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Queen's University
 

Lobo v Carleton University [2012] ONSC 254

Under what conditions can students sue the University for failing to protect their human rights?

Facts

In the fall of 2010, Carleton Lifeline (a now decertified pro-life student group at Carleton University) requested permission to display its Genocide Awareness Project in an outdoor location of Carleton University. The University declined to grant permission on the grounds that the graphic images of the exhibit might be “offensive and disturbing” to some members of the community. It did, however, offer the group space in an indoor location. The students protested this decision but the University held firm.  Against the University’s wishes, Carleton Lifeline went ahead with their exhibit in the outdoor area. The University called the police, which attended the scene and arrested several students for trespass.  The charges were later dropped.  

Two members of the group subsequently filed a law suit against the University. In their statement of claim they “alleged breaches of ss. 2, 9, and 15 of the Charter of Rights and Freedoms ("Charter"); breach of university policies; breach of a fiduciary duty; damage to reputation; wrongful arrest; breach of contract; and claims in negligence both against CU and [...] individually named Defendants”.

The University has tried twice to have the lawsuit struck down.  In a 2011 ruling, the court “dismissed the Defendants' motion in respect of the wrongful arrest claim, struck the claim for breach of fiduciary duty without leave to amend, and struck the remaining claims with leave to amend within 30 days”.  

The students amended their remaining claims in accordance with the court’s orders, which the court, in its 2012 ruling, summarized as follows:

“The amended pleading details the relationship between CU, its employees and the Plaintiffs, as full-time fee paying students; the rights and obligations of the parties as described by reference to CU's internal policies, namely the Human Rights Policies and Procedures ("HRPP") and the Student Rights and Responsibilities Policy ("SRRP"); it quotes verbatim from the first and second paragraphs of the HRPP where CU acknowledges "a legal undertaking and responsibility to prevent discrimination"; the reasonable expectations of the Plaintiffs in relation to the policies; how CU fell short of its obligations; and the harm which flowed, including damage to reputation from CU's use of its authority to engage the police and other measures against the Plaintiffs.”(23)

In this decision, the court ruled on the University’s application to strike the amended statement of claim “with respect to the Charter claims, the negligence claims both as they relate to CU and the individual Defendants, and the stand alone claims pertaining to the university policies.”

 

Issues

  1. 1.       Should the court strike the charter claim against CU?
  2. 2.       Should the court strike the claim in negligence against CU?
  3. 3.       Should the court strike the claim in negligence against individual employees of CU?

 

Decisions

  1. 1.       Yes
  2. 2.       No
  3. 3.       Yes
  4. The Court ruled that the Charter did not apply to Carleton University in this case. It explained that in order for the Charter to apply to a University activity, the latter has to be “ascribed to government, as in the case of implementation of a specific statutory scheme or government program.” (6). Unlike the University of Calgary, whose “governing structure involved significant government involvement” (14) lead the Court (in Prigden v University of Calgary, 2010) to find that it was, in fact, “delivering a specific government program in partnership with the government” (14), and was therefore subject to Charter claims,   Carleton University has a structure and governance which is “in no way prescribed by the government” (14).  Neither of the two acts cited by the plaintiffs as evidence of its link to the government (Carleton University Act 1952 and the Post-secondary Education Choice and Excellence) “establish government control or influence over CU in any manner, let alone with respect to allocation of space or venues on campus property.” (17). The Court added that even if Carleton was under the control or influence of government, the students’ claim had failed to plead “under any of the enumerated or analogous grounds of discrimination which have served as a basis for unequal treatment based on stereotypical attitude ascribed to the group rather than on the true worth and ability or circumstances of the individual” (18). This failure could have led the court to strike the claim (19).

Rationale

 

  1. The Court determined that it would not strike the negligence claim.

First of all the students had not only coupled the allegations of negligence with allegations pertaining to the Human Rights Policies and Procedures (HRPP) and the Student Rights and Responsibilities Policy (SRRP) but had also reflected the necessary elements for a cause of action in negligence. In its deliberations, the court asked itself two questions:

  1. Does the amended pleading reflect the necessary elements for a cause of action in negligence?
  2. Does the amended pleading reflect the same concerns expressed in Aba-Alkhail v. University of Ottawa, 2010 ONSC 2385[1]?

The court found that the amended pleading passed the first test because it “pleads the facts that give rise to the duty of care”.  However, it did not reflect the same concerns expressed in the Aba-Alkhail case, where the pleadings were untenable because the only facts presented were that “the plaintiff was a student at the University and the University had the alleged policies". 

In this case, the students allege that the University “orchestrated their arrest, harassment and intimidate, and consequent damage to reputation” (30) contrary to its “pointedly recognized legal responsibility” outlined in the HRRP (31).  If the court presumes that the facts are true, then “prima facie duty of care is not foreclosed, and arguably foreseeable risk of harm arises where CU rejects its own recognized legal responsibility to students” (30). However, a trial would allow the University to present any “good policy reasons for refusing to recognize a duty in the circumstances”.  A trial would “carefully examine the context, including the policy implications of recognizing a duty of care where the university has pointedly recognized a legal responsibility, as it has in this case through the HRRP” (31).

  1. The Court determined that the individual employees named by the plaintiffs are exempt from the claim of negligence because the allegations against them “relate to decision made within their ostensible authority as CU employees.” (32).  It used a test outlined in ScotiaMcLeod Inc (1996) which indicates that personal liability arises only when

 

  1. The actions of the employees are themselves tortious (34)
  2. The actions of employees exhibit a separate identity or interest from that of the corporation, or employer, so as to make the act of the conduct complained of their own

McLeod also added that “in the absence of findings of fraud, deceit, dishonesty or want of authority on the part of employees or officers, the instances in which personal liability is found are rare”

In this case, the pleadings failed to show that employee’s actions were tortious or that they exhibited a separate identity or interest from the university. Furthermore, they raised no allegations of accused of fraud, deceit dishonesty or want of authority.



[1]     In Paragraph 25 of the ruling, the Court quotes from paragraph 55 of the Aba-Alkhail decision which presents the concerns raised by that plaintiff’s “untenable” pleadings: “The pleadings do not plead the reason why the alleged duty of care is owed to the plaintiff. The pleadings are not required to do that but they are required to plead facts that could give rise to the duty. There is no allegation in the pleadings that the University acted in such a way as to give an undertaking to assume such a duty to the plaintiff, except the untenable pleading as to the University Contract. So, the relevant facts must be simply the facts that the plaintiff was a student at the University and the University had the alleged policies.”

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000