Wilson et al. v. University of Calgary Board of Governors et al., (2014) 586 A.R. 349 (QB)

• Judge: Horner, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 17, 2013
• Citations: (2014), 586 A.R. 349 (QB);2014 ABQB 190

Wilson v. Calgary University (2014), 586 A.R. 349 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AP.044

Cameron Wilson, Alanna Campbell, Leah Hallman, Cristina Perri, Peter Csillag, Joanna Strezynksi and John Mcleod (applicants) v. University of Calgary Board of Governors and University of Calgary (respondents)

(1101 04894; 2014 ABQB 190)

Indexed As: Wilson et al. v. University of Calgary Board of Governors et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Horner, J.

April 1, 2014.

Summary:

The applicants were students at the University of Calgary and members of an anti-abortion group known as Campus Pro-Life (CPL). CPL set up a display that featured large signs with photographs of aborted fetuses. The Associate Vice-Provost of the University found the students guilty of non-academic misconduct because they failed to comply with a notice which required them to turn their signs inward so that passersby who wanted to view the photographs would have to enter the display area. The students appealed to the Appeal Board. The Appeal Board passed a motion not to accept the students' request for an appeal hearing, finding that none of the grounds of appeal had been proven. The students appealed to the Board of Governors, which delegated its authority to hear the appeal to the Student Discipline Appeal Committee. The Chair of the Committee concluded that the record did not warrant convening the Committee for further consideration of the students' appeal. The students applied for judicial review.

The Alberta Court of Queen's Bench allowed the application and ordered the Committee to convene as soon as reasonably practical to hear the students' appeal.

Administrative Law - Topic 2092

Natural justice - Constitution of board or tribunal - Considerations - Bias - Board or member acting as judge and prosecutor - The applicants were students at the University of Calgary and members of an anti-abortion group known as Campus Pro-Life (CPL) - CPL set up a display that featured large signs with photographs of aborted fetuses - The University's Associate Vice-Provost (Houghton) sent the students a letter alleging that they had violated the University's non-academic misconduct policy by failing to comply with a notice that required them to turn their signs inward so that passersby who wanted to view the photographs would have to enter the display area - A hearing took place before Houghton, who took statements from each of the students and then found that they had violated the policy - The students' appeals to the Appeal Board and Student Discipline Appeal Committee were refused - They applied for judicial review, alleging institutional bias due to Houghton's role as both accuser and judge - The Alberta Court of Queen's Bench agreed that Houghton's mixed role was prima facie problematic - However, Houghton's overlap of functions was authorized by statute (the Post-secondary Learning Act), whose constitutionality was not in issue - The students were not denied procedural fairness in this regard - See paragraphs 60 to 73.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal - Considerations - Bias - Institutional or systemic bias - [See Administrative Law - Topic 2092 ].

Administrative Law - Topic 2266

Natural justice - Duty of fairness - Procedural fairness - What constitutes - [See Administrative Law - Topic 2092 , Administrative Law - Topic 2491 , Administrative Law - Topic 2492 and Administrative Law - Topic 2617 ].

Administrative Law - Topic 2491

Natural justice - Procedure - At hearing - Cross-examination - The applicants were students at the University of Calgary and members of an anti-abortion group known as Campus Pro-Life (CPL) - CPL set up a display that featured large signs with photographs of aborted fetuses - The University's Associate Vice-Provost (Houghton) found the students guilty of non-academic misconduct for failing to comply with a notice that required them to turn their signs inward so that passersby who wanted to view the photographs would have to enter the display area - The students' appeals to the Appeal Board and Student Discipline Appeal Committee were refused - They applied for judicial review, alleging a breach of procedural fairness because they were denied the right to cross-examine witnesses in the hearing before Houghton - The Alberta Court of Queen's Bench found no breach of procedural fairness - The ability to cross-examine witnesses (of which there were none) was not required for the students to meet the case against them in this dispute - There were no credibility issues and none of the material facts were in dispute - See paragraphs 83 to 85.

