As predicted, the Alberta Court of Appeal unanimously upheld the lower Court’s decision in the Pridgen case, agreeing the University’s Academic Council was unreasonable when they disciplined the Pridgen brothers for the less than polite remarks made about their University professor on their Facebook page. For details of the Alberta Queens Bench decision see my earlier posting of the issue here.
Although the result is not surprising, what is a disappointment is the lack of unanimity on the issue of the application of the Charter. Only Madame Justice Paperny tackled the issue of the Charter, the other two concurring Justices preferred to decide the issue on administrative law alone. Even so, Justice Paperny’s excellent analysis, should give the University some pause for thought as she emphasized the absurdity of the University’s position, which would make the University, a bastion of learning and free thought, a “Charter-free zone.” Clearly, the University’s reluctance to allow the Charter into the hallowed halls of learning irked Madame Paperny and so it should us all: a place that teaches the precepts of the Charter should be ruled by it.
In any event, the question of the Charter applying involves an argument over the breadth of the authority of the Charter. Under section 32 of the Charter, the statute governs the relationship between the government and the individual only and does not cover private relationships. Thus, the University, tried to distance itself from Charter requirements by characterizing the student/University relationship as a contractual one between two private parties. Of course, as pointed out by Justice Paperny, the University’s relationship with students is not a mere contractual one. Additionally, the University is far from a private institution as it receives government funds and fulfills government policy. Indeed, there would be no need for the Minister of Advanced Education if the government were not truly a partner in post-secondary education.
Once a determination is made that the Charter does apply, it then becomes difficult to suggest the Pridgen twins did not have a right to express themselves under s. 2(b) on the issue of professor performance or, shall we say, the lack of performance. Granted their comments were not “nice” but they fell well short of defamation and were in the realm of fair comment and fair complaint.
One wonders how the Pridgen scenario differs from the kind of student evaluations done under the auspices of the University. Feedback forms include an area for comments on the teacher. The only difference is the ability for the comments to be viewed by others who have access to the Facebook page. However, can that factor alone attract such harsh consequences? Thankfully, the Court of Appeal said “no” but unfortunately, the full court did not go the extra step and embrace the Charter, and the values for which the Charter stands, by finding the University is not a Charter-free zone.