Executive Summary: Key Legal and Evidentiary Issues

• TMU’s refusal to investigate Morgenthau’s complaint relied on the findings of the MacDonald Report, raising procedural fairness concerns.

• The court found the application for judicial review inappropriate due to the existence of adequate alternative remedies, including grievance and human rights processes.

• Judicial review was declined based on discretion, with the court deferring to TMU’s internal governance and restorative processes.

• The applicant lacked standing to directly challenge the MacDonald Report, which was not rendered in response to her individual complaint.

• TMU’s use of restorative justice and free speech policies were central to its decision not to discipline students.

• The court found no exceptional circumstances to justify overriding the preferred use of alternate forums.

Facts and outcome of the case

Background and factual context

Sarah Morgenthau, an adjunct professor at the Lincoln Alexander School of Law (LASL) at Toronto Metropolitan University (TMU), filed a formal complaint after 72 students signed and circulated an open letter on October 20, 2023, addressing the conflict between Israel and Hamas. She alleged the letter condoned the Hamas terror attacks of October 7, denied Israel’s right to exist, and was antisemitic. Morgenthau, who is Jewish, viewed the letter as encouraging violence against Jews and Israelis.

In response, TMU initiated an External Review instead of proceeding with her complaint through the usual institutional processes. The Honourable Michael MacDonald, former Chief Justice of Nova Scotia, was appointed to lead the review, with TMU acting as the complainant in that process—not Morgenthau.

The external review process and findings

Mr. MacDonald conducted the External Review under the Student Code of Conduct framework, applying a restorative justice approach. The review had two phases: individual meetings with students and consultations with stakeholders, including Morgenthau, who was consulted but not treated as a complainant.

Key findings of the MacDonald Report included:

• The Open Letter, while offensive to many, was determined to be a valid exercise of student expression protected under TMU’s Statement on Freedom of Speech.

• No violations of the Student Code of Conduct or the Discrimination and Harassment Prevention Policy were found.

• The letter was described as “greatly flawed” and harmful, but the harm was considered unintentional.

• The Open Letter was found not to be antisemitic as it did not refer to Jewish people, Judaism, or Zionism.

• No sanctions were imposed on students, and the report stated that participating students had already endured significant personal and professional consequences.

• Morgenthau’s views were included in the report, and she was named with her consent.

Following this, on July 5, 2024, TMU informed Morgenthau that her complaint would not proceed further, citing that the MacDonald Report had already fully addressed the substantive issues. She was also advised that this decision was a preliminary assessment and not subject to appeal.

The application for judicial review

On October 7, 2024, Morgenthau applied for judicial review, seeking:

• An order to quash TMU’s decision not to proceed with her complaint;

• A direction requiring TMU to investigate her complaint under the applicable policies;

• A declaration that TMU failed to follow its policies;

• An interim order for disclosure of submissions and records from the External Review.

She alleged that the findings of the MacDonald Report were legally flawed and biased, and that she had been excluded from meaningful participation. TMU brought a motion to dismiss the application, arguing that the decision was not reviewable due to lack of public character or state authority, and that alternative remedies were available.

Court’s analysis and legal conclusions

The Divisional Court declined to hear the judicial review application, concluding that it was not an appropriate use of judicial resources given the availability of other forums. Relying on Strickland v. Canada (Attorney General) and Yatar v. TD Insurance, the court found:

• TMU, as a self-governing institution under the Toronto Metropolitan University Act, 1977, has autonomy to resolve internal matters.

• The applicant had access to alternative remedies, including filing a grievance through her union (which she did not pursue while employed) or filing a human rights application with the Human Rights Tribunal of Ontario.

• The fact that those forums may not result in student discipline did not make judicial review appropriate.

• The applicant lacked standing to directly challenge the MacDonald Report, which was not issued in response to her individual complaint.

The court also found that allowing the judicial review would have disproportionate consequences on third parties, such as the students who had graduated and the members of the External Review Team, including one lawyer whose impartiality had been challenged but who could not participate in the proceeding.

The court emphasized that TMU’s internal processes were consistent with its educational, non-adversarial policies and that allowing a judicial review would undermine those institutional values.

Outcome

The Divisional Court exercised its discretion to decline hearing the judicial review application. It determined that TMU’s decision to rely on the MacDonald Report was appropriate and that Morgenthau had not demonstrated exceptional circumstances to justify court intervention. The parties had agreed on $30,000 in costs, but the panel invited submissions on whether a lower amount between $5,000 and $10,000 would be more suitable, given the nature of the case.