RB v. University of Victoria

RB , Petitioner, and
The University of Victoria, Michael Miller, and K. Susan Shaw, Respondents.

[1995] B.C.J. No. 558

Victoria Registry No. 94 4823 [944823]

British Columbia Supreme Court

Victoria, British Columbia

(In Chambers)

Owen-Flood J.

Heard: January 19 and 20, 1995.
Judgment: March 14, 1995. Filed: March 15, 1995.
(21 pp)

Counsel for the Petitioner: Douglas H. Christie.
Counsel for the Respondents: J. Michael Hutchison, Q.C.


[1]
OWEN-FLOOD J.: -- The petitioner, a computing science student at the University of Victoria, avers inter alia that his right to freedom of expression as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms has been unconstitutionally infringed by the University of Victoria, Dr. Michael Miller and Ms. K. Susan Shaw (hereinafter referred to collectively as the "respondents") in so far as they have curtailed, or threatened to curtail, the petitioner's access to and use of a computer account that provides the petitioner with access to the Internet. The petitioner further claims that the process by which the respondents seek to limit his computer access violates his rights enshrined in s. 7 of the Charter not to be deprived of liberty except in accordance with the principles of fundamental justice.

[2]
The petitioner asks this Court to issue an interim injunction pursuant to s. 10 of the Judicial Review Procedure Act RS.B. 1979, c. 209 (hereinafter referred to as the "Act") enjoining the respondents from interfering with his computer account. S. 10 of the Act reads as follows:
10. On an application for judicial review, the court may make an interim order it considers appropriate pending the final determination of the application.

[3]
In addition, the petitioner seeks a declaration pursuant to s. 24(1) of the Charter that the impugned "orders" restricting computer access and the policy referenced in these "orders", namely, section 2.2 c. of the University's Harassment Policy (cited below) be declared of no force or effect.

Findings of Fact pertaining to the application for interim injunctive relief:

[4]
Students enrolled in the University of Victoria's computing science program are provided with access to a computing services account. This account, paid for by the University, enables students to conduct their academic work and also provides students with a means of accessing E-mail, the Internet and various electronic "newsgroups". The petitioner's university paid account is "rblaber[at]sol" (hereinafter referred to as the "sol account").

[5]
In his affidavit, Dr. Michael Miller, Chair, Computing Science, Faculty of Engineering (hereinafter referred to as "Dr. Miller") states that:
... the University and its Department of Computer Science limits the use of the University-paid accounts by students in accordance with the policy of use which is specifically agreed to and accepted by the students before issuance of account privileges.
The policy referred to by Dr. Miller is the University of Victoria Policy Guide - Computer Use Responsibilities (Authorized April 14, 1986; Revised November 10, 1992). I find that Dr. Miller's statement is a true and accurate reflection of the conditions pertaining to the issuance of computer accounts. I note that the policy states, inter alia, the following:
RESPONSIBILITIES

As a condition of access to computing services and facilities, a user agrees:

...

*
not to use any computing system or user account unless formally and explicitly authorized to do so; ...

*
not to harass other users of computing services or facilities;

*
not to use any University computing service or facility for non-University projects; ...
I further find that the petitioner agreed to this policy of use prior to obtaining his computer privileges.

[6]
On or about December 8, 1994 the petitioner, using his sol account, posted a message entitled "Open Letter to Beth Hardy" on an electronic school newsgroup. Ms. Hardy, also a student at the University, had earlier in the year been elected to sit on the University's Board of Governors. As this letter provides the focal point for the events that follow, I set out its contents in full. It reads:
Dear Miss Hardy,

Since being elected to the Board of Governors, I charge that you have done virtually nothing to benefit the student body other than to create an atmosphere of gender hatred.

You have not used this medium, the internet to inform we the students of UVic of any of your sundry albeit useless exploits in the realm of student politics.

I charge that you are not only incompetent as a member of the board of governors, but a waste of space on the ballot. It sickens me to think that you will use this position on your resume without explaining how inept you actually were.

Pheh!

[RB]

"And I will execute great vengeance upon them with furious rebukes, and they shall know that I am the LORD, when I shall may my vengeance upon them."

