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................. SENATE 

?

..

?

From ..... .. ...

M.EVANS, REGI.TRARAND 

SECRETARY OF SENATE 

Subject

..........

LEGAL 

OPINIONS

....

—

S.CTI.ON ... 8... .................. ....

Date ......

MARCH 20,. 1975

UNIVERSITIES ACT - FOR INFORMATION 

SiMON FRASER UNIVERSITY

MEMORANDUM

From

................ P.aUUkl.e ... Jewett...........................................................

Pe-o.Lden-t ....... . ................ .....................

............................

Date ................ ... ....

20, ?

975.

At Lt6 meeting held on Mach

18, 1975

the Boaxd pa44ed the

oUoLng motion:

That .the £egaI op-Ln.Lovz4 tela-tLng to Section 84

the

Un,vefuJ_t,Le4 Ac-t, dated Feb/LawLy

24, 1975,

be tece,Lved

ot £noiuncttLon and be 'ofwctided to Senate.

PctuLLne Jewett

•

Aet

C. C. VJL. B. G. WAJion

MIL. V. H.

M. Ro4.s

L1.

SIMON FRASER UNIVERSITY

MEMORANDUM

To . ..... ..... 

Ceo. 

Suart,Esq. 

Y

c,c,...Admjnj.s.tra.tjon. ... ..........

Subject ........

Universities Ac. 

Section 84 

From... 

?

Donald H.M...Ross ........ ... ......... ...... 

........... 

Bursar.................................................... 

Date,

.-March ? 

3-1975 ... .......... ............ ..... ............. ..... ... ..... 

I referred to the University's Solicitors for interpretation, in 

two aspects, of Section 84 of the Universities Act, passed June 20 1974. 

The letters of opinion are forwarded herewith. 

:at

P. PAUL BECI(MANN

WINTON DEPOT

JOHN

MITCHELL H 

OPPEP ?

W.LUTES

SHRUM. LIDDLE & TIEBENTON

JACK J.HUBERMAN

ROBERT SEWEI.1

RONALD N. STERN

BARRISTERS & SOLICITORS, EIGHTEENTH FLOOR, 505 BURRARO ST.,VANCOUVER,CANADA V7< 101

JOHN W. PEARSON

WILLIAM J. DUNCAN

RALPH F. HUDSON

PENNY j 

'

BAIN

C. LYNN 

SMITH ? 

February 24, 1975 

Simon Fraser University 

Burnaby, B.C. 

Attention: Donald H.M. Ross, Bursar 

Dear Sir: 

Re: Universities Act -Section 84 

E

LEPHONE:

1604) 688- 2155

You have inquired as to the general meaning and application of 

Section 84. Because there has been no judicial interpretation 

of this or similar provisions, we have experienced a great deal 

of difficulty in arriving at an opinion as to the meaning and 

effect of this section. 

Section 84(1) 

"No action or proceedings 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." 

In reference to Section 84(1), it is clear that the Legislature 

intended to relieve officers and employees of the University 

(and other individuals named in the section) from direct liability 

for their acts, provided they were acting in good faith in the 

execution of their duties. In this section relief is provided 

for the individual wrongdoer as opposed to the University. The 

section only goes so far as to prohibit an action or proceeding 

from being brought against such persons. The statutory provision 

is thus only a procedural bar; it does not abolish the cause of 

action. Therefore while the injured party could not sue the 

wrongdoer, he could still sue the University on the basis of the 

University's vicarious liability for the acts of its employees. 

Vicarious liability is the liability of an employer for the 

wrongful acts of his employees. The employer need have done no 

wrong himself. He is liable if the employee performs a wrongful 

act in the course of his employment. The phrase "in the course 

of employment" is a broad concept which has not been precisely 

defined by the Courts. However, the employer is clearly not 

liable when the employee, instead of acting in the furtherance 

of his employment, indulges in an unrelated, 

^Sr, 

.

on his own. 

?

Lf . 

BURSAR'S OFFICE

SHBUM LIDDLE & ITEBENTON

-2-

Therefore Section 84(1) offers no additional protection to the 

University and the University continues to be liable as before 

for the acts of employees, on the basis of common law principles 

of vicarious liability. 

