Web Page Author's Note:
Readers who are already familiar with the facts of the Ogden case and are not particularly interested in points of contract law may wish to go directly to the beginning of the Judge's obiter dictum, i.e., his statement of opinion over and above the specific legal issues on which the case was adjudicated. To do so, click here.
PROVINCIAL COURT OF BRITISH COLUMBIA
(SMALL CLAIMS COURT)
REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. STEINBERG
SIMON FRASER UNIVERSITY
|JUNE 10 1998|
For the Claimant: In person
For the Defendant: E. Vanderburgh
Between September 1991 and the spring of 1994, the Claimant Russel Ogden, was registered in the M.A. program at the Simon Fraser University School of Criminology. He researched and published a thesis entitled EUTHANASIA AND ASSISTED SUICIDE IN PERSONS WHO HAVE ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS) OR ARE HIV POSITIVE. As a result of the publication of that thesis and certain findings contained therein concerning the assisted suicide of an unknown person, he was subpoenaed on May 25th, 1994 by the Vancouver Coroner to give evidence in that regard at an ongoing inquest. When he appeared at the inquest, Ogden refused to provide to the Coroner the identity of the deceased nor that of the person who assisted in the suicide. He cited the principles of academic freedom and academic privilege in support of his refusal.
He now sues Simon Fraser University $9,367.38 which represents the balance of the legal expenses he incurred in successfully putting forward his claim of privilege.
Virtually none of the relevant facts are in dispute. Extensive admissions of fact were filed at the trial.
On May 12th, 1991, the Province newspaper published a story entitled An Act of Courage. In the article the reporter discussed an interview that she had done with an anonymous male who had advised her that he had assisted in the death of an unidentified woman. As a result of learning this information, on June 17th, 1991, the Chief Coroner of British Columbia directed an inquest into the death of the unknown female pursuant to section 20 (2) of the Coroners Act, 1979, R.S.B.C. c. 68.
In the spring of 1991, the claimant, who had been employed as a social worker, spoke with Dr. Brian Burtch, an associate professor in the School of Criminology at Simon Fraser University about his interest in researching the area of euthanasia. As a result, Dr. Burtch wrote a letter of reference to the School recommending acceptance of Russel Ogden as a graduate student in the M.A. programme. Regulation 1.6.1 of the Graduate General Regulations states that:
"When a graduate student has been admitted, the Graduate Program Committee will exercise general supervision and counselling for the student through the Chair of the Graduate Program Committee or a faculty member designated by the Chair, until a senior Supervisor has been appointed.'
Regulations 1.6.2 through to 1.6.6 set up a mandatory and comprehensive scheme for the supervision of graduate students.
Dr. Burtch testified that he "sponsored the claimant into the school", and that he said "yes" very enthusiastically, when asked by the graduate committee if he would initially supervise the claimant. He was to supervise Ogden in the proposed research area of euthanasia and AIDS.
The claimant enrolled in the M.A. program at Simon Fraser University in the School of Criminology in September 1991. Dr. Burtch was on a sabbatical leave from SFU from September 1991 until July 1992. Because Dr. Burtch was absent, initially Ogden's senior supervisor was Dr. Robert Gordon. In February 1992, Professors Gordon and Burtch were appointed as Ogden's Supervisory Committee. In September 1992, Professor Simon Verdun-Jones replaced Gordon on the claimant's Supervisory Committee.
Between August 31st, 1992 and October 1st, 1992, Ogden submitted four drafts of his research proposal to his supervisor Dr. Burtch for approval by his supervisory committee. This procedure was required pursuant to the University regulations as set out in the Simon Fraser University Calendar and the Graduate Studies Handbook. The University regulations also required that the proposal be approved by the Ethics Review Committee since it dealt with research involving human subjects in a highly sensitive area. Each draft of the proposal was vetted by the claimant's supervisor, Professor Burtch, and various changes were made by the claimant in compliance with the directions and suggestions made by his supervisor. Each draft of the proposal contained an appendix dealing with the ethical constraints under which the claimant would be conducting his research. Before the claimant could proceed with his research project, the ethical terms of reference had to be approved both by his departmental supervisory committee and by the Ethics Review Committee of the University as a whole. Each draft of the proposal which was approved by his senior supervisor contained the following two paragraphs dealing with the ethical considerations.
"There are serious ethical considerations in the proposed research project. There is no intent to influence the choices of adult research participants regarding euthanasia. Prior to requesting consent from the participants, subjects will be fully informed of the nature of the research, the potential value of the research, and their right to withdraw during the course of the interviews. Each subject will have the choice to decide what information not already in the public domain or available to the public relating to physical or mental condition, personal circumstances and relationships shall be conveyed or withheld from others. No information regarding procedures or purposes of the research shall be withheld from the participants. Informed consent forms will be issued, though it is expected that many subjects will decline to sign. In this event, verbal consent will be noted. All subjects will be issued a subject feedback form.
