|
Education - Universities. Morgenthau v. Toronto Metropolitan University
In Morgenthau v. Toronto Metropolitan University (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, here against a TMU decision that "informed the applicant that it would not be proceeding with the investigation of her complaint because it had determined that the MacDonald Report and the External Review had fully and appropriately addressed the substantive issue raised in the complaint", which "could not be appealed because it was a preliminary assessment that was not subject to appeal under either the Student Code of Conduct or the Discrimination and Harassment Prevention Policy".
The court illustrates a Ontario university discrimination and harassment policy, here in it's university administrative context:Toronto Metropolitan University and its Policies
[12] TMU is a research university located in Toronto. It is a not-for-profit corporation established pursuant to the Toronto Metropolitan University Act, 1977 (Amended).[1]
[13] TMU has adopted several internal institutional policies. These include the Student Code of Conduct and the Discrimination and Harassment Prevention Policy.
[14] The Student Code of Conduct establishes community standards of non-academic conduct for students at TMU. TMU's Student Conduct Office (the SCO) is responsible for administering and applying the Student Code of Conduct. The SCO has the discretion to decide whether and how to proceed with complaints under the Student Code of Conduct and to impose certain limited sanctions (for example, issuing a written reprimand or directing a respondent to take part in a facilitated learning activity).
[15] The goal of TMU’s Discrimination and Harassment Prevention Policy is to foster a collegial environment for study and work that is free from discrimination and harassment. The Discrimination and Harassment Prevention Policy is enforced through the Discrimination and Harassment Complaint Process, and both are administered and overseen by TMU’s Human Rights Services.
[16] Under the Discrimination and Harassment Prevention Policy and the Discrimination and Harassment Complaint Process, the Human Rights Services may accept a complaint for consideration or, alternatively, may determine that the concerns raised by a complaint fall outside of the scope of the Discrimination and Harassment Prevention Policy or would more appropriately be dealt with under another TMU policy or agreement.
[17] TMU’s Human Rights Services office does not have the authority to impose sanctions under the Discrimination and Harassment Complaint Process. Rather, it is required to identify a decision maker to assess a complaint once the complaint has been accepted after a preliminary assessment.
....
[94] Like other university legislation, the Toronto Metropolitan University Act, 1977 establishes a self-governing, independent and autonomous learning institution: see Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553, 157 O.R. (3d) 753, at para. 51. The legislative regime which provides for university self-governance reflects the legislature’s understanding that universities must be given a measure of autonomy to balance considerations like academic freedom, freedom of speech, the creation of a collegial learning environment and the protection of human rights in their own particular communities. Commenting on the self-governing nature of universities in general, the Court of Appeal of Ontario made the following statement at paras. 48-49 of Canadian Federation of Students:In contrast with colleges, Ontario universities are not Crown agents and are not highly regulated by the government. In general, they provide broader education as opposed to vocational training. This is made clear in the purpose statements of the various University Acts, which speak of “the advancement of learning and the dissemination of knowledge”; “the intellectual, social, moral and physical development of [the university’s] members and the betterment of society;” and “pursui[ng] … learning through scholarship, teaching and research within a spirit of free enquiry and expression”.
The achievement of these goals requires that universities be self-governing, and so they are: although there are minor differences across the University Acts, in general they establish boards of governors and senates to run the universities and empower them to do so.
[Footnotes omitted.] [95] In accordance with its power to self-govern, TMU adopted a number of internal institutional policies. These include the Student Code of Conduct and the Discrimination and Harassment Prevention Policy.
[96] The Student Code of Conduct governs student behaviour and conduct at TMU. Its purpose is to educate students by providing a non-exhaustive list of the rights, expectations, and responsibilities related to non-academic student conduct.[35] Section 2 describes the Student Code of Conduct as educational and supportive, and designed to ensure accountability and fairness. Section 6 of the Student Code of Conduct stipulates that it works in accordance with other TMU policies such as the Sexual Violence, Residence Community Standards, and the Discrimination and Harassment Prevention Policies to combat sexual violence, harassment, and discrimination of all forms.
[97] Section 6 of the Student Code of Conduct expresses the intention of TMU to foster diversity and inclusion where all community members feel welcomed, valued, seen and heard.
[98] The Student Code of Conduct takes an incremental approach by having complaints referred to one of three offices, depending upon the severity of the allegation. The gravity of the authorized sanction is also commensurate with the seriousness of the allegation. The most serious sanctions can be imposed only by the Vice-Provost, Students.
[99] The Student Code of Conduct expressly endorses alternative dispute resolution processes such as restorative justice. As noted above, this approach focuses on addressing the harms caused by the breach, as opposed to vindicating rights and punishing people.