Ezekiel 25:17

[7]
Ms. Hardy, in her affidavit filed January 17, 1995, deposed that upon reading this letter she was "immediately distressed and frightened". Ms. Hardy contacted Ms. Sheldon Collyer, the University Secretary, and, acting on Ms. Collyer's advice, met with K. Susan Shaw (hereinafter referred to as Ms. Shaw), the University's Anti-Harassment Officer.

[8]
Ms. Shaw, having read the letter, contacted the petitioner and scheduled a meeting with him. The petitioner later telephoned, cancelling the meeting. According to the affidavit evidence of Ms. Shaw, it was during this phone call that she informed the petitioner of her intention to "notify the Computer Science Department and the University Computer and Systems Services about the [December 8] message."

[9]
On or about December 15, 1994, Ms. Shaw sent an E- mail letter to Dr. Michael Miller and Mr. Herb Widdifield, Director, Computing and Systems Services. Ms. Shaw's letter, which is reproduced in part below, was accompanied by two of the petitioner's electronic messages, namely: the December 8 letter to Ms. Hardy and a June 30 message posted on the E-mail system by the petitioner in his role as president of the "Men's Club". The June 30 message consisted of crude and sometimes violent "pick-up lines". Ms. Shaw felt that both the June 30 message and the December 8 message violated the University's Harassment Policy and Procedure. She opined:
In addition, according to student Usage Guidelines, Computing Science Department, #5 (enclosed), "You will not distribute or maintain material in violation of the University's Harassment Policy", Mr. B has violated these Guidelines. Mr. B has further violated University policy according to the "Computing User Responsibilities" (enclosed) Section 2.5, "Not to harass other users of computing service of facilities" and section 3.1, "Abuse or misuse of computing services or facilities may not only be a violation of user responsibilities but also of the Criminal Code. ... Therefore the University will take appropriate action in response to user abuse or misuse of computing services of facilities, which may include, but not necessarily be limited to:

3.1.1.
withdrawal of computing privileges;

3.2.2.
laying of charges under the Criminal Code;

... It is my recommendation that Mr. B have his computing privileges in both areas withdrawn for a reasonable period of time and that he be given clear instructions that his behaviour is unacceptable and must stop immediately. If there is to be any reinstatement of those privileges at any time, I recommend that Mr. B be required to re-apply only under the conditions that any further violation of University policies will result in permanent withdrawal of all computer user privileges and possibly further disciplinary action. [emphasis added]

[10]
The final letter that is of concern is that sent by Dr. Miller to the petitioner on or about December 18, 1994 via E-mail. In this, Dr. Miller informs the petitioner that he is aware of the December 8 message to Ms. Hardy and states that the message "constitutes an inappropriate use of a Departmental account." Dr. Miller then writes:
I require you to do three things:

a) Write to Ms. Shaw in her capacity as Anti- Harassment Officer with a copy to me, and explain the reason for the inclusion of the biblical quote, acknowledge that your letter could have had the effect of being seriously threatening or intimidating and assure her, and me, that you will not use your computer account to that end.

b) Review the Department account usage guidelines on the departmental gopher and send me a signed letter that you agree to abide by them.

c) Take care to moderate the tone of all messages, postings and other forms of communication that originate from your Departmental account.

I consider that you have been put on notice that we expect a higher level of responsible behaviour in the use of accounts issued by the Department. Adherence to (a),(b) and (c) is required for you to retain your Departmental account.

Any subsequent episode of this or a related nature will leave me no choice but to shut-off your account pending an investigation of the behaviour.

I expect to receive copies of the communications mentioned in (a) and (b) above within three working days of your receipt of this message.

[11]
The petitioner responded to Dr. Miller's letter by initiating these court proceedings.

Issues.

[12]
1. Whether the so called orders of Ms. Shaw and Dr. Miller are orders or decisions within the meaning of the Judicial Review Procedure Act? In other words, has the petitioner properly invoked the Judicial Review Procedure Act?

2. Can it be said that there is a fair question to be tried on the claim that the respondents, by their actions, have infringed the petitioner's rights to freedom of speech and fundamental justice?

3. Is there a fair question to be tried on the issues that the harassment policy of the respondent University violates the Canadian Charter of Rights and Freedoms and is not justified under s. 1 of the Charter, as being a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society?

The Petitioner's Position.

