Background

[1] The applicant is a student in the respondent Algonquin College’s (the College) International Business Management program. This is a one year post graduate program of study pursued by the applicant during the past academic year covering the period September 2020 to April 25, 2021. From the inception of his time in the program the applicant has resided in the student residence at the College under the terms of a contract he entered into with the College, known as the Student Residence Agreement.

[2] The applicant has commenced an application under sections 2(1) and 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1., seeking to set aside a decision of the College’s Director of Residence Operations, who heard the applicant’s appeal from a decision of the ‘Residence Life Coordinator’ in relation to a complaint concerning the applicant’s conduct in the residence. The complaint is called a ‘residence incident report’.

[3] In this motion, the applicant seeks an interim or interlocutory injunction to require the College to enter into a new residence agreement with him for the summer semester (May 2021 through August 2021) or to allow him to remain in residence at the College for that period. He has received an academic accommodation from the College allowing him until the end of the summer semester to complete his remaining courses. The applicant seeks this temporary relief due to a decision of the College’s Director of Residence Operations, made pursuant to the Residence Community Living Standards (the “RCLS”) which bars the applicant from readmission to the residence upon the termination of his current residence contract on April 25, 2021.

[4] The RCLS sets out the rights and privileges of residents as well as sanctions for violation of prescribed standards of conduct in the residence and associated procedures such as a hearing and rights of appeal for conduct violations. The applicant and other residents agree to be bound by the RCLS through the Student Residence Agreement which they have signed.

[5] With respect to the residence incident report, which was based primarily on the applicant’s failure to wear a mask in the residence hallway, the applicant was found to have committed this violation and sanctions were ordered including 8 RCLS disciplinary points, denial of readmission to residence, a residence probation and an imposed ‘behavioral contract’. On the applicant’s subsequent appeal to the Director of Residence Operations, one of the four underlying violations was overturned, resulting in a reduction of the applicable RCLS penalty points. However, the sanctions including denial of readmission to residence and residence probation were maintained. It is the denial of readmission to residence sanction which the applicant seeks to overturn in the pending judicial review proceedings and to have stayed on the present motion pending the hearing of his judicial review application.

[6] Some two months later, on January 29, 2021, the applicant was the subject of a second incident report (again concerning a failure to mask violation) which, following a hearing, resulted in the applicant receiving an eviction order from the residence. That order was appealed under the RCLS procedure to the Residence Eviction Appeal Committee. The Committee determined that the sanctions set out in the eviction decision were to be overturned, although they gave no reasons for this decision. This left the original decision in place from the first incident, which included the sanction that there would be a non-renewal of the residence agreement, upon its expiration. The applicant is not seeking judicial review of the Residence Eviction Appeal Committee decision, but submits that it serves to undermine the findings and sanctions imposed in the original decision in relation to the first incident.

[7] The applicant has a number of complaints of a factual and procedural fairness nature which he proposes to advance at the judicial review hearing. The applicant’s evidence in this regard is not before the court in the present hearing. As noted, he seeks in the present motion to prevent the College from evicting him from the residence, where he wishes to continue to reside until the end of the summer semester by which time he hopes to have completed his course work.

Availability of Judicial Review

[8] The respondent college raises an important preliminary issue, which is whether the applicant is entitled to seek judicial review and prerogative remedies in respect to decisions of persons administering the College’s residence rules and procedures contained in the RCLS administrative scheme. This issue is raised in the context of whether the applicant can meet the first requirement for obtaining an interlocutory injunction, which is to establish that he has a strong prima facie case, as required by the governing authorities such as RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311, and as further considered in R. v. Canadian Broadcasting Corporation, 2018 SCC 5.

[9] The College submits that the Supreme Court has clarified that there are two factors that determine the availability of judicial review: (1) whether the decision is an exercise of state authority; and (2) whether that exercise is of a sufficiently public character, see Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26. In Highwood the court refused judicial review of sanctions imposed on a member of a church congregation by a church committee.

[10] In Highwood, Rowe J., speaking for the court, explained (at para.14):

Not all decisions are amenable to judicial review under a superior court’s supervisory jurisdiction. Judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character. Even public bodies make some decisions that are private in nature — such as renting premises and hiring staff — and such decisions are not subject to judicial review: Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, at para. 52. In making these contractual decisions, the public body is not exercising “a power central to the administrative mandate given to it by Parliament”, but is rather exercising a private power (ibid.). Such decisions do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority.

[11] The College argues that the rights and obligations of students in the college residence are contractual in nature, arising from and governed by the Residence Agreement, which is a private contract. In substance, the College’s rules for the occupation of its residence rooms is a landlord and tenant arrangement which lacks the public character required for judicial review, in the College’s submission.

