U of C appeals Facebook ruling

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An Alberta court could affect students throughout the country

Tannara Yelland
CUP Prairies and Northern Bureau Chief

SASKATOON (CUP) — The University of Calgary has filed a notice to appeal the ruling in the case between itself and brothers Keith and Steven Pridgen.

U of C spokesperson James Stevenson said the university is appealing the decision that ruled in favour of the Pridgen twins “solely on the fact that the university is seeking clarification as to what aspects the Charter plays in day-to-day operations.

“This is not about us fighting the Pridgens. This is about us trying to seek clarity,” he said.

B.C. lawyer Noah Sarna maintains an education law blog and co-authored The Law of Schools and Universities. Sarna believes that the Charter of Rights and Freedoms gives students an extra, well-needed avenue for justice in dealing with university administrations.

“There are a lot of strikes against students,” he said. “But what [the initial ruling] does is it empowers them because it opens up another type of claim they can raise, and it shows them they have rights.”

The Pridgen brothers had created a Facebook group about professor Aruna Mitra after taking a law survey course taught by Mitra. After being censured by the university and found guilty of non-academic misconduct in November 2008 and placed on probation, the Pridgen twins filed with the Alberta Court of Queen’s Bench for a judicial review.

“All the methods of university governance were exhausted,” Keith Pridgen said of he and his brother’s choice to seek a court ruling. They had already met with their dean and an ad hoc committee, and had been refused an appeal to the U of C board of governors.

Once the matter went to court, Justice Jo’Anne Strekaf ruled that the Charter of Rights and Freedoms applied to the university because it acts as a body of government when educating students. Because of this, the U of C was infringing on the Pridgens’ right to freedom of speech by punishing them.

The decision surprised the legal community, though it was not unprecedented.

Sarna explained that since the institution of the Charter there has been a debate about whether or not it should apply to universities.

The Charter binds government and institutions acting as government bodies. Such bodies include Parliament, provincial legislatures and, arguably, universities, since education is a service the government is responsible for.

However, universities are generally considered distinct bodies. Whether they are legally distinct bodies is the question that this case may answer.

Previous court cases at the Supreme Court of Canada have set the precedent that it is possible for the Charter to apply to universities. Sarna said the most significant case has been one regarding mandatory retirement policies in Guelph. The Supreme Court ruled in this case that the Charter did not apply to the university.

The justices stated in their decision that while the Charter did not apply to the case then at hand, it could still apply in other situations.

“I think the Pridgens’ lawyer hit the nail on the head when he said this decision kind of took the legal community off guard,” said Sarna.
Stevenson agreed that “case law is all over the map” regarding how or when the Charter applies to universities.

The Alberta Court of Appeal still has to decide if it will hear the appeal. Sarna said he would be surprised if the court declined, because this case has potential significance across Canada.

If the appellate court in Alberta agrees to hear the appeal, Sarna cautioned people to remember that while the ruling will be law in Alberta, it will not be elsewhere. He added that the Alberta Code of Appeal is well respected outside Alberta. While the decision of the appellate court will not be binding outside Alberta, it will be persuasive in other courts.
 

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