Universities: public or private?

Warning: This post contains more than the usual dose of legal content.

The Supreme Court decision in McKinney v. University of Guelph (1990) established that universities are private organizations that posssess legal autonomy, even though their 'fate is largely in the hands of government'.

This autonomy was 'thrown into question' by yesterday's Ontario Court of Appeal ruling that allows a student to sue York University president Lorna Marsden for misfeasance in a public office.

'The appeal court found that, since the office of president and the power to discipline students come from the legislation establishing the university, the York presidency is "clearly a statutory office."

It added that there is no case "that deals squarely with the issue of precisely which statutory office holders are subject to being sued for their malicious acts," and that several cases of misfeasance in public office have been allowed against statutory officers who had considerable independence from government direction.'

This may threaten to open a Pandora's box that the courts have been struggling to keep closed over the years. If senior university officials are to be considered public officials because their office and authority comes from statutes governing the establishment of universities, so can decision makers in hospitals, and, wait for it, corporations, which are legal entities owing their existence to government legislation establishing them as such.* The core of private economy can theoretically be under threat of being pushed into the public realm. Good news for lefties.

I'll bet this ruling will be overturned if York appeals to the Supreme Court.

* See Eldridge v. British Columbia (1997) for the Supreme Court's remarks on why the Charter should not apply to corporations, even though their existence is dependent on the government.