Absolute confidentiality of all participants will be assured. It is recognized that the proposed research involves data about illegal behaviour; aiding and abetting a suicide, and homicide are potential charges stemming from the identification of subjects. For the protection of participants and the researcher, no participant will be required to give information regarding their identity. It will be sufficient that they give the researcher only a pseudonym. The researcher will advise participants of the possibility of court action ordering the researcher to produce a list of participant names. The researcher will take steps to ensure that all identifying information is carefully coded and secretly stored in order to minimize risks to the privacy of the participants".
Prior to September 14, 1992, Dr. Peter Harmon reviewed Ogden's ethics submission and found it to meet the University's requirements based on Harmon's experience as a member of the Ethics Review Committee. Dr. Harmon did not review the submission in his capacity as a member of that Committee.
By mid-September 1992, the claimant completed and signed his request for ethical approval of research and had it signed by his faculty supervisor Professor Burtch. The last page of the request contained the following standard terms set out by the University:
(i) to secure the informed consent of my subjects in their participation in my project;
(ii) to allow them to withdraw participation in part or in full, at any time;
(iii) to maintain in strict confidence the responses of individual subjects.
(iv) to carry out the search strictly in accordance with the proposal and the documents that accompany it, as well as any conditions imposed by the Ethics Review Committee.
(v) to permit my Chair, Director or Dean to observe the conduct of the research and to verify that procedures are followed.'
This request for approval which is in a pre-printed prepared form accompanied the thesis proposal with its own particular wording with respect to ethics considerations. Of particular relevance in this matter is that the pre-printed form for request of approval contained the agreement to maintain in strict confidence the responses of individual subjects, (emphasis added), while the claimant's thesis proposal used the phrase absolute confidentiality of all participants will be assured (emphasis added). The proposal demonstrates clearly that all parties were aware that evidence of criminal behaviour might very well be uncovered by the research.
Not only was this possibility spelled out explicitly in the research proposal, but on September 14th, 1992, prior to the proposal being submitted to the Ethics Review Committee for comment and approval, the claimant wrote the following letter addressed to the Simon Fraser University Ethics Research Review:
"To Whom it May Concern:
I have met with Dr. Ray Corrado, Criminology Ethics Representative, and some questions concerning legal accountability were raised. Specifically, the proposed study may result in my learning of criminal behaviour such as aiding suicide or murder--how might 1, or the University be held accountable?
I have sought legal advice on this question. To the best of my knowledge there is no precedent in Canada requiring individuals to share information with Crown Counsel. Nor is there any statutory obligation to report criminal activity. The only duty to report legislation in
British Columbia is with respect to child abuse or neglect, and sexually transmissible disease.
Participants in this proposed study are under no obligation to disclose identifying information. This serves to protect myself as well as the research participants. It is a remote possibility that Crown Counsel or the Coroner's Office may request cooperation with an investigation. In such a circumstance, I accept full responsibility for any decision I make with respect to the sharing of information.
I trust this satisfactorily resolves the concern of the University.
On September 18, 1992 the SFU Ethics Review Committee received the following documents from Ogden:
a. the letter dated September 14, 1992;
b. Criminology M.A. Thesis Proposal entitled Euthanasia and Assisted Suicide in Persons Who Have Acquired Immunodeficiency Syndrome (AIDS) or are HIV Positive;
c. SFU Request for ethical Review of Research;
d. SFU Checklist for Student Research;
e. SFU Research Ethics Review Committee Subject Feedback Form.
After reviewing the material, Nancy McNeil, the Research Grants Officer and secretary to the Ethics Review Committee, telephoned Ogden on September 23, 1992 and requested he make certain revisions to the proposal. The following day Ogden provided the requested revisions. His letter to Ms. McNeil is entitled "Amendments to Ethics Application", and after setting out certain research procedures he will use, contains the following statements:
"This procedure helps to eliminate concerns regarding any ability to link relationships between participants, thereby protecting the anonymity and confidentiality of participants.
I have also enclosed a revised participant consent form. This revised form articulates the risks and benefits of participating in the study, storage of information, and how anonymity and confidentiality will be insured.
I trust these amendments are satisfactory."
On September 24, 1992, Dr. William Leiss, Chair of the Ethics Review Committee, acting on delegated authority from the Committee, granted ethics approval to Ogden's proposal as drafted. The letter of approval was signed by McNeil on behalf of Leiss. On October 9, 1992, after an oral defence of the proposal before Dr. Burtch, the School of Criminology approved Ogden's proposal.
Dr. Burtch withdrew from Ogden's Supervisory Committee on December 8, 1992. Dr. Verdun-Jones became his senior supervisor and Dr. W. Glackman was added as the second member of Ogden's supervisory committee.
Ogden's new supervisory committee requested no changes to his research protocol and so the claimant commenced his research. He made known the nature of his inquiry in the AIDS and HIV community, and people self referred themselves to him for the purpose of being interviewed and providing information. During the course of this investigation, one of the persons interviewed disclosed a case of assisted suicide.
