Under British Columbia’s University Act, control over academic policy in a university resides with the university senate. What happens, then, if a university’s board of governors agrees to a provision in a collective agreement that appears to be in conflict with an academic decision of the senate?
This was the dilemma facing the Court of Appeal for British Columbia in what some observers consider a landmark case dealing with academic governance. The ruling is important, they say, because it touches on the bicameral nature of universities, an area where there has been very little case law in Canada.
At the heart of the case is the collective agreement signed between the University of British Columbia and the university’s faculty association (the Faculty Association of the University of British Columbia). One of the provisions in the agreement, which is effective from July 2006 until June 2010, relates to student evaluations of teachers.
But, in May 2007, the university senate passed a new policy on student evaluations of teaching which replaced the previous policies in this area. The faculty association alleged the new policy was in violation of the collective agreement and filed a grievance, which was referred to an arbitrator. However, UBC argued that the arbitrator had no jurisdiction to review the senate policy.
The arbitrator accepted UBC’s position and concluded in a March 2009 decision that, indeed, he had no authority under the collective agreement to pronounce upon the policy, even if it were in conflict with the collective agreement. This is how the Court of Appeal explained the arbitrator’s reasoning:
In short, the Arbitrator accepted UBC’s argument that the Board, acting as an arm of “the university” in entering into the Collective Agreement, could not bind the Senate to terms of a Collective Agreement which conflicted with terms of the [senate] Policy. He concluded that the “university” under the [University] Act was not a single entity with powers of its own; rather it was a composite of separate parts including the Board and Senate, each of which had defined powers and, in some instances, specified interconnecting and overlapping powers. As between the Board and the Senate, there was no power in the Board to override decisions or policies of the Senate within the Senate’s jurisdiction; nor, for that matter, any power in the Senate to override decisions of the Board within the Board’s jurisdiction.
The faculty association sought a judicial review of that decision. And, because of the importance of the issues raised, a judge granted intervenor status, on behalf of the faculty association, to the Canadian Association of University Teachers and the Canadian Union of Public Employees. Intervenor status was also granted to the Association of Universities and Colleges of Canada on behalf of UBC.
The Court of Appeal heard arguments from the two sides on March 9 and 20, 2010. In relatively short order, on April 20, the court pronounced its decision dismissing the appeal and upholding the arbitrator’s position.
Here is part of that decision:
I agree with the Arbitrator that, while the structure of the Act and the allocation of powers between the Board and the Senate admit of the potential for operational conflict from time-to-time, the Act expressly sets out the areas in which the Board and Senate have separate powers and those where the powers are intersecting or overlapping. … [O]ne would expect the Board and Senate to cooperate in all areas of mutual interest but, ultimately, the power over academic governance is in the Senate and the Board is not entitled to interfere with its policy-making role in that regard by the terms of a collective agreement, or otherwise.
The judge continues:
If the [faculty] Association were to succeed in its argument, it could take the position that in any circumstance where there was an academic policy which impacted on labour relations to some extent (as most academic policies likely would do), the Board could agree to terms of a collective agreement which effectively negated portions of the policy despite the absence of any statutory mandate of the Board with respect to academic governance. The Board would effectively have the power to dictate aspects of academic policy through its power to enter into collective agreements. In my view, the Act does not contemplate any such role for the Board; nor any right of the Board to bargain with respect to matters of academic policy even if the policy touches upon labour relations matters.
The court rejected the argument brought forward by CAUT that alleged the arbitrator’s decision was inconsistent with the rights of the members of the faculty association under the Canadian Charter of Rights and Freedoms to freedom of association. The Court described this argument as “misconceived.”
The presiding judge also granted that the faculty association pay UBC’s costs throughout the legal proceedings. There has been no decision yet by the faculty association whether it will appeal the decision.
Addendum, April 27, 3:40 p.m.: I’d like to thank writer Joey Coleman for pointing out that another link to the ruling cited above can be found via the CANLii database, here. The benefit of this link is that it also contains hyperlinks to the cases cited within the ruling.