Page: 2 II Relevant Facts [2] The relevant facts are not in dispute. The applicants are identical twin brothers who were enrolled as full time undergr

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1 Court of Queen s Bench of Alberta Citation: Pridgen v. University of Calgary, 2010 ABQB 644 Date: Docket: Registry: Calgary In the Matter of Keith Pridgen and Steven Pridgen on Findings of Non-Academic Misconduct on Appeal from the AD HOC Review Committee of the General Faculties Counsel Between: Keith Pridgen and Steven Pridgen - and - Applicants The University of Calgary Respondent Reasons for Judgment of the Honourable Madam Justice J. Strekaf I Introduction [1] Two University of Calgary undergraduate students, Keith and Steven Pridgen, were found by the University's General Faculties Council Review Committee to have committed non-academic misconduct and were placed on probation as a result of negative comments they posted on a Facebook site with respect to one of their professors. They have applied for judicial review pursuant to Part 56.1 of the Rules of Court and seek to set aside that decision on various grounds, including that their right to free expression guaranteed in section 2(b) of the Canadian Charter of Rights and Freedoms was infringed.

2 Page: 2 II Relevant Facts [2] The relevant facts are not in dispute. The applicants are identical twin brothers who were enrolled as full time undergraduate arts students at the University of Calgary. In the 2007 fall session, both were enrolled in the Faculty of Communication and Culture in a legal survey course entitled Law and Society (LWSO) 201. The course instructor, Professor Aruna Mitra, was not a professor from the Communication and Culture faculty and was teaching the course for the first time. Professor Mitra was not popular with her students. One of the students, Thomas Strangward, created a "wall" on his Facebook page entitled "I NO Longer Fear Hell, I Took a Course with Aruna Mitra" ( Wall ). The Wall was publicly available to anyone searching on the internet. A number of students in the class posted comments on the Wall, many of which were critical of Professor Mitra. [3] The Applicants each posted a single message on the Wall. Steven Pridgen's message posted on November 13, 2007 stated: Some how I think she just got lazy and gave everybody a 65...that's what I got. Does anybody know how to apply to have it remarked? [4] Keith Pridgen's message posted on August 26, 2008 stated: Hey fellow LWSO. homees.. So I am quite sure Mitra is NO LONGER TEACHING ANY COURSES WITH THE U OF C!!!!! Remember when she told us she was a long-term professor? Well actually she was only sessional and picked up our class at the last moment because another prof wasn't able to do it... lucky us. Well anyways I think we should all congratulate ourselves for leaving a Mitra-free legacy for future L.S.W.O. students! [5] Professor Mitra complained about the Wall to Dean Tettey, Interim Dean of the Faculty of Communication and Culture on September 4, He invited the ten students who had posted material on the Wall to attend a meeting on September 18, 2008 to discuss the incident. In addition to himself, also in attendance at the meeting were four other professors from the department, namely Department Head Dr. Chloe Atkins, Associate Dean Dr. Douglas Brent, Professor Lynne Perras and Dr. Tamar Seiler. Dr. Atkins was Professor Mitra's spouse. Following the meeting, all ten students, including the Applicants, were found to have committed non-academic misconduct and were sanctioned. [6] By a letter dated November 20, 2008, Dean Tettey advised Keith Pridgen that his conduct constituted non-academic misconduct and that he was placed on probation for 24 months. The letter stated in part: It is my conclusion that the conduct you displayed on this publicly accessible site has clearly caused unwarranted professional and personal injury to Prof. Mitra and clearly meets the criteria for non-academic misconduct as outlined in the

3 Page: 3 University of Calgary Calendar. I have, therefore, decided on the following sanctions and conditions: (1) You shall be put on probation for a period of 24 months, starting from the date of this letter. (2) You shall write an unqualified letter of apology to Prof. Mitra to be delivered to the Office of the Dean by December 15, The letter shall include a demonstration of your understanding of why your actions constitute academic [sic] misconduct; an acknowledgment of the repercussions of your action on Prof. Mitra's person and professional standing; a recognition of the implications of your action for the Faculty of Communication and Culture's reputation; and lessons that you have learnt from this experience; and a commitment to conduct yourself appropriately in the future. You are required to send a copy of this letter to the Interim Dean, Faculty of Communication and Culture. (3) You shall refrain from posting or circulating any material that may be defamatory of Prof. Mitra and any other members of the university community, or unjustifiably bring the University of Calgary and/or the Faculty of Communication and Culture into disrepute. (4) The circumstances of this case, and the foregoing sanctions, may be taken into account in any deliberations that might take place in respect of any future cases of misconduct involving you. (5) Failure to comply with the sanctions and conditions outlined in this letter may result in further sanctions including, but not limited to, suspension or expulsion. [7] A similar letter dated November 20, 2008 was sent by Dean Tettey to Steven Pridgen finding that he had also committed non-academic misconduct, however, he was not subjected to a period of probation. The letter stated in part: It is my conclusion that the conduct displayed on this publicly accessible site has clearly caused unwarranted professional and personal injury to Prof. Mitra and clearly meets the criteria for non-academic misconduct as outlined in the University of Calgary Calendar. You lent credence to this misconduct by your association with the site and the tacit concurrence with the tenor of its name. Based on the foregoing, I have decided on the following sanctions and conditions:

