Included in Discovery: Atlantic Education & the Law – Issue 09 (also available in French, here)

Tessa Belliveau

In its recent and interesting decision regarding Zaki v.  University of Manitoba, 2021 MBQB 178 (CanLII), the Court of Queen’s Bench of Manitoba had to analyze the impact of Facebook posts on the professional career of a university student, the importance of impartiality of an administrative court, and the complex relationship between post-secondary institutions and the government.

Facebook posts – a lack of professionalism?

During his first year as a student at the Max Rady College of Medicine (“the College”) at the University of Manitoba, the applicant Rafael Zaki (“Zaki”) made three posts on his Facebook page which led to his expulsion due to the lack of professionalism of his articles and comments.

On February 12 and 13, 2019, Zaki made two posts on his Facebook page about the right of Americans to bear arms. On February 17, 2019, he posted an anti-abortion essay he had written titled “Refuting the ‘Final Solution’ for Undocumented Infants: A Reconciliary Formula.” In the essay, he argues several points, including the following: “preborn human children are held as disposable and executable slaves to their mother’s whims and subjective desires” and “abortion is immoral and unethical.”

The college received 18 anonymous complaints about Zaki’s Facebook posts. These complaints and the content of his posts raised concerns about the first-year student’s professionalism, a requirement for medical students.

The applicant’s expulsion – administrative tribunals

On February 25, 2019, the Associate Dean of the College, Dr. Ripstein, and the Associate Dean of Professionalism, Dr. West, met with Zaki to discuss their concerns. It was agreed that Zaki would write a letter of apology to his classmates.

Following the meeting, Dr. Ripstein wrote to Zaki to explain his expectations for the letter of apology. In April 2019, Zaki was told that the College’s Progress Committee (“CPC”) was unsatisfied with his apology in the letter and the matter would be transferred to the Disciplinary Committee. Zaki was also told that the matter was being treated as “non-academic misconduct,” and the College was considering expulsion or suspension.

Over the following five months, Zaki submitted five drafts of the letter of apology, all of which the CPC rejected because it thought them insincere and lacking empathy. On August 30, 2019, the CPC expelled Zaki from the College.

Zaki appealed the CPC’s decision to the Rady Faculty of Health Sciences Local Discipline Committee and the University Discipline Committee (“UDC”). In both cases, the decision was upheld. The UDC briefly addressed Zaki’s concerns about procedural fairness. Moreover, it concluded that it lacked the jurisdiction to consider Zaki’s rights under the Canadian Charter of Rights and Freedoms (“Charter”).

Appeal against the decision – Court of Queen’s Bench

Zaki appealed against the UDC’s decision to the Court of Queen’s Bench of Manitoba. The judge had to address the following questions:

1. Does the University have the jurisdiction to expel the applicant for publishing controversial posts on his personal Facebook page?
2. Did the University provide the applicant sufficient procedural fairness?
3. Does the Charter apply to the University’s non-academic disciplinary procedure?

1. Facebook

The College and the University made the decision to expel Zaki based on the Student Discipline Bylaw and its accompanying procedure. The procedure stipulates that a student’s “non­academic” conduct in relation to “any University matter” may be disciplined. A “University matter” refers to any activity, event, or undertaking that has a substantial connection to the University.

The judge concluded that it was appropriate and reasonable for the UDC to consider Zaki’s Facebook posts a “University matter.” While Zaki claimed his social media posts did not have a substantial connection to the University, the evidence demonstrated otherwise.

Firstly, Zaki had told the College that he used his Facebook account to keep up with all things happening in his class and in the College. Moreover, at the end of some of the posts in question, Zaki wished his classmates good luck on their exams and made other comments intended for his classmates. Therefore, it was entirely reasonable for the UDC to conclude that the target audience of Zaki’s posts was other students in the program.

2. Procedural fairness and reasonable apprehension of bias

The judge was of the view that UDC was right to conclude that Zaki was provided with timely notice of the investigation and the charge of misconduct brought against him. The UDC was also right to conclude that Zaki knew the scope of the evidence against him and had ample time to respond to the allegations.

