Thursday, October 12, 2017

Baker v. Canada

Today we’re going to do something a little different. While most of my posts are going to be practical advice about how to navigate KPU’s bureaucracy, I also want to take some time to talk about procedural fairness. Hopefully not too abstract for everyone, but taking a step back and talking about how decisions get made can help us to talk about fairness in a more useful way. Too often we have a kind of gut feeling that something is unfair, or an idea that if things had been done differently, a better decision might have come out. With these posts (there may not be another one for a while, I’m going to do a lot more how-tos), I hope we can talk about fairness at university in a way that isn’t totally fixated on a specific department or a single appeal, but not too disconnected from real campus questions that we can’t make sense of it. That said, this post is not a legal opinion, and should not be considered legal advice for anyone. This is merely our lay opinion, and how we view fairness in decision-making.

So let’s get comfy and talk about Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC).


MAVIS BAKER

Mavis Baker was a mother of four, born in Jamaica and living in Canada. She had entered Canada on a visitor’s visa, but then stayed and worked for some years, raising her children. In 1992, Immigration Canada (IC) ordered her deported back to Jamaica. Baker applied for a humanitarian and compassionate exemption from this order. She was the sole caregiver for two of her children, Canadian citizens, and would not be able to take them to Jamaica. She would also likely be unable to access necessary medical treatment there. An IC employee heard her application and recommended to his superior that it be rejected. The superior decided to reject it, but didn’t provide significant written reasons. The only reason Baker received from IC was the first employee’s recommendation, which included a rant about entitled immigrants, and judgements about her health.
With the assistance of civil society groups, Baker’s appeal went all the way to the Supreme Court of Canada. Several other interesting issues came up along the way: was providing the officer’s notes the same as providing “reasons”, and were they adequate as reasons? Was Baker entitled to a hearing in person before the final decision-maker? The court’s reasoning also covers some more abstract ground in discussing what it means to say that someone has “discretion” to choose one way or the other. These are all perennial, important problems in procedural fairness. The court concluded that the immigration officer’s language indicated that his recommendation was influenced by his personal feelings, and sent the matter back to IC to be re-decided without that bias.
The decision as a whole is quite interesting, if this kind of thing interests you at least. But Baker is mostly notable because the SCC took the opportunity of this case to pull together several disparate threads in the judicial review of administrative action and try to make them all make sense together. The resulting decision is probably one of the single most important documents in procedural fairness in Canada, and an invaluable tool in thinking about how governments and organizations governed by legislation (like KPU, which is governed by the BC University Act) need to make decisions.
It’s easy to say that decisions should be made in a fair manner, but actually far more complex when you tease apart all of the various things that might make a decision unfair. On top of that, when you try to come up with tools to fix them that apply to every administrative decision maker in Canada, from immigration decisions and universities to municipal zoning, roadside driving suspensions, discipline for regulated professions, broadcast licenses, commercial liquor licenses… it gets messy, and the principles you end up with can be really abstract. It’s always a struggle to bring those principles back to reality.
In the Baker decision, the SCC describes a two-step process and five factors to consider when asking whether a decision is fair. Each one of these elements has been debated and litigated in the 18 years since the decision came down, and a lot is still in flux. The Baker decision’s importance comes from giving us these tools to talk about fairness.


THE BAKER TEST

The first step is to ask whether a person actually has a legitimate interest in a decision. This means that a decision has to be fair whether it’s made in an obviously judicial context, where you sit down in front of someone and make your argument, and someone else is there arguing the other side, or is made unilaterally. What matters first is just whether it impacts me. On the other hand, if I disagree with the colour KPU painted the staff room, no court in the land is going to care to hear from me. It doesn’t matter whether the decision is to deny a person something they would otherwise be entitled to, or to bestow a special benefit on them, it just needs to do one or the other. It doesn’t necessarily matter how the organization or the decision-maker feels about the person or the decision. All that matters at this stage is whether the decision really matters to me. If it does, then the public body has a “duty of fairness” to me.

