleges and universities
• Freedom of expression
• Off campus conduct
• Substantive review of an administrative decision
• Procedural fairness

3. CACUSS 2013 – Case Law Review
Charter application
• Particularly relevant to privacy (search) and
expression issues
• Applies two ways
a) The entity is government (a matter of control)
b) The entity is performing an “inherently
governmental action” (Eldridge, SCC 1997)
• Clarity on “a” and some recent cases on “b”

4. CACUSS 2013 – Case Law Review
Charter application
• Are colleges and universities government?
• Little debate about colleges since Douglas
College, SCC 1990 – “part of the apparatus of
government in form and fact”
• McKinney, SCC 1990 says that universities are not
“organs of government” even though they are
incorporated under statute and “perform an
important public service”

5. CACUSS 2013 – Case Law Review
Charter application
• When does the Charter govern action?
• Inherently governmental action
• Action that is “instigated by government”
(Stoffman, SCC 1990) as opposed to discretionary
action, even if subject to government approval
• Looking for a “direct and… precisely-defined
connection” between government policy and action
(Eldridge)

6. CACUSS 2013 – Case Law Review
Charter application
• Pridgen, ABCA 2012
• Discipline for online attacks on professors
• 3/3 judges find decision to be unreasonable
• 1/3 judges also says the university acted “within
the framework of statutory compulsion”
• What does it mean?
• Charter finding obiter and non-binding in Alberta
• Charter finding is based on unique statutory context

7. CACUSS 2013 – Case Law Review
Charter application
• Telfer, ONSC 2012
• UWO regulation of student conduct is not
governmental for purpose of the Charter
• Despite UWO Act provision granting the power to
govern “orderly conduct” of persons
• Court distinguishes the statutory scheme on
which the Prigden finding rests

8. CACUSS 2013 – Case Law Review
Charter application
• Lobo, ONCA 2012
• CU denies use of space to espouse social, moral
and political views
• Plaintiff pleads exercise of powers under CU Act
and PSECE Act
• Pleadings fail to disclose how CU has effected a
specific government program or statutory scheme
• Pridgen rested on a different statutory scheme

9. CACUSS 2013 – Case Law Review
Charter application
• AlGhaithy, ONSC 2012
• Charter challenge brought as part of challenge to
academic decision (failure of six year residence
program in year five)
• Court rejects argument that university is acting as
agent for government in training physicians
• UofO is autonomous in its academic activity
• Pridgen rested on different statutory scheme

10. CACUSS 2013 – Case Law Review
Freedom of expression
• Whatcott, SCC 2013
• Statutory prohibition on expression “that exposes
or tends to expose to hatred”
• W subject to complaint for distributing four flyers
objecting to inclusion of homosexuality in public
school curriculum
• W attacks legislation based on 2(b) and 2(a)...
argues over-breadth and vagueness

11. CACUSS 2013 – Case Law Review
Freedom of expression
• Whatcott, SCC 2013
• Judicial narrowing of the standard for prohibition
• Would a reasonable person, aware of the
circumstances, view the expression as likely to
expose a person... to detestation and vilification?
• More than mere disparagement and more than
expression that merely “ridicules, belittles or affronts
dignity”

12. CACUSS 2013 – Case Law Review
Freedom of expression
• Whatcott, SCC 2013
• More general guidance for decision-makers
addressing expression issues
• Focus on the likely effect of the expression as
opposed to the repugnancy of the ideas expressed
• Look at the expression in its full context to
understand potential harm – satirical? private
setting? repetition?

13. CACUSS 2013 – Case Law Review
Freedom of expression
• Government can impose very limited restrictions
on expression in public
• The Charter (presumably) allows for the creation
of the three legislated protected or “safe” activities
under HR legislation: employment, services and
accommodation
• PSEs deal in these safe activities

14. CACUSS 2013 – Case Law Review
Freedom of expression
• PSE‟s can prohibit are range of actions that are of
lesser concern than actions that incite hatred
• Harassment
• Defamation that is not defensible
• Possibly (mere) hurt feelings, humiliation and
offensiveness

15. CACUSS 2013 – Case Law Review
Freedom of expression
• But there are still good legal and policy questions
• Are there certain for a in which a prohibition on
enticing “hatred” is all that can be justified?
• Is being the arbiter of hurt feelings and damaged
reputation the right policy for PSEs to pursue in
today‟s day and age? Should we limit our willingness
to engage to “harassment” alone?

