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CACUSS 2013 - Case Law Review
 

CACUSS 2013 - Case Law Review

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

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

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  • Note that counsel was given an opportunity to submit written submissions and provide affidavit material

CACUSS 2013 - Case Law Review CACUSS 2013 - Case Law Review Presentation Transcript

  • Canadian Association of College andUniversity Student Services 2013Canadian Case Law ReviewDan MichalukJune 17, 2013
  • CACUSS 2013 – Case Law ReviewOutline• Charter application to colleges and universities• Freedom of expression• Off campus conduct• Substantive review of an administrative decision• Procedural fairness
  • CACUSS 2013 – Case Law ReviewCharter application• Particularly relevant to privacy (search) andexpression issues• Applies two waysa) The entity is government (a matter of control)b) The entity is performing an “inherentlygovernmental action” (Eldridge, SCC 1997)• Clarity on “a” and some recent cases on “b”
  • CACUSS 2013 – Case Law ReviewCharter application• Are colleges and universities government?• Little debate about colleges since DouglasCollege, SCC 1990 – “part of the apparatus ofgovernment in form and fact”• McKinney, SCC 1990 says that universities are not“organs of government” even though they areincorporated under statute and “perform animportant public service”
  • CACUSS 2013 – Case Law ReviewCharter application• When does the Charter govern action?• Inherently governmental action• Action that is “instigated by government”(Stoffman, SCC 1990) as opposed to discretionaryaction, even if subject to government approval• Looking for a “direct and… precisely-definedconnection” between government policy and action(Eldridge)
  • CACUSS 2013 – Case Law ReviewCharter 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 “withinthe framework of statutory compulsion”• What does it mean?• Charter finding obiter and non-binding in Alberta• Charter finding is based on unique statutory context
  • CACUSS 2013 – Case Law ReviewCharter application• Telfer, ONSC 2012• UWO regulation of student conduct is notgovernmental for purpose of the Charter• Despite UWO Act provision granting the power togovern “orderly conduct” of persons• Court distinguishes the statutory scheme onwhich the Prigden finding rests
  • CACUSS 2013 – Case Law ReviewCharter application• Lobo, ONCA 2012• CU denies use of space to espouse social, moraland political views• Plaintiff pleads exercise of powers under CU Actand PSECE Act• Pleadings fail to disclose how CU has effected aspecific government program or statutory scheme• Pridgen rested on a different statutory scheme
  • CACUSS 2013 – Case Law ReviewCharter application• AlGhaithy, ONSC 2012• Charter challenge brought as part of challenge toacademic decision (failure of six year residenceprogram in year five)• Court rejects argument that university is acting asagent for government in training physicians• UofO is autonomous in its academic activity• Pridgen rested on different statutory scheme
  • CACUSS 2013 – Case Law ReviewFreedom of expression• Whatcott, SCC 2013• Statutory prohibition on expression “that exposesor tends to expose to hatred”• W subject to complaint for distributing four flyersobjecting to inclusion of homosexuality in publicschool curriculum• W attacks legislation based on 2(b) and 2(a)...argues over-breadth and vagueness
  • CACUSS 2013 – Case Law ReviewFreedom of expression• Whatcott, SCC 2013• Judicial narrowing of the standard for prohibition• Would a reasonable person, aware of thecircumstances, view the expression as likely toexpose a person... to detestation and vilification?• More than mere disparagement and more thanexpression that merely “ridicules, belittles or affrontsdignity”
  • CACUSS 2013 – Case Law ReviewFreedom of expression• Whatcott, SCC 2013• More general guidance for decision-makersaddressing expression issues• Focus on the likely effect of the expression asopposed to the repugnancy of the ideas expressed• Look at the expression in its full context tounderstand potential harm – satirical? privatesetting? repetition?
  • CACUSS 2013 – Case Law ReviewFreedom of expression• Government can impose very limited restrictionson expression in public• The Charter (presumably) allows for the creationof the three legislated protected or “safe” activitiesunder HR legislation: employment, services andaccommodation• PSEs deal in these safe activities
