Telfer v. The University of Western Ontario, 2012 ONSC 1287

CITATION: Telfer v. The University of Western Ontario, 2012 ONSC 1287 DIVISIONAL COURT FILE NO.: 62/11 DATE: 20120402 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT THEN R.S.J., MATLOW AND SWINTON JJ. B E T W E E N: ) ) RICHARD TELFER Applicant - and - THE UNIVERSITY OF WESTERN ONTARIO Respondent ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Clayton C. Ruby and Nader R. Hasan , for the Applicant Christopher G.

Riggs, Q.C. and Allyson Fischer , for the Respondent HEARD at TORONTO: January 26, 2012 Swinton J.: [ 1 ] The applicant Richard Telfer seeks judicial review of decisions taken at various stages in the student discipline process of the University of Western Ontario (“the University”) that resulted in a formal reprimand for a violation of the Code of Student Conduct . [ 2 ] For the reasons that follow, I find that he was accorded procedural fairness, and the decisions were reasonable. Therefore, I would dismiss his application. Factual Background

[ 3 ] The applicant was a graduate student at the University at the time of the events giving rise to the reprimand. On March 13, 2009, he won an election for President of the Society of Graduate Students (“the Society”). However, the election was contested, and the applicant became engaged in a dispute with Fiona Simpson, the Speaker of the Society. By virtue of her position, she was the person in charge of the election dispute. On March 23, 2009, she issued a ruling that the applicant’s election was invalid. [ 4 ] On March 11, 2009, the applicant had sent Ms. Simpson two e-mails.

In the first, he twice referred to the proceedings of the Election Appeals Board (“EAB”) as a “kangaroo court,” and described a decision as “illogical, absurd and biased.” He finished with, “Rest assured, I will defeat your stupidity in the end.” [ 5 ] In the second, he stated, Ms. Simpson, I look forward to the day when your time as Speaker/CRO comes to an end. Your utter incompetence, blundering, anti- democratic decisions, defamatory actions, twisted

interpretations, factual distortions, and shrill babbling has embarrassed the Society for too long. Frankly, I am amazed by your claim of prior experience. Let me know when the hearing will be held so that I may address the EAB directly. The less I see your name, the less nauseated I feel. [ 6 ] The third email began, “ You lied .” The applicant went on to complain because he had been given the text of three complaints, rather than the original complaints. [ 7 ] On the evening of March 25, 2009, the applicant and a friend saw Ms. Simpson enter the student government office.

As the applicant was of the opinion that she ought not to have access to the office after hours and she might be colluding with his political opponents, he had his friend videotape Ms. Simpson using a cell phone. This resulted in an altercation with another student who came out of the office. [ 8 ] On March 26, 2009, the applicant participated in a Society meeting, in which he interacted with Ms. Simpson in a manner that she found aggressive, causing her to become upset. [ 9 ] Ms. Simpson made a complaint of harassment against the applicant.

On August 13, 2009, he was charged under the Code of Student Conduct (“the Code”) and Policy 1.35, the Non-Discrimination and Harassment Policy (“the Policy”).

Section V of the Code, as it was then in effect, dealt with rules governing student conduct, stating, Membership in the University community implies acceptance by every student of the principle of mutual respect for the rights, responsibilities, dignity and well-being of others and a readiness to support an environment conducive to the intellectual and personal growth of all who study, work and live within it.

Any conduct on the part of a student that has, or might reasonably be seen to have, an adverse effect on the reputation or the proper functioning of the University, or the health, safety, rights or property of the University, its members or visitors, is subject to discipline under this Code. [ 10 ]

Section 6.00 of the Policy prohibits harassment, while

Section 6.03 provides: Conduct and/or behaviour also constitutes harassment, whether or not it is based on the prohibited ground of

section 4.00, when it creates an intimidating, demeaning or hostile working or academic environment. [ 11 ] The first stage of the Complaints Procedure confers the power on the Vice-Provost to make a finding of misconduct against a graduate student and impose a sanction. Accordingly, the subject matter of Ms. Simpson’s complaint was referred to Dr. John Doerksen, Vice-Provost of Academic Programs and Students (“the Vice-Provost”). Pursuant to

Section VIII (2), before making a finding of misconduct, the Vice-Provost must first inform the student and give him a reasonable opportunity to respond and submit evidence. [ 12 ] The applicant obtained legal representation from Clayton Ruby, who sought disclosure. The Vice-Provost provided detailed information about the complaint and the applicable Code and Policy, to which Mr. Ruby responded with thirteen pages of detailed written submissions, as well as affidavits from the applicant, the student who did the videotaping and another student who was at the Society meeting. Mr.

