Background
The Free Speech Club contracted with the University of British Columbia to rent space for an event concerning ANTIFA violence. UBC cancelled the event over concerns about campus safety and security. The Club and three student executives sued UBC and British Columbia, alleging contractual and other claims against UBC and asserting that the cancellation infringed their rights under the Canadian Charter of Rights and Freedoms.
The plaintiffs alleged that the Charter applied to UBC because it was itself governmental or, alternatively, because it delivered government programs involving university education and student safety. A Supreme Court of British Columbia chambers judge struck the claim against the Province and also removed pleadings underlying the Charter claims against UBC. On appeal, UBC conceded that whether the Charter applied to it presented an arguable mixed question of fact and law that should proceed to trial.
The Court’s Holding
The Court of Appeal dismissed the appeal insofar as it challenged the dismissal of the Province. Section 24(1) of the Charter did not require the federal or provincial Crown to be the defendant responsible for Charter damages. If an entity is subject to the Charter because it is governmental or because it performs a specific government program, Charter remedies—including damages where appropriate—may be enforced directly against that entity.
Because no provincial employee participated in or knew of UBC’s cancellation decision, and because any proven Charter breach and resulting damages could be pursued directly against UBC, the claim against the Province was bound to fail. The Court nevertheless varied the order below to reinstate the pleadings necessary for the Charter claims against UBC, including the claims for Charter damages, to proceed.
Key Takeaways
- Charter damages are not recoverable exclusively from the federal or provincial Crown.
- An entity subject to the Charter while delivering a government program may be directly responsible for damages arising from its own Charter breach.
- The applicability of the Charter to UBC remains an arguable issue for trial; the Court of Appeal did not decide that question on its merits.
Why It Matters
The decision clarifies that plaintiffs need not name the Crown merely to preserve a claim for Charter damages against a university or another entity alleged to perform governmental functions. Responsibility for a proven breach can rest directly with the entity whose conduct is subject to Charter scrutiny.
It also revives a potentially significant trial-level dispute over whether UBC’s governance, educational role, or student-safety functions bring the challenged conduct within section 32 of the Charter.