York University President Lorna Marsden is a public official, and a student activist should be able to sue her for flagrantly abusing her power as such, lawyer Peter Rosenthal told an Ontario Superior Court hearing yesterday.

"The legislature gave her this power [to discipline students] by statute, and she abused it," Mr. Rosenthal told Madam Justice Alexandria Hoy of the Ontario Superior Court.

The issue before Judge Hoy arises from a lawsuit launched last year by Daniel Freeman-Maloy, a York University student who was banned from the campus for three years last April because of his role in two protests against Israeli policies concerning Palestinians.

Although the court overturned the suspension in July, Mr. Freeman-Maloy launched an $850,000 lawsuit against Ms. Marsden, York's board of governors and the university for libel, misfeasance and breach of academic freedom.

The original lawsuit has been amended twice and Mr. Freeman-Maloy and York have agreed that a fresh version will be filed that will name only Ms. Marsden and York as defendants and that it will remove some of the original claims, such as the one that defendants conspired to injure Mr. Freeman-Maloy.

Mr. Freeman-Maloy wants to include misfeasance in public office as one of the lawsuit's grounds for seeking damages, and if the judge rules in his favour, it would break new ground on the issue of the legal status of university officials.

While Mr. Rosenthal acknowledged that there do not appear to be any decided cases on the meaning of public office as grounds for suit, Ms. Marsden was appointed to her post under the provisions of a provincial law that created York University in 1965, and that law specifies the president has the power to regulate student conduct.

He noted that, when she suspended Mr. Freeman-Maloy, she claimed she was exercising her power under the act, and that because she was exercising statutory power, it makes her a public official in that instance, he said.

York University lawyer William McDowell argued that, although an institution can be created by statutory power and its officers given duties by law, that does not make its officers public officials.

He said that, for instance, if an officer of a company incorporated under the Ontario Business Corporations Act fails in his duties under the act, that does not make the officer a public official who could be sued for misfeasance in public office.

He noted that there is jurisprudence that has found that the CBC, although created by statute, cannot be sued "as a public body or person" for the abuse of public power.

He said that Ms. Marsden will not admit in any way that she is a public official who carries out government policy, and would not do so were the issue to go to trial.

Judge Hoy reserved judgment on the issue.

YORK UNIVERSITY: PUBLIC INSTITUTION OR PRIVATE ENTERPRISE?
*Legal Status of York President Lorna Marsden to be Argued in Court*
Thursday, April 14
10am - Courtroom 5 of Osgoode Hall (130 Queen Street West)
All press welcome, see below for press contact information

On Thursday, April 14, lawyers working for York University president Lorna Marsden's administration are bringing a motion to court in relation to a lawsuit that has been initiated against the administration by undergraduate Political Science student Daniel Freeman-Maloy. Legal counsel for the administration will be arguing that president Marsden is not a public official, that the Office of the President of York University is not a public office, and that charges of "misfeasance in public office" can therefore not apply to president Marsden even if she acts in complete contravention of York's established policies and procedures.

Freeman-Maloy's allegations of misfeasance in public office are based on president Marsden's attempt to suspend him and bar him from campus for three years in the spring of 2004. Administration spokespeople justified the punishment with reference to Freeman-Maloy's participation in two on-campus political demonstrations during the academic year 2003/2004. The suspension was lifted only when a ruling by Madame Justice Epstein of Ontario's Superior Court upheld Freeman-Maloy's right to pursue judicial review in order to have the suspension overturned by the courts. (The decision, which highlights the wide gap between University policies regulating the punishment of students and the administration's actions against Freeman-Maloy, is attached to this message as "Epstein Ruling.")

"The attempt by president Marsden to eschew public accountability in this case is very much in character," comments Isabel Macdonald, an Executive Member of CUPE 3903, representing York University contract faculty, graduate students and teaching assistants. "Since trying to suspend Freeman-Maloy, president Marsden has continued to ride roughshod over conventions of campus democracy - this year, police have been called in to disperse a peaceful demonstration, the administration has kicked a Toronto Star reporter out of an 'open' forum on the sale of York lands to the Toronto Argonauts, and the list goes on."

Matthew Hayes, a student Senator at York who was recently elected to the university's Board of Governors, nonetheless articulated widespread expectations that "Marsden is supposed to serve the public interest in her capacity as President at York, regardless of whether she thinks York is a public institution." But given the political orientation of the administration, Hayes was not surprised by this latest legal maneuver.

However, the administration's argument on this issue may not hold up legally. As is argued in the factum filed by legal counsel for Freeman-Maloy, "President Marsden stated that her punishment of Mr. Freeman-Maloy was pursuant to her authority under The York University Act," which is "a provincial statute that creates of the office of President of York University and specifies the duties of the person holding that office … As the Plaintiff was injured by her intentional abuse of that statutory power, she is liable for damages pursuant to the tort of misfeasance in public office." (The factum for this motion and the original statement of claim are respectively attached to this message as "April 14 Factum" and "Statement of Claim.")

Freeman-Maloy's lawsuit is one of many attempts being made to hold York University's administration accountable for its recent conduct. Another example is an "investigation into issues respecting free speech and university governance at York" that is being launched by the Canadian Association of University Teachers (CAUT), representing more than 48,000 academic professionals across the country. Information on this inquiry and related documents are available at the website of the York University Faculty Association (YUFA): www.yufa.org.

All representatives of the press are welcome to attend Thursday's motion as the issue of president Marsden's legal status is argued in court. More information will be made available as the case develops.

For more information about the pending motion or the related issues, contact:

Dan Freeman-Maloy, York student/the plaintiff - (416) 258-8159

Peter Rosenthal, Roach, Schwartz and Associates - (416) 657-1465

Isabel MacDonald, CUPE 3903 Executive - (416) 652-6208

Matthew Hayes, York Graduate Student Senator - (416) 535-4319