[13]
The petitioner maintains that the "order" of Ms. Shaw and the "order" of Dr. Miller constitute unconstitutional infringements upon his rights as guaranteed by sections 2(b) and section 7 of the Charter. The petitioner further contends that the University's Harassment Policy, and in particular section 2.2(c) of the policy, is contrary to section 2(b) of the Charter and is not justified under section 1 of the Charter. The petitioner seeks a declaration from this court that these "orders" and the impugned section of the Harassment Policy are inoperative and of no force or effect.

[14]
Pursuant to section 10 of the Judicial Review Procedure Act, the petitioner seeks an interim injunction preventing Dr. Miller or anyone else from removing the petitioner's access to the departmental account without further order of the court, damages equivalent to the loss of an academic year, costs and such further and other relief as may seem just.

The Respondents' Position.

[15]
The respondents challenge the petitioner's invocation of the Judicial Review Act, contending that judicial review is not applicable to the subject matter of these proceedings. Moreover, the respondents contend that petitioner's application for judicial review is premature in so far as the petitioner has failed to exhaust the alternative appellate remedies existing within the administrative framework.

[16]
The respondents maintain that Charter remedies are not available to a litigant who proceeds by way of petition. It is further submitted that the personal respondents are not proper respondents in light of the fact that Charter remedies are being sought. Similarly, the respondents contend that the Charter does not apply to the respondent University or, in the alternative, does not apply to the subject matter in the case at bar which the respondent characterizes as a matter of breach of contract.

[17]
The respondents aver that the petitioner's freedom of speech has not been infringed or, in the alternative, that any interference with the petitioner's freedom of speech has been reasonable, proportionate and consistent with the principles of a free and democratic society. In sum, the respondents maintain that the impugned communication from the petitioner properly falls within the ambit of the harassment policy and that the respondents' response was measured, minimal and appropriate in the circumstances. The respondents deny that the harassment policy, when taken as a whole, violates the Canadian Charter of Rights and Freedoms.

The Appropriateness of the Invocation of the Judicial Review Procedure Act.

[18]
As noted, the petitioner brings his case to this court by way of petition pursuant to section 10 of the Judicial Review Procedure Act (hereinafter referred to as the "Act"). I am assured by counsel for the petitioner that the Attorney General has been given proper notice pursuant to s. 16 of the Act. I turn then to consider whether the Act has been properly invoked.

[19]
Before the Court can be asked to exercise its jurisdiction to make an interim order under s. 10 of the Act, it is incumbent upon the petitioner to demonstrate that the actions of the respondents which he seeks to impugn were made pursuant to functions in the categories of decision making within the ambit of the Act. In other words, the subject of the petition vis a vis Ms. Shaw, Dr. Miller, and the University, must relate to a "statutory power of decision" or the exercise of a "statutory power" as defined in s. 1 of the Act.

[20]
The petitioner characterizes both Ms. Shaw's and Dr. Miller's letters as "orders", but that is an assumption in itself. It is for the Court to decide whether or not that is a correct assumption in law and in fact. I therefore turn to consider each of the respondents' letters in turn, commencing with the December 15 letter sent by Ms Shaw to Dr. Miller.

[21]
Ms. Shaw's letter consists of a review of policy, an opinion that the petitioner's conduct was in breach of that policy and recommendations for action. There is no evidence before this Court to suggest that Dr. Miller was in any way bound by the content of Ms. Shaw's letter. In other words, Ms. Shaw's recommendations were merely a communication of what she thought was desirable in the circumstances. They did not directly affect the legal rights of either the petitioner or Dr. Miller.

[22]
I accept, as Macdonald J. observed in Save Richmond Farmland Society v. Richmond (Township) (1988), 36 Admin. L.R. 45 (B.C.S.C. ) at p.53:
The power to merely advise does not amount to a power to order or determine ... For the Judicial Review Procedure Act to apply, there must be a power to decide in respect of a legal right or duty.
The fact that Dr. Miller decided to follow these recommendations does not alter their true nature. In the result, I find that Ms. Shaw's letter is not subject to judicial review.

