Two students successfully sought judicial review for a decision made by the University of Calgary’s General Faculties Council Review Committee (“Review Committee”) that placed the applicants, twin brothers and undergraduate students at the University of Calgary (the “University”), on probation for non-academic misconduct for posting negative comments on Facebook about a professor. The Court found that the applicants s. 2(b) Charter rights to free expression were infringed by the decision and not justified under s. 1 of the Charter. The Court further found that the Review Committee’s reasons were inadequate as they did not disclose the rational for its decision but simply stated a conclusion.

23. November 2010 0

Administrative law – Decisions of administrative tribunals – University Committees – Universities – Student discipline – Charter of Rights and Freedoms – Freedom of expression – Internet – Social media – Judicial review – Failure to provide reasons

Pridgen v. University of Calgary, [2010] A.J. No. 1181, 2010 ABQB 644, Alberta Court of Queen’s Bench, October 12, 2010, J. Strekaf J.

The applicants were enrolled as full time undergraduate art students at the University of Calgary. In the 2007 fall session, both were enrolled in a course entitled Law and Society (LWSCO) 2001 that was instructed by Professor Aruna Mitra. A student in the class created a Facebook page and a number of other students in the class posted comments on the Facebook wall which were critical of the professor. The two applicants posted a single message about the professor on the Facebook page. Professor Mitra complained to the Dean about the Facebook wall. The Dean scheduled a meeting with the 10 students to discuss the incident. Following the meeting, all ten students, including the applicants, were found to have committed non-academic misconduct and were subsequently sanctioned. The applicants appealed the sanction to the Review Committee but the Review Committee, in a written decision, upheld the finding that the Facebook postings constituted non-academic misconduct. The applicants sought judicial review of this decision.

Although the University was not part of the government and accordingly was prima facie not subject to the Charter, the Court found that because it implemented a specific government policy with respect to the actions it took in disciplining the applicants, the Charter applied. Having found that the Charter applied to the University, the Court then made a finding that the applicant’s s. 2(b) Charter rights were breached since the purpose of the sanction was to restrict the applicants’ freedom of expression. The Court found that expression in the form of criticism of a professor does not need to be restricted in order to accomplish the objective of maintaining an appropriate learning environment and thus found that the restriction was not justified under s. 1 of the Charter.

The Court also found that the Review Committee’s conclusion that the applicants committed non-academic misconduct were inadequate, as the reasons failed to disclose any rationale. Rather, the reasons simply stated a conclusion. Although the Court was satisfied that the decision must be set aside because the applicant’s Charter rights were infringed, the Court nonetheless opined that the Review Committee erred in concluding that the applicant’s conduct constituted non-academic misconduct.

The Court quashed the decision of the Review Committee and did not refer it back to the Board of Governor’s student Discipline Review Committee to consider an appeal from the Review Board’s decision.

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