16. CACUSS 2013 – Case Law Review
Off campus conduct
• Must have a connection to nexus to interests
• Complying with PSEs legal duties imposed by
statute and otherwise
• Enabling members of the community to safely enjoy
working and learning environment or facilities
• Raising funds, recruiting and retaining employees,
students, co-op employers and the general interest
in maintaining a good reputation

17. CACUSS 2013 – Case Law Review
Off campus conduct
• Policy-making guidance
• Clear rules are pre-requisite
• Ask, “Are they targeted at „clear and significant‟
harm to our interests?”
• Beware of Charter-protected expression - section
2(b) may prohibit colleges, for example, from
creating a rule that exposes students who disparage
the institution to sanction

18. CACUSS 2013 – Case Law Review
Off campus conduct
• Should you? Must you?
• Traditional – we have no responsibility for adult
students off campus
• Tough fit when there is a strong community identity
and a phenomenon of off-campus civility
• Moral responsibility has driven actions that increase
the facts upon which a legal duty of care could be
based

19. CACUSS 2013 – Case Law Review
Off campus conduct
• But the approach is different
• Focus on extreme forms of student misconduct
• Programs should trust young adults to behave
unless there is reason to believe otherwise
• Take a facilitative, non-controlling approach
• Don‟t promise to police scenarios that you can‟t
afford to police

20. CACUSS 2013 – Case Law Review
Off campus conduct
• Cyber-bullying and cyber-harassment
• The perception of internet communication as
harmless is slowly changing, which is good
• Continue to shape this communication through your
campaigns
• Also “Virtualize” the scope clauses in your codes so
you are prepared to act
• Assess scenarios for a connection case-by-case

21. CACUSS 2013 – Case Law Review
Off campus conduct
• Cyber-bullying and cyber-harassment
• You will often have jurisdiction (and a duty to act)
when personal relationships between two students
gone bad – Re B and W (Ont HCJ, 1985)
• Attacks on teachers, admin and staff are vexing – be
wary of the difference between providing a safe and
harassment free work environment and repairing or
protecting reputation

22. CACUSS 2013 – Case Law Review
Substantive review
• Dunsmuir, SCC 1998
• ...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 with respect of the facts and
law.

23. CACUSS 2013 – Case Law Review
Substantive review
• Newfoundland Nurses, SCC 2011
• When no reasons given, a decision will be quashed
for a breach of fairness
• Otherwise, the inadequacy of reasons is not a stand-
alone reason to quash a decision
• Poor reasons must be examined in light of the
outcome and whether it falls within a range of
possible outcomes

24. CACUSS 2013 – Case Law Review
Substantive review
• Pridgen, ABCA 2012
• Effective substantive oversight is still a factor,
especially for non-academic matters
• Here, the reasons are “sparse” and “conclusory”
• On the record and finds the outcome not justifiable
• No consideration of the specific words spoken
(essential in expression cases!)
• No reliable evidence of harm (element of offence)

25. CACUSS 2013 – Case Law Review
Procedural fairness
• Three requirements
• Notice
• Opportunity to be heard
• An unbiased decision maker
Review is based on the “correctness” standard,
so you must get it right. However, the standard
will vary with the context.

26. CACUSS 2013 – Case Law Review
Procedural fairness
• Factors affecting standard – Baker, SCC 1999
• Nature of decision being made
• Importance of interest at stake
• The scheme (including whether decision final)
• Legitimate expectations
• Available choices

27. CACUSS 2013 – Case Law Review
Procedural fairness
• Telfer, ONSC 2012 (legal representation)
• Legal representation denied at Step 1 meeting
• Counsel allowed to make written submissions and
submit affidavit evidence
• Accords with duty of fairness in the circumstances
• No serious factual dispute, credibility not at issue
• Conduct of a criminal nature not alleged
• Possibility of expulsion of no consequence

28. CACUSS 2013 – Case Law Review
Procedural fairness
• AlGhaithy, ONSC 2012 (internal appeals)
• Resident fails unprofessional conduct, attendance
• Obvious problems relating to decision maker bias at
stages one and two
• Senate Appeals Committee recognizes problems
and expressly decides de novo
• Court expressly notes that it “placed no weight on
the decisions below”

29. CACUSS 2013 – Case Law Review
Procedural fairness
• AlGhaithy, ONSC 2012 (internal appeals)
• “The decision of the Appeals Committee is set out in
a 13 page extract from its Minutes”
• Court finds irregularities cured
• Right to cross examine rejected because case
against him was based on “entirely documentary
evidence” (presumably the applicant‟s allegedly
objectionable e-mails and his attendance record)