Ruby’s office had earlier provided an audio recording of the Society meeting in issue. [ 13 ] On December 10, 2009, the Vice-Provost met with the applicant to discuss the allegations. Although the applicant had requested that legal counsel be present, the request was denied, because the Code does not permit legal representation at this stage. Instead, it permits a student to bring a colleague of his or her choice (Section VIII (5)). Legal representation is allowed at the appeal stage. [ 14 ] In a letter dated February 12, 2010, the Vice-Provost advised the applicant of his decision.

He stated that he had reviewed the written submissions from the applicant’s counsel, as well as the audio recording of the Society meeting. He made reference to the

Section I.3 of the November 26, 2009 version of the Code, which states, Students are responsible for observing a standard of conduct that will contribute to the University’s mission and that will support an environment conducive to the intellectual and personal growth of all who study, work and live here. This responsibility includes respecting the rights, property, and well-being of other members of the University community… [ 15 ] The Vice-Provost concluded that the emails, the videotaping and the applicant’s conduct directed at Ms.

Simpson during the Society meeting on March 26 constituted harassment under the Code. In reaching that decision, he acknowledged the importance of freedom of political speech in a university, but held that the communications went well beyond political discourse and violated the Code. His conclusions are summed up as follows:

When looked at together with your communications to Ms Simpson of March 11, 2009 and March 26, 2009 and the events of March 25,2009 your actions at that meeting in continuing to challenge Ms Simpson in an aggressive manner until she was no longer capable ofcontinuing, do, in my view, contribute to a finding that your behavior towards Ms Simpson could reasonably be seen to have created ahostile academic or working environment, and as such constitutes harassment. [16] As a sanction, the Vice-Provost imposed a formal reprimand and ordered the applicant not to have any contact with Ms.Simpson. [17] The applicant appealed to the University Discipline Appeal Committee (“UDAC”).

On the agreement of both parties, the appealproceeded in writing. On August 13, 2010, the appeal was denied. [18] The applicant then appealed to the President of the University. On January 5, 2011, the President’s Designate dismissed theappeal. The Issues [19] The applicant challenges the disciplinary decision on a number of grounds: 1. Was the denial of legal representation before the Vice-Provost a breach of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22(“SPPA”) or a denial of procedural fairness? 2. Was the disciplinary decision unreasonable? 3.

Does the decision violate the right to freedom of expression guaranteed by s. 2(

b) of the Canadian Charter of Rights and Freedoms? Issue No. 1: Was the denial of legal representation before the Vice-Provost a breach of the SPPA or a denial of proceduralfairness? [20] The applicant argues that he was entitled to a hearing before the Vice-Provost, and both s. 10 of the SPPA and the common lawduty of procedural fairness required that he be permitted legal representation at that hearing. [21] The University argues that the SPPA does not apply to the hearing before the Vice-Provost, and the refusal to allow legalrepresentation to the applicant did not result in a denial of procedural fairness.

The requirements of procedural fairness [22] Courts have been reluctant to interfere in the academic functions of universities unless a student or faculty member has beentreated with “manifest unfairness” (Paine v. University of Toronto (1981), (ON CA), 34 O.R. (2d) 770 (C.A.) at p.776; Mulligan v. Laurentian University, 2008 ONCA 523 , [2008] O.J. No. 2570 (Ont. C.A.) at para. 22; Dawson v. Universityof Ottawa, [1994] O.J. No. 1148 (Div.

