Figuras de pensamiento

i. Lobo v. Carleton University; BC Civil Liberties Association v. University of

Victoria

In the Ontario Superior Court of Justice’s 2012 decision of Lobo v. Carleton University, Justice Toscano Roccamo ruled that the Charter did not apply to Carleton University when it denied the request of a student group to utilize university property for an extra-curricular activity. Carleton Lifeline, a university-recognized student club that opposes abortion, had sought to utilize the University’s main quadrangle for a graphic anti-abortion display. The University denied the club’s request to utilize the quadrangle, but offered to allocate space for the display in a building on campus, and to setup a table in the main university centre where club members could invite students to the display. Despite lack of approval, the club, led by Ruth Lobo, attempted to setup their display in the quadrangle. The University called the Ottawa Police Service, which arrested the students involved in the display and charged each with trespassing (Lewis, 2010). Justice Toscano Roccamo ruled that the University is an autonomous body, and that the University’s incorporating statute, the Carleton University Act 1952, does not establish government control or influence over the University in any manner, particularly in regards to how the University chooses to allocate space on its campus (at para. 17). Accordingly, Justice

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Toscano Roccamo deemed the Charter inapplicable in these circumstances and ruled in favour of the University (at para. 36). Justice Hinkson of the Supreme Court of British Columbia reached a similar conclusion in the 2015 decision of BC Civil Liberties Association v. University of Victoria, finding that the Charter did not apply when the University of Victoria declined to allocate space to a student group that sought to host an anti-abortion demonstration (at para. 152). Both Lobo and BC Civil Liberties were upheld on appeal (Court of Appeal for Ontario, Lobo v. Carleton University, 2012) (Court of Appeal for British Columbia, BC Civil Liberties Association v. University of Victoria, 2016).

ii. Telfer v. The University of Western Ontario

In the Ontario Superior Court of Justice’s 2012 decision of Telfer v. The University of Western Ontario, the Court ruled that the Charter did not apply to the University of Western Ontario when it disciplined a student on grounds of harassment. Following Richard Telfer’s election to the position of President of the Society of Graduate Students, the election results were contested. Acting in her capacity as Speaker of the Society, Fiona Simpson conducted an

investigation and ruled that Telfer’s win was invalid. During the investigation, Telfer sent a series of aggressive emails to Simpson, referring to her as incompetent, undemocratic, and a liar – one email concluded, “Rest assured, I will defeat your stupidity in the end.” Telfer had later instructed a friend to videotape Simpson in the student government office, and had acted aggressively towards Simpson in a Society meeting the following day. In accordance with the University’s Code of Student Conduct, Simpson made a complaint of harassment, and Telfer was later found guilty of the offense by the Vice-Provost. Telfer was subject to formal reprimand and ordered not to have any contact with Simpson. Telfer appealed unsuccessfully to both the

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majority of the Court ruled that the University is an autonomous body and was acting upon its own authority when administering disciplinary action, and that government played no part in either the formulation or implementation of the University’s disciplinary procedures (at para. 61). Distinguishing Telfer from the Pridgen superior court decision, the majority ruled that the statutory scheme applicable to the University of Western Ontario was different than that of the University of Calgary (at para. 59). Accordingly, the majority deemed the Charter inapplicable in these circumstances and dismissed Telfer’s application for judicial review (at para. 61).36

iii. AlGhaithy v. University of Ottawa

In the Ontario Superior Court of Justice’s 2012 decision of AlGhaithy v. University of Ottawa, the Court ruled that the Charter did not apply to the University of Ottawa when it dismissed a student from an academic program. Waleed AlGhaithy, a resident in the neurosurgery program, was the subject of numerous complaints, including concerns of interpersonal difficulties, poor attendance, and failure to provide adequate care. Concerns escalated to the point that medical staff at two local hospitals had refused to provide further training to AlGhaithy. Following a meeting by the Residency Program Committee, AlGhaithy was dismissed from the program. A complex University hierarchy allowed AlGhaithy to appeal the decision on three separate occasions – the Faculty Postgraduate Evaluation Subcommittee, the Faculty Council of the Faculty of Medicine, and the Senate Appeals Committee all rejected his appeals (para. 3-28). In his appeal to the Ontario Superior Court of Justice, AlGhaithy argued:

36 _{While Justice Matlow dissented and would have ruled in favour of Telfer, the dissent was on grounds of} procedural fairness and was unrelated to the Charter. Justice Matlow made no findings in regards to the Charter.

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“The University was implementing a statutory scheme because the residency program was accredited by the Royal College of Physicians and Surgeons of Canada, and once the University’s program was accredited, the University was acting as an agent of the Ontario government by training medical residents in postgraduate specialties in accordance with the Regulated Health Professions Act … the Medicine Act … and the regulations made thereunder.” (at para. 75)

The Court unanimously ruled that, although both the College of Physicians and Surgeons of Ontario and the Royal College of Physicians and Surgeons of Canada were involved in the program’s accreditation,37 _{the University is an autonomous body, and government played no role}

in the University’s decision to dismiss AlGhaithy (at para. 79). Distinguishing AlGhaithy from the Pridgen superior court decision, the Court ruled that Alberta’s PSL Act requires universities to implement a specific government objective in facilitating access to post-second education, but that there is no equivalent requirement in the Act respecting the University of Ottawa (at para. 78). Accordingly, the Court deemed the Charter inapplicable in these circumstances and dismissed AlGhaithy’s application for judicial review (at para. 80).

iv. Yashcheshen v. University of Saskatchewan

The most recent jurisprudence concerning Charter application in the university context comes from the Court of Queen’s Bench for Saskatchewan’s 2018 decision in Yashcheshen v. University of Saskatchewan. Alicia Yashcheshen applied to the University of Saskatchewan’s

37 _{All academic programs require accreditation from that province’s government, and the professional society of} each province are involved in the accreditation process for academic programs concerning the profession that their society regulates. The acceptance of AlGhaithy’s argument would have deemed the Charter applicable to virtually all academic programs in Canada.

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College of Law, however did not include a Law School Admission Test (LSAT) score in her application, and instead included a request for accommodation. Yashcheshen requested accommodation on grounds that her physical disabilities prevented her from having a fair opportunity to write the LSAT. The College refused to consider an application unaccompanied by an LSAT score, and suggested that Yashcheshen seek accommodation with the LSAT’s administrating body, the Law School Admission Council (LSAC). Yashcheshen was granted accommodation by LSAC, but not to the extent that she believed reasonable. Yashcheshen argued that the College’s policy not to consider applications from persons with disabilities such as hers, absent of an LSAT score, is contrary to section 15(1) of the Charter (at paras. 1-16).38 Justice Meschishnick noted that, pursuant to The University of Saskatchewan Act, the authority to set admissions standards belongs exclusively to the University – government does not have the authority to formulate or implement admissions standards, and thus such matters are incapable of being governmental in nature (at para. 30). Accordingly, Justice Meschishnick ruled that the College’s policy does not originate in government, nor does the academic standard seek to further a specific government objective, and thus deemed the Charter inapplicable in these circumstances and dismissed Yashcheshen’s application for judicial review (at para. 34). Yashcheshen was upheld on appeal (Court of Appeal for Saskatchewan, Yashcheshen v. University of Saskatchewan, 2019).

38 _{Section 15(1) of the Canadian Charter of Rights and Freedoms reads:}

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability (Canada, 2011).

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