Top 10 legal issues that new-to-Canada academics need to know

The search for truth and education knows no borders, and nor do students, faculty and staff. Every institution is a mix of people from all corners of the world, and they are all the better for it.

But while the laws of many academic fields like physics and biology, are universal, the law of the land differs greatly from country to country, province by province, and even municipality by municipality.

So, if you’re a faculty member or administrator with experience from outside of Canada, you are in for a treat (if you consider learning a treat, which we assume you do, given your choice of profession).

In this column, I will outline what I think are the top 10 legal issues that new-to-Canada faculty and administrators need to know:

1. Truth and reconciliation

Canada is coming to terms with its history of genocide, mistreatment, neglect and exploitation of the Indigenous, Inuit and Métis peoples of Canada. Universities also must come to terms with their contributing role in the past (face the truth), and commit themselves to act (reconciliation). A key document (but certainly not the only one) that speaks to what universities need to do to advance truth and reconciliation is the report of the Truth and Reconciliation Commission, which contains numerous calls to action, some of which are specifically addressed to postsecondary educational institutions. In addition, some provinces have adopted the UN Declaration on the Rights of Indigenous Peoples into law (e.g. British Columbia), and most Canadian universities have realized the need to take concerted action of their own.

Truth and reconciliation encompass  many aspects, and the ways they will impact the law governing postsecondary institutions are evolving. Currently, there is action around Indigenous identity, university governance, curriculum, as well as  in the occupation, use and development of land. There is more, much more to come.

2. The university landscape is public-dominated

The Canadian postsecondary system is dominated by publicly funded (or at least “publicly-supported”), non-profit institutions. There is a small (but growing) private non-profit sector, and a small private for-profit sector. Most public institutions are also registered charities. As a result, many of the relevant and applicable legal issues have a public-law and charity-law context, which is particularly relevant in areas such as privacy, freedom of information (i.e. sunshine laws), collective bargaining (which may involve public-sector unions, and require universities to bargain within governmental mandates), procurement, revenue-generation and land-development.

3. Province-primary regulation

Public postsecondary institutions are regulated primarily by provincial governments. While the governing laws of each province are similar, they do differ in important ways, and affect everything from a university’s governance, financial accountability, labour relations, privacy and information security, and internal policies on matters such as academic freedom and the freedom of expression (more on this last point in #7).

4. Operating grants are issued by the provincial government

The operating budgets of public universities are funded (or in some cases, merely “supported”) by grants from their provincial government. Operating grants may come with formal or less-formal government expectations, but with the notable exception of the eligibility requirements of the three main funding agencies (commonly referred to as the Tri-Agency or Tri-Council, discussed below), provincial governments do not tend to impose wide-ranging obligations upon institutions as a condition of receiving operating funds. For example, in the U.S., institutions which receive federal assistance must comply with Title VI, which prohibits discrimination on the basis of race, colour, or national origin, and Title IX, which prohibits sex-based discrimination. In Canada, the laws of general application (the provincial human rights codes) prohibit discrimination on a variety of grounds, including gender; but operating grants and funding agreements do not tend to add significant institution-wide requirements.

5. Research funding tends to be from federal agencies

A great deal of research funding is provided through three federal funding agencies: the Natural Sciences and Engineering Research Council (NSERC), Canadian Institutes of Health Research (CIHR), and the Social Sciences and Humanities Research Council (SSHRC) – known collectively as the Tri-Agency or Tri-Council. These agencies issue extensive eligibility requirements for institutions, and due to their size and importance, they are the primary source of research-related regulations at each eligible institution.

6. Publication is the goal

Universities do not tend to do secret, contract research for major government departments and private industry (though institutions do tend to offer relatively limited applied or sponsored research opportunities). Rather, their focus is on research that will result in (at least attempted) public dissemination.

7. Autonomous, not agents

Universities may be publicly-funded (or merely “supported”), but they are not agents or a formal part or arm of the provincial or federal government. They are part of the public sector and the government may appoint some number (often a minority) of their governing boards, but universities are not considered to be government agencies or departments. Generally speaking, institutional autonomy is a virtue of the Canadian system. As a result, there is generally less overt government control and fewer direct mandates issued by governments to universities.

From a legal perspective, one implication of autonomy is that universities are generally not bound by the Canadian Charter of Rights and Freedoms, which protects fundamental rights, such as freedom of speech, from government or non-governmental actors carrying out governmental policy. Note, this principle is challenged from time to time, and in 2020, the Court of Appeal in Alberta concluded that a university in Alberta is carrying out education (which requires free expression) as a government policy; therefore universities in Alberta must respect students’ Charter-protected freedom of expression on campus. At the time this column was published, that decision remains an outlier.

Colleges and institutes (ex. BC Institute of Technology) throughout Canada, on the other hand, do tend to have a higher degree of government control and regulation (and some are expressly established as agents of the crown), and are more likely to be subject to the Charter.

For this reason and many others, amongst lawyers and the broader community, a university is neither a college, nor an institute. Generally speaking, unlike in many places, especially the U.S., these terms are not treated as synonymous or interchangeable.

8. Unionization is normal

Faculty and staff at publicly funded universities, colleges and institutes tend to be unionized. Therefore, collective agreements are key documents in governance and administration, and in determining legal rights and responsibilities.

9. Copyright is owned by faculty

University faculty tend to own the copyright of their scholarly work, and have the right to benefit (either fully or partially) from any patentable inventions arising from their research.

10. Lawyer…down

Lawyers (in-house and external) do not tend to get involved in the day-to-day government relations and various academic and non-academic applications and approvals required from government ministries. Lawyers may, of course, be involved in providing legal advice, if required, but generally do not take the lead on such matters. Rather, universities tend to develop their own, in-house government relations capacity and contract GR consultants, rather than law firms.

This generally reflects Canada’s less litigious and legalistic culture, compared to other jurisdictions such as the U.S. As one example, students in the U.S. filed more than 300 class action lawsuits against colleges and universities because of disruptions and campus closures due to the COVID 19 pandemic. In Canada, there was one small class action at one university, limited to parking fees.

As you can appreciate, any top 10 list is arbitrarily short – and there are a great many other unique and idiosyncratic aspects of the Canadian legal and postsecondary system that are sure to leave faculty and administrators new to Canada scratching their heads. We look forward to hearing about them, whether in the comment section below, or by reaching out to me directly.