Ct.) at para. 7). [23] The content of the duty of procedural fairness depends on the context and requires a consideration of several factors: the nature ofthe decision being made, the nature of the statutory regime, the importance of the decision to the individuals affected, the legitimateexpectations of those individuals, and the procedures chosen by the decision-maker (Baker v. Canada (Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 at paras. 23-27).

As the Supreme Court of Canada said in Baker at para. 28: The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have theopportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair,impartial, and open process, appropriate to the statutory, institutional, and social context of the decision. [24] The common law has not recognized a general right to have legal representation before an administrative tribunal when thattribunal is required to observe the rules of natural justice (Laroche v.

Canada (1981), (FCA), 131 D.L.R. (3d) 152(F.C.A.) at p.171; Donald Brown and John Evans, Judicial Review of Administrative Action in Canada (Canvasback, looseleaf), pp. 10-26 to 27 (August 2011)). Rather, whether there is a right to legal representation in a hearing before a decision-maker requires anexamination of the particular context to determine whether the individual would be denied a fair opportunity to present his or her case ifdenied representation by counsel.

As Ledain J. stated in Laroche, above at p. 171: Whether the right to legal representation should be recognized in a particular case would appear to depend on whether, having regard tothe nature of the issues involved and the hearing required, the denial of the right to legal representation would deny the person affected afair opportunity to present his case. Where the case calls for an oral hearing at which there is to be an opportunity to adduce evidenceand to cross-examine witnesses then a right to legal representation ought as a general rule to be granted.

But the courts have indicatedthat they will consider whether it is appropriate to impose the additional burdens of cost, delay and technicality that generally result fromlegal representation on the particular decision-making process …. [25] The applicant relies on the decision of the Court of Appeal in Khan v. University of Ottawa, (ON CA), [1997]O.J. No. 2650, which held that a student had a right to appear and present her case orally before an Examinations Committee and thenthe Senate Appeals Committee, because her case turned on an assessment of her credibility.

While the Khan case did not deal with theright to counsel, like Baker, above, it makes clear that the content of the duty of fairness turns on the interests at stake and the nature ofthe decision being made. [26] The applicant also relies on Healey v. Memorial University of Newfoundland (1993), (NL SC), 106 Nfld. &P.E.I. R. 304 (Nfld. S.C.). There, a medical student had been accused of very serious allegations of physical, sexual and emotionalviolence by his former partner.

Barry J. (as he then was) found that there had been a denial of procedural fairness by the university,because the student was not given disclosure of a number of important documents, and he was denied the right to cross-examine the

complainant. Barry J. remarked that the credibility of the complainant was key to determining the extent of the abuse alleged, which would require a detailed examination of dates, times and places (at para. 49). He also took into account the seriousness of the consequences for the student. Not only did the student risk being expelled from his studies in medicine, and therefore from his chosen career; the allegations were criminal in nature and very damaging to his reputation.

In the circumstances, Barry J. concluded that the student should have the right to lead evidence, cross-examine witnesses and have the assistance of counsel. [ 27 ] The facts in Healey are very different from the facts in this case. Here, in contrast to Healey , the issues raised were not complex: the allegations related to three emails, the videotaping incident and the Society meeting (for which there was an audio recording).

There were no significant issues of credibility that needed to be resolved, and therefore, no need for cross-examination that required the assistance of counsel. [ 28 ] The applicant argues that he should have been given the right to counsel for two reasons. First, he submits that the allegations against him were serious, since harassment and intimidation can amount to criminal conduct. Second, the sanctions available under the Code can include expulsion. Therefore, given the important interests at stake, he argues he should have had the right to counsel. [ 29 ] I disagree.

This is not a case where the allegations were of criminal nature, as in Healey ; rather, the allegations were of harassment of another student in the form of interference with her ability to participate comfortably in university activities and to use university premises. [ 30 ] Moreover, on the facts of this case, the applicant could not reasonably have thought he was facing a sanction of suspension or expulsion. The Code makes it clear that those penalties are reserved for the most serious misconduct (see p. 5).

