York president is not a public official, Superior Court rules

Madam Justice Alexandra Hoy of the Ontario Superior Court ruled Monday that York University President and Vice-Chancellor Lorna R. Marsden is not a public official and cannot be sued as such, reported The Globe and Mail April 26. "Dr. Marsden is not a public officer in her capacity as president of York University," Judge Hoy wrote in her judgment, one that had been widely awaited by Ontario universities because it would have broken new ground on the issue of the legal status of university officials if York lost.

If Judge Hoy had ruled against the university, Daniel Freeman-Maloy, a York student who was banned from the campus for three years last April and who is suing the university for $850,000 even though he was later reinstated, would have been able to include the grounds of misfeasance in a public office in the lawsuit. Freeman-Maloy's lawyer had argued that, because York was created by a provincial statute that gave the university's president the power to regulate student conduct, the president was, in effect, acting as a public officer when she disciplined Freeman-Maloy and could be sued for flagrantly abusing her power as a public official.

The judge rejected the argument in her six-page ruling. "The mere fact that a statute passed by the Legislature of Ontario provides for the office of president of the university, to be appointed by the board of governors, and accords the president so appointed certain powers in respect of the university community, does not make her a public officer," the judgment said. While the law gives the president of York power to discipline students, the core functions of a university are non-governmental and "the government does not have control over how the president regulates a particular student's conduct," the judgment said.

Harriet Lewis, York's secretary and general counsel, welcomed the decision. "I am very pleased to see that the court accepted our arguments, and upheld the position that we believe is correct in this matter," Lewis said. "I think that this has a wider effect than on our particular lawsuit, and if we had lost, it would have been of particular concern to all Ontario, and perhaps all Canadian, universities."

Peter Rosenthal, Freeman-Maloy's lawyer, said the lawsuit against the University will proceed on several other grounds, including the allegation that his client was libelled by Marsden and other officials at the University.

An interesting ruling that will impact universities provincially, probably nationally, and marginally in the US and Britain.