30. CACUSS 2013 – Case Law Review
Procedural fairness
• Dunne, NL SCTD 2012 (recommendations)
• Senate Committee recommends against academic
misconduct finding b/c “no clear ethical guidelines”
• Senate rejects recommendation and imposes a
suspension without a hearing and without reasons
• Framed as a breach of fairness despite
Newfoundland Nurses‟(no reasons)

31. CACUSS 2013 – Case Law Review
Procedural fairness
• Dunne, NL SCTD 2012 (recommendations)
• Practically, court can‟t “backfill” the substance of the
Senate decision because it has nothing to work with
and recorded reasons of committee that go the other
way
• “the Senate ought to show great deference to the
outcome of that process and disagree only for very
substantial and well articulated reasons”

32. CACUSS 2013 – Case Law Review
Procedural fairness
• Williams, BCSC 2007 (disability as mitigation)
• Admitted plagiarism by blind law student results in
zero grade and four month suspension
• Student argues disproportionate penalty in light of
pressures related to her disability, but JR grounds
narrow
• Court (procedural) – received adequate notice of her
right to representation by counsel (despite oral rep)

33. CACUSS 2013 – Case Law Review
Procedural fairness
• Williams, BCSC 2007 (disability as mitigation)
• Court (substantive) – not erroneous (i.e.
unreasonable) to find that applicant was not owed
accommodation (time extension) for which she did
not asked

34. CACUSS 2013 – Case Law Review
Procedural fairness
• Kahsay, 2012 ONTC (inappropriate input)
• Suspension of nursing student from clinical program
(resulting in withdrawal) challenged
• Court forgives procedural irregularities
• Dean (apparently) shared decision with preceptor to
be reviewed for accuracy
• Court says standard for bias allegations high and
that the non-substantive input is passable

35. CACUSS 2013 – Case Law Review
Procedural fairness
• Kahsay, 2012 ONTC (inappropriate input)
• Court also says that issue was raised for the first
time on judicial review – see Alberta Teachers‟
Association, 2011 SCC
• Court – College in substantial requirement with
(procedural?) requirements of its policy and the
context mitigates any unfair impact

36. CACUSS 2013 – Case Law Review
Procedural fairness
• Kahsay, 2012 ONTC (inappropriate input)
• Court also says that issue was raised for the first
time on judicial review – see Alberta Teachers‟
Association, 2011 SCC
• Court – College in substantial requirement with
(procedural?) requirements of its policy and the
context mitigates any unfair impact

37. CACUSS 2013 – Case Law Review
Procedural fairness
• Demaria, SKQB 2013 (inappropriate input)
• Law Society refuses membership
• Society counsel was before the tribunal
• Chair forwards final decision (plus signed signature
page) to counsel with reference to meeting for golf
• Counsel fixes formatting, changing page numbers,
collects signatures from other two and PDFs
• PDF shows him as the author

38. CACUSS 2013 – Case Law Review
Procedural fairness
• Demaria, SKQB 2013 (inappropriate input)
• Practice raises “legitimate concern” but do not
breach standard of fairness given right of appeal
• Decision was signed, albeit in counter parts
• Assistance was non-substantive... decision was a
result of the thought process of the decision makers
• Golf reference okay in context because e-mail made
clear that the decision had been made

39. CACUSS 2013 – Case Law Review
Procedural fairness
• Appleby College, ONSC 2012 (hearing)
• Stresses that a denial of a hearing will be at
institution‟s peril and the risks of zero tolerance
• Student admits smoking marijuana in residence on
the eve of his final day
• Zero tolerance for lighting of substances in
residence... discretion over penalty for drug use
• Policy also says parents will be heard

40. CACUSS 2013 – Case Law Review
Procedural fairness
• Appleby College, ONSC 2012 (hearing)
• Parents try to give input but decision-maker too
busy, decision rendered within 24 hours to deny
student an Appleby credential
• Court rejects argument that there was nothing to
decide because the conduct was admitted and the
penalty was dictated
• Unclear there was no discretion (at least)

41. CACUSS 2013 – Case Law Review
Dan Michaluk
daniel-michaluk@hicksmorley.com
www.allaboutinformation.ca
ca.linkedin.com/in/danmichaluk/

42. Canadian Association of College and
University Student Services 2013
Canadian Case Law Review
Dan Michaluk
June 17, 2013