The Charter Right to Criticize a Prof

This past week the Alberta Queen’s Bench released Pridgen v. University of Calgary, 2010 ABQB 644, a decision which quashed the academic discipline of students who had criticized a university professor.The applicants were participants in a Facebook group that used potential defamatory statements, which prompted in a complaint by the professor that resulted in non-academic discipline for misconduct.

The university did not allow the students to appeal the decision to the Board of Governors Discipline Appeal Committee, thereby preventing them from exhausting all internal remedies before seeking judicial review.

Despite the high level of deference courts provide to education institutions which I referred to last week, Justice Jo’Anne Strekaf ruled that the Charter is invoked when academic discipline is applied,

[69] I am satisfied that the University is not a Charter free zone. The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act. As in Eldridge, the source of the alleged Charter violation is the conduct of the University as opposed to the legislation itself. While the University is free to construct policies dealing with student behavior which may ultimately impact access to the post-secondary system, the manner in which those policies are interpreted and applied must not offend the rights provided under the Charter. In this case, neither the PSL Act itself or the University’s Policy on its own offend the Charter. The issue to be determined is whether the manner in which the Policy was applied infringed the Applicants’ Charter protected rights.

Justice Strekaf assessed the constitutional validity of the university’s actions and ruled and ruled that they were within its legal jursdiction,

[84] The Applicants have argued that state sanctioned wrongful speech is the exclusive jurisdiction of the Parliament of Canada. I understand the Applicants to be submitting that the PSL Act and the University Calendar encroach on the federal government’s jurisdiction with regards to the criminal law pursuant to s.91(27) of the Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3 (“Constitution Act”). I find that both the PSL Act and the University Calendar are validly enacted and intra vires of the province of Alberta.

She applied the factors listed Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, to apply a standard of correctness in reviewing the university’s decision:

[55] A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied:

— A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference.

— A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance).

— The nature of the question of law. A question of law that is of “central importance to the legal system . . . and outside the . . . specialized area of expertise” of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate.

Although agreeing with the Respondents that the injury referred to in the university’s policies were not limited to physical harm and could include defamatory statements (paras. 109-110), she was only willing to hold the Applicants responsible for any statements they posted on Facebook, and not the statements made by other students (para. 113).

Not only did she quash the university’s decision, she held that a review by the Board of Governors would not be useful,

[118] As I have found that decision to have infringed the Applicants’ Charter rights and have concluded that the Committee’s finding that the Applicants’ conduct constituted non-academic misconduct for which they should be disciplined constituted an unreasonable decision, I am of the view that the Review Committee’s decision should be quashed and that this is not a case where the matter need be referred to the Board of Governor’s Student Discipline Review Committee to consider an appeal from that decision. Although normal practice would be to correct the error and refer the application back to the administrative body, there is nothing to be gained from doing that in the present circumstances. The facts are not in dispute nor is the Board of Governor’s Student Discipline Review Committee in a better position to decide the matters at issue. Hence, the decision of the Review Committee is quashed.

She did indicate what an appropriate remedy for the professor may have been,

[80] … The University acknowledges that it has not accused the Applicants of committing the tort of defamation. Rather, it submits that an analogy between this tort and the actions taken by the Applicants may be useful in evaluating the application of the Policy in light of Charter values.

…

[111] …Whether the statements on the Facebook Wall constitute the tort of defamation is not the issue on this application and I make no comment on whether or not that might be the case. Professor Mitra could presumably have elected to commence a civil action against the students, but chose not to do so. Whether or not she would have succeeded with a civil action is not relevant to whether the students committed non-academic misconduct as defined in the Policy.

Although limited to the statutory scheme found in Alberta, the Pridgen case stands for the proposition that university administrators should ensure that Baker procedural fairness is applied by providing full reasons to explain the rationale for decisions, especially where penal sanctions are invoked. It also suggests that students may have some limited s. 2(b) Charter rights to express discontent over their professors, but that they will not necessarily be shielded from an action in tort.