The Court of Appeal dismissed the University of Calgary’s appeal from a judicial review decision quashing disciplinary findings and sanctions against students found by the University to have conducted non-academic misconduct by posting comments about their professor on a Facebook wall. While the Court of Appeal unanimously upheld the Chambers judge’s decision to quash the Review Committee’s decision, the Court issued three separate concurring judgments, with the lead judgment revisiting the Supreme Court of Canada’s 1990 decision in McKinney v. University of Guelph, [1990] 3 SCR 229, and concluding that McKinney does not always preclude the application of the Charter to universities. In this circumstance, the lead judgment found that the Charter applied to university discipline and the students’ rights had been breached. The other two concurring judgments found it unnecessary to analyze the applicability of the Charter.

26. June 2012 0

Administrative law – Decisions of administrative tribunals – University Committees – Universities – Student discipline – Internet – Social media – Charter of Rights and Freedoms – Freedom of expression – Judicial review – Procedural requirements and fairness – Failure to provide reasons – Compliance with legislation – Standard of review – Correctness – Reasonableness simpliciter

Pridgen v. University of Calgary, [2012] A.J. No. 443, 2012 ABCA 139, Alberta Court of Appeal, May 9, 2012, M.S. Paperny, J.D.B. McDonald and B.K. O’Ferrall JJ.A.

In Fall 2007, the respondents, twin brothers Keith and Steven Pridgen, and several other students posted critical comments about a professor of a legal survey course to a public wall on Facebook. The criticism included complaints that the professor was lazy in assigning grades, questioned her qualifications and teaching abilities, expressed relief she was no longer teaching the course, and an inflammatory remark that she should be “drawn and quartered”. The professor complained about the page to the Dean who, in accordance with the Student Misconduct Policy, found all 10 student members of the Facebook group guilty of non-academic misconduct, regardless of the nature of their comments and, in some cases, even though they had made no comment at all. The Pridgens and some of the other students appealed the Dean’s decision and an ad hoc Review Committee was convened. The Review Committee upheld the Dean’s findings of non-academic misconduct with some variance in sanction. The University’s Board of Governors declined to hear the Pridgens’ appeal of the Review Committee’s decision and the Pridgen’s applied for judicial review.

The Chambers Judge quashed the decision of the Review Committee. While she found that the procedure followed by the Review Committee “generally” satisfied its duty of fairness, the Review Committee’s reasons for its decision inadequately explained the basis for its conclusion that the Pridgens had committed non-academic misconduct. Moreover, section 31(1)(a) of the Post-Secondary Learning Act, SA 2003, provided a statutorily mandated right of appeal to the Board of Governors and the Board of Governors breached is statutory duty in refusing to hear the Pridgens’ appeal. Finally, the Chambers Judge concluded that the University’s actions infringed the Pridgens’ freedom of expression under section 2(b) of the Charter and that the infringement cannot be justified under section 1.

The University appealed on two grounds: (1) the Chambers judge erred by substituting her own opinion for that of the Review Committee and applying a standard of correctness rather than reasonableness; and (2) the Chambers judge erred by misapplying the law on whether the Charter applies to the actions of a university.

All three judges upheld the Chambers judge’s decision to quash the Review Committee’s decision, but wrote separate concurring opinions.

Paperny J.A. found that the Charter applied to the disciplinary proceedings undertaken by the University and that the Review Committee had failed to take into account the students’ freedom of expression right as protected by the Charter. She rejected the University’s argument that “the application of the Charter in these circumstances undermines the University’s academic freedom or institutional autonomy,” and found that academic freedom and freedom of expression are not competing values.

McDonald J.A. found that while it may be time to reconsider whether or not universities are subject to the Charter, the reviewing court erred in undertaking such an analysis in this case. The chambers judge correctly concluded that the Review Committee’s decision – that the Pridgens’ comments on the social networking site constituted non-academic misconduct – was unreasonable. Because the decision could be decided entirely on established administrative law grounds, there was no need to resort to a Charter analysis.

O’Ferrall J.A. found that the issue here was not whether the university was a “Charter-free zone,” but whether the university’s disciplinary body ought to have considered whether its discipline violated the students’ right to their freedoms of expressions and association, freedoms protected under Alberta’s Bill of Rights, which long pre-dated the Charter.

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