COURT FILE NO.: CV-15-533377 DATE: 201601003 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CARTER GRANT AND TERESA MERVAR Applicants – and – RYERSON STUDENTS’ UNION Respondent
Counsel: Carol Crosson, for the Applicants Alexi N. Wood and Jennifer Saville, for the Respondent
HEARD: December 18, 2015
STEWART J.
NATURE OF THE APPLICATION
[1] Carter Grant and Teresa Mervar are students at Ryerson University (“Ryerson”). They are members of a group of students called Students for Life at Ryerson (“SFLR”).
[2] SFLR is a pro-life organization which provides literature, social and educational events, and oral presentations to members of the Ryerson student body.
[3] The RSU represents all full-time undergraduate students and all graduate students at Ryerson. It acts as the representative of these students in matters related to Ryerson. Students are members of the RSU if they have paid the RSU’s student activity fee for the current term of study.
[4] Grant and Mervar seek relief by way of a declaration and other ancillary orders to quash a decision by the Ryerson Students’ Union (“RSU”) made on February 23, 2015 which denied SFLR’s final appeal to be granted “Student Group status” by RSU.
[5] Grant and Mervar take the position that the denial by RSU of Student Group status is unlawful as it was motivated by the RSU’s ideological policies and discriminates against SFLR on the basis of its members’ social or political beliefs.
[6] Accordingly, Grant and Mervar seek the following relief:
(a) a declaration that the procedure employed and the decision made by the RSU to deny Student Group status to SFLR is ultra vires due to an abuse of discretion;
(b) a declaration that the procedure employed and the decision made by the RSU is biased and in breach of the principles of natural justice;
(c) an order enjoining the RSU from making a decision on the Student Group status of SFLR on the basis of its pro-life belief;
(d) a declaration that the RSU did not appropriately consider and did disproportionately limit the rights that the individuals in SFLR have to freedom of expression and association under sections 2(b) and (d) of the Canadian Charter of Rights and Freedoms;
(e) an order that the decision of the RSU is void; and
(f) an order enjoining the RSU from making future decisions, policies and procedures in regard to SFLR that are ultra vires, in breach of the principles of natural justice, and inconsistent with the Charter.
[7] The RSU opposes the relief sought, argues that the Court should not interfere with the decision under review, and takes the position that the Applicants have not been discriminated against or unfairly treated.
[8] This application raises facts that relate solely to a dispute between and among students and student groups on the Ryerson campus. As such, Ryerson has not been made a party to this application and takes no position on the issues raised by it.
Background
[9] The RSU is a private company formed pursuant to the Corporations Act, RSO 1990, cC 38. The RSU manages the affairs of its members and is governed by a Board of Directors elected each year by them.
[10] The RSU’s Board of Directors is empowered to adopt or rescind policies. Board policies are to reflect the general view of the RSU with respect to any issue and represent its general plan of action. Policies set by the Board are recorded in the Policy Manual of the Students’ Union, as updated from time to time.
[11] The RSU By-Laws promulgated pursuant to its corporate organization set out the basic membership requirements and governance structure of the RSU.
[12] Members of the RSU enjoy a wide array of benefits including the right to vote in RSU elections and referenda, to run for election in the RSU Executive, to attend regular and special meetings of the RSU Board of Directors, to apply for Student Group status, to lobby Ryerson, and to obtain health and dental benefits.
[13] The Student Groups Committee is a committee of the Board of Directors comprised of elected RSU members. The Student Groups Committee reviews matters relating to the planning and implementation of student group summits, workshops and other student group events. It also has the responsibility to consider and recommend to the Board of Directors matters relating to the expenditure of Student Group funds, and to approve or deny Student Group status to an applicant.
[14] Any group of students can form a club or association at Ryerson. Clubs may apply to the Student Group Committee of the RSU to be given Student Group status.
[15] In considering an application, the Student Groups Committee will review it for compliance with the Ontario Human Rights Code, RSU and Ryerson policies before determining whether to approve or deny it.
[16] If the Student Groups Committee denies an application for Student Group status, an appeal can be made to the Board’s Executive Committee. A further appeal may be taken to the Board of Directors.
[17] Student Groups designated pursuant to this process may receive $1,200 a year from the RSU. They can ask RSU staff to assist in booking University meeting rooms and space. They also are allowed by Ryerson to place posters on campus bulletin boards, provided the Student Group complies with the University’s Community Regulation on Posters.