On January 12, 1994, Ogden submitted his thesis to the Examining Committee and on February 8, 1994, he successfully defended his thesis.
Meanwhile, on January 14, 1994, Bruce Mason and Ken Mennell, who were working with SFU Media and Public Relations, met with Ogden to discuss a media strategy. Mason had approached Ogden regularly since the fall of 1992 so that he could manage publicity on Ogden's research.
On January 17, 1994, Dr. Stubbs, the President and Vice-Chancellor of SFU, met with Dr. Verdun-Jones, in his capacity as President of the Faculty Association, during a scheduled lunch meeting. At that meeting Dr.Verdun-Jones asked President Stubbs about SFU providing legal advice to Ogden in the event of legal proceedings arising from information that might be disclosed when the thesis was published. Dr. Stubbs indicated his personal support but made no specific commitment on behalf of the University. On February 3, 1994, Ogden granted an exclusive interview to Douglas Todd of the Vancouver Sun for an article to be published on February 12, 1994. The article revealed that Ogden had information concerning the ongoing Inquest.
On February 17, 1994, Simon Fraser Week published a story about Ogden's research. Also on February 17, 1994, Neil Boyd, Director of the School of Criminology, wrote to Ogden stating that he was particularly pleased with the media interest in Ogden's research.
On February 25, 1994, Coroner Larry Campbell requested a copy of Ogden's thesis in connection with the ongoing inquest into the assisted suicide of the unknown female. It would appear that the case of assisted suicide that Ogden had come across was the same case that had been referred to in the Province newspaper story. As a result, Ogden was subpoenaed to testify at the inquest into the death of the unknown female as the Coroner had to that date been unable to ascertain the identity of either the deceased or the person who had assisted the apparent act of euthanasia. The Coroner felt that because of the interview that Ogden had conducted, he would be able to provide the identities of the people involved.
After reading in the Vancouver Sun on March 18, 1994 that the Vancouver coroner Larry Campbell had asked for a copy of Ogden's thesis, and that Ogden had been quoted as saying that he believed it inevitable that he would eventually have to refuse to testify about his sources, President Stubbs wrote the following message on March 27, 1994, to Dr. Clayman and Dr. Jock Munro:
"We will need to think about this and be ready to respond to Simon and the Faculty Assoc."
Dr. Clayman was the Dean of Graduate Studies and vice president of research and Dr. Munro was the Academic Vice-President. This message was in obvious anticipation of an approach by Professor Verdun-Jones who was president of the faculty association. At the time, the administration and the faculty were in the midst of negotiating a framework agreement putting in writing the obligation of the university to support the faculty and provide legal counsel in certain situations. President Stubbs testified that he responded in this way:
"Because I have no doubt that the -- the issue or an issue is an issue of academic freedom as -- as you [Ogden] have raised the matter and this is an issue that the Faculty Association is very interested in. If -- I can't remember my dates correctly, but there was quite an intensive discussion about academic freedom in the university that has been occurring over the last two or three years in the context of the university's harassment policy and also in the context of the Association of Universities and Colleges of Canada revisiting the question of academic freedom. So the issue was -- the issue of academic freedom was ' certainly being discussed and is -- is continually discussed in the university. It's an important matter."
On May 12, 1994, Dr. Verdun-Jones approached Dr. Clayman, to request that SFU assist Ogden with his legal costs associated with the inquest. The following day, the Coroner advised Ogden by telephone that he would be sending him a subpoena.
In response to this, Dr. Clayman sent President Stubbs an E-mail regarding the subpoena:
I'm addressing this to you because, although this is nominally a grad studies matter, I think the required decision should be made at your level in view of all implications. I've copied this to Jock and Judith.
Russel Ogden's MA Crim thesis research dealt with assisted suicide. The research was approved by our Ethics Committee in 1992. He knows the identity of some persons who participated in such illegal actions. He has been told (according to Simon V-J) that he will be subpoenaed in the next few weeks and asked to reveal their names. He intends to refuse and will likely be found in contempt of court. In his correspondence to the Ethics Committee, he acknowledged the possibility of this happening and said that "I accept full responsibility any [sic] decision I make with respect to sharing this information."
Simon asks that we assist with his legal bills. Mr. Ogden himself hasn't been in contact with me. He's a social worker, presumably of modest means. Whether we do or not, we will be drawn into the controversy surrounding the matter since the work was done as part of his thesis research with approval of our Ethics Committee. The committee of course did not approve his withholding information from the court or coroner, so I don't think there's any legal liability on our part.
We might wish to offer to assist with his initial legal expenses, say, up to $2,000, on compassionate grounds or possibly based on support for his academic freedom. Other external groups will undoubtedly rally 'round him in his refusal to divulge names. I'd like to be able to help him. But what worries me though is that our offer to provide $ will be interpreted by media (et al.) as SFU support for his position... supporting assisted suicide.