[12] In response, the applicant emphasizes that the College is established under provincial legislation, the Ontario Colleges of Applied Arts and Technologies Act, 2002, S.O. 2002, c. 8, Sched. F and further that the residence scheme was authorized and established by the College’s board, exercising delegated statutory authority.

[13] However, in my view the relevant question is whether the College was exercising a power central to its administrative mandate under the legislation when it entered into residence agreements with the applicant and other students. It is not sufficient simply that the college is a public institution. The issue to be determined is whether the college was exercising a private power when it established an administrative scheme to run its student residence for the purpose of providing living accommodation for its students.

[14] The applicant relies on a decision of the Alberta Court of Appeal in Pridgin v University of Calgary, 2012 ABCA 139 in which the court held that a University Review Committee’s decision disciplining a student for non-academic misconduct under a university policy was subject to administrative review for reasonableness and, in the opinion of one judge (Paperny J.A.), for Charter compliance. The student was part of a group who had posted on-line criticisms of an instructor and was defending his actions on his freedom of speech entitlements under the Charter. The court found that universities were not governmental institutions for Charter purposes but certain of their activities were subject to review. The Court observed that the province’s Post-Secondary Learning Act specifically authorized the university to provide for student discipline and to impose specific sanctions and to publish a university calendar which contained the student misconduct policy. Two of the judges stressed the freedom of expression issues involved in the matter. The position of the university that the issues were all matters of contract was not accepted.

[15] The College relies on the recent case of Eksteen v. University of Calgary, 2019 ABQB 881, which involved an Associate Professor of Medicine who brought an application for judicial review of several decisions made by the University of Calgary. After concluding an investigation regarding an alleged breach of the University's "Research and Integrity Policy", the applicant's position with the University was terminated. The Court struck his application for judicial review. Despite the University being a creature of statute with a "general research mandate", breaches of research integrity were governed by internal policies The Court found that the decisions made by the University regarding the applicant were not decisions central to its administrative mandate and not sufficiently public to bring the matter within the purview of judicial review. The Court in Eksteen also found that there is no free-standing duty of procedural fairness. Any procedural fairness arguments are properly assessed only once the jurisdictional issue has been determined.

[16] The case law establishes that although universities and colleges owe their existence to statute, they have a hybrid character for administrative law purposes. In certain contexts, they are treated like any other private sector corporation; in other contexts, the nature of their decisions brings them within the domain of administrative law and the judicial review powers of the courts.

[17] In the present case I find that the College’s decision to enter into a Student Residence Agreement with the applicant was private in nature. In deciding to rent a room in the college residence to the applicant, the College was not exercising a power central to its administrative mandate under the Ontario Colleges of Applied Arts and Technologies Act. The relationship between the applicant and the College was closely analogous to a tenant and landlord relationship and was one based in contract.

[18] I find the College acted within its rights in deciding not to enter into a new residence agreement with the applicant following his contract end date on April 25, 2021. The College arrived at its decision through the exercise of its RCLS process and the non-renewal sanction which arose from a conduct matter. The applicant agreed to be bound by the RCLS process when he contracted with the College in the Student Residence Agreement, which is a binding contract between the parties.

[19] As the Supreme Court recognized in Highwood private law remedies such as injunctions can be sought in applications for judicial review, so conceivably based on an argument of implied contractual obligations of procedural fairness in the RCLS process, the applicant could seek interim injunctive relief. However, in the present case I am unable to find that the applicant has established an entitlement to such relief based on considerations of balance of convenience or irreparable harm. The applicant will be required to re-locate off campus into what he suspects will be a more expensive room for the remaining summer session of his program. Such a cost would be compensable in damages. His academic program is broadcast remotely rather than being provided by way of in person teaching, so residing off campus should not be prejudicial to his academic studies. The College housing office is available to assist in relocation.

Disposition

[20] As the applicant’s residence situation is urgent, I grant leave to hear this motion under sec.6(2) of the judicial Review Procedure Act.

[21] In summary, for the reasons discussed above, the applicant’s motion for an interim and interlocutory injunction precluding the College from removing him from his residence room, is dismissed. This order will be suspended until Sunday evening at 6:oopm (May 9^th) and the applicant may continue to reside in his current residence room until then based on my previous endorsement and the interim financial arrangements currently in place.

[22] If the College wishes to seek costs of this motion it may submit a concise written submission within 20 days of the release of this endorsement and the applicant may respond within 20 days of receiving the College’s submission.

Date: May 4, 2021

COURT FILE NO.: CV-21-86332

DATE: 20210504

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Richard Zhang, Applicant

AND

Algonquin College of Applied Arts and Technology, Respondent

COUNSEL: Lee Chitty, for the Applicant

Chris Rutherford, for the Respondent

ENDORSEMENT

Justice Charles T. Hackland

Released: May 4, 2021

Zhang v. Algonquin College of Applied Arts and Technology, 2021 ONSC 3359

Case Summary

Background

Availability of Judicial Review

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 2