Background
The Free Speech Club, a student organization at the University of British Columbia, contracted with UBC to rent campus space for a speaking event on the topic of ANTIFA violence. UBC’s vice-president of students directed that the event be cancelled, citing concerns about campus safety and security. The Club’s deposit was returned and the event did not proceed. None of the Province’s employees were involved in or had knowledge of the cancellation decision.
The Club and three of its student executives sued both UBC and the Province of British Columbia. Their amended notice of civil claim (ANOCC) advanced breach of contract, deceptive acts, and unjust enrichment claims specifically against UBC, and alleged that UBC’s cancellation decision violated the appellants’ rights under the Canadian Charter of Rights and Freedoms. On the Charter claims, the appellants argued the Province was a necessary defendant to secure Charter damages. The Province applied to strike the claims against it. UBC did not bring its own strike application but appeared and consented to the Province’s motion.
The chambers judge struck the ANOCC against the Province in its entirety without leave to amend, concluding on four independent grounds that the claim was bound to fail: the Charter did not apply to UBC; the Province had not directly breached any Charter right; s. 24(1) of the Charter created no independent cause of action against the Province; and s. 3(2)(d) of the Crown Proceeding Act would in any event bar proceedings against the Province for a cause of action enforceable against a government-owned corporation. Because the Charter allegations against UBC and the Province were pleaded together, striking the Province also removed the Charter claims against UBC.
The Court’s Holding
The Court of Appeal dismissed the appeal against the Province but varied the order below to reinstate the Charter claims against UBC, including those for Charter damages. On appeal, UBC departed from the position it had taken before the chambers judge and conceded for the first time that whether the Charter applies to it — under either branch of the Eldridge test — raises a question of mixed fact and law that should go to trial. That concession made the dispositive issue on appeal a narrower one: whether the Province was a necessary defendant to obtain Charter damages.
The Court rejected the appellants’ interpretation of Vancouver (City) v. Ward, 2010 SCC 27. Nothing in Ward limits Charter damages awards to the federal or provincial Crown. Courts retain broad discretion under s. 24(1) and have awarded Charter damages against municipalities and other non-Crown government entities in cases where the Crown was not even a party. Where an entity is subject to the Charter only under the second branch of the Eldridge test — because it delivers a specific government program — it is treated as government for purposes of that program and bears direct responsibility for Charter compliance and any resulting damages. The Province’s liability does not follow automatically from UBC’s delivery of a government program.
Because UBC may itself be liable for any proven Charter breach, there was no basis to keep the Province in the litigation solely to provide a damages fund. The chambers judge was correct that the claim against the Province was bound to fail. However, since certain struck paragraphs of the ANOCC contained allegations directed at UBC rather than solely at the Province, the Court reinstated those paragraphs to preserve the Charter claims against UBC. The Court awarded the appellants their costs against UBC, noting that UBC’s earlier consent to the strike motion — a position it subsequently abandoned — may have made the appeal unnecessary.
Key Takeaways
- Whether the Charter applies to UBC — either because the Province’s control makes it governmental in nature, or because it delivers the government programs of university education and student safety — is a triable question of mixed fact and law that cannot be resolved on a pleadings-strike motion.
- Ward does not confine Charter damages awards to the federal or provincial Crown; municipalities and other entities subject to the Charter may themselves be liable for such damages, without the Crown being a necessary defendant.
- Where a private entity delivers a government program and is thereby subject to the Charter under the second branch of Eldridge, it bears direct Charter liability for that program and Charter damages are recoverable from it — not from the Crown that delegated the program.
- A party that consents to a pleadings-strike motion and later changes its position on appeal may be ordered to pay the opposing party’s costs of the appeal it helped make necessary.
Why It Matters
This decision clarifies an important structural question about Charter litigation involving quasi-governmental institutions such as universities: plaintiffs need not name the provincial Crown as a defendant merely to access a Charter damages remedy. If an entity like UBC is found to be subject to the Charter — whether as government by nature or as a deliverer of government programs — it can be held directly liable for damages under s. 24(1). This removes a procedural obstacle that had threatened to extinguish the Charter claims entirely, and ensures the case will be tested on its merits at trial.
The decision also signals to publicly funded universities across Canada that their Charter exposure may have grown since earlier Supreme Court of Canada decisions such as Harrison v. UBC (1990). As provincial regulatory oversight of universities has intensified, so too has the argument that those institutions are governmental actors whose decisions — including cancellation of campus events — may attract Charter scrutiny. The trial that will now proceed at UBC could produce significant guidance on where that line falls.