Mar 2018 Charity & NFP Law Update
On February 26, 2018, three judgments were released by the Ontario Superior Court in Arriola v. Ryerson Students’ Union, Naggar v. The Student Association at Durham College and UOIT, and Zettel v. University of Toronto Mississauga Students’ Union. The three applications were argued together and the judgements were released simultaneously.
The background facts for the three cases were very similar. The applicants in each case were students at a publicly funded university who were members of their university’s student union or association (“Student Unions”). Each of the Student Unions were not-for-profit corporations that were separately incorporated and independent from the respective university. In each of the three cases, the applicants applied to have their student group officially recognized by their Student Union, which would have resulted in the group receiving funding from the respective university, as well as other minor benefits. In each of the three cases, the applicants applied for judicial review of the decisions of their respective Student Unions to deny their application to obtain status as official student groups and also sought orders quashing the decisions of the Student Unions.
In the Arriola v. Ryerson Students’ Union case, the applicants sued Ryerson Students’ Union for refusing official student group status to their student group known as “the Men’s Issues Awareness Society”, which had the purpose of bringing social awareness to issues that disproportionately affect men and boys, such as higher rates of suicide, homelessness, workplace injuries and failure in school. In the Naggar v. The Student Association at Durham College and UOIT and Zettel v. University of Toronto Mississauga Students’ Union cases, the respective Student Unions denied official student group status to pro-life student groups.
The court noted that the applicable laws and the legal analysis to be applied were identical in all three cases. The court affirmed that the “private law of groups” applied and further confirmed that a court has limited jurisdiction to review the conduct and decisions of an organization, including enforcement of contracts and limited jurisdiction to carry out judicial review over the decisions of an organization. The court affirmed it is not the role of the courts to review the merits of an organization’s conduct or decision but instead courts are to review whether the procedure followed by an organization in arriving at its decision was done in accordance with the organization’s own rules, in accordance with natural justice and without bad faith. The court noted that courts may decline to exercise their judicial review jurisdiction when the internal dispute resolution mechanisms of an organization have not been exhausted.
In each of the cases, the applicants sought declarations on a number of grounds, including an allegation that the Student Union’s decision was ultra vires because the Student Unions exceeded its jurisdiction and its decision was contrary to its own policies and rules; the decision was made contrary to the principles of natural justice and done in bad faith; and that the decision was unreasonable and contrary to the Canadian Charter of Rights and Freedoms by failing to respect the students’ freedom of association and freedom of expression. Orders were also sought prohibiting the Student Unions from limiting access to services on account of a student’s beliefs and directing the Student Unions to recognize each applicant as a student group.
While there were some differences in the background facts of the three cases, based on the court’s review of the facts in each individual case, all three applications were dismissed. Firstly, the court held that public law does not apply, since the Student Unions are all private student organizations on a university campus (as opposed to a federal, provincial or municipal government actor). In Arriola v. Ryerson Students’ Union, the court confirmed that it has the jurisdiction to review the activities of the Student Union since the applicants had exhausted all of the internal remedies at the Student Union. The court also found in each case that the Student Unions did not violate their own rules and regulations in exercising their discretion to refuse to grant student group status to the applicants.
The court found that the principles of natural justice were not violated in the three cases. In that regard, the court stated, as follows:
The content of the principles of natural justice are flexible and depend on the particular circumstances of the association, but the minimum requirements are: (a) adequate notice of what is to be determined and the consequences; (b) an opportunity to make representations; and (c) an unbiased tribunal. The scope of the requirements of natural justice depend on the subject-matter that is being dealt with, the particular legislative or administrative context, the circumstances of the case, the nature of the inquiry, and the rules under which the tribunal is acting, and the ultimate question is whether the procedures adopted were fair in all the circumstances.
The court found there had been no interference with the applicant’s freedom of association or freedom of expression because the applicants were free to gather and express their views on campus, even without being officially recognized by the Student Union. In that regard, the court stated that the funding given to recognized student groups is a discretionary privilege, as opposed to being an entitlement. The court also found no evidence of bad faith by the Student Groups after reviewing the facts of each case.
This case affirms previous case law which reflects the reluctance of the courts to become involved in the internal affairs of a charity or not-for-profit organization where steps taken by an organization vis-à-vis its members, reflects the requirements of natural justice. This case also affirms that the requirements of natural justice that apply to a given situation may be flexible depending on the background facts involved.