Executive Summary: Key Legal and Evidentiary Issues

• The case focused on whether a provision in agreements between the University of Windsor and student groups violated the Discriminatory Business Practices Act by restricting institutional academic agreements with Israeli universities.

• The main legal question was whether the University, a public academic institution, was “engaging in business” under the meaning of the Act.

• Interpretation of s. 4(1)3(ii) of the Act was central, specifically whether the agreement’s clause amounted to a discriminatory business practice.

• The applicant argued that the provision constituted an academic boycott and could result in employment discrimination against Israeli academics or University professors.

• The Director and the Court found the University’s actions did not meet the statutory definition of engaging in business, nor did the provision require discriminatory employment action.

• The application was dismissed, with costs awarded to the respondents, as the requirements of the Act were not met in these circumstances.

Facts of the case

The Centre for Israel and Jewish Affairs (CIJA), an advocacy organization, challenged two agreements the University of Windsor entered into with student groups following protest encampments on university property. The agreements included a clause stating the University would not pursue institutional academic agreements with Israeli universities until Palestinian self-determination was realized, unless otherwise supported by the University Senate. This clause did not restrict individual academic collaborations. CIJA alleged this provision violated the Discriminatory Business Practices Act (the Act), specifically s. 4(1)3(ii), which prohibits contracts that require discriminatory refusals or failures in employment or business relationships based on certain attributes.

The complaint and the Director’s decision

CIJA submitted a complaint to the Director under the Act, arguing that the University’s agreement amounted to an “academic boycott provision” and could result in discrimination against Israeli academics or University professors. The applicant provided supporting letters from various organizations and individuals, raising concerns about discrimination, academic freedom, and the potential negative impact on research and students. The Director, however, concluded that the Act was not engaged by the agreements, finding that the University was not “engaging in business” as its primary purpose is education and research, not profit-making. The Director also found that even if the Act applied, the specific provision did not require the University to refuse, fail to employ, promote, dismiss, or suspend anyone from employment.

Judicial review and statutory interpretation

CIJA sought judicial review of the Director’s decision, arguing that the University need not be a business for the Act to apply, and that the provision in question effectively amounted to employment discrimination. The Court considered whether the Director’s interpretation of the Act was reasonable, referencing the Supreme Court of Canada’s test for “carrying on business” and the context and purpose of the Act, which is aimed at preventing discriminatory business relationships. The Court also considered the University’s statutory mandate, which centers on education and societal betterment rather than profit.

Discussion of policy terms and clauses at issue

The clause at issue in both agreements stated that the University “agrees not to pursue any institutional academic agreements with Israeli universities until the right of Palestinian self-determination has been realized, as determined by the United Nations, unless supported by the Senate.” Importantly, the clause clarified that individual academics at the University were not prevented from collaborating with Israeli academics. The applicant argued that this clause could indirectly affect employment or advancement opportunities, but the Court found no evidence that the University would be required to refuse, fail to employ, or dismiss anyone as a result of the provision.

Outcome and ruling

The Divisional Court upheld the Director’s decision, finding it reasonable to conclude that the University was not engaging in business in relation to the provision and that the requirements of s. 4(1)3(ii) of the Act were not met. The Court emphasized that the provision related to institutional academic agreements, not employment relationships, and that the University’s primary function is educational, not commercial. As a result, the application was dismissed. The Court ordered the applicant, as the unsuccessful party, to pay $15,000 in costs to each of the respondents, the Minister and the University of Windsor. No specific monetary award beyond costs was determined in this matter.