[100] The Discrimination and Harassment Prevention Policy seeks to foster a collegial environment for study and work that is free from discrimination and harassment. TMU’s Human Rights Services administers this Policy and is empowered to screen out complaints that fall outside of the scope of the Discrimination and Harassment Prevention Policy. The Human Rights Services office does not have the authority to impose sanctions under the Policy. Rather, it is required to identify a decision-maker to assess a complaint once that complaint has been screened in.
[101] The External Review process was designed to be consistent with the goals of the Student Code of Conduct which encourages an educational and supportive approach to conflict resolution while also ensuring accountability and fairness. It was intentionally a non-adversarial approach to conflict resolution, consonant with LASL’s goal of teaching law students to do law differently.[36]
[102] The applicant does not believe that the External Review process satisfactorily resolved her concerns about the Open Letter and therefore, she has challenged the Decision to apply the findings of the MacDonald Report to her complaint. In her application for judicial review, the applicant is essentially asking the court to order the same internal complaint resolution process to be followed in dealing with her complaint. However, she goes further. She says the External Reviewer got it wrong: the process was procedurally unfair, errors in law were made and one of the External Review Team may have been biased against Israel. Therefore, the internal complaint process needs to be redone, this time with her as the complainant.
[103] In my view, it is not appropriate for this court to permit an indirect attack on the External Review process in the guise of protecting the applicant’s right to pursue her complaint against the students and TMU. Given the particular circumstances of this case, I do not believe it is appropriate for the Divisional Court to intervene in the process undertaken by TMU to resolve an issue that affected the entire university community. The External Review process was designed to reflect TMU’s values and its approach to conflict resolution in a collegial learning environment. The applicant should not be permitted to use the judicial review process to indirectly challenge the External Review process and to require TMU to repeat the investigation with her as the complainant.
[104] The applicant may have been dissatisfied with the External Review process, but she had alternative means of obtaining personal redress for her complaint. She could have pursued a grievance alleging that TMU’s failure to discipline the students created a psychologically unsafe workplace for her and her colleagues. She chose not to do so. The applicant could still pursue a human rights application alleging that the External Reviewers did not address her rights under the Human Rights Code to work in a workplace free from harassment and discrimination. She might still have recourse against the individual students in private tort law. Those avenues of personal redress more appropriately address the applicant’s concerns than judicial review. The alternate forums strike a better balance between the applicant’s interest in being a party to the litigation and TMU’s interest in resolving a conflict that affected the whole community in a way that reflected its values.
Exceptional Circumstances
[105] The final factor to consider is whether there are “exceptional circumstances” that would justify granting judicial review notwithstanding the conclusions reached above. In Border Services Agency v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332, at para. 31, the Federal Court of Appeal stated: “… absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.” The Federal Court of Appeal in C.B. Powell, at para. 33, also confirmed that the threshold for exceptionality is high and typically denials of procedural fairness do not qualify as exceptional circumstances allowing a party to be exempted from the requirement to pursue suitable alternate redress mechanisms.[37]
[106] In the present case, the applicant has not provided any indication of “exceptional circumstances” that would justify an exemption from the requirement to pursue suitable alternate redress mechanisms.
[107] For all of these reasons, the Panel declined to exercise its discretion to hear the application for judicial review. . Watter v. McMaster University [JR SOR for universities]
In Watter v. McMaster University (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this against McMaster University Board of Governors deciding "that adequate cause existed to remove Dr. Watter from his faculty position ... ."
Here the court considers the JR SOR ['reasonableness'] for university decisions:Conclusion on reasonableness
[125] The core frailty of Dr. Watter’s judicial review application stems from his approach, criticized in Vavilov as a "line-by-line treasure hunt for error" in the Decision. Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of judges. Instead, the context and administrative setting may impact both the form and content of the reasons. As the Supreme Court of Canada held in Vavilov, at para. 91:A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside… The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings [citation omitted] [126] Here, the University institutional context is important. These institutions of higher learning have long enjoyed a measure of autonomy in the pursuit of their mission that must be respected. The deference owed to academic decisions reflects both the legal autonomy of universities as institutions and the important normative value society attaches to academic freedom: Longueépée v. University of Waterloo, 2020 ONCA 830, 153 O.R. (3d) 641, at paras. 97-106 per Lauwers J.A. (concurring). The Decision, one that involves the removal of a tenured professor for adequate cause, implicates these principles and invites due deference from the Court. . Watter v. McMaster University
In Watter v. McMaster University (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this against McMaster University Board of Governors deciding "that adequate cause existed to remove Dr. Watter from his faculty position ... ."