[23]
The decision of Esson C.J.S.C. in Wade v. University of British Columbia (7 July 1994), Vancouver A941349 (B.C.S.C.) is to be distinguished from that at bar. In Wade Esson C.J.S.C. made his finding based on the assumption that judicial review lies in respect of a university president's decision not to recommend tenure. I do not see that decision as authority for the proposition that judicial review properly lies in respect of recommendations generally. While the court in Wade based its conclusions on the assumption that judicial review was available, determination of the issue was specifically left an "open question". Moreover, the recommendation at issue in Wade was qualitatively different than the impugned recommendation in the case at bar in that it was made pursuant to an express statutory provision (University Act R.S.B.C. 1979, c. 419, s.56.) and directly affected the legal rights of the applicant in that case.

[24]
Dr. Miller's letter is prima facie in the nature of an "order" in so far as the petitioner's failure to comply with the letter's directives results in negative consequences for the petitioner, namely, the termination of his departmental account. Can it be said, however, that the consequences flowing from a failure to comply with this ostensible "order" affects the petitioner's "legal rights"?

[25]
The petitioner submits that the legal right affected is his right to free speech as guaranteed by the Charter. Based on the evidence I am unable to conclude that the petitioner's freedom of speech has been infringed or denied. It is clear from the evidence that the petitioner has access to a variety of computer accounts at the University, all of which provide him with the same access to the Internet that his sol account provided. In any event, free speech has never meant "free" in the sense that it must be paid for by the state or, in this case, by the University.

[26]
The petitioner also claims that his rights under section 7 of the Charter have been infringed in that Dr. Miller's letter presumes guilt, denies any form of impartial trial, and administers punishment without or before a hearing. Further, it demands admission of guilt as a condition of further use of the computer system. There is nothing in the evidence to suggest that these concerns could not properly be addressed within the existing administrative framework. It is a fundamental principle of administrative law that the internal adjudicative processes available to the petitioner ought to be exhausted prior to coming to court.

[27]
If the matter at bar is anything, it is a matter of student academic discipline. As such it comes within the ambit of s. 36 of the University Act and, in particular, s. 36(s) which reads:
36. The academic governance of the university is vested in the senate and it has power
...
(s) to establish a standing committee of final appeal for students in matters of academic discipline;

[28]
In the result, I dismiss his application for the interim order pursuant to s. 10 of the Judicial Review Procedure Act.

Whether the Petitioner is entitled to a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms.

[29]
The petitioner seeks a declaration under s. 24(1) of the Charter that Ms. Shaw's "order" is a violation of s. 2(b) and s. 7 of the Charter and is not saved by section 1 thereof and hence is inoperative and of no force or effect. In other words, the petitioner contends that Ms. Shaw's letter amounts to an unreasonable restriction of the petitioner's freedom of speech and denies the petitioner his guaranteed right to fundamental justice. The identical claim is made with respect to Dr. Miller's letter.

[30]
This claim must stand or fall on whether or not the Charter applies to the activities in question. Both counsel accept that the authority on this question is McKinney v. University of Guelph, [1990] 3 S.C.R. 229. However, the application of McKinney to the case at bar is a contentious matter left to the determination of this court. In McKinney, a case concerning Guelph University's mandatory retirement policy, La Forest J. (Dickson C.J. and Gonthier J. concurring) wrote the following, at pp. 273-274:
The government thus has no legal power to control the universities even if it wished to do so. ...

The fact is that the universities are autonomous, they have boards of governors, or a governing council, the majority of whose members are elected or appointed independent of government. They pursue their own goals within the legislated limitations of their incorporation. ...

The legal autonomy of the universities is fully buttressed by their traditional position in society. Any attempt by government to influence university decisions, especially decisions regarding appointment, tenure and dismissal of academic staff, would be strenuously resisted by the universities on the basis that this could lead to breaches of academic freedom. In a word, these are not government decisions. Though the legislature may determine much of the environment in which universities operate, the reality is that they function as autonomous bodies within that environment. 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 ...

[31]
The majority of the court held that dismissal of academic staff pursuant to a mandatory retirement policy was not subject to the Charter. On the evidence before me, I have not been persuaded that different reasoning should apply to the discipline of a student especially in this case where the internal decision making procedures have not been exhausted and the "ultimate decision" of the university on this matter is unknown. It is not for this court to speculate upon what the outcome of such a hearing might be.

