The Faculty Association of the University Calgary, the Canadian Association of University Teachers, and the Canadian Association of Law Teachers, recently had a significant win while intervening in Governors of the University of Calgary v Alberta (Information and Privacy Commissioner), 2025 ABCA 350, at the Alberta Court of Appeal. Kelly Nychka and Camila Franco of Chivers Carpenter represented them.
The dispute started when two University of Calgary professors filed a complaint with the Canadian Judicial Council against a provincial court judge for inappropriate comments he made during a sexual assault proceeding. These professors became the subject of an access to information request by a member of the public. The University initially refused to disclose the information sought on the basis that the documents were covered by the “teaching material” and “research information” exemptions in section 4 of the (then) Freedom of Information and Protection of Privacy Act. As a result, an inquiry came to the Alberta Information and Privacy Commissioner concerning the meaning of “research information” and “teaching material”.
The requestor argued that the documents related to the complaint could not be research information or teaching material, as they were a form of “social activism”. The adjudicator rejected that argument but nonetheless defined “research information” and “teaching material” narrowly and without regard for the academic freedom protections that underlie their purpose. On judicial review, Justice Devlin found that the adjudicator’s decision was unreasonable and overly narrow, and that a proper statutory interpretation required regard for academic freedom protections. However, in passing (“obiter”) comments, Justice Devlin added that the professors’ complaint itself was not captured by either exception, because it represented “direct participation in social activism” and not merely the “study of social activism”.
This distinction concerned our clients. A coalition made up of the Faculty Association of the University Calgary, the Canadian Association of University Teachers, and the Canadian Association of Law Teachers, intervened to object to the notion that there is a dichotomy between participation in social activism and the study of social activism. The reality of today’s teaching methods, particularly in law schools, is much more interdisciplinary and nuanced.
Typically, the Court of Appeal will not consider a judge’s obiter comments which are not directly relevant to their determination of the matter. Since the appeal turned on the standard of review applicable to the Privacy Commissioner’s decision, we anticipated the Court would hesitate to address the obiter comment. Despite these challenges, the Court of Appeal unanimously agreed with our position and rejected the distinction between the academic study of social activism and direct participation in social activism.
This decision represents a significant win for academic freedom protections.