We needn't deal with this on an emergency basis, but I told Simon that I'd get in touch with Ogden as soon as we'd decided what, if anything we were going to do.
From Bruce Clayman"
Six days later Ogden did contact Clayman and asked for legal support. Clayman stated he was personally supportive but had to consult with his colleagues before making any commitment.
On May 24, 1994, Ogden was advised by Clayman that the President and Vice-Presidents of SFU had considered his request for assistance and had rejected it. Clayman told Ogden he had disagreed with the decision but was out-voted. This decision upset Ogden and he sent Clayman a letter that same day complaining about the decision to not provide any assistance.
The following day, the Vancouver Coroner issued a Subpoena to Ogden to testify at the Coroner's Inquest.
Also that same day, following further discussion between Dr. Verdun-Jones and President Stubbs, SFU agreed to provide $2,000.00 to Ogden to assist with his legal costs in preparation for his appearance before the Coroner.
Ogden appeared before the Coroner with legal representation on June 1, 1994. During his testimony he refused to reveal the identities of his research subjects. He cited the promise of absolute confidentiality that he had given to his subjects and relied on the principles of academic freedom and privileges His position was that these principles applied especially in areas of important social policy research where the information gathered could only be gathered on the basis of absolute confidentiality.
On June 3, 1994, Ogden met with Dr. Clayman, Greg Macdonald, advisor to the President, and Dr. Verdun-Jones to discuss:
"the role of the University in assisting you to prepare for actions that may arise from your appearance before the Vancouver Regional Coroner. "
Ogden asked SFU for three things: an apology, payment of legal fees, and that SFU find a way to be represented at the Inquest.
On June 6, 1994, a meeting of the SFU President and Vice-Presidents was held and Ogden's request for further financial assistance to assist with his legal costs in respect of his attendance before the Coroner was considered. No further decision was reached at that time because SFU was seeking internal and external advice about the manner, if any, in which SFU might choose to be further involved.
In the course of preparing to make further submissions before the coroner, Ogden wrote to Dr. Clayman on June 16, 1994, requesting:
"a statement that [endorsed] the tradition of a confidential relationship between researcher and participant and that such tradition should be continued."
Clayman responded to Ogden on June 29, 1994 in the following terms:
'This is in reply to your letter dated June 16. I regret the delay in response; I wished to consult with several of my colleagues in developing the statement that you requested on confidentiality of research information.
As you are aware, Simon Fraser University, in its official Policies and procedures does not address this issue. The following statement reflects my position as the university administrator with overall responsibility for research at this institution.
Academic research often requires that information be obtained from human subjects. In some cases, this includes information that is highly personal and/or concerns activities that may be in conflict with the civil or criminal law. In such cases, the researcher needs to be able to assure the subjects that the information will be held in confidence by the researcher. This is because subjects would likely not provide the needed information to the researcher if they believed that it would be divulged to others. This in turn would adversely affect the validity of the results of the research and would likely prevent the research from being carried out at all. This outcome would deprive society of the benefits stemming from the results of the research. These results could typically bear on and inform important public policy issues. Such research should therefore be encouraged. Thus it is essential to preserve, subject to limitations discussed below, a relationship of confidentiality between researcher and research subject.
Nonetheless, both researchers and their subjects must recognize that a communication that has been made in confidence does not give either party absolute privilege against disclosure. Where information that has been obtained in confidence becomes the subject of a legal dispute, the courts will determine whether the public interest demands that it be disclosed. Research subjects must be informed of this possibility at the time they consent to participate in the research.
I hope this statement is helpful to you.
Bruce P. Clayman
Vice President, Research
Dean of Graduate Studies"
On July 22, 1994, Ogden wrote to Dr. Clayman to advise that he wished to accept SFU's offer of $2,000.00 to assist in the payment of his legal expenses. A letter from Ogden's counsel invited SFU to review the legal argument that Ogden would rely upon before the Coroner. SFU declined the invitation.
At a meeting of the Vice-Presidents on July 27, 1994, the previous decision that no further funding would be provided beyond the $2,000.00 already granted to Ogden was confirmed. Ogden was advised of this on August 11, 1994. SFU then forwarded the $2,000.00 to Ogden's lawyer who was appearing in the proceedings before the Coroner.
Ogden appeared before the Coroner on August 19, 1994, with his lawyer to continue his testimony, and he repeated his refusal to identify his research subjects.
On October 20, 1994, Coroner Larry Campbell issued his decision finding that the communications between Ogden and his research subjects were privileged and therefore Ogden's refusal to reveal the identities of his research did not amount to contempt of court. There was no appeal taken from the decision of the coroner and therefore the account for legal services is limited to the appearances in that forum.
The University does not dispute the reasonableness of the account rendered to the claimant by his lawyer. The University has made no further contributions to Ogden's legal expenses beyond the $2,000.00 already paid.
1 Is section 84 of the Universities Act a bar to the successful prosecution of any lawsuit by the claimant against the defendant University?
