Charter Application to a University's Disciplinary Tribunal
A public university, created by provincial statute and funded largely by government grants, operates a residence disciplinary tribunal. A student is expelled from residence after a hearing in which the tribunal relied on an anonymous complaint the student never saw, and refused to let the student cross-examine the complainant. The student sues, arguing the tribunal breached the Charter's guarantee of fundamental justice and the right to a fair hearing. The university argues the Charter does not apply because the tribunal is an internal, private disciplinary body, and that residence discipline is not a government function. The student points out that the university's enabling statute requires it to maintain 'a safe and orderly residential environment' and that a government-appointed board oversees the university. The expulsion means the student loses subsidized housing and must commute two hours daily.
1. Determine whether the Charter applies to the residence disciplinary tribunal, applying the government-action tests.
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The threshold question is whether the entity is 'government' for Charter purposes. Two routes exist: the entity is government by nature, or it is exercising a government function or implementing a government policy.
Nature of the entity. A university created by statute and substantially publicly funded is not automatically a Charter actor in all its activities. Courts have distinguished between a public institution's governmental functions and its genuinely private or internal ones. The fact of public funding and a statutory mandate is relevant but not conclusive.
Government function / policy implementation. The stronger route is whether the tribunal is implementing a specific government policy or exercising coercive power of the state. The statute's 'safe and orderly residential environment' requirement is general; a broad enabling mandate is not the same as a specific government policy directing the impugned conduct. Residence discipline, like internal academic discipline, has been treated as closer to the institution's internal affairs.
Control test. Government appointment of board members and funding create some governmental control, but the test asks whether the government exercises substantial control over the specific activity. General oversight is likely insufficient.
Conclusion. The Charter probably does not apply to the residence tribunal on these facts. That does not end the matter: the student may still have recourse under the provincial statute, the university's own policies, and administrative law duties of procedural fairness, which can require disclosure and an opportunity to respond even where the Charter does not. Advise pleading administrative law in the alternative. If the statute were amended to make expulsion decisions subject to ministerial approval or to direct specific disciplinary procedures, the Charter analysis would shift toward application.
2. If the Charter does apply, how should the tribunal's procedure be assessed, and what remedy would be appropriate?
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If the Charter applies, the student's claim engages section 7 (if the expulsion deprives the student of liberty or security of the person) and possibly section 11(d) is inapplicable because this is not a criminal or penal proceeding; procedural fairness instead flows from section 7's principles of fundamental justice or from administrative law.
Procedural content. Fundamental justice requires, at minimum, notice of the case to be met, disclosure of the material relied on, and a meaningful opportunity to respond. Relying on an anonymous complaint the student never saw, and refusing any cross-examination, is difficult to justify. The tribunal must balance informant confidentiality against fairness; it could have used a redacted summary, permitted written questions, or appointed an intermediary rather than withholding the substance entirely.
Section 1. Even if the procedure limits section 7, the tribunal would need to show the limit is prescribed by law, serves a pressing objective (protecting complainants), and is minimally impairing. Total non-disclosure is unlikely to be minimally impairing where less restrictive alternatives exist.
Remedy. Under section 24(1), a fair remedy is to quash the expulsion decision and remit for a new hearing with disclosure of a redacted complaint summary and a fair opportunity to respond. Damages are possible but discretionary; the primary remedy is procedural. The student should also seek interim relief to preserve housing pending rehearing.