Section 84(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 meaning of Section 84(2) is also unclear. Section 84(2) 

creates a defence to an action against the University where the 

University was acting under the authority of the Universities 

Act or any other statute. This section could be broadly 

interpreted so as to protect the University from anysuit where 

the act complained of was generally within the University's wide 

powers. However, Courts in general prefer a narrow construction 

of such attempts to remove the liability of a public body for 

its wrongful acts. 

• ? 

It is difficult for us to advise as to the scope which the Courts 

are likely to give to this section, except to point out that, 

as a matter of policy, Courts favour giving remedies to plaintiffs 

even in the face of statutes denying such remedies where the 

injured party would otherwise be without relief. While Section 

84(2) could be raised as a defence in most actions in which the 

University is involved, it is likely that the section will only 

be applied to the actions arising from matters directly related 

to the University's powers. For example, a suit relating to the 

acts of a tenure committee would more likely attract the 

protection of this section than a motor vehicle action relating 

to a University vehicle. 

Therefore it is our opinion that Section 84(2) would be narrowly 

construed so as to protect the University only where the act 

of the University was specifically contemplated and authorized 

by the Universities Act or other statutes. 

Yours truly, 

SHRUM, LIDDLE & HEBENTON 

Jack J. Tiuberinan 

0R00N 8.SMRUM

SERUM. LIDDLE & IIEBENTON

BARRISTERS & SOLICITORS. EIGHTEENTH FLOOR, 505 RURRARO ST. VANCOUVER CANADA V75 IGI

RALPH E. HUDSON

PENNY J. RAIN

C. LYNN SMITH

February 24, 1975 

TELEPHONE:

(604) 6885155

Simon Fraser University, 

Burnaby, B. C. 

Attention: Donald H. M. Ross, Esq., 

Bursar 

Dear Sir: 

Re: Universities Act - Section 84(1)- 

Professional Discipline 

You have asked whether an employee of the University 

who is a member of a professional society is protected from 

liability under the code and bylaws of the professional society 

to which he may belong, by virtue of Section 84(1) of the 

Universities Act, SBC 1974, Ch. 100. 

S

In answering your question, we have looked into the 

meaning of the phrase, "no action or proceeding" in Section 

84(1). If the phrase "no action or proceeding" applies only 

to judicial proceedings in a Court of Law, Section 84(1) would 

not protect an employee from professional discipline pro- 

ceedings. The Act itself does not define these words and 

there has been no judicial interpretation of this phrase in a 

similar context. The word "action" has been interpreted by 

the Courts to mean a proceeding in which a party seeks to 

enforce some right in a Court of Law. The word "proceeding" 

has not been defined by Court decisions. However, we believe 

that taken in the context of the phrase as a whole, "proceeding" 

refers only to judicial proceedings as contemplated by the 

word "action", and not to proceedings before a professional 

body. It is therefore our opinion that Section 84(1) does not 

exempt an employee of the University who is a member of a 

professional Society from disciplinary proceedings of that 

society. 

In reaching this opinion we also looked to general 

principles of statutory interpretation, as a Court might do 

in the absence of precedent. These principles are at best 

guidelines only. One principle is that a Court must look at 

the statute as a whole in determining the remedial effect 

intended by the Legislature As a rule, 

. ::..... 

?

ii

URSAR ? 

('-' 

sHRulit, L1DflL13

IIEEENTON ?

page -2- 

.,

Act, 

to

Court 

legislation 

remove 

would 

interpreting 

an

likely 

takes 

obligation 

precedence 

not

a general 

imply 

imposed 

an

over 

act, 

intention 

by

general 

such 

a particular 

as

by

legislation.the 

the

Un

act, 

L

iversities 

egislature 

such 

?

as

A

a professional society's act. The specific intention of the 

Legislature in the 

p

rofessional society's act to protect the 

public from unprofessional conduct, we believe, would outweigh 

the general intention to protect University employees from 

the consequence of their wrongful acts. 

There are several other general principles of 

statutory interpretation, such as implying. a reasonable con- 

clusion or requiring precise language to remove obligations, 

which also tend to support a narrow construction of this section. 

On the basis of all of the foregoing, we conclude 

that Section 84(1) would not either prevent a professional 

society from inquiring into the conduct of one of its members 

or from imposing sanctions which it is otherwise permitted to 

impose upon one of its members. 

40 ?

Yours very truly, 

SHRUM, LIDDLE & HEBENTON 

JH : 

Jack Huberman 

.