Appeal: Claim of "misfeasance in public office" should be allowed
The ruling by Madam Justice Alexandra Hoy of Ontario Superior Court that presidents of Ontario universities are not public officials and cannot be sued for abusing their power as such will be appealed. A short statement provided to OurTrent by Daniel Freeman-Maloy and his lawyer Peter Rosenthal explains the reasoning behind their decision to appeal. (See the Globe and Mail article of March 6, 2005).
We at OurTrent fear that Justice Hoy's decision might be abused to place yet another barrier between university administrators and accountability to the public for the responsible and transparent use of public funds. Already unjustifiably exempt from provincial Freedom of Information (FOI) legislation Ontario Universities receive more that $2.6-billion of taxpayer dollars annually. Is it not unconscionable that publicly funded universities, which are also registered charities, remain unaccountable and not be subject to public public scrutiny?
We at OurTrent believe that our Ontario universities must be accountable and must operate transparently. We believe that FOI legislation is a means towards those objectives and Ontario universities must be made to subject to FOI legislation without special exemptions. We believe there to be ample justification for our beliefs. Others agree. Bob Rae confirmed that FOI should apply to all postsecondary institutions in his Postsecondary Review (February 2005). The Minister of Training, Colleges and Universities, Mary Anne Chambers, believes FOI should apply to universities (November 2004), as do other government and union officials.
We also believe that university presidents must be deemed public officials and must be held accountable for their actions in law and therefore support Freeman-Maloy in the appeal of Justice Hoy's decision. OurTrent encourages anyone interested in providing financial support to contact Freeman-Maloy (contact info listed at the bottom of the April 14 press release).
Daniel Freeman-Maloy and his lawyer decided that they will appeal the ruling striking their claim of misfeasance in public office. The motions judge held that President Lorna Marsden did not hold a "public office" within the meaning of that tort. Dan's lawyer feels that she erred in coming to that conclusion, and that the tort is designed to deal precisely with cases like this one. Although Mr. Freeman-Maloy is also suing President Marsden and York University for negligence, breach of contract, breach of fiduciary duty and libel, he and his lawyer feel that it is an important matter of principle to be able to claim misfeasance in public office in a case such as this. The statement of claim includes the allegation that President Marsden stated that she was relying on her authority under the York University Act in punishing Mr. Freeman-Maloy by forbidding his return to classes for three years. Even though that punishment was lifted after Mr. Freeman-Maloy defeated York's attempt to preclude judical review, Mr. Freeman-Maloy feels that Presdient Marsden clearly abused her statutory power in imposing the punishment, and thus that the tort should apply. |
| Ruling to be appealed on York president's status By James Rusk Globe and Mail - Friday, May 6, 2005 Page A16 York University student Daniel Freeman-Maloy will appeal a recent Ontario Superior Court judgment that found university president Lorna Marsden is not a public official, his lawyer, Peter Rosenthal, said yesterday. Mr. Freeman-Maloy is suing the university, which banned him from the campus for three years last April, for $850,000, even though he was later reinstated. Mr. Rosenthal said his client feels Madam Justice Alexandra Hoy erred in law when she found that Dr. Marsden is not a public officer in her capacity as York president. Even if the appeal is lost, however, the rest of Mr. Freeman-Maloy's suit against Dr. Marsden and the university for negligence, breach of contract, breach of fiduciary duty and libel will proceed, Mr. Rosenthal said. |