4 Page: 4 (1) You shall write an unqualified letter of apology to Prof. Mitra to be delivered to the Office of the Dean by December 15, The letter shall include a demonstration of your understanding of why your actions constitute academic [sic] misconduct; an acknowledgment of the repercussions of your action on Prof. Mitra's person and professional standing; a recognition of the implications of your action for the Faculty of Communication and Culture's reputation; and lessons that you have learnt from this experience; and a commitment to conduct yourself appropriately in the future. You are required to send a copy of this letter to the Interim Dean, Faculty of Communication and Culture. (2) You shall refrain from posting or circulating any material that may be defamatory of Prof. Mitra and any other members of the university community, or unjustifiably bring the University of Calgary and/or the Faculty of Communication and Culture into disrepute. (3) The circumstances of this case, and the foregoing sanctions, may be taken into account in any deliberations that might take place in respect of any future cases of misconduct involving you. (4) Failure to comply with the sanctions and conditions outlined in this letter may result in further sanctions including, but not limited to, suspension or expulsion. [8] Both letters advised that the sanctions could be appealed to the General Faculties Council's Review Committee. Both Applicants indicated that they were appealing the decision by letters dated December 5, [9] By separate letters dated December 8, 2008 from the University Secretariat, each of the applicants was advised that an ad hoc Review Committee comprised of Dr. Robert Edwards (Chair, Faculty of Science), Dr. Ann Levey (Faculty of Humanities) and a Student s Union representative was convened to review the Interim Dean's decision, in accordance with the General Faculties Council's Principles and Procedures Relating to Disciplinary Action for Non-Academic Misconduct ("Review Committee"). [10] The Review Committee met with respect to Keith Pridgen on January 14, 2009 and on January 20, 2009 and delivered a written decision dated February 20, 2009 which stated in part: In its determination the Review Committee took account of the comments made by the Appellant on the Facebook site in the context of the site, and the very disrespectful nature of the Facebook site on which he was participating, but did not consider the investigative meeting of September 18, 2008, when determining whether or not non-academic misconduct had occurred...it is the decision of the Review Committee that, based on the balance of probabilities, Mr. Keith

5 Page: 5 Pridgen's posting on the Facebook site constitutes non-academic misconduct. The Review Committee places Mr. Keith Pridgen on probation for a period of six months beginning on November 20, 2008 and ending on May 20, [11] The Committee met with respect Steven Pridgen and another student on January 15, 2009 and delivered a written decision dated February 20, 2009 which stated in part: In its determination the Review Committee took account of the comments made by the Appellant on the Facebook site in the context of the site at the time of his post, and the disrespectful nature of the Facebook site on which he was participating...it is the decision of the Review Committee that, based on the balance of probabilities, Mr. Steven Pridgen's posting on the Facebook site constitutes non-academic misconduct. The Review Committee places Mr. Keith Pridgen on probation for a period of four months beginning on November 20, 2008 and ending on March 20, [12] The Applicants, through their counsel, advised the Respondent that they intended to appeal those decisions. By a letter dated March 6, 2009, Elizabeth Osler, Secretary to General Faculties Council, advised that as both "Keith Pridgen and Steven Pridgen were placed on probation for non-academic misconduct, an appeal to the Board of Governors is not an avenue open to them." [13] The Applicants each delivered Notices of Appeal dated March 9, 2009 to the Respondent seeking to appeal the Review Committee's decisions to the Board of Governors of the University of Calgary in which they raised numerous grounds, including: - that there was a lack of jurisdiction because at the time of the alleged misconduct the complainant was not a member of the university community as required by the calendar; - that their actions did not constitute non-academic misconduct; - that there was no injury to the complainant demonstrated; - that the Appellants' conduct was protected by the Alberta Bill of Rights; - that the process involved bias; and - that the Review Committee breached the rules of natural justice and failed to conduct a fair and proper hearing. [14] By a letter dated March 12, 2009, Ms. Osler advised that the University's position remained unchanged.