When we’ve passed this test, we then consider at least five factors to work out what that duty of fairness “contains”.
First, what kind of decision is being made? If you’re going to need to resolve a bunch of disputes about the facts or decide whether someone is telling the truth or not, that’s going to require a different kind of procedure than deciding whether a zoning application fits with a municipal community plan. Some decision don’t really have a single right answer, usually because they balance a lot of different interests. For instance, the CRTC deciding whether a TV station gets included in the basic cable package is different from the College of Physicians and Surgeons deciding if a doctor has committed misconduct. If two TV networks applied for mandatory carriage in the basic package with exactly the same program lineup, the CRTC wouldn’t approve both of them and require people to pay for two identical channels. That’s a decision where you’re not obliged to treat like cases alike. The CRTC would have to find some way to distinguish between the two applications. On the other hand, two doctors who had similarly been prescribing drugs inappropriately would probably face similar discipline.
The Student Rights Centre is usually interested in KPU decisions that impact only one or a few students, that involve factual disagreements, and where the same facts should generally always lead to the same outcome. If your class is writing a multiple choice exam and you get a mark for “B” as the correct answer, anyone else who answered “B” should also get the mark. If two people conspire together to cheat on an exam, they should probably face similar sanctions, unless there are some other factors that shift the blame significantly more on to one or the other.
The second factor to consider is the nature of the legislation and the decision-maker. The BC University Act gives KPU the authority to offer classes and credentials, and requires them to have mechanisms for resolving disputes. Generally, grades are assigned by faculty who have significant expertise in their subject matter, and if grades are appealed they’re re-graded by similarly qualified faculty. Disability accommodation, non-academic misconduct, and other academic decisions are a little different, but they should be made by appropriately qualified people. The University Act doesn’t actually say very much about decision procedures, compared to the lengthy stuff in other legislation, which gives KPU a very large space to work within to find good procedures. That also means that it can respond to unusual circumstances or new considerations much more easily by changing its procedures or making exceptions.
The third factor is the importance of the decision to the person in question. This is a tricky one, because KPU decisions can vary hugely based on a bunch of factors. A first plagiarism offence leading to a zero on an assignment might not affect one student’s life very much, but might pose problems if they wanted to be lawyer or a doctor down the line. It’s also possible for a first offense to lead to a more significant sanction, even sometimes up to suspension. It’s probably appropriate for a student appealing a more significant grade to have more opportunities to participate in that decision - for instance, a 4th year term project versus a 1st year quiz. You could even speculate whether students in some programs (or at some schools) have more or less rights to participate because those decisions are more important, but that’s not what we’re talking about here today. What matters is that most decisions we deal with are likely to be moderately to very important.
The fourth factor is the legitimate expectations of the person. Sometimes, in the course of a particularly complex or serious process, a KPU administrator will make a promise about how the process will go, like promising that you’ll receive a response by a certain time or will have the opportunity to see and respond to a particular piece of information (Information like “what is my instructor basing their allegation of plagiarism on?” or “why can’t I have this particular disability accommodation in this classroom?”). This part only applies to procedural expectations, not substantive ones. If someone promises you a particular outcome (“Yes, you can have this disability accommodation”) it doesn’t necessarily mean the procedure was unfair if you don’t get that outcome. In Canada, legitimate expectations only apply to procedure, but in other countries it can apply to outcomes as well.
The fifth factor is the internal policy of the decision-maker. This refers to KPU’s policies governing how appeals and other decisions are made. These cover things like timelines to file things or to respond, what factors should be considered in making a decision, what outcomes the decision-maker can choose from, who should make which kinds of decisions, whether people get meetings in person or not, what needs to be included in written decisions, and more. No such policy could ever cover every possible weird circumstance, and it’s always possible for someone to argue that one of the other factors is more important than KPU’s internal policy - for instance, that the kind of decision being made is so complex that they need to present their case in person, or that it’s so important that they need a lawyer to present it for them.
KPU always has to do the fair thing, and what a lot of people don’t always realize is that often the fair thing to do is to seriously consider whether the policy itself is fair, and changing things up if it is. The significance of this part probably requires a few whole blog posts to even start getting in to. There are entire books in the library covering how internal policies should work, what they can do, and there a lot of even more abstract questions still being determined in this area. Don’t worry, we won’t be going that far into the weeds on the blog.