[18] Ryerson establishes all policies and practices governing postering on campus bulletin boards. Any student or club is otherwise free to hand out leaflets and flyers on and around campus.
[19] On October 20 2014 Leatrice O’Neill RSU’s Campus Group Administrator, met with Nicole Bryck of SFLR to discuss SFLR’s desire to become a Student Group. O’Neill provided Bryck with instructions on the process to be followed to obtain Student Group status.
[20] On October 21, 2014 Bryck emailed O’Neill a proposed constitution and list of activities for SFLR.
[21] On October 24, 2014 O’Neill emailed Bryck and the Applicants to ask if the representatives of the group were available to attend the Student Groups Committee meeting on 30 October 2014 to explain the nature of the group and what plans the group had for events and activities during the year.
[22] On October 30, 2014 Bryck and Grant attended the Student Groups Committee meeting to discuss SFLR’s application for Student Group status. Bryck and Grant made submissions to the Student Groups Committee and answered questions put to them by the Committee. After Committee deliberations, the motion to grant SFLR Student Group status failed. After some further discussion, a motion to reconsider that decision also failed.
[23] O’Neill notified Bryck and the Applicants that SFLR’s application for Student Group status was not approved by the Student Groups Committee for reasons as follows:
The Students’ Union as an organization provides services that promote pro-choice, pro-feminist and pro-survivor initiatives, and maintains policy that outlines our position on putting funding and support behind organizations that advocate against women’s reproductive rights.
[24] O’Neill also referred to the amended language of the RSU’s Policy on Women’s Issues:
The Ryerson Students’ Union opposes…groups, meetings, or events that promote misogynist views towards women and ideologies that promote gender inequality, challenges women’s right to bodily autonomy, or justifies sexual assault.
[25] This wording had been approved and passed by the RSU Board of Directors on 4 March 2013 to update the RSU’s policies, to recognize International Women’s Day and to recognize that there had been an increase of anti-women’s rights groups on campuses across the country.
[26] On November 7, 2014 members of the SFLR appealed the decision of the Student Groups Committee to deny the SFLR Student Group status to the Executive Committee of the RSU.
[27] On December 1, 2014 Rajean Hoilett, President of the RSU, wrote to Grant and indicated that the Executive Committee would hear SFLR’s appeal on December 4, 2014.
[28] At the Executive Committee hearing, following SFLR’s presentation and having listened to SFLR’s answers to various questions posed by Executive Committee members, the Executive Committee voted to refer SFLR’s appeal to the Board of Directors for a final determination.
[29] On February 23, 2015 SFLR was given the opportunity to present its request for Student Group status to the RSU’s Board of Directors. Bryck made a presentation outlining the SFLR’s argument that the RSU had violated principles of fairness and had discriminated against the group in denying it Student Group status. Bryck also explained why she felt a pro-life RSU club was necessary. The Board of Directors spent considerable time hearing and questioning the SFLR representatives at this meeting.
[30] As required by the Student Groups Appeal Policy, the motion to approve SFLR’s application was brought to a vote by the Board of Directors. It failed. As a consequence, SFLR’s final appeal was denied.
[31] On February 29, 2015, Hoilett informed SFLR of this decision by email. Hoilett once again explained that the Board of Directors had decided that SFLR’s pro-life stance contravened the RSU’s Policy on Women’s Issues.
[32] Following receipt of the RSU’s decision, the Applicants brought this application.
ISSUES
[33] In my view, this application raises two principal issues:
A. Should this Court exercise jurisdiction to review the RSU’s decision to deny SFLR’s application for Student Group status?
B. Does the RSU’s decision attract Charter scrutiny?
ISSUE A: Should this Court exercise jurisdiction to review the RSU’s decision to deny SFLR’s application for Student Group status?
[34] Administrative law principles regulate government power and ensure its appropriate use. Private disputes are to be determined under private law, not public law.
[35] Powers exercised by private corporations are governed by the appropriate branch of private law, usually contract, property or tort. If an entity is private, courts have no jurisdiction to assess the conduct of that entity according to administrative law principles, nor to order administrative law remedies.
[36] However the Applicants may have characterized this application, it is essentially one seeking judicial review of what they argue is an administrative decision.
[37] In determining whether judicial review is appropriate, a court must weigh all the circumstances of the case. Factors to be considered in analyzing whether a decision-maker is public or private include the nature of the decision-maker, the extent to which the decision is founded in and shaped by law as opposed to private discretion, the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity and the suitability of public law remedies. (see: Association for the Protection of Amherst Island v. Ontario (Director of Environmental Approvals), 2014 ONSC 4574).
