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CAUT Bulletin Archives

April 2006

Appeals Court Allows Suit against York President

The Ontario Court of Appeal has opened the door to York University president Lorna Marsden being sued for misfeasance in public office.

In a ruling late last month, an appeals court panel overturned a decision by an Ontario Superior Court judge in 2005 that Marsden was not a “public official” against whom such a claim could be brought.

The action arose in relation to York student Daniel Freeman-Maloy’s lawsuit against Marsden and the university for disregarding university regulations in banning him from campus for three years because of his role in two protests at York against Israeli policies toward Palestinians.

“Although the President of York University is not subject to governmental control, she is in other respects subject to the regime of public law. Her decision to discipline the appellant was subject to judicial review as a statutory power of decision,” Justice Robert Sharpe ruled March 31.

He noted there had been several cases in which misfeasance in a public office claims have been allowed against statutory officers who enjoy considerable independence from the direction of government. “University presidents have been held, for other purposes, to be ‘public officers,’” he wrote.

Freeman-Maloy’s original three-year suspension had been vacated previously after an earlier court decision refused the university’s request to quash his application for judicial review of the president’s suspension.

“The unanimous decision at the Court of Appeal is obviously correct,” said Peter Rosenthal, Freeman-Maloy’s lawyer. “I hope president Marsden and York University now are willing to enter into settlement discussions instead of incurring further legal expenses. Mr. Freeman-Maloy is certainly willing to agree to a reasonable amount.”

The university was studying the judgment and will take time to consider whether to appeal, York’s chief marketing and communications officer Richard Fisher was quoted as saying after the decision was released.

Related Articles: “Student Sues York,” Bulletin, November 2004 & “York Backtracks on Student Suspension,” Bulletin, September 2004.