SO WHAT DOES IT MEAN?

That’s an awful lot of words just to skim the surface of how important Baker is to procedural fairness in Canada and at KPU. The court even says that the list of factors might not be complete - there could be more out there, waiting to be discovered. It pulls together a bunch of principles from a bunch of areas and should probably be viewed as a checklist or a tool for how to grapple with questions of fairness. Baker gives you a kind of translator to turn your feelings that this is unfair into concrete statements about what the procedure is, why it might be that way, and what it should be.
It’s interesting to note that the Baker decision doesn’t rank these five factors or provide any kind of easy exceptions to any of them. In order to be fair, the procedure has to check off all five factors as well as possible. For instance, if you think that the particular circumstances of the grade you’re appealing makes the KPU grade appeal policy unfair, or if someone promises you a procedure that doesn’t make sense under the University Act, then you can and should let the decision-maker know and they should give you an answer one way or another. “That’s what the policy says” or “that’s how we do it” are not good enough answers to those kinds of questions, and if you get these answers from KPU administrators, you should come talk to us at the SRC.

We started with Baker for this blog series because just about every other idea passes through it, and it gives you a place to put all of the other fairness ideas and questions you come across. We’re not lawyers, though, and this isn’t any kind of legal advice. We’re just trying to make a space for conversation about procedural fairness. With that in mind, we invite students, faculty, staff and administrators to comment with opinions, personal experiences, contradictory examples, or whatever else applies. Be careful about what you say here in public about yourself, and please respect students’ privacy.

-- John (KSA Advocacy Coordinator)

Thursday, October 05, 2017

Throwback Thursday: Invasive Plant Pull

Here at the KSA we represent a wide range of students, and student interests. As a result we put on a bunch of different kinds of events. Here’s a throwback to an event we’ve put on in the past...

On Friday afternoon a few weeks ago we set out to Cougar Creek and teamed up with the City of Surrey to help get rid of an invasive plant in the area. This time around the plant we were 'pulling' was a Blackberry bush that had overcome the native plants in the area. We discovered that attacking blackberry branches was actually a great stress reliever (at least for a few of us) as long as we had the proper gear. 

Below is a little photo essay of our time at the Invasive plant pull.


What we started with! 

We wore two sets of gloves to protect our hands. 

First we had to cut the branches into smaller sections... 

... then pile them all into yard waste bags.

No fun was had... 

... Not even a little bit of fun. 

In no time we had cleared a large patch of invasive Blackberry. 

Obligatory 'we're done!' group shot. 

Thanks for scrolling through our Invasive Plant Pull throwback!

Want to attend the next Sustainable KSA event? Check out the Oct. 26th Screening of ‘Ride the Divide’ for Bike To Work Week. Reserve your spot here: https://ridethedividefilm.eventbrite.ca

Until next time,

Kendell

Thursday, September 28, 2017

Council Recap: September 22nd, 2017

The Council of the Kwantlen Students Association had their first meeting of the new school year on Friday, September 22.  The new multipurpose room in the Birch building was packed with council members, staff and guests.


Here are the FIVE things you NEED to know from this week's’ Council:


#5
Arts Representative Jonathan Buyck went to the Langley campus, thinking the meeting was being held there.  In spite of this error, he was only 20 minutes late to the meeting.  Apparently this is something that happens often to the councillors, and at least once a semester, they’d be right!  Council meets once a semester on each of Langley, Richmond and Cloverdale campuses, with the rest of the meetings taking place on the Surrey campus.  Since they meet once a month, and there are four months in the semester...Buyck had a one in four chance of being correct.