2. Was there a contract between the claimant and the defendant such that the defendant would be under a legal obligation to reimburse the claimant for his legal expenses?
3. Is there a legally enforceable duty on the defendant University to support a student who finds himself in the situation that the claimant did when that situation was foreseen by the University?
4. Does a student have any legal standing to require that a university take a particular action in order to promote the principles of academic freedom and academic privilege?
The claimant argues that he paid tuition in order to be registered in the M.A. program, and that in order to remain in good standing he had to follow all of the rules and regulations of the University. He points to the various passages in the University Calendar and the Graduate Studies Handbook which emphasize the importance of the relationship between a supervisor and a graduate student. He says that the role of a supervisor is to supervise and direct the student. The supervisor is to review the proposal and use his or her experience to ensure that the proposal is both feasible and ethically sound. In addition, the Ethics Review Committee must be involved and the constraints that it sets out must be followed by the student.
Regulation 1 .1 (1) of the Graduate General Regulations sets out the rules for publication of the thesis. The Graduate Studies Handbook at page 19 states as follows:
"Students have an obligation to make the results of their research accessible (above and beyond distribution of the thesis) to an appropriate audience through publication. The form of publication will vary according to the discipline level of the program but may include books, journal articles and conference presentations."
The claimant argues that given the requirement and commitment to absolute confidentiality contained in his proposal, and the requirement that the research itself be published, he was placed in an untenable position by the University. Publication would lead to people wanting to know the details of his research, including possibly, the identity of his subjects when he was at the same time bound by his commitment to absolute confidentiality. He argues that since he had to follow both of these directives of the University, the University should therefore be legally bound to pay for the legal expenses that he incurred in defending his position. The claimant further argues that he was not asking the University to demonstrate support for euthanasia, but rather, that the issue facing him at the inquest was one of academic freedom and privilege. He urges that this is one of the hallmarks of a University and the University therefore owed a duty to assist one of its students in establishing the scope of those freedoms. He argues that it was in the best interests of the University to resist any attempt to encroach on these freedoms in order to have determined in a legal context what the exact boundaries for the freedoms are. He says that by refusing to support him in his legal challenge to the subpoena, the University neglected its duty to uphold and enforce these principles of academic freedom and privilege.
The University says that it is under no such obligation to defend a student. The defendant points to the University Act, 1979, R.S.B.C. c. 419, and says that the scheme for the governance of the University is set out in great detail within that Act. In broad terms, the management of the business affairs of the university is to be under the governance of the Board of Governors as set out in section 27 of the Act. The academic governance of the University is under the control of the senate as set out in section 36 of the Act. The President, pursuant to the provisions of section 56, is the Chief Executive Officer and is to generally supervise and direct the academic work of the University. There is no provision for a student to unilaterally direct the University as to which issues it shall deem important for its own governance. In support of this principle, section 41 of the University Act, supra, states:
'Any of the faculties may advise the president in any matter affecting the interest of the university, whether academic or disciplinary, but that advice does not limit the powers and authority of the president."
The initial rationale of the University for refusing the request by the Claimant for financial support for his legal expenses was twofold. Firstly, Dr. Clayman advised President Stubbs that the Ethics Review Committee did not specifically approve Ogden's withholding information from the Coroner. Secondly, in his September 14th, 1992 letter, Ogden had acknowledged the possibility of just such an event as was occurring, and he had accepted:
"...full responsibility for any decision I make with respect to sharing this information.'
The University says that all parties did foresee and consider the very problem that did arise. That is the reason for the September 14th, 1992 letter from Ogden. He had agreed prior to the commencement of his research that he alone would be responsible for the consequences of taking a position of non disclosure. The University, therefore, was not obligated to compensate him for the costs associated with his decision not to disclose the information.
It appears from the correspondence and evidence of Dr. Clayman, and President Stubbs, that the University administration was also concerned that should they provide funds for the defence of Ogden's position, this might generate negative publicity for the University. They felt the public might perceive that they were in fact supportive of the practice of euthanasia, and not simply supportive of the principle of academic freedom. In addition, they were clearly concerned about the potential impact any offer of financial support to Ogden might have on the ongoing negotiations with the faculty association.
Finally, the University relies on section 84 of the University Act, supra:
"(1) No action or proceeding shall be brought against a member of a board, senate or faculties, or against an officer or employee of a university, in respect of an act or omission of a member of a board, senate or faculties, or officer or employee, of the university done or omitted in good faith in the course of the execution of his duties on behalf of the university.
(2)In an action against a university, if it appears that the university acted under the authority of this Act or any other Act, the court shall dismiss the action against the university."