6 Page: 6 [15] The Applicants filed an Originating Notice initiating this application on August 19, III Regulatory Context [16] Before proceeding to address the various issues that need to be decided on this application, it is useful to begin by examining the regulatory context within which the Review Committee's decision to discipline the Applicants was made. [17] The Respondent is a university that operates within Alberta subject to the provisions of the Post-Secondary Learning Act, S.A. 2003, c. P-19.5, as amended ("PSL Act"). The PSL Act provides for the establishment of a board of governors and a general faculties council for each university. Section 26 of the PSL Act provides the general faculties council of a university, subject to the authority of the board, with responsibility for the academic affairs of the university and with authority to, inter alia, "(g) provide for the preparation and publication of the university calendar"; "(h) hear and determine appeals from the decisions of faculty councils on applications, requests or petitions by students or others"; and "(n) determine standards and policies respecting the admission of persons to the university as students." A general faculties council may delegate any of its powers, duties or functions, including the powers referred to in section 31 (s. 26(3)). Section 31(1) of the PSL Act deals with student discipline. It states: The general faculties council has general supervision of student affairs at a university and in particular, but without restricting the generality of the foregoing, the general faculties council may (a) subject to a right of appeal to the board, discipline students attending the university, and the power to discipline includes the power (i) (ii) (iii) to fine students, to suspend the right of students to attend the university or to participate in any student activities, or both, and to expel students from the university; (b) delegate its power to discipline students in any particular case or generally to any person or body of persons, subject to any conditions with respect to the exercise of any delegated power that it considers proper;

7 Page: 7 (c) give to a student organization of the university the powers to govern the conduct of students it represents that the general faculties council considers proper. [18] The University Calendar contained a Statement of Principles of Conduct which indicated that it applied "to all members of the University community" and a Student Misconduct Policy, which included a section regarding Disciplinary Action for Non-academic Misconduct ("Policy"), which provides: 1. Definition: The term "non-academic misconduct" includes but is not limited to (a) conduct which causes injury to a person and/or damage to University property and/or the property of any member of the University community; (b) (c) unauthorized removal and/or unauthorized possession of University property; conduct which seriously disrupts the lawful educational and related activities of other students and/or University staff. [19] When a dean becomes aware of a complaint of non-academic misconduct, the student is required to appear immediately before the dean to respond to the allegations (s. 2(b)). Where the severity of the misconduct does not warrant suspension, the dean may place a student on probation for a specified period of time, with conditions attached as deemed necessary. Probation is appealable by the student to the General Faculties Council's Review Committee (s. 2 (c)). The composition and process of the General Faculties Council's Review Committee is prescribed in the Policy (ss. 3-7). IV Preliminary Issues [20] At the outset of the hearing of this application, counsel for the Respondent raised two preliminary issues: 1. Whether the Applicants should be precluded from advancing their constitutional arguments which were not set out in their Originating Notice as they were out of time? 2. Whether the applications for judicial review should be dismissed as they are moot? A Are the Applicants' constitutional arguments out of time?

8 Page: 8 [21] The Respondent argues that the Applicants should not be permitted to proceed with their constitutional arguments based upon the Charter and division of legislative powers as no reference to those arguments was made in the Originating Notice of Motion filed by the Applicants on August 19, Their argument is based on Rule of the Alberta Rules of Court, which states: (1) Where the relief sought is an order to set aside a decision or act, application for judicial review shall be filed and served within six months after the decision or act to which it relates. (2) Rule 548 does not apply to this rule. [22] The Respondent points out that the Applicants made no mention that they intended to advance either argument until May 2010, well after the six month period contemplated in Rule for bringing an application for judicial review had expired. In fact, the initial brief filed by the Applicants on April 26, 2010 stated that they "have deliberately chosen not to rely upon the Canadian Charter of Rights and Freedoms in seeking redress...". [23] The Respondent relies on Athabasca Chipewyan First Nation v. Alberta (Minister of Energy), 2009 ABQB 576, 13 Alta L.R. (5 th ) 352, in which case an Originating Notice seeking judicial review to set aside decisions by the Minister of Energy granting oil sands leases brought almost two years after the leases were granted was struck out on the basis that the application was outside the six month limitation period in Rule In paragraph 19 of his decision, Thomas J. outlined the policy reasons for such a limitation period in this context by reproducing the following passage from Veit J.'s judgment in Johannesson v. Alberta (Workers' Compensation Board Appeals Commission) (1995), 175 A.R. 34 (Alta. Q.B.) at paragraph 34: The Rules establish a 6 month limit within which a motion for judicial review must be brought. This limitation reflects a policy decision to the effect that, ordinarily, when a properly constituted tribunal makes a decision, that decision is binding; any challenge to that decision must be made promptly because the rights and responsibilities of many persons may be affected by the decision. All of those people who are directly and indirectly affected by such a decision cannot be left in limbo indefinitely. There must be closure, finality, so that everyone can move on. It is therefore important to move to set aside or challenge a decision within 6 months of the day when the decision is issued. [24] The policy reason behind the requirement that judicial review applications be brought within six months, to ensure that persons affected know whether an administrative decision is being challenged, has no application in this case. The circumstances in Athabasca are distinguishable from the subject application where the application for judicial review was commenced within six months of the Review Committee's decision. There is no good reason why Rule should be interpreted as limiting the Court's ability to hear arguments that go beyond the grounds listed in the Originating Notice by which the application for judicial review

