Guilty by Association – The University of Ottawa’s Decision to Publicly Discipline the GG’s

November 16, 2015

disciplinary, Negligence

By Richard Wong – Thompson Rivers University 2L JD Student

In early 2015, former members of the 2013/2014 University of Ottawa men’s varsity hockey team (the “GG’s”) filed a class-action lawsuit against the University of Ottawa and its president (collectively the “Defendants”). The GG’s were suspended during a nationally televised news conference after allegations of sexual assault against two players were made during a team road trip. The two players who are not a part of the lawsuit were charged under the Criminal Code. The GG’s claimed that their individual reputations, prospective hockey careers, and professional lives were tarnished after public announcement of the collective punishment.

In July of 2015, the Ontario Superior Court considered a motion by the Defendants seeking dismissal of the Plaintiffs’ claim that the Statement of Claim disclosed no reasonable cause of action (Creppin v University of Ottawa, 2015 ONSC 4449).

To summarize, Justice Phillips declined to strike out any part of the claim on the basis that it was not plain and obvious the actions taken by the Defendants (i.e., publicly disciplining students known to be uninvolved in the alleged sexual assaults) were entirely within the University’s broad discretion to manage its academic affairs. In addition, he concluded that it was not plain and obvious that the Plaintiffs’ claim in negligence against the University could not be made out, thus declining to strike that portion of the claim.

However, Justice Phillips struck out the portion of the claim relating to a breach of a fiduciary duty because it was plain and obvious this claim would not succeed by applying the test from Alberta v Elder Advocates of Alberta Society. Specifically, he found that there was no undertaking that the University would forsake the multiple interests of other bodies it governs (e.g. other students and faculty) in favour of the GG’s. In addition, the claim of misfeasance in public office was struck out because he found there was no basis that the president, in executing his duties, acted in bad faith or dishonestly – although potentially negligently.

Negligent Disciplinary Actions?

Considering the negligence claim that has not been struck out, it seems that the GG’s may be successful in establishing that the University is vicariously liable for the president’s choice in publicly disciplining the GG’s who were not involved in the alleged sexual assault.

The first issue in establishing a duty of care in this case rests on the characterization of the relationship between the parties. The Defendants take the position that a university does not owe a duty of care towards athletes in regards to the operation of varsity sports programs. However, Justice Phillips recognized that this case is not merely concerned with the right to play hockey, but rather a contractual relationship between the University and students (who happen to be members of the varsity sport team).

Such a duty has been previously recognized by the Supreme Court of Canada (Young v Bella, [2006] 1 SCR 108), and will likely be difficult to refute considering that the basis of the claim is the harm caused to these students as a result of the direct relationship they have with the University. I find it difficult to comprehend how reputational harm to students, such as that caused by a university’s public announcements related to a serious criminal offence, is not reasonably foreseeable. Public disciplining of this sort would foreseeably result in a haunting impact – both within the academic and professional spheres of the students affected.

The next issue in this case revolves around the standard of care required by the Defendants in administering their choice of disciplinary procedures. The choice of disciplinary procedures would have a significant impact on the lives of students associated with allegations of sexual assault. Specifically, public announcements of this association would stigmatize these students within the student body, in the community, and in their professional reputations – in sport or otherwise. This would likely require a thorough investigation of the incident (which was arguably conducted) in addition to establishing a connection with those who were not accused of the alleged crimes.

Although the Defendants owe a duty to other students and the University as a whole, the decision to consolidate the two accused with those uninvolved, and to discipline the uninvolved GG’s publicly at a national and international level, is likely a breach of the required standard of care. In my opinion, the decision to publicly discipline the GG’s was unnecessary to achieve justice owed to the victims. Even though the president acknowledged that some of the GG’s were unfairly affected, the result of this discipline has catastrophic consequences for those (un-)involved. There could have been a clearer articulation of those uninvolved students, and more emphasis of the root of the problem – the two individuals who were accused of sexual assault.

This assessment of the case is by no means a justification for the behaviour of the two accused. Rape culture in varsity sports is a serious issue that must be acknowledged. However, this case is dealing with the consequences of punishing individuals who have not been involved with such repulsive activities. Does guilt by association include being a member of the same sport team? What control do others, who are not present at the scene, have over those who decide to make anti-social decisions? If a settlement is not reached and the Plaintiffs are successful, universities in the future will need to be cautious in answering these questions prior to executing disciplinary actions.

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