The Supreme Court of Canada has cleared the way for a Toronto student activist to sue York University for "public misfeasance" after it barred him from the institution for three years because of his role in two noisy protests.

The court gave no reasons last week for its refusal to hear an appeal by York and its president, Lorna Marsden, of an Ontario Court of Appeal ruling that had refused to bar the misfeasance portion of Daniel Freeman-Maloy's civil action.

The ruling was a setback for the university. Its lawyers had insisted that if allowed to proceed, the lawsuit could seriously impinge on traditional academic freedoms and "cast an unwarranted shadow of potential liability over Canadian universities and their presidents."

"Our view is quite the opposite," Peter Rosenthal, a lawyer representing Mr. Freeman-Maloy, said. "Allowing the president to do what she did is a grave threat to the academic freedom of students and professors."

Jim Tuck, executive director of the Canadian Association of University Teachers, agreed. "This is really a ruling for academic freedom," he said. "It's vital that university presidents be held publicly accountable for their actions. Protecting academic freedom does not mean universities are immune from being publicly accountable."

Mr. Rosenthal said he is confident that any trial judge who ultimately hears the case will conclude that Ms. Marsden is "a public office-holder" and can be found civilly liable for a malicious decision.

Ms. Marsden barred the 22-year-old political-science student last April after he took part in two protests against Israeli policies concerning Palestinians -- one in October last year and another in March of 2004. She cited flagrant disruption of campus life and unauthorized use of a bullhorn in contravention of university policy.

His suspension was rescinded by the Ontario Superior Court. Mr. Freeman-Maloy then launched his $850,000 court claim, claiming libel, misfeasance and breach of academic freedom.

"They should admit that they did something terribly wrong and they should pay damages," Mr. Rosenthal said after the Supreme Court declined to hear the appeal. "It is our view that no more public money should be spent defending this indefensible case."

Mr. Freeman-Maloy said that York is reeling from what it sees as "a contest over who controls the terms of student life at the university."

However, a lawyer for York, Chris Wayland, cautioned that the courts have yet to find that university presidents are public officers. "The nutshell of what we will be putting forward is that universities are not a branch of government," he said.

In an affidavit filed in the Supreme Court, former York University president Harry Arthurs warned that great danger could flow from a university president being deemed to hold public office.

"In my opinion, the issue of whether it is open for a court in Canada to find that a university president holds a public office is of urgent and national importance," Mr. Arthurs wrote.

Mr. Freeman-Maloy, who is in his final year in a political-science program, alleges that the incident harmed his personal, academic and political relationships, and jeopardized his ability to gain employment.

OTTAWA - The Supreme Court of Canada has opened university presidents to possible lawsuits as public officials after refusing to hear an appeal by York University's top administrator.

York University president Lorna Marsden sought leave to appeal the April, 2006, decision of the Ontario Court of Appeal ruling that a student can sue her for misfeasance in public office. The ruling overturned a Superior Court ruling that found it was "plain and obvious" Ms. Marsden was not a public official, and therefore could not be sued on this ground.

The top court on Thursday dismissed with costs of Ms. Marsden's application for leave to appeal the Appeal Court's decision. York had hoped the Supreme Court would hear the case and close the door on this question.

"It's a matter of principle. Universities are independent. University presidents are independent. You can just decide it as a matter of principle," said Chris Wayland, counsel for York in the case.

York student Daniel Freeman-Maloy, 24, is now free to continue his lawsuit against Ms. Marsden alleging misfeasance in public office, libel and breach of academic freedom.

He launched the suit after the president suspended him for three years without providing him a venue to appeal after he took part in two campus protests. Ms. Marsden cited flagrant disruption of campus life and unauthorized use of a bullhorn in contravention of university policy.

Mr. Freeman-Maloy is seeking $850,000 in damages.

The tort of malfeasance in public office is based on the idea that those who hold public office must not abuse their powers to the detriment of the ordinary citizen. It is a legal hammer most famously applied to politicians in public office.

Mr. Wayland said York will argue at trial that university presidents, as leaders of autonomous institutions, are not public officers in the sense of state actors and do not hold public office within the meaning of the tort of misfeasance in a public office. And in any case, Ms. Marsden did nothing wrong, he said.

University of Toronto law professor Peter Rosenthal, who is representing Mr. Freeman-Maloy, said he wishes York would use this opportunity to settle the case. "Make a reasonable settlement now, and save taxpayers' money," he said. "What are they paying their lawyers? Are you spending public money to argue that you're not a public official? It's a little ironic."

Mr. Freeman-Maloy said the top court's dismissal of York's application to seek leave to appeal only sharpens the focus of his lawsuit.

"President Marsden is empowered to discipline students by provincial statute in line with her duties in the Office of President. By doing so with malicious intent and in contravention of established policies and regulations, she is liable for misfeasance of public office," he said.

He also said students on other campuses could feel the effects of the Supreme Court's decision not to hear York's appeal.

The Ontario Court of Appeal ruling is binding in Ontario and persuasive in other provinces, particularly since it comes from the largest appeal court in the country.

"The president's actions against me were intended to have a chilling effect on political speech and organization on campus, and the fact that she's faced repercussions, the effect will be lessened and may even be positive," Mr. Freeman-Maloy said.

Already, David Noble is feeling emboldened. The York University sociologist is suing Simon Fraser University president Michael Stevenson and other top officials at the institution in the B.C. Supreme Court for misfeasance in public office.

An SFU search committee recommended in 2001 that Mr. Noble be appointed to the J.S. Woodworth Chair, a tenured position in the faculty of arts, but senior officials intervened before the offer was made.

Mr. Noble alleges they intervened because of his criticisms of the corporatization of universities and online education. He is seeking damages for loss of reputation and loss of income.

"This is a sea change. It's a whole new ball game, and it will reverberate through the country because it finally brings university officials under the regime of public law.

"They're being identified as public officials, which they have avoided by the claim of autonomy," he said.

But the fight over this question is not over. York University spokesman Alex Bilyk said the matter of whether the York president is a public official will be decided at trial.

"We look forward to defending this case vigorously in the Ontario courts in the years head," he said.

Illustration:
• Black & White Photo: York University president Lorna Marsden is being sued
by a student who was suspended.

Canada's highest court has denied an application by York University's president to appeal a court decision that defined her as a public officer, leaving the door open for a damages suit by a former student.

Daniel Freeman-Maloy staged two unauthorized protests at the York University campus in Toronto with regard to the Israeli-Palestinian conflict.  In 2004,  York president Lorna Marsden  suspended Freeman-Maloy for three years, without a tribunal hearing. The student was banned from campus and not allowed to register for classes.

Freeman-Maloy applied successfully to the courts to sue Marsden and the York board of governors for "misfeasance in public office."  

Marsden and York officials argued that the president of a university cannot be considered a public officer. But in March 2006, Ontario's Court of Appeal declared that she was a public officer, paving the way for a damages suit from Freeman-Maloy.

The York officials then sought permission from the Supreme Court of Canada to appeal the Ontario Court of Appeal decision. 

In a decision released Thursday, the Supreme Court rejected their application with costs, but, as is customary, did not offer a reason.

York recently released an updated Student Code of Conduct, with new regulations addressing student conduct on campus and the process of dealing with students who break such regulations. The revision followed a year of consultations.

Marsden was a member of Canada's Senate between 1984 and 1992. She resigned her seat to become president and vice-chancellor of Wilfrid Laurier University.  She became president of York in 1997.