Prigden v. University of Calgary
The two applicants, Stephen and Keith Prigden, are twin brothers who were charged with non-academic misconduct and placed on probation for having caused injury to one of their professors by posting derogatory comments about her on a Facebook page designed to criticize her teaching. On the page, which was called "I no longer fear Hell, I took a course with Aruna Mitra", the brothers each posted a negative comment.
- Steven wrote: Somehow 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?
- Keith wrote: "Hey fellow LWSO homes...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 LSWO students!"
After an investigation run by the Interim Dean of the Faculty of Communication and Culture (along with a team of professors from the faculty, including professor Mitra's spouse), the brothers each received a letter advising them that their conduct constituted non-academic misconduct. Only Keith was placed on probation. Both were required to write letters of apology to the professor and to refrain from posting or circulating defamatory materials about the professor; moreover they were advised that these sanctions could be taken into account in any future cases of misconduct and that failure to comply with the sanctions and conditions could result in further discipline, up to and including expulsion.
The brother appealed the decision to a Reviews Committee, which found that the Prigdens had both participated in non-academic misconduct. Keith was placed on probation for 4 months and Keith, for 6. Their application to appeal to the Board of Governors was rejected.
- Does the Charter apply to the disciplinary proceedings taken by the Respondent University?
- Were the Applicant's Charter rights infringed?
- Were the Applicant's Charter rights justifiably infringed?
- 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?
- The judge likened the situation described in this case to the one described in Elridge, where the issue was the failure of the hospital to provide interpreters in its provision of a service legislated by the government. So too is a University legislated by government to provide educational services to students. "The University is the vehicle through which the government offers individuals the opportunity to participate in the post-secondary educational system. When a university committee renders decisions which may impact, curtail or prevent participation in the post-secondary system or which would prevent the opportunity to participate in learning opportunities, it directly impacts the stated policy of providing an accessible education system as entrusted to it under the PSL act. The nature of these activities attracts Charter scrutiny.
- The Judge used the Irwin test to determine that the applicant's Charter rights had indeed been infringed: "The effect of the Review Committee was to sanction the Applicants and prohibit them from publicly espousing their critical views regarding Professor Mitra while studying at the University of Calgary. The purpose of the order is to restrict the Applicants' freedom of expression. The second step of the Irwin test is also satisfied. The order has a direct effect on the Applicant's freedom of expression and violates section 2(b) of the Charter. "75
- The Court used the Oakes test to determine that the infringement was unjustifiable under section 1 of the Charter. Part 1: "I accept that the objectives of maintaining a learning environment where there is respect and dignity for all and in protecting its reputation as an institution are meritorious and accord with the values of a free and democratic society" (81). Part 2: "However, I am satisfied that the measures adopted by the Review Committee of disciplining the Applicants for making critical comments regarding Professor Mitra on the Facebook wall were excessive. 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 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 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 circumstances of this case are very different from those in Ross where racist comments were being made by a teacher to young children in an educational context. The University has not shown 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. (81-82).
- According to Section 31 (1) (a) of the PSL:Act, all disciplined meted out by the general faculties counsel are subject to appeal to the board.
- The only procedural defect identified by the court was the presence of professor Mitra's spouse on the committee that originally disciplined the brothers. However, that committee was not the subject of the present hearing, although it could be subject to a subsequent hearing.
- "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 response as a benchmark for their own behaviour on camps. 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." (107)
- "The issue on this application is whether the Applicants engaged in non-academic misconduct. For the purposes of the Policy, the issue is whether the statements caused "injury" to Professor Mitra, within the meaning of the Policy. As Professor Mitra was not called as a witness at the hearing, there is no direct evidence from her that she was injured as a result of the statements. The only evidence before the Review Committee that addresses whether any injury was caused is hearsay and second hand hearsay provided by Dr. Tettey that he received a complaint from Professor Mitra, who indicated that she had been told by unidentified colleagues and associates of that website which in their and her estimation seemed to bring her into disrepute and placed her professional stature in some unspecified manner. While damage may be presumed in some circumstances as part of the law of defamation, there is no basis to presume injury or damage in this context where the very issue to be determined in respect of the Policy is whether Professor Mitra suffered injury as a result of the comments posted by the Applicants". (112)
The Review Committee's decision is quashed.