9 Page: 9 was commenced. The limitation analogy advanced by the Respondent is not convincing as the Charter and division of legislative powers arguments do not constitute new causes of action, but rather simply represent additional reasons why the Applicants argue the Review Committee's decision should be set aside. [25] The Respondent did not raise Rule as an issue in May 2010 when Nation J. of this Court permitted supplemental briefs in respect of these arguments to be filed. The Respondent filed its supplemental written submission which addressed both the Charter and division of legislative powers issues on June 11, 2010, after having the opportunity to review the Applicants' brief on these issues. The Respondent has not alleged that it has suffered any prejudice as a result of the Applicants' failure to advance these arguments in their Originating Notice or their failure to seek to formally amend their Originating Notice to incorporate these additional grounds. [26] The Applicants are not precluded from advancing their constitutional arguments on this application. While I do not consider it necessary for the Applicants to amend their Originating Notice to advance these arguments, I would grant them leave to do so the extent required. B Are the applications moot? [27] The Respondent argues that the issues on this application are moot and that there is no longer any lis between the parties as the Applicants' periods of probation have passed and as all references to the non-academic misconduct were removed from the Applicants' academic records upon their respective probation periods expiring, as contemplated in the University Calendar. I reject this argument. [28] The Applicants in this instance are seeking, inter alia, a declaration that their Charter rights were breached, which is analogous to the relief sought in Trang v. Alberta (Edmonton Remand Centre), 2005 ABCA 66, 363 A.R The Alberta Court of Appeal dismissed the argument that the proceedings in that case were moot and found at paragraph 5 that "(t)here is clearly a live controversy between the parties as to whether or not the respondents' Charter rights were breached while they were incarcerated. An action for a declaration may proceed in the absence of a claim for any other remedy." Moreover, I note that while the Respondent asserts that all references to the non-academic misconduct were removed from the Applicants' academic records, they have put forward no evidence confirming that has occurred nor have they put forward any affidavit evidence as to the practical implications for the Applicants of such a removal. There is no evidentiary basis in support of the Respondent's argument that the matter is moot. V Standard of Review [29] The Supreme Court of Canada addressed the standard of review to be applied by courts when undertaking judicial review of the decisions of administrative tribunals in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras There are two standards of

10 Page: 10 review, correctness and reasonableness. The Court noted that "questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness" (para 51). The Court went to state at paras : Guidance with regard to the questions that will be reviewed on a reasonableness standard can be found in the existing case law. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157, at para. 48; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 39. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context: Toronto (City) v. C.U.P.E., at para. 72. Adjudication in labour law remains a good example of the relevance of this approach. The case law has moved away considerably from the strict position evidenced in McLeod v. Egan, [1975] 1 S.C.R. 517, where it was held that an administrative decision [page224] maker will always risk having its interpretation of an external statute set aside upon judicial review. A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied: - A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference. - A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). - The nature of the question of law. A question of law that is of "central importance to the legal system... and outside the... specialized area of expertise" of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate. [30] As will be addressed below, I am of the view that some aspects of the Respondent's decisions are subject to review on the standard of correctness on this application, while other are subject to review on the standard of reasonableness. VI Substantive Issues [31] There are eight main issues to be determined on this application:

