Canada: Learning From Serial Litigants – Part 2

In Part 1 of our series on serial student litigants (which can be found here), we discussed two recent decisions of the BC Supreme Court that involved student litigants that had brought civil claims against their former institutions (UBC and SFU, respectively), and against various faculty and administrators directly. The claims were dismissed by the court, but not before significant time, expense, and emotional energy were expended by all concerned. Since that article was posted, the BC Court of Appeal has released its decision on an appeal from the SFU decision (case here), in which the lower court's decision is affirmed, and the student litigant's claims were again dismissed.

In this, Part 2, we set out what we see as the key takeaways from those decisions, and others, for administrators, faculty, staff, and in-house counsel at educational institutions.

Lessons

Judicial deference on purely academic matters. Perhaps the most important lesson for educational institutions flowing from the SFU and UBC decisions is that British Columbia courts will be reluctant to substitute their own judgment for that of a school's administration or faculty for any matter deemed "academic". Both the SFU trial decision, and the appeal decision, confirmed that academic matters will include any that "focus on the academic requirements, rules, and regulations that a university applies to students", and will also include the decision to dismiss a student from a particular program.

What is deemed an "academic matter" may be even broader than that, however. In the SFU decisions, the student litigant's defamation claim was also found to be "fundamentally academic in nature", as the alleged defamatory statements related to her academic performance. The claim was dismissed on that basis. Likewise, in the UBC case, the court refused to second-guess the university's performance of the terms of a settlement agreement made with the student litigant. The court held this would have involved passing judgment over academic matters, such as whether an assignment topic was relevant to a particular course, and whether the grading of an assignment was done objectively, without bias, and in good faith.

But remember, Judicial Review. Though BC courts will show broad deference to institutions on academic matters, the SFU and UBC decisions reaffirmed that applying for judicial review of an academic decision remained open to the students. A judicial review in such circumstances will generally consider:

  • how serious the consequences of the decision were for the student, to then determine how extensive the student's "procedural fairness" rights were (for example, where a student is being expelled, they have a right to know the reasons for it), and
  • whether those rights were breached.

The court's role on judicial review is simply a supervisory one, in that it is only concerned with ensuring the process that led to a particular decision was fair and reasonable, and that the decision was made by someone with the power to do so.

Judicial processes take years. If court action is taken or threatened by an aggrieved student, the timeline for resolution will generally be measured in years, not months. In the UBC case, the final decision regarding the student litigant's academic misconduct was made in July 2009, and the court's most recent judgment was made in November 2018. The student has now filed an appeal, which if pursued will result in a hearing near the 10th year anniversary of the action, with a final decision likely coming several months after that. Should that decision prove unsatisfactory, it is conceivable that the student could seek leave to appeal to the Supreme Court of Canada, which would add another year at least.

The SFU case has been speedy by comparison, but still has been years in the making, with the key events happening in the fall of 2016. The trial court's decision was not issued until September 2018, and the appeal judgment was only released on January 30, 2019.

There is no such thing as a private email in these cases. All employees of educational institutions are (hopefully) aware of the Freedom of Information and Protection of Privacy Act (commonly referred to as FIPPA or the slightly more joyful FOIPOP) which requires disclosure of various administrative records, subject to certain restrictions. Once a court process is commenced, however, any "relevant" communications must be disclosed, without the exceptions that would be available under a FIPPA disclosure request (e.g., for requests that would be an "unreasonable invasion of personal privacy").

Administrators and faculty enforcing academic standards should be aware that all of their correspondence regarding a student may be disclosed to the student, and from there, to the public ... and that correspondence may even be read out in court.

Acting in good faith, it's not just the right thing to do. Often, student litigants name their school as a defendant, as well as the faculty and staff that were involved in the matter (i.e. their instructors, program administrators, counsellors, etc.). However, the SFU and UBC cases show that the courts will apply section 69(1) of the University Act to dismiss claims against such individuals, so long as there is not sufficient evidence that they are acting in bad faith (e.g., with intent to deceive). This is an important one, so here is the clause in full:

An action or proceeding must not be brought against a member of a board, senate or faculties, or against an officer or employee of a university, in respect of an act or omission of a member of a board, senate or faculties, or officer or employee, of the university done or omitted in good faith in the course of the execution of the person's duties on behalf of the university.

For colleges and institutes subject to the College and Institutes Act, there is a similar provision (section 64), which is written differently. However, combined with the general principles of vicarious liability (that an employer is liable for claims resulting from employees acting in the course of their employment), the result is very likely the same.

Use "entire agreement" clauses in your agreements. In informal agreements, such as those set out in letters to students, it is uncommon to include boilerplate legalese. In fairness, much of that boilerplate may be inapplicable or unnecessary, but the "entire agreement" clause is both applicable and necessary. As the name suggests, an entire agreement clause simply says that the written agreement the parties are signing is the entire agreement between the parties. That is, there are no extra or additional terms, conditions or arrangements that are contained in some other document or communicated verbally (i.e., spoken).

The absence of that clause was relevant in the UBC case, because it allowed the student litigant to argue that the actual agreement between her and UBC contained seven additional terms. After much argument and review, the Chief Justice accepted that only three additional terms ought to be implied. While the Chief Justice ultimately refused to consider arguments regarding UBC's compliance with these terms, the whole argument could have been avoided by using an entire agreement clause.

If you haven't already, it's time to dust off those precedents. Here is a typical example of an entire agreement clause.

The provisions set out in this Letter constitute the entire agreement between the parties and supersede all previous communications, representations, and agreements, whether oral or written, between the parties with respect to the subject matter hereof, there being no representations, warranties, terms, conditions, undertakings, or collateral agreements (express, implied, or statutory), between the parties other than as expressly set forth in this Letter.

Some small portion of legal fees may be recovered, but the time, opportunity, reputational and morale costs will not be. It is undeniable that an educational institution will bear substantial litigation costs if a matter proceeds to a court hearing. At the B.C. Supreme Court, if the institution successfully defends itself, the unsuccessful plaintiff (i.e. the student) will generally be ordered to pay costs. However, these costs are usually determined based on a tariff system established under the court rules, which rarely ends up compensating a successful defendant for more than 1/3 of their actual costs of litigation. Recovering those awarded costs from a student litigant is yet another hurdle, both from a financial perspective (the student is unlikely to have sufficient means) and a relationship perspective (the institution may wish to cease all further contact with the student).

While the trial decision in the SFU case confirmed that the financial disparity between a university and a student litigant will not allow the student to avoid paying costs, the fact of the matter is that the financial costs of the litigation, while important, are often a lesser concern to most institutions.

Of greater concern is the time and energy spent by faculty and staff in a litigation matter. Not only does that present an opportunity cost as attention is diverted away from important teaching, research and administrative tasks, but it takes a toll on the morale of the people directly involved, especially when a dispute drags on for years.

Finally, in a social media-driven world, disputes with students always run the risk of damaging the reputation of the institution. This is bolstered by the fact that litigation (being public) tends to attract the traditional media as well as the social.

Conclusion

Watch out for Part 3 of this series in the near future, in which we will outline a set of strategies and policies to assist university administrators, staff, and faculty that are faced with a situation that may lead to student litigation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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