Administrative Law - Topic 2492

Natural justice - Procedure - At hearing - Right to representation (incl. counsel) - The applicants were students at the University of Calgary and members of an anti-abortion group known as Campus Pro-Life (CPL) - CPL set up a display that featured large signs with photographs of aborted fetuses - The University's Associate Vice-Provost (Houghton) found the students guilty of non-academic misconduct for failing to comply with a notice that required them to turn their signs inward so that passersby who wanted to view the photographs would have to enter the display area - The students' appeals to the Appeal Board and Student Discipline Appeal Committee were refused - They applied for judicial review, alleging a breach of procedural fairness because, pursuant to the Univeristy's non-academic misconduct policy, they were prohibited from bringing counsel to the hearing before Houghton - The Alberta Court of Queen's Bench found that the students' right to counsel was not violated - The fundamental question was whether the students were given an adequate opportunity to present their case and to meet the University's case against them - A lawyer was not required to ensure adequate presentation of the students' position - The facts were not in dispute - No witnesses were called by either side - The process was meant to be informal - The Post-secondary Learning Act provided for considerable latitude in establishing procedures for student discipline, which procedures should be respected by the courts - See paragraphs 74 to 82.

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - The applicants were students at the University of Calgary and members of an anti-abortion group known as Campus Pro-Life (CPL) - CPL set up a display that featured large signs with photographs of aborted fetuses - Campus Security issued a notice that required the students to turn their signs inward so that passersby who wanted to view the photographs would have to enter the display area - The students did not comply with the notice - The Associate Vice-Provost (Houghton) found them guilty of violating the University's non-academic misconduct policy for failing to comply with the direction of a Campus Security officer in the legitimate pursuit of his duties - The students' appeals to the Appeal Board and Student Discipline Appeal Committee were refused - They applied for judicial review, alleging a breach of procedural fairness because the University failed to disclose documents which described the duties and procedures of Campus Security - The students wanted these documents so they could see how the "legitimate pursuit" of Campus Security's duties was defined - The Alberta Court of Queen's Bench found that the documents should have been disclosed because they were relevant to the issues to be determined at the hearing and might have affected the students' ability to fully answer the case against them - However, the students suffered little prejudice as a result of this lack of disclosure in that they addressed the "legitimacy" of the notice in any event - As well, Houghton did not rely upon any documentation delineating Campus Security's duties in her reasons as she did not believe it was relevant - Procedural fairness was not breached - See paragraphs 86 to 91.

Administrative Law - Topic 8905

Boards and tribunals - Duties of - Re application of constitution or constitutional principles (incl. Charter) - [See third Education - Topic 4263 ].

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - [See third Education - Topic 4263 ].

Civil Rights - Topic 1842.5

Freedom of speech or expression - Limitations on - Regulation of anti-abortion activities - [See third Education - Topic 4263 ].

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - General - Application - Administrative law - Boards, tribunals and Crown corporations - [See third Education - Topic 4263 ].

Education - Topic 4093

Universities - Powers - Discipline - [See first Education - Topic 4263 ].

Education - Topic 4263

Universities - Governing bodies - Board of governors - Disciplinary appeals - A group of students were found guilty of violating the University of Calgary's non-academic misconduct policy - They appealed to the Appeal Board in accordance with the appeals procedure set out in the policy, which limited appeals to four specified grounds - In a further appeal to the Board of Governors pursuant to the Post-secondary Learning Act (PSLA), which was delegated to the Student Discipline Appeal Committee, the Chair of the Committee similarly limited his consideration of the appeal to the grounds set out in the policy - On a judicial review application, the Alberta Court of Queen's Bench held that this decision was unreasonable - When read as a whole, the policy did not support an argument for a limited appeal before the Board of Governors - The plain wording of the policy did not restrict an appeal to the Board of Governors to any set grounds - The PSLA provided for an unfettered right of appeal to the Board of Governors - While the University was free to govern its internal appeal structure as it saw fit, it could not preclude an unfettered right to appeal to the Board of Governors as mandated in the legislation - See paragraphs 103 to 125.