11 Page: 11 (a) (b) (c) (d) (e) (f) (g) (h) Does the Charter apply to the disciplinary proceedings taken by the Respondent; If so, were the Applicants' Charter rights infringed; Were the actions taken by the University ultra vires the jurisdiction of the Province of Alberta; Did the Board of Governors err in refusing to hear the Applicants' appeals; Were the Applicants' denied a fair hearing; Did the Review Committee provide adequate reasons for its decisions; Did the Review Committee err in concluding that the activities of the Applicants constituted non-academic misconduct; and What, if any, remedy should be granted to the Applicants. A Does the Charter apply to the disciplinary proceedings taken by the Respondent? [32] The Applicants argue that coercive action taken by the University pursuant to statutory authority is subject to the Charter. They submit that the actions taken by Dean Tettey and the Review Committee pursuant to sections 26 and 31 of the PSL Act infringed their rights to freedom of expression and freedom of association in contravention of sections 2(b) and 2(d) the Charter. [33] The Respondent argues that the Charter only applies to government institutions and does not apply in this instance as the University is not part of the government and was engaged in regulating its internal affairs when disciplining the Applicants. The Respondent submits that the fact that the University is a creature of statute which performs a public service is not enough to attract Charter scrutiny. [34] Section 32(1) of the Charter states that it applies to the Parliament and government of Canada and to the legislature and government of each province in respect of all matters within their respective legislative authority. This section was interpreted by the Supreme Court of Canada to mean that the Charter is only applicable to government actors and government action, and not to private activity: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R However, the Court in Dolphin Delivery left open the possibility that the Charter might apply to subordinate bodies created and supported by the government, including "many forms of delegated legislation, regulations, orders in council, possibly municipal by-laws, and by-laws and regulations of other creatures of Parliament and the Legislatures": at p In subsequent decisions, the Supreme

12 Page: 12 Court of Canada has recognized that the Charter may apply to the actions of a delegated decision maker acting pursuant to statutory authority. [35] An examination of whether the Charter applies to the University of Calgary in the context of this application must start with McKinney v. University of Guelph, [1990] 3 S.C.R. 229 where the issue was whether the mandatory retirement arrangements of various universities infringed the Charter. The appellants argued that universities constituted part of the provincial government within the meaning of s. 32 of the Charter given that they were established by statute and exercised powers pursuant to statute in carrying out a public function pursuant to statutory authority. The majority of the Court concluded that the Charter did not apply since the universities were not a part of the government apparatus nor were they implementing a government program or acting in a governmental capacity in adopting a mandatory retirement policy. [36] In his judgment La Forest J. (writing for Dickson C.J. and Gonthier J.) found that the mere fact that an entity is a creature of statute is insufficient to attract Charter scrutiny (para. 30). He further stated that a simple public purpose test is inadequate (para. 35). [37] In holding that the universities in question were not subject to Charter scrutiny, La Forest J. noted that each of the universities had its own governing body and that only a minority of its members were appointed by the Lieutenant-Governor in Council ("LGIC") and that their duty was to act in the interests of the university as opposed to the government. The remaining members were comprised of faculty, students, administrative staff and alumni. La Forest J. stressed the fact that the universities operated as autonomous bodies within the structure dictated by the legislature: para. 42. There was nothing to indicate that in entering into the employment relationships in question, the universities were following the dictates of the government: para. 35. [38] Notably, La Forest J. did not conclude that universities could never be found to be part of the government for purposes of the Charter and acknowledged at para. 42 that:...there may be situations in respect of specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government, but there is nothing here to indicate any participation in the decision by the government and, as noted, there is no statutory requirement imposing mandatory retirement on the universities. [39] Wilson J., in her dissenting judgment found that the Charter was applicable. Cory J. agreed with the test put forward by Wilson J. and with her conclusion that the universities formed a part of the government for the purposes of s. 32. [40] Sopinka J. agreed with the reasoning of La Forest J. that the universities were not government entities for the purposes of attracting the Charter in that the core functions of a