#4
During his report, Jay Reedy hinted that there would be a special performance at the upcoming Open Mic Night in the Grassroots cafe by someone who was “in the room”.  Have the executive council been moonlighting as an ABBA cover band?


#3
Vice President Reedy asserted that he cannot function without 4 cups of coffee.  A cup of coffee contains on average 95 mg of caffeine, and most people can have 4 - 6 cups of coffee a day without any adverse effects.  


#2
Two Diwali parties were approved!  The budget was amended to allow for the funding of two  events, one hosted by KPU International on campus, and one hosted by Cre8ve, a community event organizer, at a local banquet hall.


#1
The President reminded everyone present of the upcoming by-election.  The campaign period began September 26, and polls are open 10 am - 7 pm October 17 and 18 on all campuses.  Visit kusa.ca/elections for more information. Don’t miss this opportunity to vote and have your say in KSA governance!

The full minutes of this meeting, and all other KSA Council and Committee meetings, are available after approval on kusa.ca/committees.

- Kelsey (KSA Records Coordinator & Archivist)

Check back each week post-Council for Kelsey's list of 'The FIVE things you NEED to know from Council.'


1. https://www.ncbi.nlm.nih.gov/pubmed/12519715

Tuesday, September 26, 2017

Preparing for Fall: Self-Care and Exercise

It’s September - the start of many things, fall semester, new routines, sweater weather, and the end of fun summer adventures. September is the harbinger of lots of change in just a few weeks. Sometimes as life gets busy, we forget self-care, especially making sure that we take time to get some exercise. This happens to the best of us: school, work, family, friends, studying, Netflix, social media, commuting, sleep, exercise, relaxing, etc … the list keeps going. When I get too busy, I’m susceptible to hitting the couch with a good book when I get home because I’m overwhelmed.  It’s easy to feel like you are running out of time in the day to keep up with everything, and that you have to skip a thing or two on the list because something has to give.

The problem with skipping self-care and exercise is losing the balance between working our brains and our bodies.  Missing a day or two of working out can be healthy for recovery, but when you miss being active too many times it can affect you negatively. So how do you avoid this?


SCHEDULING
I avoid it by scheduling in self-care time and trying not miss it. Scheduling self-care and exercise, just like a dentist appointment or class, may seem like a lot of work but it doesn’t need to be. I don’t always make it to the gym for weight training workouts but I don’t miss my Monday night dance class, I walk for my errands every day, and I lead weekend Active KSA events because I have them scheduled in.


You may be saying, that’s nice but I don’t have time for that. But, making time to for self-care and exercise will actually give you more time in the day. Taking time regularly for self-care and exercise helps your brain take a break from the busyness of your day and lets your body get the workout it needs. Helping you to sleep better, focus better, maintain your health, and overall boost your mood.


APPS
There are tons of apps help you reach your exercise goals. The apps I use are Google Fit and Carrot Rewards on my smartphone. Google Fit tracks your movement and counts your steps. It can tell when you are walking, running, or cycling fairly accurately. You can then add in all the other activities that you do and then the app shows you your trends in activity reports. Google Fit also connects to Carrot Rewards, which is a free app the BC Government made that has little health quizzes and fitness challenges that allow you to earn points for Scene, Petro-Points, Aeroplan Miles, and more. It became a game with friends on who could get the highest amount of points by hitting our fitness challenges. You can check out Carrot Rewards here: www.carrotrewards.ca/home/. There are so many other apps out there that you can check out that might have the right setup for you, such as a running app where you’re chased by zombies or Strava which has tons of technical details about your exercise.


SELF-CARE CAN BE SIMPLE
On days you can’t get a work out in, or you’re on a recovery day, self-care can be simply stretching for a few minutes (outside for even more benefits), going for a walk with a friend or spending time on a hobby you love. If you miss a workout or self-care one day, don’t stress about it, just make sure to get it in the next day. Avoid making yourself feel guilty, instead focus on something else positive you achieved that day and try again tomorrow. 
As grey fall days start become the norm, it gets dark out earlier and earlier, and the assignments start to pile up, make the time for self-care and exercise so that you can make this your best fall yet. 