Education - Topic 4263

Universities - Governing bodies - Board of governors - Disciplinary appeals - A group of students were found guilty by the University of Calgary's Associate Vice-Provost (Houghton) of violating s. 4.10(e) of the University's non-academic misconduct policy - Section 4.10 defined violations as actions by a student or group "which endanger the safety and/or security of another individual or the University of Calgary community..." - On appeal, the students argued that Houghton's decision was unreasonable because it was not based upon any evidence regarding a threat to safety or security to those on campus - The Chair of the Student Discipline Appeal Committee (delegated by the Board of Governors) concluded that the record did not warrant convening the Committee for further consideration of the students' appeal - The students applied for judicial review - The Alberta Court of Queen's Bench allowed the application - While the Chair noted the students' arguments, he failed to directly address them in his reasons - Where the students squarely placed the issue of the reasonableness of Houghton's findings before the Chair, his failure to address this ground rendered his decision unreasonable - See paragraphs 126 to 142.

Education - Topic 4263

Universities - Governing bodies - Board of governors - Disciplinary appeals - The applicants were students at the University of Calgary and members of an anti-abortion group known as Campus Pro-Life (CPL) - CPL set up a display that featured large signs with photographs of aborted fetuses - The University's Associate Vice-Provost (Houghton) found the students guilty of non-academic misconduct for failing to comply with a notice that required them to turn their signs inward so that passersby who wanted to view the photographs would have to enter the display area - The students' appeal to the Appeal Board was refused - Neither Houghton nor the Appeal Board directly addressed the students' argument that their display was protected by their Charter right to freedom of expression - On a further appeal to the Student Discipline Appeal Committee (delegated by the Board of Governors), the Chair of the Committee found that the University had attempted to strike a balance between the students' rights and concerns for the safety and security of others on campus - The students applied for judicial review - The Alberta Court of Queen's Bench allowed the application - The Chair's finding was unreasonable - He did not address the effect that the University's request (to turn the signs inward) might have on the students' ability to realistically express their thoughts and beliefs - There was no evidence as to what it was about the display that might threaten the safety and security of those on campus, or how turning the signs inward would alleviate those concerns - The decision did not demonstrate that any prior attempt was reasonably undertaken to balance Charter values by interfering "no more than necessary" - See paragraphs 143 to 163.

Education - Topic 4263

Universities - Governing bodies - Board of governors - Disciplinary appeals - The applicants were students at the University of Calgary and members of an anti-abortion group known as Campus Pro-Life (CPL) - CPL set up a display that featured large signs with photographs of aborted fetuses - The University's Associate Vice-Provost (Houghton) found the students guilty of non-academic misconduct for failing to comply with a notice that required them to turn their signs inward so that passersby who wanted to view the photographs would have to enter the display area - Appeals to the Appeal Board and the Chair of the Student Discipline Appeal Committee (delegated by the Board of Governors) were refused - Neither Houghton, the Appeal Board nor the Chair addressed the students' argument that the University's request breached the express or implied contract between the University and students which allowed for the peaceful expression of views on campus - The students applied for judicial review - The Alberta Court of Queen's Bench allowed the application - The Chair's failure to consider this argument rendered his decision unreasonable - See paragraphs 167 to 174.

Education - Topic 4506

Universities - Students - Academic freedom or freedom of expression - [See third and fourth Education - Topic 4263 ].

Education - Topic 4510.1

Universities - Students - Non-academic misconduct - [See second Education - Topic 4263 ].

Education - Topic 4623

Universities - Judicial review of exercise of powers of universities - When available - The applicants were students at the University of Calgary and members of an anti-abortion group known as Campus Pro-Life (CPL) - CPL set up a display that featured large signs with photographs of aborted fetuses - The students were found guilty of non-academic misconduct because they failed to comply with a notice which required them to turn their signs inward so that passersby who wanted to view the photographs would have to enter the display area - The students' appeals to the Appeal Board and Student Discipline Appeal Committee were refused - They applied for judicial review - The university argued that the students were attempting to attack the underlying notice and that they were precluded from doing so by operation of the Rules of Court - The university argued that if the students were going to challenge the notice, they should have complied with it and then brought a judicial review application challenging the underlying directive - The Alberta Court of Queen's Bench rejected this argument - The existence of an alternate route for redress (such as a complaint to the Student Ombuds Office) did not preclude an appeal to the Appeal Board or Board of Governors - While the students could not challenge the decision to draft and serve the notice, they could challenge the finding that they were guilty of non-academic misconduct for failing to comply with the notice - See paragraphs 24 to 40.

