Executive Summary: Key Legal and Evidentiary Issues

• The appellants sought to amend their judicial review application to challenge the constitutionality of certain provisions of the Occupational Health and Safety Act after the University cited the Act in cancelling a lecture.

• The chambers judge denied the amendment, finding that it would fundamentally alter the nature of the proceedings and unnecessarily complicate the case.

• The appeal centered on whether the chambers judge’s refusal to permit the amendment was an error of law, principle, or wholly unreasonable.

• The Court of Appeal found the chambers judge acted within his discretion, as the constitutional challenge to the Occupational Health and Safety Act was only marginally connected to the dispute.

• The appellants can still advance constitutional arguments about the University’s interpretation of the Occupational Health and Safety Act within the existing judicial review.

• Judicial restraint supports not expanding the proceedings to address constitutional issues not necessary to resolve the dispute.

Facts of the case

Jonah Pickle and Frances Widdowson appealed an order of a chambers judge denying a fiat to permit the filing of a second amendment to an Originating Application for Judicial Review, and dismissing an application to amend that originating application to request an order pursuant to s 52 of the Constitution Act, 1982, striking down certain provisions of the Occupational Health and Safety Act, SA 2020, c O-2.2, specifically ss 1(n), (rr), 2(a), and 3(1)(c).

In January 2023, the University of Lethbridge and the Governors of the University of Lethbridge cancelled a guest lecture by Dr. Widdowson, to be attended by Mr. Pickle, entitled “How Does Woke-ism Threaten Academic Freedom?” Dr. Widdowson, a political scientist and former associate professor at Mount Royal University, had been invited to speak by a professor of philosophy at the University. Her lecture was to challenge the political ideology of “woke-ness,” which she described as “when identity politics becomes totalitarian,” leading to censorship and suppression of open debate, particularly in areas such as black studies, women’s studies, indigenous studies, queer studies, and disability studies.

Knowledge of the scheduled lecture brought immediate and overwhelming reaction from faculty and students, including the University’s Education Navigator: Siksika, its Vice-Provost of Equity, Diversity and Inclusion, and groups such as the Department of Indigenous Studies and the University of Lethbridge Students Union. Protestors described Dr. Widdowson as a “well-known residential school denialist” and accused her of being a white supremacist and racist. They indicated they would organize a counter-demonstration and promoted an alternative lecture entitled “Truth Before Reconciliation: How to Identify and Confront Residential Schools Denialism.”

After investigation and debate, the University cancelled the proposed lecture, stating that “assertions that seek to minimize the significant and detrimental impact of Canada’s residential schools system are harmful” and emphasizing the need to be attentive to the safety of its diverse community. The University said the harm associated with the presentation would impede “meaningful reconciliation.” Dr. Widdowson presented her lecture online.

Procedural background and policy terms

On November 6, 2024, Mr. Pickle and Dr. Widdowson filed an Amended Originating Application for Judicial Review seeking a declaration that the University had breached their freedom of thought, belief, opinion, and expression guaranteed under s 2(b) of the Canadian Charter of Rights and Freedoms, and their freedom of peaceful assembly under s 2(c) of the Charter. They also sought an injunction requiring the University to permit the lecture on campus without conditions at a reasonable future date, time, and location.

During the proceedings, the University filed a brief of law on August 27, 2024, indicating that feedback from protestors raised issues of physical and psychological safety, and that the University was required to consider the application of the Occupational Health and Safety Act, which obligated the University to ensure that the event and its impacts on employees and others in its vicinity was safe. The University stated that the Act required it “as far as it is reasonably practicable” to protect the “health, safety and welfare” of its students, staff, and other materially-affected persons.

In response, Mr. Pickle and Dr. Widdowson applied to challenge the constitutionality of certain words or phrases in the Occupational Health and Safety Act: the definition of “harassment” in s 1(n), the word “psychological” in the definition of “violence” in s 1(rr), the words “psychological and social” in s 2(a), and the word “harassment” in s 3(1)(c). They argued that if those provisions obligated the University to cancel the lecture, then the provisions violated their freedom of expression and peaceful assembly and were unconstitutional. They sought the striking or reading down of those provisions.

Decision of the chambers judge

The chambers judge gave brief reasons in morning chambers. He did not see that “the constitutionality of the OH & S legislation is really engaged here,” and found that obligations under the Act “to consider employee health and welfare” would be difficult to find unconstitutional. The judge stated that the issue was the University’s “decision making and whether or not it was reasonable and whether or not they appropriately took into account or justified appropriately Charter rights and values in that analysis.” The chambers judge concluded that adding a constitutional challenge to the Occupational Health and Safety Act “changes the fundamental nature of this proceeding, makes it bigger, more complicated and unnecessarily so.”

Grounds of appeal and analysis

Mr. Pickle and Dr. Widdowson argued that the chambers judge erred in nine ways, including failing to apply the rule that pleadings in an application for judicial review do not close until the hearing, misconstruing administrative law principles, and failing to exercise discretion to amend generously. The University restated the issue as whether the chambers justice unreasonably refused to grant the application to amend the Originating Application for Judicial Review to add a challenge to the constitutional validity of the Occupational Health and Safety Act.

The Court of Appeal held that the chambers judge’s decision was discretionary and entitled to deference unless it was based on an error in law or principle or was wholly unreasonable. The Court found no such error. The Court noted that Mr. Pickle and Dr. Widdowson can make the substance of their constitutional submissions in the existing judicial review and that refusing the amendment causes no prejudice to them, while permitting the amendment would have been prejudicial to the University. The Court also cited the principle of judicial restraint, emphasizing that courts should not decide issues of law not necessary to resolve the dispute, especially constitutional issues.

Ruling and outcome

The appeal was dismissed. The Court of Appeal affirmed the chambers judge’s decision, concluding there was no basis to interfere with the exercise of discretion in refusing to permit an amendment of the pleading as proposed. The successful party in this appeal was the University of Lethbridge and its Governors. No specific monetary amount was ordered, granted, or awarded in the decision.