If you need help figuring out what to add as your self-care and exercise, checkout one of the mental health events coming up this October at www.kusa.ca/calendar.html and you can join our Active KSA events at www.kusa.ca/activeksa. Take care of yourself and hope to see you soon!

-Tonya

Friday, September 22, 2017

How Many Slices



Avocado toast 1.jpg


So by now many of you will have heard about the statement made earlier in the year by Australian property investor and huge millionaire Tim Gurner criticizing the ‘poor purchasing decisions made by millennials that have resulted in a decline in homeownership’. The guy thinks we can’t afford houses cause we buy avocado toast. People were appropriately sarcastic in responding.
literally-17-tweets-about-smashed-avo-and-houses--2-32200-1495152810-0_dblbig.jpg40B865C900000578-4535608-image-a-6_1495576648331.jpg


I have several thoughts:
  1. Avocado toast is great, and if it makes you happy you should keep eating it. Don’t let wealthy Australians tell you how to live your life.


  1. The median price for a home in Metro Vancouver was $1,400,000 (175,000 Avocado toasts, assuming an avocado toast costs $8) in 2016. If you skipped having avocado toast every day in order to save for a down payment, it would take a little bit more than 95 years. Paying for an entire home would take 657 years of not buying a slice of avocado toast each day. While I do eat the occasional piece of avocado toast, I think it’s possible that there are other issues at play here.


Median house price $1,400,000.png
  1. Homeownership is so far out of the question and really I just want to be able to rent somewhere that isn’t an asbestos infused basement shared with 8 other people.


avocado toast 2.png


It’s super easy to present the housing crisis as being about lazy or irresponsible millennials who feel entitled to own a home. But young people are working harder than ever (today students in BC actually work 180% more hours than students in 1975 did), and are in even more debt. Homeownership is getting less realistic for young people than a fairy godmother appearing to grant you three wishes. But despite this, the real housing crisis isn’t about homeownership, it’s in the rental market.


no vacancy- waiting list.jpg


Finding a place to rent in Vancouver (and much of British Columbia) is an ordeal. Everyone knows someone who has a horror story about struggling to find a place on craigslist that isn’t mouldy, overcrowded, or underground, or showing up to see a place that looks half-decent and finding 100 other people there, damage deposit in hand, competing against you for it.

Every year there are fewer and fewer units available, and the rent is steadily increasing. Between 2015 and 2016, the average rent in the region went up 6.4% to $1,223. An even more recent study put the average rent for a 1 bedroom unit in metro Vancouver at $1990 (248 Avocado toasts, for those of you keeping track). Prices are getting out of hand, and vacancy rates (the percentage of units that are available to be rented) are dropping dangerously low. no-vacancy-vancouver.jpg


A healthy vacancy rate is around 3%. The vacancy rate in Metro Vancouver hit 0.7% in 2016. This was worse in Surrey where rates dropped from 1.9% to 0.4% between 2015 and 2016. What this means is that there is almost nowhere to live, and so landlords can charge waaaay too much. 248 Avocado toasts a month guys. CMHC recommends that you spend 30% of your monthly income on rent. Different sources estimate that students earn on average $13,000- $20,000 a year, which means a recommended $325-$500 a month on rent. This is only 40-62 slices of avocado toast.


avocado toast 3.jpg


To make prices lower we need more rental units. Developers could build these by themselves, or municipalities could require that a portion of any new buildings are rental units. The government could also change some regulations and let universities borrow money to build on-campus housing for students. There is huge demand for student housing and so if institutions like KPU were allowed to borrow money and build residences, the debt would be paid off easily through residence fees. We have been asking the government to let post-secondary institutions borrow money to build housing and if you’d like to sign a letter to ask them too, you can do that here.


In the meantime, the best of luck navigating the rental market and enjoy your avocado toast.


-Nicki