13 Page: 13 university are non-governmental. However, he recognized that certain university activities may be governmental in nature. [41] Justice L'Heureux-Dube noted that the fact that universities were publicly funded could not be easily discounted (para. 361). She went on to find, however, that "nevertheless, while universities may perform certain public functions that could attract Charter review, I am able to accept that the hiring and firing of their employees are not properly included within this category" (para. 362). [42] Subsequently in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 La Forest J., writing for a unanimous Court, found that the Charter applied to a hospital when carrying out government policy concerning the provision of health care services. The Court emphasized the distinction between a government entity and an entity that is carrying out government activity in distinguishing its previous decision in Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R In Stoffman the majority of the Court had concluded that a hospital did not form part of the government for the purpose of determining whether its mandatory retirement policy was subject to the Charter. [43] In finding that the Charter applied to the decision not to provide sign language interpreters for deaf patients as a part of the publicly funded health care scheme, the Court in Eldridge held that it was not the impugned legislation that infringed the Charter but the actions of the hospitals and the Medical Services Commission in exercising the discretion conferred by the legislation that did so. In so determining, the Court held that there were two ways in which the Charter might apply to provincial legislation: (i) the legislation may be found unconstitutional on its face because it violates a Charter right; or (ii) the Charter may be infringed by the actions of a delegated decision maker in applying the legislation in question (at paras 20-21):...There is no question, of course, that the Charter applies to provincial legislation; see RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R There are two ways, however, in which it can do so. First, legislation may be found to be unconstitutional on its face because it violates a Charter right and is not saved by s. 1. In such cases, the legislation will be invalid and the Court compelled to declare it of no force or effect pursuant to s. 52(1) of the Constitution Act, Secondly, the Charter may be infringed, not by the legislation itself, but by the actions of a delegated decision-maker in applying it. In such cases, the legislation remains valid, but a remedy for the unconstitutional action may be sought pursuant to s. 24(1) of the Charter. The s. 32 jurisprudence of this Court has for the most part focussed on the first type of Charter violation. There is no doubt, however, that the Charter also applies to action taken under statutory authority. The rationale for this rule flows inexorably from the logical structure of s. 32. As Professor Hogg explains in his

14 Page: 14 Constitutional Law of Canada (3rd ed (loose-leaf)), vol. 1, at pp and 34-9: Action taken under statutory authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter. Thus, the limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority. The sentiment of Lord Atkin in speaking of a constitutional prohibition addressed solely at the legislative branch is also apposite: "The Constitution", he wrote, "is not to be mocked by substituting executive for legislative interference with freedom"; see James v. Cowan, [1932] A.C. 542 (P.C. Australia), at p [44] In discussing the application of the Charter to the hospital, the Court stated, at paras : Having identified the sources of the alleged s. 15(1) violations, it remains to be considered whether the Charter actually applies to them. At first blush, this may seem to be a curious question. As I have discussed, it is a basic principle of constitutional theory that since legislatures may not enact laws that infringe the Charter, they cannot authorize or empower another person or entity to do so; Slaight, supra. It is possible, however, for a legislature to give authority to a body that is not subject to the Charter. Perhaps the clearest example of this is the power of incorporation. Private corporations are entirely creatures of statute; they have no power or authority that does not derive from the legislation that created them. The Charter does not apply to them, however, because legislatures have not entrusted them to implement specific governmental policies. Of course, governments may desire corporations to serve certain social and economic purposes, and may adjust the terms of their existence to accord with those goals. Once brought into being, however, they are completely autonomous from government; they are empowered to exercise only the same contractual and proprietary powers as are possessed by natural persons. As a result, while the legislation creating corporations is subject to the Charter, corporations themselves are not part of "government" for the purposes of s. 32 of the Charter. Legislatures have created many other statutory entities, however, that are not as clearly autonomous from government. There are myriad public or quasi-public institutions that may be independent from government in some respects, but in other respects may exercise delegated governmental powers or be otherwise responsible for the implementation of government policy. When it is alleged that

15 Page: 15 an action of one of these bodies, and not the legislation that regulates them, violates the Charter, it must be established that the entity, in performing that particular action, is part of "government" within the meaning of s. 32 of the Charter. [45] The Court continued, at para. 41 to state: While it is well established that the Charter applies to all the activities of government, whether or not those activities may be otherwise characterized as "private", this Court has also recognized that the Charter may apply to non-governmental entities in certain circumstances...it has been suggested, for example, that the Charter will apply to a private entity when engaged in activities that can in some way be attributed to government. [...] [46] The Court concluded that private entities may be subject to Charter scrutiny in respect of certain actions where such actions are inherently governmental or are in furtherance of a specific government policy or program (at paras ) [emphasis in original]: It seems clear, then, that a private entity may be subject to the Charter in respect of certain inherently governmental actions. The factors that might serve to ground a finding that an activity engaged in by a private entity is "governmental" in nature do not readily admit of any a priori elucidation. McKinney makes it clear, however, that the Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy. In these circumstances, while it is a private actor that actually implements the program, it is government that retains responsibility for it. The rationale for this principle is readily apparent. Just as governments are not permitted to escape Charter scrutiny by entering into commercial contracts or other "private" arrangements, they should not be allowed to evade their constitutional responsibilities by delegating the implementation of their policies and programs to private entities. In McKinney, I pointed to Slaight, supra, as an example of a situation where action taken in furtherance of a government policy was held to fall within the ambit of the Charter. I noted, at p. 265, that the arbitrator in that case was "part of the governmental administrative machinery for effecting the specific purpose of the statute". "It would be strange", I wrote, "if the legislature and the government could evade their Charter responsibility by appointing a person to carry out the purposes of the statute"; see idem. Although the arbitrator in Slaight was entirely a creature of statute and performed functions that were exclusively governmental, the same rationale applies to any entity charged with performing a governmental activity, even if that entity operates in other respects as a private actor; see A. Anne McLellan and Bruce P. Elman, "To Whom Does the Charter Apply? Some Recent Cases on Section 32" (1986), 24 Alta. L. Rev. 361, at p. 371.