Cases Noticed:

Pridgen v. University of Calgary (2010), 497 A.R. 219; 2010 ABQB 644, affd. (2012), 524 A.R. 251; 545 W.A.C. 251; 2012 ABCA 139, refd to. [para. 32].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 33].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 45].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 46].

Nortel Networks Inc. v. Calgary (City) et al. (2008), 440 A.R. 325; 438 W.A.C. 325; 2008 ABCA 370, refd to. [para. 47].

Lana v. University of Alberta et al. (2013), 561 A.R. 70; 594 W.A.C. 70; 2013 ABCA 327, refd to. [para. 47].

Inter Pipeline Fund v. Energy Resources Conservation Board (Alta.) et al. (2012), 533 A.R. 331; 557 W.A.C. 331; 2012 ABCA 208, refd to. [para. 47].

Anderson v. Alberta Securities Commission (2008), 437 A.R. 55; 433 W.A.C. 55; 2008 ABCA 184, refd to. [para. 47].

Allsop v. Alberta Workers' Compensation Board (Appeals Commission) et al., [2011] A.R. Uned. 546; 29 Admin. L.R.(5th) 321; 2011 ABCA 323, refd to. [para. 47].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 48].

Kane v. University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 54].

Khan v. University of Ottawa (1997), 101 O.A.C. 241; 34 O.R.(3d) 535 (C.A.), refd to. [para. 55].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, refd to. [para. 63].

Bell Canada v. Canadian Telephone Employees Association et al., [2003] 1 S.C.R. 884; 306 N.R. 34; 2003 SCC 36, refd to. [para. 63].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 68].

Ocean Port Hotel Ltd. v. Liquor Control Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 2001 SCC 52, refd to. [para. 72].

M.S.S. et al. v. Company of the Cross (2002), 319 A.R. 271; 2002 ABQB 661, refd to. [para. 79].

J.O. et al. v. Strathcona-Tweedsmuir School et al. (2010), 504 A.R. 117; 2010 ABQB 559, refd to. [para. 82].

S.D.L. v. University of Alberta - see Lana v. University of Alberta et al.

Lana v. University of Alberta et al. (2012), 531 A.R. 218; 2012 ABQB 244, refd to. [para. 95].

Pacheco v. Dalhousie University (2005), 238 N.S.R.(2d) 1; 757 A.P.R. 1; 2005 NSSC 222, refd to. [para. 95].

Skyline Roofing Ltd. v. Workers' Compensation Board (Alta.) et al. (2001), 292 A.R. 86; 2001 ABQB 624, refd to. [para. 120].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 141].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 150].

R. v. National Post et al., [2010] 1 S.C.R. 477; 401 N.R. 104; 262 O.A.C. 1; 2010 SCC 16, refd to. [para. 154].

Whatcott v. Human Rights Tribunal (Sask.) et al., [2013] 1 S.C.R. 467; 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 154].

R. v. Watson (G.S.) et al. (2008), 258 B.C.A.C. 297; 434 W.A.C. 297; 298 D.L.R.(4th) 317; 2008 BCCA 340, refd to. [para. 157].

Yen v. Alberta (Minister of Advanced Education) et al. (2010), 495 A.R. 292; 2010 ABQB 380, refd to. [para. 170].

Young v. Bella et al., [2006] 1 S.C.R. 108; 343 N.R. 360; 254 Nfld. & P.E.I.R. 26; 764 A.P.R. 26; 2006 SCC 3, refd to. [para. 170].

Statutes Noticed:

Post-secondary Learning Act, S.A. 2003, c. P-19.5, sect. 31(1) [para. 16].

Authors and Works Noticed:

Jones, David, and de Villars, Anne, Principles of Administrative Law (5th Ed. 2009), pp. 266 [para. 88]; 301, 302 [para. 84].

Counsel:

J.V. Carpay and C. Crosson (student-at-law), for the applicants;

P.T. Linder, Q.C., J.L. McCready and M. Vernon, for the respondents.

This application for judicial review was heard on April 17, 2013, before Horner, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on April 1, 2014.