[38] Even though the RSU operates on a public university campus, it is a private corporation with broad powers to act independently.
[39] Section 129(1) of the Corporations Act gives the RSU Board the power to pass By-Laws regulating “the conduct in all other particulars of the affairs of the corporation”. Section 23 of the Act gives the RSU Board “incidental powers” to act for the benefit of the corporation, and to do “…all such things as are incidental or conducive to the attainment of the above objects and of the objects set out in the letters patent…”.
[40] The RSU is not controlled by any government ministry, department or agency in developing its rules.
[41] In my view, the RSU is a private entity and does not engage principles of administrative law. Accordingly, the decision to grant or deny Student Group status to the group of which the Applicants are members is likewise a private one and within the powers of the organization to make.
[42] To the extent it might be accepted that this Court has jurisdiction in certain limited cases to review decisions that are made in accordance with the internal affairs of associations or clubs if a pressing principle of natural justice is involved, I do not regard this as being one of those cases.
[43] As a result, I consider that this court should decline to review the RSU decision to deny Student Group status to SFLR.
ISSUE B: Does the RSU’s decision attract Charter scrutiny?
[44] In their application, the Applicants seek a declaration that the RSU limited their rights under sections 2(b) and 2(d) of the Charter. In their request for relief, the Applicants seek an order enjoining RSU from making any future decisions, policies and procedures in regard to SFLR that are inconsistent with the Charter.
[45] Although the Applicants have since conceded that the Charter does not apply to either the policy or decision of the RSU in these circumstances, I nevertheless consider it appropriate to address the issue in passing.
[46] In order to determine whether the Charter applies to an entity’s activities, a court should inquire into the nature of the entity and question whether the entity itself is government and into the nature of the particular activity in question and ask whether that activity itself is governmental in nature (see: Canadian Federation of Students v. Greater Vancouver Transportation Authority, 2009 SCC 31).
[47] In my view, the nature of the RSU and its activity in question meet neither of these tests. By its very nature, the RSU is not a government entity. As demonstrated by RSU’s letters patent, by-laws and policies, the RSU is a private corporation not subject to government control or oversight. Further, the RSU is an autonomous entity whose structure and governance is not prescribed by government.
[48] The RSU is not engaged in or implementing government policy. The RSU acts as the representative of its members in matters related to Ryerson. The RSU is not implementing government policy or government programs when it determines Student Group status. The RSU’s decision to deny SFLR Student Group status is therefore a purely private decision that does not attract Charter scrutiny.
[49] The decision in Rakowski v. Malagerio, [2007] OJ No. 369 (Ont. SCJ) to which reference was made by the parties does not stand for the proposition that the Charter applies to the conduct of a student union. Although that decision considered whether a policy passed by a student federation was invalid and contrary to the Charter, the application was dismissed because the impugned policy was found not to interfere with freedom of speech or association. As a general principle which still prevails, the Charter does not apply to a private corporation’s internal decisions affecting its members.
[50] Although they acknowledge that the RSU is not government for the purposes of application of the Charter, the Applicants nevertheless argue that the RSU must take into account the Applicants’ fundamental rights to freedom of expression and association when deciding SFLR’s application for Student Group status.
[51] In my view, there is no basis for a conclusion on the evidence before me that the RSU failed to do so in this case. To the extent it may be argued that the RSU had a contractual obligation to the Applicants to consider and decide their request for student Group status fairly and in accordance with its own procedures for doing so, that obligation has been fully discharged. To the extent the corporate structure by-laws may create contractual obligations among the members of the RSU’s, all processes and policies so provided have been observed.
[52] The Applicants are free to continue to associate and express themselves on the Ryerson campus. They are free to hold SFLR meetings, host events and raise funds for their cause. They are also free to seek office on the RSU executive and to attempt to implement policies that they prefer.
CONCLUSION
[53] For these reasons, the application is dismissed.
COSTS
[54] If any party is seeking costs and agreement cannot be reached, written submissions on that subject may be delivered by the RSU within 30 days of today’s date, and by the Applicants within 20 days thereafter.
Stewart J. Released: October 3, 2016
COURT FILE NO.: CV-15-533377 DATE: 20161003 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: CARTER GRANT AND TERESA MERVAR Applicants – and – RYERSON STUDENTS’ UNION Respondent
REASONS FOR JUDGMENT
STEWART, J. Released: October 3, 2016