The authority of the University under the Act is found in section 46 of the Act:
'Each university shall, so far as and to the full extent which its resources from time to time permit,
(a) establish and maintain colleges, schools, institutes, faculties, departments, chairs and courses of instruction;
(b) provide instruction in all branches of knowledge;
(c) establish facilities for the pursuit of original research in all branches of knowledge;
(d) establish fellowships, scholarships, exhibitions, bursaries, prizes, rewards and pecuniary and other aids to facilitate or encourage proficiency in the subjects taught in the university and original research in all branches of knowledge;
(e) provide a program of continuing education in all academic and cultural fields throughout the Province; and
(f) generally, promote and carry on the work of a university in all its branches, through the cooperative effort of the board, senate and other constituent parts of the university."
The first issue to be resolved in this matter is whether s. 84(2) of the University Act acts to bar this claim.
If this were a claim in negligence against the defendant for what counsel for the University has termed "educational malpractice," then I agree that the action would be barred by the operation of s. 84(2). Complaints by a student about the educational practices are a matter to be dealt with internally through the procedures set out by the University in its self-governing role as authorized by the University Act. In addition there is no tort of "educational malpractice". Wong v. University of Toronto (1989), 45 Admin. L.R. 113 at 118-119 (Ont. Dist. Ct.), aff'd (1992) 4 Admin. L.R. (2d) 95 (Ont. C.A.).
However the claimant's suit is in contract. I do not find that there was inadequate supervision of the claimant. All the evidence points to a careful and close supervision of his work. The eventuality that did in fact come about, was foreseen by all concerned as they carefully considered the potential ramifications of the research and its intended publication. I find that the requirement of absolute confidentiality was deliberately inserted into the ethics section of the thesis proposal. Paragraph 6 (d) of The University Research Ethics Review states:
research which forms part of a student's... graduate thesis work and which involves subjects will be submitted with the student advisor's recommendation to the committee..."
As Professor Verdun-Jones testified:
"... I think there are certain recognized conventions in Canada, it seems, in terms of criminological research, and one would be the absolute (emphasis added) need to ensure confidentiality.'
Thus, it is not surprising that the claimant's supervisor, and the Ethics Review Committee, insisted on the requirement for absolute confidentiality to attach to the identification of the subjects involved in the claimant's research. This claim is therefore not about inadequacies in supervision. It follows that s. 84(2) does not act as a bar to this claim.
The main issue to be resolved in this case arose because of the inherent conflict in the rules set by the University. The claimant was contractually bound to comply with all of these. I agree with the claimant when he gave evidence that:
'The legal complications that arose as a result of my oral defence on February the 8th -- those complications come about directly as a result of two expectations, or duties, or responsibilities that the -- that the university imposes on university researchers, in fact all researchers, and the first is confidentiality. Had there been no promise of confidentiality, it wouldn't have been a problem before the court, but the court only knew of the research because of publication, and the university also expects publication of findings.
The university also has a document called "The Graduate Studies Handbook" and the Graduate Studies Handbook, on page 20, says, "students have an obligation to make the results of their research accessible, accessible above and beyond distribution of the thesis to an appropriate audience through publication." It says, "The form of publication can vary according to the discipline," meaning the faculty the student is from, "and the level of the program, but may include books, journal articles, conference presentations, et cetera."
So again the university expects me to protect confidentiality and to publish to make known the research findings. It is these two duties that led to the complications...'
Prior to the submission of the thesis proposal to the Ethics Review Committee, the claimant submitted at least two drafts of his proposal to his faculty supervisory committee for their feedback. As a result of discussion with his supervisor, certain changes were made to the document. In each case the requirement for the claimant to maintain absolute confidentiality with respect to the identity of his informants was maintained. It is agreed between the parties that prior to September 14, 1992 Dr. Peter Harmon reviewed the ethics submission and found it to meet the University's requirements, based on Harmon's experience as a member of the Ethics Review Committee. On September 18, 1992 Ogden forwarded to the Ethic's Review Committee the package of materials that they required for their evaluation. Included in that package was the letter from the claimant to the Ethics Review Committee dated September 14, 1992. This letter clearly demonstrates that prior to the claimant receiving approval to proceed with his thesis proposal, he:
1 . was aware that the Criminology Ethics representative, Dr. Ray Corrado, was concerned with the issue of legal accountability and confidentiality of the identity of the subjects.
2. sought out legal advice for himself concerning this dilemma.
3. took full responsibility upon himself for any decision he may make with respect to the sharing of information.
It was only after these assurances and a further amendment to the ethics section at the request of the Ethics Review Committee, that the final approval to proceed was given. The letter is clear on its face despite the claimant's evidence that he simply meant the phrase "accept full responsibility" to mean that he was aware and accepted that he could be jailed for contempt if he were ordered to make a disclosure and still refused to comply. There is nothing in the letter to indicate any limitation to the acceptance of full responsibility. There is nothing in the evidence that the claimant ever put an oral limitation on his acceptance of full responsibility. The actions and statements of his supervisors, and Dr. Clayman and President Stubbs are all consistent with their understanding that the claimant had at the start of the process accepted full responsibility for the consequences of the dilemma which transpired.