Indeed, the penalty he received, a formal reprimand, was a modest one, which would not be recorded on his transcript and could only be provided to administrative units on a need-to-know basis (see p. 8 of the Code). [ 31 ] If the applicant’s submission respecting the range of sanctions were accepted, there would be a right to counsel at every disciplinary meeting between the Dean (for undergraduate students) or the Vice-Provost (for graduate students), since theoretically, expulsion or suspension is a possible sanction for any contravention of the Code.

This would change significantly a process that was meant to be relatively informal and expeditious at the first stage. [ 32 ] I do not accept the applicant’s submission that the presence of sanctions such as suspension and expulsion in the Code automatically requires counsel in every case - for example, even where a student has broken a residence window or made excessive noise.

Whether there is a right to counsel requires an examination of the facts of the current case, as in Healey , to determine the seriousness of the allegations raised in the discipline process, an assessment of the seriousness of the sanctions realistically available and the degree to which credibility will be an issue. [ 33 ] Given the facts of the present case, the applicant was treated with the appropriate level of procedural fairness. He received full disclosure from the University, and his legal counsel had the opportunity to make detailed written representations and to provide affidavit material.

This material was considered by the Vice-Provost. [ 34 ] Credibility was not an issue, as the emails spoke for themselves. The Vice-Provost had the audio recording of the Society meeting, and he could resolve the issue concerning the videotaping without making findings of credibility. In the circumstances, I am satisfied the applicant was given the opportunity to present his case in a fair process. [ 35 ] Moreover, even if legal representation is not permitted at the first level, in the meeting with the Vice-Provost, the Code provides that a student is entitled to a lawyer at the appeal stage.

Where more serious sanctions are imposed, such as suspension and expulsion, the Code gives the UDAC broad powers to consider whether the decision on misconduct and sanction was reasonable and supported by the evidence (Section X(2)). [ 36 ] Here, the applicant had the benefit of legal counsel for the appeal, who chose to proceed by way of written submissions. [ 37 ] Accordingly, on the facts of this case, I am satisfied that there was no denial of procedural fairness, even though the applicant was not allowed to have counsel present when he met with the Vice-Provost. [ 38 ] However, this decision should not be taken to condone the prohibition of legal counsel in every disciplinary proceeding of the University at the initial stage.

In exceptional cases, as in Healey , where the stakes are not merely theoretically but realistically high for the student, the University may be well advised to consider permitting legal counsel to be present in the meeting with the Vice Provost or the Dean, as failure to do so may render the decision vulnerable to attack on the grounds of procedural unfairness. The Applicability of the SPPA [ 39 ] According to s. 10 of the SPPA , “a party to a proceeding may be represented by a representative”.

A “representative” includes legal counsel. [ 40 ] However, s. 10 has no bearing in the present application unless the SPPA applies to the University’s disciplinary process. Subsection 3(1) provides: Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under

an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision. “Statutory power of decision” is defined as a power or right, conferred by or under a statute, to make a decision deciding or prescribing,

(

a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or (

b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitledthereto or not. [41] Thus, the SPPA applies only if the Vice-Provost was exercising a “statutory power of decision conferred by or under” aprovincial Act, and he was required by the Act “or otherwise by law” to hold a hearing. [42] The Court of Appeal in Paine, above, expressed doubt as to whether the power of the Governing Council of the University ofToronto to appoint members of the teaching staff was a statutory power of decision.

The majority stated (at p. 772): … it is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it must be made in theexercise of a “statutory power of decision”; and I think that must be a specific power or right to make the very decision at issue. [43] A review of the legislation governing the University shows that the Vice-Provost was not exercising a statutory power ofdecision in the circumstances of this case. The powers of the University are set out in The University of Western Ontario Act, 1982, BillPr14, 1982, as amended

Section 18 deals with the management of the University, stating, Except in such matters as are assigned by this Act to the Senate or other body, the government, conduct, management and control of theUniversity and of its property and affairs are vested in the Board, and the Board may do such things as it considers to be for the good ofthe University and consistent with the public interest. [44]

Section 19 sets out the powers of the Board, including paragraph (k): “establish and enforce regulations for the use of itsbuildings, grounds and ancillary operations, and for the orderly conduct of persons entering upon the lands and premises of theUniversity.” These provisions do not make the Vice-Provost’s decision respecting student discipline an exercise of a statutory power ofdecision. [45] Moreover, even if the Vice-Provost were exercising a statutory power of decision, the governing legislation does not require ahearing, and the Code does not require a hearing at the initial stage of inquiry at the Vice-Provost or Dean level.