However, the UDC failed to consider the reasonable apprehension of bias caused by the overlapping roles played by Dr. Ripstein (the Associate Dean of the College) throughout the disciplinary procedure.

The test to determine whether there is a reasonable apprehension of bias is to ask the question: “What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would this person think the decision is fair?” (Committee for Justice and Liberty  et al. v. National Energy Board et  al., 1976 CanLII 2 (SCC) [1978] 1 SCR 369.

In the case at hand, Dr. Ripstein was the first person to meet with Zaki following the publication of his essay. Dr. Ripstein then was involved in the investigation and explained to Zaki the College’s expectations for the letter. Dr. Ripstein received the drafts, revised them, and presented them to the CPC, of which he was a member. The evidence also demonstrated that the CPC had concluded that from the start of the disciplinary process, Zaki should be expelled from the program, which suggests a predetermined decision. Ultimately, the CPC did recommend that Zaki be expelled from the program, and Dr. Ripstein was involved in making the final decision.

Just as Zaki appealed the decision to the Rady Faculty of Health Sciences Local Discipline Committee, Dr. Ripstein sent a detailed letter justifying the CPC’s decision. Therefore, the Discipline Committee rejected Zaki’s appeal. This letter was also revealed to the UDC during Zaki’s second appeal, and the UDC maintained the decision to expel Zaki without addressing the various roles held by Dr. Ripstein throughout the disciplinary procedure.

The judge was of the view that the failure of the UDC to account for this issue in its decision was a serious flaw and gave the impression that the UDC simply adopted Dr. Ripstein’s reasoning and conclusion. This supports a finding of reasonable apprehension of bias and renders the UDC’s decision of expulsion unreasonable and incorrect.

3. Canadian universities – government agents?

Before the UDC, Zaki, through his lawyer, argued that his Facebook posts were protected by the Charter. The committee had concluded that it lacked the jurisdiction to consider a violation of the Charter.

According to Article 32.(1), the Charter applies to the Parliament and government, and to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. However, the jurisprudence clarifies that the Charter may also apply to government actors and, depending on provincial laws, post-secondary institutions who act as “government agents.”

In Zaki’s case, the judge reviewed the laws of Manitoba and concluded that the University of Manitoba was not a government entity. However, by following a disciplinary procedure for “non-academic” misconduct, the University was engaged in developing and implementing government policy and, therefore, acted as a government agent. In this context, the Charter and Zaki’s rights must be considered during the decision process. The fact that the UDC failed to do so renders the decision of expulsion incorrect and unreasonable.

File returned to the UDC

Despite the conclusions of Judge Champagne about the biased and unreasonable nature of the UDC’s decision, the affair is still not over for Zaki.

The file will be returned to the UDC, which must put together a new panel to address the reasonable apprehension of bias and prove evidence of an independent and objective evaluation of the file. Moreover, the UDC will have the difficult task of protecting Zaki’s rights under the Charter as well as the committee’s statutory obligations.

It should be noted that Zaki has continued his studies at the College during the appeal process and is likely to graduate in 2022 as planned.

What can we learn from this?

For students, it is important to understand that what they post on their personal Facebook page could lead to an academic disciplinary procedure and damage their careers. Social media channels may seem completely disconnected from the world of academia, but if university staff and students have access to these networks, we can expect there to be a connection between the students’ actions on Facebook and the university, such that universities can act against student conduct. Universities can act against student misconduct.

For universities, representatives should never forget the importance of remaining impartial throughout the disciplinary procedure and ensuring that the roles of those involved in decision making do not overlap. If this cannot be avoided, as was the case in Zaki, the administrative tribunal must address a reasonable apprehension of bias in writing to justify its conclusions, and ensure the final decision is unbiased, fair, and reasonable.

Lastly, universities must be familiar with the government policies that lead to their creation, and the relationship that exists between them. Though universities are a separate entity from the government, certain internal administrative procedures resulting from government policy can create a situation where the university is acting on behalf of the government, and therefore becomes subject to the same obligations, including recognizing the rights of a student under the Charter. This can vary between provinces and should be considered on a case-by-case basis.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Education group.

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