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CAUT Bulletin Archives

October 2006

Supreme Court Refuses to Hear York Appeal

Daniel Freeman-Maloy at an event on the York campus last month.
Daniel Freeman-Maloy at an event on the York campus last month.
York University president Lorna Marsden will face a civil suit for misfeasance in public office as a result of the Supreme Court of Canada’s rejection of the university’s request for leave to appeal a lower court decision.
The civil suit alleges that Marsden maliciously misused her statutory power to harm York honours student Daniel Freeman-Maloy by summarily suspending him for three years for his participation in two campus demonstrations.
“This is a victory for academic freedom and freedom of expression,” said CAUT president Greg Allain. “The institutional autonomy enjoyed by Canadian universities is to provide immunity from political currents and incursions. But that same institutional autonomy now vests enormous power in the hands of presidents and boards: power in the context of the university community similar to that wielded by the Crown in the 18th century when the concept of misfeasance in public office first appeared.”
He noted that just as citizens need to check the potential for those wielding state power to abuse their positions and authority, a similar check on university administrators is vital now to protect academic freedom, which can be endangered as much by those inside the university as by those outside.
University lawyers have argued that Marsden does not occupy a public office nor owe duties to the public; that the university is akin to many nongovernmental, private institutions established by statute and governed by officers whose powers, duties and responsibilities are derived from their constituting statute. According to their argument, it is inappropriate to extend the tort of misfeasance in public office to such statutory office holders as university presidents.

The Ontario Court of Appeal said, in its decision against which York wanted to appeal to the Supreme Court, “Although the President of York University is not subject to governmental control, she is in other aspects subject to the regime of public law. Her decision to discipline the appellant was subject to judicial review as a statutory power of decision ... (Freeman-Maloy’s) claim should be allowed to proceed to trial to be fully considered on the basis of a proper factual record and in light of other claims the appellant has asserted.”

The Supreme Court’s action leaves the decision of Ontario’s appellate court as the last word on the matter for now. If the case is not settled and goes to trial, York can argue that Marsden is not a public officer and that she did not misuse the powers granted to her under the York University Act (1965) by summarily banning Freeman-Maloy.
In his submission to the Supreme Court, Freeman-Maloy’s lawyer Peter Rosenthal pointed out that “it is ironic that President Marsden is using public monies in her attempt to obtain a finding that she does not hold public office so as to prevent a trial on the merits of the claim that she abused her office.”

In dismissing York’s application for an appeal of the lower court ruling, the Supreme Court also awarded costs against the university.

— Photo: Tom Barnett for the Excalibur —