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UNIVERSITIES AND COLLEGES - Regulation of conduct

Friday, February 14, 2020 @ 9:48 AM  


Lexis Advance® Quicklaw®
Appeal by UAlberta Pro-Life, Nicol and Wilson, from two judicial review rulings. The appellants were a registered student group and two individual students at the University of Alberta who opposed abortion. Pro-Life held an anti-abortion event on campus that attracted a sizable counter-demonstration protesting and blocking the Pro-Life graphic display. Pro-Life complained to a University authority that the counter-demonstration breached a student behaviour code. The University investigated, found no University rule had been broken and decided not to take any disciplinary action. Judicial review of the University's dismissal of the appellants’ complaint was refused. A second judicial review ruling arose from a request by Pro-Life for permission to hold another anti-abortion event. The University granted permission on the condition that Pro-Life defray the estimated $17,500 cost of security for the event by posting $9,000 in advance. Pro-Life argued that the cost was prohibitive and amounted to infringement of their freedom of expression. The second judicial review ruling upheld the University’s decision. Pro-Life and the students appealed.

HELD: Complaint appeal dismissed, and security costs appeal allowed. There was no basis to challenge the complaint decision. Prosecution under the University’s student behaviour code was not compulsory, as the code provided for exercises of discretion. The appellant failed to establish fundamental unfairness in the University’s appeal process from the decision not to prosecute. The chambers judge correctly discharged her obligation to decide whether the discipline officer’s decision fell within a range of possible, acceptable outcomes, defensible having regard to the facts and the law. The judge made no error in doing so. New grounds raised by the appellants on appeal related to bad faith or the doctrine of legitimate expectations and were not properly before the panel. With respect to the security costs decision, the University’s dealing with the request of Pro-Life to carry out an event to demonstrate and express was governed by the freedom of Pro-Life and its members to express under s. 2(b) of the Canadian Charter of Rights and Freedoms (Charter). In assessing the reasonableness of the imposition of the security fee as a prerequisite to permission for the appellants to hold the event, the chambers judge applied the wrong test, did not allocate the burden of proof correctly and adopted misconceptions as to factors to be considered. The only appropriate and useful remedy was to set aside the security costs decision.

UAlberta Pro-Life v. Governors of the University of Alberta, [2020] A.J. No. 2, Alberta Court of Appeal, P.W.L. Martin, J. Watson and M.G. Crighton JJ.A., January 6, 2020. Digest No. TLD-February102020015