At the appeal stage, theCode states that the UDAC has a discretion whether to convene an oral hearing. [46] Therefore, s. 3(1) of the SPPA does not apply to the proceeding before the Vice-Provost and, consequently, there was no right tocounsel in the meeting with the Vice-Provost pursuant to the SPPA. Issue No. 2: Was the decision of the University reasonable? [47] Both parties agree that the standard of review is reasonableness with respect to the merits of the University’s decision (Dunsmuirv.

New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at para. 47). [48] The applicant argues that the Vice-Provost erred in finding that the applicant’s conduct was harassing behavior, because afinding of harassment requires an element of persistence or repetition. Moreover, the conduct could not be “intimidating” because it didnot involve coercion or threat of coercion (Daishowa v. Friends of the Lubicon, (ON SC), [1996] O.J. No. 152 (Div.Ct.) at para. 55). Finally, conduct can be “demeaning” only if it is an affront to someone’s human dignity (Lovelace v.

Ontario, 2000SCC 37 , [2000] 1 S.C.R. 950 at para. 55), and that was not the case here. [49] The Vice-Provost concluded that the tone of the emails went beyond political discourse and created a hostile environment. Thatwas a reasonable conclusion to reach, given the insulting and demeaning language used, particularly in the second email. Moreover, heconcluded that the emails were not protected political speech. Given the language and tone used, and the fact that they were sentprivately between the applicant and Ms.

Simpson, that was also a reasonable conclusion. [50] The Vice-Provost also concluded that the applicant acted inappropriately when he interfered with Ms. Simpson’s entry into thestudent office by videotaping her. This was not newsgathering activity that would constitute protected speech, but rather a failure torespect another student’s freedom of movement on campus. [51] While s. 10(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 defines harassment as “engaging in a course of vexatiouscomment or conduct,” repeated conduct is not essential to a finding of harassment (see Bell v.

Ladas (1980), (ONHRT), 1 C.H.R.R. D/155 at para. 1392). [52] The Vice-Provost looked at the different elements of the applicant’s conduct and determined that the treatment of Ms. Simpson,another student, was not acceptable within the university community. He imposed a modest sanction on the applicant. His reasons wereclear and his conclusions reasonable on the facts before him. Issue No. 3: Does the decision violate the right to freedom of expression guaranteed by s. 2(

b) of the Canadian Charter of Rightsand Freedoms? [53] The applicant argues that he was engaging in constitutionally protected speech, as his comments were political in nature and thevideotaping was a form of news gathering. Therefore, he submits, the disciplinary action violated s. 2(

b) of the Charter and was notjustified under s. 1. [54] The Charter applies to governmental action (see s. 32). Therefore, the first question to address is whether the Charter applies tothe University in matters of student discipline. [55] In McKinney v. University of Guelph, (SCC), [1990] 3 S.C.R. 229, a case dealing with mandatory retirement offaculty members and a librarian, the Supreme Court of Canada held that the Charter did not apply to universities, despite the fact that

they are subject to government regulation and they receive public funding. Given that they enjoy substantial internal autonomy, they donot form part of government for purposes of the application of the Charter (pp. 272-275). [56] The Court of Appeal, in Freeman-Maloy v. Marsden (2006), (ON CA), 79 O.R. (3d) 401, stated more recentlythat university regulation of student conduct was not “governmental” for purposes of the Charter (at para. 16 where the Court agrees withthe motions judge, who is quoted at para. 9). See, also, Maughan v.

University of British Columbia, 2009 BCCA 447 at para. 54. [57] However, the Supreme Court of Canada has also recognized that the activities of non-governmental institutions may becomesubject to the Charter when they are implementing a specific government policy or program (Eldridge v.