Here the court illustrates some of an Ontario university's rules and procedures regarding faculty discipline:1. The Relevant Statutory and Policy Framework
[38] Under s. 9(b) of the MUA [SS: 'The McMaster University Act, 1976'], the Board of Governors of the University has the authority to remove a faculty member from their employment.
[39] The Tenure and Promotion Policy governs how the University exercises its statutory decision‑making power under the MUA. Under Section VI of the Tenure and Promotion Policy, a Hearing Committee of the University Senate holds a hearing and then makes a recommendation for removal to the Board of Governors.
[40] Under Section VI, “adequate cause” for removal is defined to be:3. a. In general terms, “adequate cause” for removal exists if it has been established that a faculty member has unreasonably neglected his or her academic responsibilities, or has been guilty of such unethical academic behaviour as to impair his or her usefulness as a member of the University. However, it is understood that the words “adequate cause” must necessarily be interpreted in the context of each removal case. [41] The University also relied upon two further policies.
[42] First, the duties and responsibilities found in paragraph 1 of the Code of Conduct for Faculty and Procedure for Taking Disciplinary Action which states in part:1. d. Each faculty member is responsible for conducting himself or herself in a professional and ethical manner towards colleagues, students, staff, and other members of the University community. [43] Second, the Conflict of Interest Policy for Employees which states inter alia that it is a conflict of interest for a faculty member to have an intimate relationship with a person who reports to them in an employment or supervisory relationship, or who relies upon them for opportunities to further their academic or employment career. All conflicts of interests are required to be disclosed. . The University of Waterloo v. Human Rights Tribunal of Ontario et al.
In The University of Waterloo v. Human Rights Tribunal of Ontario et al. (Ont Divisional Ct, 2025) the Divisional Court considered an intervention leave motion by the 'Council of Ontario Universities', and here describes it's general role:[3] The Council consists of 20 publicly-assisted member universities, including Algoma University, Brock University, Carleton University, University of Guelph, Lakehead University, Laurentian University, McMaster University, Nipissing University, OCAD University, Ontario Tech University, University of Ottawa, Queen’s University, Toronto Metropolitan University, University of Toronto, Trent University, University of Waterloo, University of Western Ontario, Wilfrid Laurier University, University of Windsor, and York University.
[4] The Council serves as a voice for Ontario’s universities, focusing on areas such as funding, accessibility, innovation, and their role in Ontario’s economic and social development. It engages in legal and public policy matters affecting Ontario’s universities, offering sector-wide perspectives on systemic challenges. To this end, the Council states that it has intervened in significant legal matters as a friend of the court: See Michalski v. McMaster University, 2022 ONSC 2625, (addressed public health measures, institutional autonomy, and human rights); University of Toronto (Governing Council) v. Doe et al., 2024 ONSC 3755 (addressed campus safety, free speech under the Charter, human rights, and operational challenges related to encampments). . Filippova v. Whyte
In Filippova v. Whyte (Div Court, 2023) the Divisional Court considered a JR against an academic appeal body, the 'Senate Board for Student Appeals of McMaster University'.
Here the court considers the JR standard of review for academic decisions:Standard of Review
[41] The standard of review in judicial review of discretionary decisions by academic institutions concerning academic matters is reasonableness: Ford v. University of Ottawa, 2022 ONSC 6828, at para. 52.
[42] For issues of procedural fairness, the standard is that of correctness: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 79; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 26-30. A tribunal is required to conduct its proceedings fairly. As outlined further below, the degree of procedural fairness required is determined by reference to all the circumstances of the case, including those set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28.
[43] Courts are reluctant to interfere with the academic decisions of universities unless there has been “manifest unfairness” in the procedure adopted, or the decision is unreasonable: AlGhaithy v. University of Ottawa, 2012 ONSC 142, 289 O.A.C. 382 (Div. Ct), at para. 31, leave to appeal to C.A. and S.C.C. denied, [2012] S.C.C.A No. 504. . Ford v. University of Ottawa
In Ford v. University of Ottawa (Div Court, 2022) the Divisional Court considered (and allowed!) a classic student dream, that of a judicial review of grades:[52] The standard of review in a judicial review of discretionary decisions by academic institutions concerning academic matters is reasonableness: Kahsay v. Humber College Institute of Technology, 2012 ONSC 138 (Div. Ct.) at para. 4; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653, at paras. 23-32.
[53] Where questions of procedural fairness are concerned, the process will either be fair or not. Standards of “reasonableness” or “correctness” do not apply to questions of procedural fairness: Bastien v. University of Toronto, 2021 ONSC 4854 at para. 44; AlGhaithy v. University of Ottawa, 2012 ONSC 142 (Div. Ct.) at para. 30, Vavilov at paras. 79-81, Mattar v. The National Dental Examining Board, 2020 ONSC 403 (Div. Ct.) at para. 47.
|