16 Page: 16 Two important points must be made with respect to this principle. First, the mere fact that an entity performs what may loosely be termed a "public function", or the fact that a particular activity may be described as "public" in nature, will not be sufficient to bring it within the purview of "government" for the purposes of s. 32 of the Charter. Thus, with specific reference to the distinction between the applicability of the Charter, on the one hand, and the susceptibility of public bodies to judicial review, on the other, I stated as follows, at p. 268 of McKinney: It was not disputed that the universities are statutory bodies performing a public service. As such, they may be subjected to the judicial review of certain decisions, but this does not in itself make them part of government within the meaning of s. 32 of the Charter.... In a word, the basis of the exercise of supervisory jurisdiction by the courts is not that the universities are government, but that they are public decision-makers. [Emphasis added.] In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program. As I stated further on in McKinney, at p. 269, "[a] public purpose test is simply inadequate" and "is simply not the test mandated by s. 32". The second important point concerns the precise manner in which the Charter may be held to apply to a private entity. As the case law discussed above makes clear, the Charter may be found to apply to an entity on one of two bases. First, it may be determined that the entity is itself "government" for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as "government" within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as "private". Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly "governmental" in nature -- for example, the implementation of a specific statutory scheme or a government program -- the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities. [47] The Court found that while Stoffman established that the Vancouver General Hospital was not a part of the government even though it engaged in the public function of providing

17 Page: 17 healthcare, the hospital in Eldridge was implementing a governmental policy which brought it under the Charter with respect to that action alone, as opposed to its other private activities. [48] As the Supreme Court recognized in Eldridge, the Charter may apply in one of two ways; it may apply to a government actor or it may apply to non-government actors responsible for the implementation of a specific government policy or activity. In McKinney, a review of the various statutes governing Ontario universities lead the majority to find that the universities in question were not organs of the government. A review of the PSL Act leads me to a similar conclusion. [49] Universities in Alberta are established by order of the LGIC (s. 3), as are their senates (s.11) and boards of governors (s.13). The senate consists of a number of individuals who are members by virtue of their office, 30 representative member selected by the members of the senate to represent geographical areas and groups and organizations with an interest in the university, as well as certain appointed members, nine of which are members of the public appointed by the Minister responsible for the PSL Act (s.11). The board is comprised of the chair (appointed by the LGIC) and a number of members appointed by the Minister and nominated by various other bodies such as the alumni association, the senate, the general faculties council and the student's association, plus up to nine individuals appointed by the LGIC (s. 16). The university is required to have a general faculties council made up of various individuals who are members by virtue of their office or are elected or appointed (s. 23). The general faculties council is responsible for the academic affairs of the university, subject to the authority of the board (s. 26). [50] The board has the capacity, rights and privileges of a natural person, subject to the ability of the LGIC to prohibit, restrict or proscribe how such rights, powers and privileges may be exercised (s.59). The board is to manage and operate the institution in accordance with its mandate and is to "develop, manage and operate, alone or in co-operation with any person or organization, programs, services and facilities for the economic prosperity of Alberta and for the education or cultural advancement of the people of Alberta" (s. 60). [51] I am satisfied that the University of Calgary is not part of the government so as to make all of its actions subject to the Charter, as was also found to be the case with the universities in McKinney. The issue that now must be determined on this application is whether the University was implementing a specific statutory scheme or government program with respect to the actions taken by it in disciplining the Applicants which made it subject to the Charter. [52] The Applicants argue that any coercive actions taken by any entity pursuant to statutory authority attract the Charter. They submit that the PSL Act grants power to the general faculties council or its delegate to discipline students and the action taken against the Applicants was coercive and designed to compel behaviour. The Applicants rely on R. v. Whatcott, 2002 SKQB 399, 225 Sask. R. 205, in arguing that the steps taken by the University constitute statutorily authorized coercive action and that as such, the Charter applies notwithstanding the fact that it may not otherwise be applicable to the University generally.