British Columbia (AttorneyGeneral), (SCC), [1997] 3 S.C.R. 624 at para. 43). [58] The application of Eldridge has led the Alberta Court of Queen’s Bench to conclude that the University of Calgary is subject tothe Charter in matters of student discipline involving speech – there, student posting of criticisms of a teacher on Facebook. In Pridgenv. University of Calgary (2010), 2010 ABQB 644 , 325 D.L.R. (4th) 441, the Court looked to the Post-Secondary Learning Act,S.A. 2003, c.

P-19.5 and concluded that the University of Calgary was acting as the agent of the provincial government in providingaccessible public post-secondary education to students pursuant to the legislation (at paras. 59, 63 and 67). [59] That decision has been appealed, and a decision is under reserve at the Alberta Court of Appeal. In any event, the statutoryscheme applicable to the University of Western Ontario is quite different from that applicable to the University of Calgary.

As set outearlier in these reasons, s. 18 of the University of Western Ontario’s Act gives it a right to control and direct its affairs through the Boardof Governors and the Senate. It is not acting as an agent of the provincial government to implement any academic policy of thegovernment. [60] Similarly, the case of R. v. Whatcott, 2002 SKQB 399 is distinguishable. In that case, the University of Regina enacted a bylawgoverning parking, as authorized by its constituent Act. Mr. Whatcott was convicted of littering under the bylaw after a trial inProvincial Court.

In those circumstances, the Saskatchewan Court of Queen’s Bench held that the University was exercising agovernmental function in enacting the bylaw that was similar to the powers of a municipality (at paras. 43-44). [61] The University of Western Ontario was not implementing a government policy nor acting in any way as an agent of thegovernment in developing and applying its discipline policy for students or carrying out its educational functions. Therefore, the Charterof Rights does not apply, and I need not address the Charter argument on its merits.

Conclusion [62] Accordingly, the application for judicial review is dismissed. The parties have agreed that costs should follow the event in theamount of $10,000.00. Therefore, costs to the respondent University are fixed at $10,000.00 inclusive of HST and disbursements. Swinton J. Then R.S.J. MATLOW, J.; (Dissenting) The requirements of procedural fairness. [63] I respectfully disagree with the disposition made by the majority. I would allow this application for judicial review and set asidethe decisions of the university challenged by the applicant.

I would, as well, dispose of costs differently. [64] The only issue on which I differ from the views of the majority is addressed in paragraphs 22 to 38, inclusive, of the majorityreasons of Justice Swinton which are headed, The requirements of procedural fairness. Although I generally agree with her analysis ofthe authorities cited by her, I disagree with how they should be applied to the facts of this case.

In particular, I disagree with herconclusion that the applicant was not entitled to legal representation at what took place before the Vice-Provost. [65] In my view, those authorities support the proposition that, whether or not the applicant was entitled to be represented by hislawyer at his hearing before the Vice-Provost, was one of the matters relating to the hearing that the Vice-Provost, himself, was required

to decide. And, in making the decision, he was required to take into account the various factors set out in the authorities cited by JusticeSwinton. This is the same view as that adopted in paragraph 24 of her reasons in which she stated as follows; The content of the duty of procedural fairness depends on the context and requires a consideration of several factors: the nature of thedecision being made, the nature of the statutory regime, the importance of the decision to the individuals affected, the legitimateexpectations of those individuals, and the procedures chosen by the decision-maker (Baker v.

Canada (Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 at paras. 23-27). As the Supreme Court of Canada said in Baker at para. 28: The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have theopportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair,impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.

Rather, whether there is a right of legal representation in a hearing before a decision-maker requires an examination of the particularcontext to determine whether the individual would be denied a fair opportunity to present his or her own case if denied representation bycounsel. (emphasis added) [66] The hearing before the Vice-Provost was governed by

Part VIII of the Code of Student Conduct, as it applies to graduatestudents. It provides, in part, as follows; • The Vice-Provost may dispose of the complaint him/herself or refer the complaint to either of these Deans. (section 1) • The Vice-Provost shall not make a finding of misconduct nor impose a sanction or sanctions against a student unless the studenthas been informed, in writing, of the nature of the complaint, the facts alleged against him\her, and has been given a reasonableopportunity to respond to them and submit evidence.

