York president cannot be sued as public official, Superior Court rules
Globe and Mail - April 26, 2005 Page A14
By James Rusk

Madam Justice Alexandra Hoy of the Ontario Superior Court ruled yesterday that York University president Lorna Marsden is not a public official and cannot be sued for abusing her power as such.

"Dr. Marsden is not a public officer in her capacity as president of York University," Judge Hoy wrote in her judgment, one that had been widely awaited by Ontario universities because it would have broken new ground on the issue of the legal status of university officials if York lost.

If Judge Hoy had ruled against the university, Daniel Freeman-Maloy, a York student who was banned from the campus for three years last April and who is suing the university for $850,000 even though he was later reinstated, would have been able to include the grounds of misfeasance in a public office in the lawsuit.

Mr. Freeman-Maloy's lawyer had argued that, because York was created by a provincial statute that gave the university's president the power to regulate student conduct, the president was, in effect, acting as a public officer when she disciplined Mr. Freeman-Maloy and could be sued for flagrantly abusing her power as a public official.

The judge rejected the argument in her six-page ruling.

"The mere fact that a statute passed by the Legislature of Ontario provides for the office of president of the university, to be appointed by the board of governors, and accords the president so appointed certain powers in respect of the university community, does not make her a public officer," the judgment said.

While the law gives the president of York power to discipline students, the core functions of a university are non-governmental and "the government does not have control over how the president regulates a particular student's conduct," the judgment said.

Harriet Lewis, York's secretary and general counsel, welcomed the decision.

"I am very pleased to see that the court accepted our arguments, and upheld the position that we believe is correct in this matter," Ms. Lewis said.

"I think that this has a wider effect than on our particular lawsuit, and if we had lost, it would have been of particular concern to all Ontario, and perhaps all Canadian, universities."

Peter Rosenthal, Mr. Freeman-Maloy's lawyer, said in a statement that "I feel that the judge seriously erred in concluding that Dr. Marsden is not a public official for the purposes of misfeasance in public office.

"I would recommend to my client that we appeal this decision; the only problem is the expense of so doing. We may not decide to appeal because of the expense."

He noted, however, that in any event, the lawsuit against the university will proceed on several other grounds, including the allegation that his client was libelled by Dr. Marsden and other officials at the university.

Madam Justice Alexandra Hoy of the Ontario Superior Court ruled Monday April 25, 2005 that York University’s president is not a public official and cannot be sued as such.

“The decision is a welcome one because it upholds university autonomy,” said Harriet Lewis, York University Secretary and General Counsel.

This decision follows earlier court rulings, including the Supreme Court of Canada’s, which hold that universities are autonomous entities and their officers and directors are not agents of the Crown. As Madam Justice Hoy’s judgment stated, "The mere fact that a statute passed by the Legislature of Ontario provides for the office of president of the university to be appointed by the board of governors and accords the president so appointed certain powers in respect of the university community, does not make her a public officer.”

“This is a very important decision for York and for many universities,” said Lewis. “It upholds the basic principle of collegial self-governance, reaffirming in Canadian law that universities are not an arm of government and that university presidents have the authority to regulate the conduct of students, who are members of their university community.”

Justice Hoy granted the University’s claim to strike a section of the statement of claim brought by a student which alleged that the president occupies a public office and thus committed misfeasance. Justice Hoy ordered that the claim, when amended, shall not include any claims for “abuse of process with a conspiracy to injure”. The judgment further stated that the core functions of universities are non-governmental and “the government does not have control over how the president regulates a particular student’s conduct.”

"I think that this has a wider effect than on our particular lawsuit," said Lewis. “If we had lost, it would have been of concern to many Canadian universities. I am very pleased to see that the court accepted our arguments and upheld our defence of university autonomy.”