  • CACUSS 2013 – Case Law ReviewFreedom of expression• PSE‟s can prohibit are range of actions that are oflesser concern than actions that incite hatred• Harassment• Defamation that is not defensible• Possibly (mere) hurt feelings, humiliation andoffensiveness
  • CACUSS 2013 – Case Law ReviewFreedom of expression• But there are still good legal and policy questions• Are there certain for a in which a prohibition onenticing “hatred” is all that can be justified?• Is being the arbiter of hurt feelings and damagedreputation the right policy for PSEs to pursue intoday‟s day and age? Should we limit our willingnessto engage to “harassment” alone?
  • CACUSS 2013 – Case Law ReviewOff campus conduct• Must have a connection to nexus to interests• Complying with PSEs legal duties imposed bystatute and otherwise• Enabling members of the community to safely enjoyworking and learning environment or facilities• Raising funds, recruiting and retaining employees,students, co-op employers and the general interestin maintaining a good reputation
  • CACUSS 2013 – Case Law ReviewOff 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 - section2(b) may prohibit colleges, for example, fromcreating a rule that exposes students who disparagethe institution to sanction
  • CACUSS 2013 – Case Law ReviewOff campus conduct• Should you? Must you?• Traditional – we have no responsibility for adultstudents off campus• Tough fit when there is a strong community identityand a phenomenon of off-campus civility• Moral responsibility has driven actions that increasethe facts upon which a legal duty of care could bebased
  • CACUSS 2013 – Case Law ReviewOff campus conduct• But the approach is different• Focus on extreme forms of student misconduct• Programs should trust young adults to behaveunless there is reason to believe otherwise• Take a facilitative, non-controlling approach• Don‟t promise to police scenarios that you can‟tafford to police
  • CACUSS 2013 – Case Law ReviewOff campus conduct• Cyber-bullying and cyber-harassment• The perception of internet communication asharmless is slowly changing, which is good• Continue to shape this communication through yourcampaigns• Also “Virtualize” the scope clauses in your codes soyou are prepared to act• Assess scenarios for a connection case-by-case
  • CACUSS 2013 – Case Law ReviewOff campus conduct• Cyber-bullying and cyber-harassment• You will often have jurisdiction (and a duty to act)when personal relationships between two studentsgone bad – Re B and W (Ont HCJ, 1985)• Attacks on teachers, admin and staff are vexing – bewary of the difference between providing a safe andharassment free work environment and repairing orprotecting reputation
  • CACUSS 2013 – Case Law ReviewSubstantive review• Dunsmuir, SCC 1998• ...reasonableness is concerned mostly with theexistence of justification, transparency andintelligibility within the decision-making process. Butit is also concerned with whether the decision fallswithin a range of possible, acceptable outcomeswhich are defensible with respect of the facts andlaw.
  • CACUSS 2013 – Case Law ReviewSubstantive review• Newfoundland Nurses, SCC 2011• When no reasons given, a decision will be quashedfor 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 theoutcome and whether it falls within a range ofpossible outcomes
  • CACUSS 2013 – Case Law ReviewSubstantive 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)
  • CACUSS 2013 – Case Law ReviewProcedural fairness• Three requirements• Notice• Opportunity to be heard• An unbiased decision makerReview is based on the “correctness” standard,so you must get it right. However, the standardwill vary with the context.
  • CACUSS 2013 – Case Law ReviewProcedural 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
  • CACUSS 2013 – Case Law ReviewProcedural fairness• Telfer, ONSC 2012 (legal representation)• Legal representation denied at Step 1 meeting• Counsel allowed to make written submissions andsubmit 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
  • CACUSS 2013 – Case Law ReviewProcedural fairness• AlGhaithy, ONSC 2012 (internal appeals)• Resident fails unprofessional conduct, attendance• Obvious problems relating to decision maker bias atstages one and two• Senate Appeals Committee recognizes problemsand expressly decides de novo• Court expressly notes that it “placed no weight onthe decisions below”