The student shall also be given a reasonable opportunity to meet personally with theVice-Provost to discuss the matter. It is the responsibility of the student to provide materials that will support his\her position and toproduce his\her witnesses. (section 2) • If the Vice-Provost finds that there has been misconduct, he/she may impose an appropriate sanction or sanctions. (section 3) • At all meetings with the Vice-Provost, the student may be accompanied by a colleague of his or her choosing.

Legal representationis not permitted at this stage; it is permitted at the appeal stage. (section 5) [67] Despite the use of words such as meet and meetings in the Code in referring to what took place before the Vice-Provost, it was,and was intended to be, a hearing as the word is used in the above-mentioned authorities. It was the event at which the Vice-Provostheard the evidence and, on that evidence, later found the applicant guilty and imposed a sanction on him.

It was clearly much differentfrom a mere opportunity to discuss the matter as those misleading words are used in the Code. [68] It was, of course, open to the university to provide in the Code for informal true meetings between the Vice-Provost and a studentagainst whom a relatively minor complaint had been made in an effort to resolve such a complaint in a informal matter as betweenmembers of the same university family.

The invitation to attend such a meeting would properly have stated that the purpose of themeeting was to attempt to reach a resolution of the complaint and that the student was not in jeopardy of being found guilty of anyoffence set out in the Code The so-called meeting, which the applicant was required to attend was clearly not such a meeting [69] Yet, throughout this hearing, the applicant was denied the right to have his lawyer represent him. [70] The denial was not made because the Vice-Provost addressed his mind to whether or not legal representation should be permittedon the basis of the context referred to in paragraph 65, above as he was required to do. [71] Rather, right from the time when he wrote his letter of August 13, 2009 to the applicant leading to the hearing before him, theVice-Provost made it clear that “Legal representation is not permitted at this meeting”.

By that, he meant that, simply because the Codeof Conduct prohibited legal representation at hearings before the Vice-Provost in all cases, it also applied to the applicant’s. [72] By doing so, and by failing to allow for the possibility of reconsideration at later times throughout the hearing, if warranted, theVice-Provost failed to carry out an essential part of his jurisdiction, blindly denied the applicant his right to procedural fairness and, inthe result, irrevocably tainted the balance of the proceedings against him. [73] Throughout her reasons, Justice Swinton conducts the analysis that the Vice-Provost was required to perform.

She states, inpart, for example, that; • Here, in contrast to Healy, the issues raised were not complex: the allegations related to three emails, the videotaping incident andthe Society meeting (for which there was an audio proceeding). (par 27, above) • There were no significant issues of credibility that needed to be resolved, and therefore, no need for cross-examination that requiredthe assistance of counsel. (par 27, above) • This is not a case where the allegations were of a criminal nature, as in Healy; rather, the allegations were of harassment of anotherstudent in the form of interference with her ability to participate comfortably in university activities and to use university premises. (par29, above) • Moreover, on the facts of this case, the applicant could not reasonably have thought he was facing a sanction of suspension orexpulsion.

The Code makes it clear that those penalties are reserved for the most serious misconduct (see p. 5). Indeed, the penalty hereceived, a formal reprimand, was a modest one, which would not be recorded on his transcript and could only be provided toadministrative units on a need-to-know basis (see p. 8 of the Code). (par 30, above)

[74] I do not share any of Justice Swinton’s conclusions in this analysis. As stated above, it is not for this court to perform theanalysis, which ought to have been done by the Vice-Provost, retrospectively. There is, simply, no decision to be reviewed in thisapplication. [75] Nor do I share her views of the usefulness and importance of having legal representation.

I will resist speculating at great lengthabout what the applicant’s lawyer might have achieved had he been permitted to participate in the hearing before the Vice-Provost.However, it is my view the mere fact that “there were no significant issues of credibility that needed to be resolved” should not become afactor now in our deliberations. Issues of credibility and reliability that were not recognized by the Vice-Provost and are still unknownmight well have come to light if the applicant had enjoyed the benefit of his lawyer’s advocacy.