The contract between the claimant and the defendant required him to abide by the terms of the Ethics Review Committee. The terms contained in the claimant's letter of September 14, 1992 form part of terms of that contract. I find that there was no breach of the contract between the parties by the University's refusal to pay for the claimant's legal representation before the coroner.
The claimant argues in the alternative that there was a legitimate expectation that arose in the context in which he found himself. He says that the court ought to be concerned with the fairness of the decision making process. The problem with this argument is many-fold. Firstly, in and of itself it does not form a cause of action. Secondly, this was not a decision that was made without the claimant's knowledge or that he was unaware of prior to embarking on his research. The claimant, as noted above, was aware of the specific potential problem that had been raised by the University, and in response wrote the letter of September 14, 1992. There is no indication in the evidence that the solution set out in that letter was one forced upon the claimant by the University. The only reasonable inference to be drawn from the contents of that letter is that the University had expressed some concerns about the foreseen potential dilemma, and the matter was resolved in the manner outlined in the letter. There is nothing in the letter to indicate that at that time the claimant thought the University was being unfair. If he did, he could have altered his methodology, or the thesis topic, or indicated to the University that he was assuming "full responsibility" under protest or with a certain limitation. He did none of these.
Having found no breach of contract, there is no need to examine the issue of vicarious liability.
I do accept that the University is contractually bound to supervise the student at a level commensurate with the level of study. At the undergraduate level, the amount of supervision is generally minimal. If a student satisfactorily completes assignments and examinations, the student can expect to pass. Close supervision of the student begins at the graduate level and its importance is spelled out in the Graduate Studies Handbook as set out above. That supervision must be consistent with scholarly integrity and fair process. However, the duty cannot properly be described as fiduciary in nature. In order to be fiduciary in nature the University would have to have as its sole objective the best interests of the student. The duties of the University are set out in s. 46 of the University Act, supra, and clearly extend beyond the requirement of looking after the best interest of a particular student.
I place no weight in this claim on the fact that from time to time the claimant was employed by the University as. an instructor. This research and the consequent problems arose solely in his relationship to the University as a graduate student.
Having made these findings, I am bound to dismiss this claim.
I cannot leave this case without making some comment on some of the arguments of the defendant.
While it is not open to an individual student to determine for the University how it ought to promote the principles of academic freedom and privilege, these principles are fundamental to the operation of any accredited University. There is no question that the research of the claimant was of great social value and very topical in today's society. One has only to keep in mind some of the events that have occurred across our country since this thesis was researched, written, and publicized. A few examples where debate around euthanasia has raged are the cases of Robert Latimer, Sue Rodrigues, and Dr. Nancy Morrison, the Nova Scotia doctor. This issue is current. There is much debate amongst members of society in general, and parliament in particular. It is acknowledged that there is a dearth of empirical data on the subject. This is perhaps why, when a case of suspected euthanasia arises, it sparks such heated debate. Research such as is contained in the claimant's thesis is therefore vital to help inform this debate. The defendant acknowledges that the claimant's research was of high quality. The vague statements of personal support as expressed by the president of the University, Dr. Stubbs, and the dean of Graduate Studies, Dr. Clayman, sound hollow and timid when compared with the opportunity they had as leaders of the University, to promote the demonstrated value of academic freedom and academic privilege as evidenced in this case. To set aside this opportunity because of fear that if they were to financially support Ogden by paying his legal fees in this context, some people might misapprehend that they were in favour of euthanasia, demonstrates a surprising lack of courage. It is clear that the issue that was being explored before the coroner was the right of an academic researcher who had obtained information on the basis of absolute confidentiality to insist on his right to keep that information confidential. Whatever the personal views of the researcher may have been on the topic of euthanasia, the right to maintain confidentiality was the sole issue being argued by legal counsel. This was made clear to the University in the letter of June 16, 1994 from Ogden to Dr. Clayman as Dean of Graduate Studies and Vice-President of Research. The claimant sought:
"a statement that [endorsed] the tradition of a confidential relationship between researcher and participant and that such tradition should be continued."
for his then upcoming argument in front of the coroner that he should be allowed to maintain confidentiality.
In addition, it is clear from the evidence that even before the claimant's thesis defence in February 1994, the press office of the University was involved in the media coverage of the claimant's findings which were ultimately published in his thesis. There is no evidence before the court that the University tried to curtail wide dissemination of the findings.
President Stubbs described the threat to the university as:
'Well the threat ultimately to the university is that we end up -- there is a court issue that has arisen and the university, depending on what action is taken, is involved in taking a position where we are supporting someone who is not willing to give information that is required -- or that is requested in a court proceeding and so the university could be perceived as taking a position that is -- I'm sorry I don't know the legal language, but that is challenging the legal process and that kind of publicity is something that doesn't do the university -- doesn't necessarily do the university a lot of good."
