Thursday, April 28, 2005

A victory for non-whiners everywhere

It was reported in today's The Globe and Mail that Dan Freeman-Maloy cannot sue Lorna Marsden for misfeasance of public office, since, whoops, she's not a public official.

"York president cannot be sued as public official, Superior Court rules
By JAMES RUSK
Tuesday, April 26, 2005
Page A14

Madam Justice Alexandra Hoy of the Ontario Superior Court ruled yesterday that York University president Lorna Marsden is not a public official and cannot be sued for abusing her power as such.

'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.

Mr. 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 Mr. 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.

...."


This is good news for those of us who believe that a little governance is a good thing. Was Lorna wrong in expelling one of the university's major instigators? Perhaps. But don't act like she murdered your puppy.

4 Comments:

Anonymous Anonymous said...

The ruling by Madam Justice Alexandra Hoy of Ontario Superior Court that presidents of Ontario universities are not public officials and cannot be sued for abusing their power as such will be appealed. A short statement by Daniel Freeman-Maloy and his lawyer Peter Rosenthal explains the reasoning behind their decision to appeal.

Accountability in publicly funded universities is important, and whoops, perhaps this means officials like Marsden need to be held accountable for their actions! Universities in Ontario are exempt from Freedom of Information legislation - something that is not justifiable. They should come under the full force of that act.

Daniel Freeman-Maloy and his lawyer decided that they will appeal the ruling striking their claim of misfeasance in public office. The motions judge held that President Lorna Marsden did not hold a "public office" within the meaning of that tort. Dan's lawyer feels that she erred in coming to that conclusion, and that the tort is designed to deal precisely with cases like this one.

Although Mr. Freeman-Maloy is also suing President Marsden and York University for negligence, breach of contract, breach of fiduciary duty and libel, he and his lawyer feel that it is an important matter of principle to be able to claim misfeasance in public office in a case such as this. The statement of claim includes the allegation that President Marsden stated that she was relying on her authority under the York University Act in punishing Mr. Freeman-Maloy by forbidding his return to classes for three years. Even though that punishment was lifted after Mr. Freeman-Maloy defeated York's attempt to preclude judical review, Mr. Freeman-Maloy feels that Presdient Marsden clearly abused her statutory power in imposing the punishment, and thus that the tort should apply.


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SOOOOO Happy to hear this.. I wish I could have been there when he received the news.

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