Question(s) to be Determined: Whether the comments made on Facebook by Keith and Steve Pridgen, regarding Professor Mitra constituted academic misconduct, as well as whether the applicants actions were protected as forms of freedom of expression under the Charter.
Findings:It was concluded that the Applicants’ comments did not constitute academic misconduct and the Pridgen brothers' right to freedom of expression, under section 2(b) of the Charter, was infringed by the University of Calgary Review Committee.
Reasoning: The decision to discipline was quashed based on the fact that the universities are not exempt from, and that these students were in fact protected under, section 2(b) of the Charter of Rights and Freedoms. This decision is noteworthy as it highlights the jurisdiction of the Charter in terms of both new media technologies, such as Facebook, and university institutions in Canada.
Both Applicants appealed the decision of the University and 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.
Eight main issues to be determined by the court:
1. Does the Charter apply to the disciplinary proceedings taken by the Respondent? Yes.
• I am satisfied that the University is not a Charter free zone. The Charter does apply in respect of the disciplinary proceedings taken by the University against the Applicants pursuant to the PSL Act. As in Eldridge, the source of the alleged Charter violation is the conduct of the University as opposed to the legislation itself. While the University is free to construct policies dealing with student behavior which may ultimately impact access to the post-secondary system, the manner in which those policies are interpreted and applied must not offend the rights provided under the Charter. In this case, neither the PSL Act itself or the University's Policy on its own offend the Charter. The issue to be determined is whether the manner in which the Policy was applied infringed the Applicants' Charter protected rights.
2. If so, were the Applicants' Charter rights infringed? Yes.
• I cannot accept that expression in the form of criticism of one's professor must be restricted in order to accomplish the objective of maintaining an appropriate learning environments. I do not regard this particular kind of expression as being of little value. Students should not be prevented from expressing critical opinions regarding the subject matter or quality of the teaching they are receiving. As an educational institution, the University should expect and encourage frank and critical discussion regarding the teaching ability of professors amongst students, even in instances where the comments exchanged are unfavourable. While certain of the comments made about Professor Mitra were not particularly gracious and might have reflected a lack of maturity, the Facebook Wall does have utility as a forum of discussion. The commentary may assist future students in course selection as well as provide feedback to existing students and perhaps reassurance that one is not alone in finding that they are having difficulty appreciating instruction in a particular course. If Professor Mitra was concerned that she was being defamed, then she could have brought a civil action.
• The University has not shown that the Review Committee's application of the Policy impairs the right to freedom of expression no more than is necessary. As such, I do not find that the Review Committee's application of the Policy can be justified using a section 1 analysis. I am satisfied that the Applicants’ section 2(b) Charter rights to free expression were infringed by the Review Committee’s decisions, that such infringement cannot be justified under section 1 of the Charter, and that these decisions must be set aside.
3. Were the actions taken by the University ultra vires the jurisdiction of the Province of Alberta? No.
• The Applicants have not demonstrated that the PSL Act nor any act taken by the Respondent with respect to the findings of non‑academic misconduct went beyond the administration of education.
4. Did the Board of Governors err in refusing to hear the Applicants' appeals? Yes.
• If the GFC has the statutory authority to impose a form of discipline, the exercise of such authority is subject to a right of appeal to the board of governors, by virtue of section 31(1)(a).
5. Were the Applicants' denied a fair hearing? No.
• On balance, I am satisfied that the Review Committee met the duty of fairness owed to the Applicants with respect to how the hearing was conducted by it
6. Did the Review Committee provide adequate reasons for its decisions? No.
• The reasons given by the Review Committee are inadequate as they do not disclose the rationale for the decision but simply state a conclusion. There is no explanation provided to the Applicants to enable them to understand how their actions constituted non‑academic misconduct or any guidance as to how they should govern themselves in the future. Moreover, it would be impossible for other students at the University to utilize the Review Committee's reasons as a benchmark for their own behaviour on campus. The lack of any explanation as to how the Review Committee determined that the Applicants' actions constituted non‑academic misconduct makes meaningful review of its decision difficult.
7. Did the Review Committee err in concluding that the activities of the Applicants constituted non‑academic misconduct? No.
• In my view, there was no reasonable basis, having regard to the evidence before the Review Committee, that would support the conclusion that the comments made by each of the Applicants on the Facebook Wall caused injury to Professor Mitra and that their conduct constituted non‑academic misconduct within the meaning of the Policy.
8. What, if any, remedy should be granted to the Applicants:
• As I have found that decision to have infringed the Applicants' Charter rights and have concluded that the Committee's finding that the Applicants' conduct constituted non‑academic misconduct for which they should be disciplined constituted an unreasonable decision, I am of the view that the Review Committee's decision should be quashed and that this is not a case where the matter need be referred to the Board of Governor's Student Discipline Review Committee to consider an appeal from that decision. Although normal practice would be to correct the error and refer the application back to the administrative body, there is nothing to be gained from doing that in the present circumstances. The facts are not in dispute nor is the Board of Governor's Student Discipline Review Committee in a better position to decide the matters at issue. Hence, the decision of the Review Committee is quashed.