[32]
I find support for my conclusion that the Charter does not apply to the case at bar in the wording of section 46.1 of the University Act which reads:
46.1 (1) The minister shall not interfere in the exercise of powers conferred on a university, its board, senate and other constituent bodies by this Act respecting
(a) the formation and adoption of academic policies and standards,
...
[33]
In the result, I do not find it necessary to consider the merits of arguments regarding the infringement of the petitioner's Charter rights finding, as I do, that the petitioner is not entitled to interim injunctive relief, either under the Judicial Review Procedure Act or the Charter neither of which apply to the letters written by Ms. Shaw and Dr. Miller. However, I observe that on the whole of the evidence I am not persuaded that the conduct of the respondents constitutes an infringement of the petitioner's right to "life, liberty and security of the person" or his right to "freedom of expression" as guaranteed by the Charter. I make this observation subject to my reasoning on the final issue, namely, whether the harassment policy of the University is contrary to s. 2(b) of the Charter.

The Matter of the University's Harassment Policy and s. 2(b) of the Charter

[34]
Section 2.2 c. reads:
2.2 Harassment is defined as the abusive, unfair, or demeaning treatment of a person or group of persons that has the effect or purpose of unreasonably interfering with a person's or group's status or performance or creating a hostile or intimidating working or educational environment when:

c. such treatment has the effect or purpose of seriously threatening or intimidating a person. [emphasis added]

[35]
The goal of the Harassment Policy, as set out in the preamble, is to ensure that:
... all members of the University community -- its faculty, staff, students and visitors -- have the right to participate equally in activities at the University without fear of harassment.

[36]
Two threshold questions arise in respect of the Harassment Policy. Firstly, whether the Charter applies to the Harassment Policy and, secondly, whether the petitioner has standing to challenge the Policy pursuant to the Charter. The respondent, relying on McKinney, supra, maintains that the University is not subject to the Charter. It is further contended by the respondent that the petitioner has, by contract, agreed to adhere to the terms of the Harassment Policy at the University of Victoria thereby rendering a Charter challenge to the Policy irrelevant. The petitioner, on the other hand, contends that the majority in McKinney held that the Charter does apply to Universities in some circumstances. In response to the claim that this is merely a matter of contract, the petitioner avers that no waiver of Charter rights can be accomplished unless expressly stated and that there is nothing in evidence to suggest that the petitioner waived his Charter rights.

[37]
I am in agreement with the petitioner's reading of McKinney. Indeed, in that case La Forest J. observed, at p. 274:
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.
In like vein, Sopinka J. wrote at p. 444 that he "would not go so far as to say that none of the activities of a university are governmental in nature."

[38]
In the case at bar, the Harassment Policy is really best characterized as a set of rules establishing the boundaries of acceptable behaviour for all members of the University community, including visitors. In essence, the Policy defines the limits of "academic freedom".

[39]
There is no evidence before me regarding how the Policy came into existence or what the government's role was, if any, in the creation of the policy. Neither the evidence nor the argument makes clear the statutory provisions by which this Policy was developed. There is no evidence as to whether the Policy was created pursuant to the powers granted to the Board of Governors (s. 27), the Senate (s. 36) or the President (s.56). Similarly, no submission was made as to whether the Harassment Policy is an "academic policy" within the meaning of s.46.1 which, in its germane parts, reads:
Minister not to interfere
46.1 (1) The minister shall not interfere in the exercise of powers conferred on a university, its board, senate and other constituent bodies by this Act respecting
(a) the formulation and adoption of academic policies and standards,
...
It would be imprudent of this Court, in the absence of such evidence and argument, to determine whether or not the Charter applies to the University's Harassment Policy. Accordingly, I do not find it necessary to consider the issue of standing or engage in a s. 1 analysis of s. 2.2 c. of the University's Harassment Policy.

[40]
I note, however, that on its face the wording of s. 2.2 c., referring as it does to such treatment having "the effect or purpose of seriously threatening or intimidating a person" (my emphasis), does appear to fall outside the ambit of constitutionally acceptable infringements of Charter rights. However, I make no ruling on the matter for the reasons noted above.

[41]
In the result, I dismiss the petitioner's application, with costs on Scale 3.
OWEN-FLOOD J.