Administrative law – Universities – Student discipline – Remedies – Alternative remedies – Judicial review application – Striking out – Bias – Jurisdiction – Stay of proceedings
Freeman-Maloy v. York University,  O.J. No. 3123, Ontario Superior Court of Justice, July 20, 2004, Epstein J.
The Applicant was a student activist at York University who had engaged in demonstrations on campus. In November 2003, a university official had written the Applicant regarding his actions at a particular demonstration which ran afoul of University regulations. The Applicant met with the University official to discuss the matter. In April 2004, York University’s president wrote a letter to the Applicant advising him that he would not be permitted to re-register at York University. This action was purportedly taken as a result of the incident referenced in the November 2003 letter, as well as a subsequent incident in March 2004.
The Applicant commenced an application for judicial review of the President’s decision. As a result of much negative reaction to the President’s decision, the Applicant was given notice that the University intended to hold a disciplinary hearing. Subsequently, the respondents, York University and the President, moved to quash the application for judicial review on the basis that the Applicant had an adequate alternative remedy in the form of his upcoming hearing before the University panel.
The Court held that it was well established that a court has discretion to determine whether judicial review should be undertaken. The exercise of this discretion involves an examination as to whether the statutory appeal procedures were an adequate forum in which those seeking to challenge the decision could pursue that challenge and obtain a remedy. However, it is not sufficient to state that an alternative remedy exists – the alternative remedy must be “adequate”.
The factors to consider regarding the adequacy of the alternative remedy include the convenience of the alternative remedy, the nature of the error, and the nature of the appellate body. The Court held that although there were policy reasons for allowing this matter to first play out within the university procedures, the Discipline Tribunal invoked by the university and the president was not an adequate alternative remedy.
The Court held that there was a serious question about whether the University had the jurisdiction to call a hearing of the Discipline Tribunal in the manner in which it did. There was also a reasonable apprehension of bias owing to the fact that the Applicant’s right of appeal from the hearing panel would be to the University President, whose decision was being challenged and who arguably is also the complainant in relation to the concerns about the Applicant’s conduct. Also, it was noted that this was not a situation where the Applicant had brought his application for judicial review in an attempt to circumvent other administrative procedures that were available to him. In the result, it could not be said that there existed an “adequate” alternative remedy.
The court allowed the Applicant’s cross-motion for an order staying the Tribunal hearing pending the resolution of the application for judicial review. The court held that it was “just or convenient” to issue the injunction since there was a serious issue to be tried, irreparable harm to the Applicant’s academic career might otherwise result, and the balance of convenience strongly favoured staying the University hearing.
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