RB v. University of Victoria
RB , Petitioner, and
The University of Victoria, Michael Miller, and K. Susan Shaw,
 B.C.J. No. 558
Victoria Registry No. 94 4823 
British Columbia Supreme Court
Victoria, British Columbia
Heard: January 19 and 20, 1995.
Judgment: March 14, 1995. Filed: March 15, 1995.
Counsel for the Petitioner: Douglas H. Christie.
Counsel for the Respondents: J. Michael Hutchison, Q.C.
The petitioner, a computing science
student at the University of Victoria,
avers inter alia that his
right to freedom of expression as guaranteed by
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
of the Charter not
to be deprived of liberty except in accordance with the
principles of fundamental justice.
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.
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
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
(hereinafter referred to as the "sol account").
In his affidavit,
Dr. Michael Miller, Chair,
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
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:
I further find that the petitioner agreed to this policy of use
prior to obtaining his computer privileges.
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
not to use any University computing service or
facility for non-University projects; ...
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.
"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."
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.
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."
On or about December 15, 1994, Ms. Shaw sent an E-
mail letter to Dr. Michael Miller and Mr. Herb Widdifield,
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:
- withdrawal of computing privileges;
- 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]
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:
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
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.
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.
The petitioner responded to Dr. Miller's letter by
initiating these court proceedings.
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
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?
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
of the Charter, as being a reasonable limit prescribed by law
as can be demonstrably justified in a free and
The Petitioner's Position.
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.
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
The Respondents' Position.
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.
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
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
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
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.
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.
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.
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.
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.
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"?
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.
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.
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
The academic governance of the university is vested in
the senate and it has power
to establish a standing committee of final appeal for
students in matters of academic discipline;
In the result, I dismiss his application for the
interim order pursuant to s. 10 of the Judicial Review Procedure
Whether the Petitioner is entitled to a remedy under s. 24(1) of
the Canadian Charter of Rights and Freedoms.
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.
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,  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
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 ...
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.
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
the formation and adoption of academic policies
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
The Matter of the University's Harassment Policy and s. 2(b) of
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
such treatment has the effect or purpose of seriously
threatening or intimidating a person. [emphasis added]
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.
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
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,
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."
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".
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:
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
- 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
the formulation and adoption of academic
policies and standards,
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
In the result, I dismiss the petitioner's
application, with costs on Scale 3.