The ability to conduct an effective cross-examination at a hearing is a skill that laymen rarely have. [76] As well, the applicant was entitled to argue at the hearing various issues pertaining to his defence which, as the argument of thisappeal now reveals, were very complex.

For example, he was entitled to raise issues pertaining to the right to legal representation,freedom of speech, the applicability of the Charter of Rights, the applicability of the Statutory Powers Procedure Act, the meaning of“harassment” as it is used in the Code and whether his impugned conduct could properly be found to fall within that meaning. [77] Nor do I agree with her suggestion that the applicant’s right to legal representation at the appeal stage before the UDAC was anacceptable alternative for the right to legal representation before the Vice-Provost.

Findings and rulings that are made at the first level ofany disciplinary hearing are often not capable of being reversed on appeal. [78] Nor do I agree with her conclusion that the applicant could not reasonably have thought that he was facing a sanction ofsuspension or expulsion or some other punishment.

As a graduate student embarking on a professional career, his record at the universityand his reputation were undoubtedly of importance to him and he would have been entitled to view the complaint against him as serious. [79] In paragraph 31 of her reasons, Justice Swinton expresses her concerns about a potential decision in this case leading to theexpansion of the right to legal representation for students at the university as follows; If the applicant’s submission respecting the range of sanctions were accepted, there would be a right to counsel at every disciplinarymeeting between the Dean (for undergraduate students) or the Vice-Provost (for graduate students), since theoretically, expulsion orsuspension is a possible sanction for any contravention of the Code.

This would change significantly a process that was meant to berelatively informal and expeditious at the first stage. [80] I do not share her concerns. In the views that I have expressed through these dissenting reasons I have attempted to show whychanges need to be made to the university’s Code and, particularly in paragraphs 68, above, and paragraph 82, below, to suggest howthose changes might be made to improve all types of disciplinary hearings.

Change is precisely what deficient procedures require and itshould not be feared. [81] The fatal deficiency in the proceedings below which I have attempted to address above stem from the university’s enactment of aCode which purports to deny legal representation at hearings before the Vice-Provost in all cases, regardless of the nature of the chargeor the unique circumstances relating to the hearing to be conducted.

As I have attempted to demonstrate, this will result in the denial ofprocedural fairness in all cases to which the Code applies. [82] This unfortunate result could easily be avoided by eliminating the denial of the legal representation provision from the Code andreplacing it with one recognizing the right to legal representation in all cases. I cannot think of any valid reason why a student may bringa colleague, but not a lawyer, to a hearing.

In the alternative, the discretion to allow legal representation in cases involving minor chargesshould be expressly conferred on the Vice-Provost. [83] The present blanket denial of this fundamental right does not reflect well on the university, its view of the legal profession and itsown disciplinary process. Conclusion [84] Justice Swinton commenced her discussion of The requirements of procedural fairness in paragraph 22, above, as follows; Courts have been reluctant to interfere in the academic functions of universities unless a student or faculty member has been treated with“manifest unfairness” (Paine v.

University of Toronto (1981), (ON CA), 34 O.R. (2d) 770 (C.A.) at p. 776; Mulliganv. Laurentian University, 2008 ONCA 523 , [2008] O.J. No. 2570 (Ont. C.A.) at para. 22; Dawson v. University of Ottawa,[1994] O.J. No. 1148 (Div. Ct.) at para. 7). [85] I adopt this view. I am persuaded that the applicant has been treated with manifest unfairness and that this court should interfere. Matlow, J. Released:

CITATION: Telfer v. The University of Western Ontario, 2012 ONSC 1287 DIVISIONAL COURT FILE NO.: 62/11 DATE: 20120402 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT THEN R.S.J., MATLOW AND SWINTON JJ. B E T W E E N: RICHARD TELFER Applicant - and - THE UNIVERSITY OF WESTERN ONTARIO Respondent

REASONS FOR JUDGMENT _________________________________________ Then R.S.J. and Swinton J. Matlow J. dissenting Released: April 2, 2012