The problem with this argument is that the claimant is only asking for the fees he incurred in making the argument for academic privilege. It is true that the University and the researcher must abide by the rule of law. The letter of June 29, 1994 from Dr. Clayman denying the existence of absolute privilege is very much an after the fact gloss in view of the specific wording of the ethics section of the thesis proposal as approved by the University's Ethics Review Committee. It is self-evident that the rule of law includes the right to determine what the boundaries or the extent of academic privilege might be by way of a challenge in court. This can only be determined by challenging in a particular matter a request to obtain what a researcher considers privileged information. Only if the challenge has been lost in the highest court in which the challenge is being made, would the rule of law say that the boundary of privilege in the particular case has been set. Only continued refusal to disclose the information after such a ruling had been made, would put the claim of privilege outside the rule of law. It is hard to understand how an institution of higher learning, engaged in very important social research, would be thought less of because it undertook to determine the boundaries of academic privilege, when the existence of that privilege is what made the research possible in the first place. The questions of the coroner to Ogden were a direct challenge to the academic freedom and privilege that were so necessary for the research that had been approved by the University. When, because of the possibility of bad publicity, the University turned its back on the researcher who was trying to uphold the standards that the University itself had set, it risked much harm to the reputation of the University and its ability to conduct this type of sensitive research. The principle is the same whether the researcher is a student or faculty.
The University also argues that there are serious policy questions that should be considered in determining the obligation of a university to bear costs incurred by a student in performing research:
"The prospect of a university assuming potentially unlimited liabilities related to student research is a serious problem for a university faced with a limited budget. A potential consequence of the imposition of this type of liability is greater control exercised by the university over student research topics and a reluctance on the part of a university to agree to any controversial research by students that may expose the university to liability."
There is no question here of unlimited liability. All parties agree that the legal fees charged Ogden for his defence in front of the coroner were reasonable. This is not a case of negligent research on the part of the student. Nor is it a case where a third party has been harmed by the researcher. There has been no suggestion that what occurred here might have been covered by liability insurance had the researcher been a faculty member. It is hard to see how it could have been. Graduate students operate under faculty supervision. A logical extension of this is that the opportunity for liability might in fact be reduced since there is so much oversight of the student's project. To argue that requiring the university to pay Ogden's legal account would inhibit the university from permitting controversial research by a student, is a sad commentary on the institution. The principles of tenure of faculty and academic freedom and privilege were developed specifically to foster and promote the sense of freedom to investigate and to do research even in areas that some people might find controversial. This duty to pursue original research is in fact set out in s. 46 (c) of the University Act. There is a requisite amount of courage that must to exist within the university culture in order to foster this activity.
The inference that I draw from the evidence of Dr. Verdun-Jones, the e-mail of Dr. Stubbs of March 27, 1994, and the e-mail of Dr. Clayman of May 13, 1994 is that one factor underlying the University's refusal to financially support Ogden was concern for the ramifications it might have on the then ongoing negotiations the administration was having with the faculty association about the nature of the support and protection the university was to offer faculty. I do not know how those negotiations resolved themselves. While it is clear from the evidence of Professor Verdun-Jones and President Stubbs that much of the current debate about academic freedom centres around harassment issues, this is not a reason to minimize the importance of the principles of academic freedom and privilege in the broader more "classical" sense.
The University also argues that policy concerns "must be addressed in the context of the level of tuition paid by students in exchange for potentially "unlimited exposure" on the part of the university". There is of course no "unlimited exposure" as set out in the defendant's argument. Exposure is limited to the facts of any particular case. A person who slips and falls on a banana peel in a grocery store does not have the level of their compensation for a broken neck limited by the fact that this was their first time in the store and they were only buying a chocolate bar.
When the initial decision was made to contribute $2,000.00 towards Ogden's legal fees, the University wished to consider step by step whether to continue to support him. There was an expressed fear that the University did not want to commit to a,
"bottomless pit, in which the university would commit itself to providing legal support no matter what the cost, even if it went to the Supreme Court of Canada."
This matter was resolved by the coroner at the inquest. The defendant agrees that the legal fees charged the claimant were reasonable.
One would hope that given all that has transpired that the university while not having a legal obligation in contract to reimburse the claimant for his legal fees, will revisit the issue once again, and weigh the ultimate benefits to the University in supporting in real terms the position taken by Ogden at the coroner's inquest. The University ought to consider whether the assertion of the principles of academic freedom and privilege as they extend to the benefit of all persons doing research under the auspices of Simon Fraser University ought to be left to the financial means of a student, who was conforming as he was required to the guidelines set by the University, or whether that burden is more appropriately shouldered by the University.
This claim is dismissed. I do not award costs to the University.
Provincial Court Judge
June 10, 1998
Web Page Author Note:
Readers who are interested in seeing more that has been written regarding the Ogden case should click here to visit another of my web pages devoted to Ethics issues, including (a) hyperlinks to various disciplinary Codes of Ethics; (b) papers written in response to draft Codes produced in 1996 and 1997 by the Tri-Council Working Group; and (c) material regarding the Russel Ogden case and the SFU Ethics Committee's imposition of limited confidentiality.