Article Detail



Article

Universities Entitled to Deference — and their Costs

Date

November 4, 2008

AUTHOR(s)

Jeffrey E. Feiner
Thomas N.T. Sutton


On June 30, 2008, the Ontario Court of Appeal released its decision in Mulligan v. Laurentian University [2008], ONCA 523 (CanLII). This decision will be of interest to universities and other education institutions for at least two reasons:

  1. Courts should defer to decisions made by universities to admit — or decline — admission to prospective students.
  2. Students who choose to sue their educational institution cannot rely on their student status to avoid liability for costs if they are unsuccessful.

The applicants, Bryce Mulligan, Mat Hunter and Patrick Wu, were in their final year of the Bachelor of Science program at Laurentian University, and had applied to the university’s Master of Science in Biology program. Earlier that year, the university’s Biology Department had instituted a new policy — the Guaranteed Minimum Stipend — which guaranteed that all Master of Science in Biology students would receive a minimum level of funding throughout the course of their studies. Some of this funding would need to come from peer-reviewed external sources, such as scholarships or bursaries. Students who did not have this funding would need to obtain their thesis supervisor’s research grants. The applicants were unable to obtain such funding, so their applications for admission were not accepted.

The applicants commenced a judicial review application in 2007 alleging bias in the admissions process and challenging the legitimacy of the Guaranteed Minimum Stipend policy itself. Their application was dismissed by the Divisional Court following oral argument. The appeal, which was heard on June 23, 2008, was subsequently dismissed. The court upheld the finding that the decision to admit or decline admission is a discretionary decision that goes to the "core of a university’s function" and reiterated the longstanding principle that "courts should be reluctant to interfere in the core academic functions of universities."

Interestingly, the court also had the opportunity to apply the recently released Supreme Court decision in Dunsmuir v. New Brunswick [2008], SCC 9 (CanLII), which recast the standards of review in judicial review applications. In this case, the reasonableness standard — rather than correctness — clearly applied, as the applicants were challenging the exercise of the university’s discretion. The court found that the university’s decision to decline admission to the applicants was reasonable.

McCarthy Tétrault Notes:

The final part of the court’s decision should give potential student litigants pause before trying to bring internal university disputes before the courts. The court upheld the Divisional Court’s costs award and awarded Laurentian University its costs of the appeal. As the court noted, "The fact that the appellants are students does not insulate them from the cost consequences of their decision to litigate."

McCarthy Tétrault lawyers Thomas Sutton and Jeffrey Feiner acted on behalf of Laurentian University at both the Divisional Court and Court of Appeal.

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