  • CACUSS 2013 – Case Law ReviewProcedural fairness• AlGhaithy, ONSC 2012 (internal appeals)• “The decision of the Appeals Committee is set out ina 13 page extract from its Minutes”• Court finds irregularities cured• Right to cross examine rejected because caseagainst him was based on “entirely documentaryevidence” (presumably the applicant‟s allegedlyobjectionable e-mails and his attendance record)
  • CACUSS 2013 – Case Law ReviewProcedural fairness• Dunne, NL SCTD 2012 (recommendations)• Senate Committee recommends against academicmisconduct finding b/c “no clear ethical guidelines”• Senate rejects recommendation and imposes asuspension without a hearing and without reasons• Framed as a breach of fairness despiteNewfoundland Nurses‟(no reasons)
  • CACUSS 2013 – Case Law ReviewProcedural fairness• Dunne, NL SCTD 2012 (recommendations)• Practically, court can‟t “backfill” the substance of theSenate decision because it has nothing to work withand recorded reasons of committee that go the otherway• “the Senate ought to show great deference to theoutcome of that process and disagree only for verysubstantial and well articulated reasons”
  • CACUSS 2013 – Case Law ReviewProcedural fairness• Williams, BCSC 2007 (disability as mitigation)• Admitted plagiarism by blind law student results inzero grade and four month suspension• Student argues disproportionate penalty in light ofpressures related to her disability, but JR groundsnarrow• Court (procedural) – received adequate notice of herright to representation by counsel (despite oral rep)
  • CACUSS 2013 – Case Law ReviewProcedural fairness• Williams, BCSC 2007 (disability as mitigation)• Court (substantive) – not erroneous (i.e.unreasonable) to find that applicant was not owedaccommodation (time extension) for which she didnot asked
  • CACUSS 2013 – Case Law ReviewProcedural 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 tobe reviewed for accuracy• Court says standard for bias allegations high andthat the non-substantive input is passable
  • CACUSS 2013 – Case Law ReviewProcedural fairness• Kahsay, 2012 ONTC (inappropriate input)• Court also says that issue was raised for the firsttime on judicial review – see Alberta Teachers‟Association, 2011 SCC• Court – College in substantial requirement with(procedural?) requirements of its policy and thecontext mitigates any unfair impact
  • CACUSS 2013 – Case Law ReviewProcedural fairness• Kahsay, 2012 ONTC (inappropriate input)• Court also says that issue was raised for the firsttime on judicial review – see Alberta Teachers‟Association, 2011 SCC• Court – College in substantial requirement with(procedural?) requirements of its policy and thecontext mitigates any unfair impact
  • CACUSS 2013 – Case Law ReviewProcedural fairness• Demaria, SKQB 2013 (inappropriate input)• Law Society refuses membership• Society counsel was before the tribunal• Chair forwards final decision (plus signed signaturepage) 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
  • CACUSS 2013 – Case Law ReviewProcedural fairness• Demaria, SKQB 2013 (inappropriate input)• Practice raises “legitimate concern” but do notbreach standard of fairness given right of appeal• Decision was signed, albeit in counter parts• Assistance was non-substantive... decision was aresult of the thought process of the decision makers• Golf reference okay in context because e-mail madeclear that the decision had been made
  • CACUSS 2013 – Case Law ReviewProcedural fairness• Appleby College, ONSC 2012 (hearing)• Stresses that a denial of a hearing will be atinstitution‟s peril and the risks of zero tolerance• Student admits smoking marijuana in residence onthe eve of his final day• Zero tolerance for lighting of substances inresidence... discretion over penalty for drug use• Policy also says parents will be heard
  • CACUSS 2013 – Case Law ReviewProcedural fairness• Appleby College, ONSC 2012 (hearing)• Parents try to give input but decision-maker toobusy, decision rendered within 24 hours to denystudent an Appleby credential• Court rejects argument that there was nothing todecide because the conduct was admitted and thepenalty was dictated• Unclear there was no discretion (at least)
  • CACUSS 2013 – Case Law ReviewDan Michalukdaniel-michaluk@hicksmorley.comwww.allaboutinformation.caca.linkedin.com/in/danmichaluk/
  • Canadian Association of College andUniversity Student Services 2013Canadian Case Law ReviewDan MichalukJune 17, 2013