18 Page: 18 [53] In Whatcott, the appellant was convicted for littering contrary to the traffic and parking bylaws of the University of Regina. The University of Regina Act, R.S.S. 1978, c. U-5, authorized the University's Board to enact bylaws regulating and governing parking on University property. The University enacted a further bylaw dealing with littering on University property. [54] Mr. Whatcott was distributing anti-abortion material on campus and was placing material on vehicles parked on the campus. He was charged with the unlawful distribution of literature on University property contrary to the bylaws and was found guilty of this offence by a justice of the peace and fined. Whatcott argued that the bylaw in question was invalid because it constituted an unreasonable infringement of his right to freedom of expression under s. 2(b) of the Charter. The University argued that the Charter was inapplicable as the enactment of the bylaw did not constitute a government action under s. 32 of the Charter. [55] The Court found that while the University of Regina was independent from government, it attracted Charter scrutiny in the performance of certain governmental activities. Ball J. held, at paras , that: In McKinney v. University of Guelph, [1990] 3 S.C.R. 229, the Supreme Court of Canada held that the Charter did not apply to a University of Guelph policy requiring its employees to retire at age 65. The result of four different judgments was a determination that universities are independent bodies able to manage their own affairs, and since the mandatory retirement policy was not undertaken under the direction of government, the Charter did not apply. Nevertheless, four of the seven judges expressed the view that universities may perform certain public functions that could attract Charter review (see the comments of L'Heureux-Dube J. at p. 418; Sopinka J. at p. 444; and Wilson J. and Cory J. at pp ). Thus, the McKinney case is authority for two propositions: first, universities are not usually part of the government apparatus and, second, the Charter does not apply to universities in dealing with their own employees. In McKinney, supra, La Forest J. held that the Charter applies to municipalities. The reason was stated at p. 270 as follows:... [M]unicipalities perform a quintessentially governmental function. They enact coercive laws binding on the pubic generally, for which offenders may be punished... The same can obviously not be said of universities. Although the same could not be said of the University of Guelph in McKinney, supra, the same can be said of the University of Regina in this case. The enactment of the Bylaw was a quintessentially governmental function. It resulted in the appellant being charged, prosecuted, tried, convicted and penalized by the

19 Page: 19 Provincial Court for distributing his pamphlets. The action, which was taken by the University of Regina pursuant to authority conferred upon it by the University of Regina Act, was indistinguishable from the enforcement of parking bylaws by a municipality. The powers granted to the University by ss and 90.2 of the Act are conferred "notwithstanding The Urban Municipalities Act, 1984 and The Wascana Centre Act (s. 90.2)." The legislation permits the enforcement of the bylaws in Provincial Court provided that they are first published in the Gazette (s. 90.2(1)(n) and 90.2(2) and (3)). By enacting the bylaws the University is essentially carrying out the purposes of ss to 90.3 of the Act. It is engaged in governmental action which may bring an individual before the courts in the same manner as a Federal, Provincial or municipal law. [56] While I wholeheartedly adopt Justice Ball's comment that a university campus is a "...locale one would expect to facilitate and encourage free and open intellectual discussions" there are a number of significant distinctions between the underlying facts in Whatcott and those before me. In Whatcott, the University was essentially engaged in a municipal governmental activity. Provincial legislation existed which regulated parking and the University's power to regulate parking on its land was granted notwithstanding this legislation. The Court expressly found that the enactment of the Bylaw was a "quintessentially governmental function" and that the University's action was "indistinguishable from the enforcement of parking bylaws by a municipality." In Whatcott the legislation delegated the ability to make laws of general application with corresponding sanctions in provincial court. The University was acting in a near identical fashion as the municipality. Its parking bylaw was one of general application pertaining to any individual situated on University property. [57] It is clear that in the present instance the University of Calgary is not in essence performing a municipal function. Nonetheless, a non-government entity such as the University may still be subject to the Charter when it is implementing a specific government policy or program, as was found to be the case in Eldridge. The issue in Eldridge was "whether hospitals effectively implement government policy in providing medical services under the Hospital Insurance Act" (para. 46). To answer this question the Court examined the purpose and structure of the Hospital Insurance Act and noted at paragraph 50: The structure of the Hospital Insurance Act reveals, therefore, that in providing medically necessary services, hospitals carry out a specific governmental objective. The Act is not, as the respondents contend, simply a mechanism to prevent hospitals from charging for their services. Rather, it provides for the delivery of a comprehensive social program. Hospitals are merely the vehicles the legislature has chosen to deliver this program. [58] The Court went on to distinguish Stoffman (para. 51):