In its January 6, 2020 decision in UAlberta Pro-Life v. Governors of the University of Alberta, the Alberta Court of Appeal held that the University of Alberta’s regulation of free expression on campus is a form of governmental action subject to Charter scrutiny. The decision is noteworthy, not only because it sets a new precedent on the application of the Charter to university activities, but because of the Court’s unusual application of the Doré test on a correctness standard of review.
The appeal involved judicial review of two decisions the University of Alberta made with respect to UAlberta Pro-Life, a registered student group seeking to hold anti-abortion events in the campus quad. In 2015, Pro-Life held a two-day anti-abortion event that was met by a number of counter-protestors who obstructed Pro-Life’s graphic display. After Pro-Life members filed complaints about students who participated in the counter-protest, the University investigated but decided not to proceed against the student counter-protesters. Pro-Life and the members sought judicial review of that decision. The Court of Appeal agreed with the application judge that the judicial review application should be dismissed.
The second issue involved a similar anti-abortion event that Pro-Life was seeking to hold on campus in 2016. The University approved the event on the condition that Pro-Life cover the cost of security, totalling $17,500. Pro-Life requested reconsideration of this decision, arguing that the cost imposed “an insurmountable and unjustifiable hurdle that prevents the Club’s freedom of expression”. The University upheld the security costs condition. On judicial review, the application judge dismissed Pro-Life’s application. The Court of Appeal disagreed and set aside the application judge’s decision, but concluded that no there was no useful or appropriate remedy available to Pro-Life in the circumstances.