Court of Appeal sides with UBC over faculty association in dispute over limits of collective agreement
Before I went to law school, “jurisdiction” was a very boring word. It made me think of old action movies, where the hero would brush aside a lack of “jurisdiction” to bring the bad guys to justice. Jurisdiction seemed like a harness; an impersonal line, likely drawn arbitrarily, that got in the way of getting things done.
But movies are just movies.
Jurisdiction is a fundamental concept at the heart of our system of laws. We accept the rule of government provided it does not exceed the powers we have granted to it for the purpose of maximizing its utility. We agree to live under the thumb of a tremendous number of different authorities – from police officers, to driver’s licensing bureaus, to professional regulatory bodies, and so on – that are defined by the slivers of control they are permitted to exert over our affairs. Presumably, the system works when each authority does a decent job of exercising the powers within its jurisdiction.
Many significant events are determined based on jurisdiction. Laws that were previously followed are struck down because the legislative bodies that enacted them over-reached. Defendants accused of certain offences often throw up hail mary arguments during trials – sometimes successfully! – that they should be let off the hook because the laws at the core of the allegations against them were put in place by the wrong body.
A recent court judgment demonstrates the importance of jurisdiction in the university context. The BC Court of Appeal last month released its decision in Faculty Association of the University of British Columbia v. University of British Columbia, rejecting the Faculty Association’s appeal to a determination by a labour arbitrator that its hands were tied when dealing with a new policy of the university Senate. The Faculty Association had been upset by a policy implemented by the Senate surrounding student evaluations of teachers and filed a grievance under the collective agreement. Here are the legal arguments of the Faculty Association. Here is an interesting comment on the decision from Léo Charbonneau, a deputy editor and blogger at University Affairs, and here is one of his blog posts on the subject.
There are several actors in these events with jurisdiction that is tightly defined:
- UBC is a corporation operating under a bicameral model of governance – that is, under the University Act (BC), the Board of Governors has jurisdiction over business affairs and the Senate has jurisdiction over academic affairs, including improving the quality of teaching at UBC.
- The Faculty Association is a trade union that must represent the interests of a certain class of UBC employees and has been recognized by UBC as a bargaining agent on behalf of those employees.
- Where the Faculty Association files a grievance against UBC under the collective agreement, the jurisdiction of the labour arbitrator is limited to providing a remedy to those actions of the employer that are “arbitrable” – that is, the labour arbitrator may only render a decision on those actions committed by UBC within the scope of the collective agreement.
The Faculty Association argued that the “university is the university is the university”. In other words, the Senate is part of UBC – the employer under the collective agreement – and the agreement applies to the policy. If the two items conflict, the collective agreement must prevail, and the labour arbitrator has the jurisdiction to give effect to that relationship.
The court disagreed and maintained that the jurisdiction of the Board of Governors and the Senate were distinct, and the Board could not bind the Senate to the terms of a collective agreement that conflicted with the terms of the policy. The Board could not overrule the decision of the Senate on matters within the Senate’s jurisdiction, and vice versa. Otherwise, the Board could use a collective agreement to step into the Senate’s domaine and exercise powers not granted to the Board under the University Act.
This approach rekindled the debate in Kulchyski v. Trent University, where due to financial difficulties the Board decided to close and sell off two campuses in downtown Peterborough. The Senate opposed this decision and argued it had jurisdiction. Two professors began a lawsuit on this basis. The Ontario Court of Appeal ultimately ruled in favour of the Board and maintained that the Board, not the Senate, had jurisdiction to make this decision.
In British Columbia, many of our universities effectively demonstrate their abilities to maintain a powerful bicameral governance structure. University bodies must be keenly aware of the boundaries of their jurisdiction at all times or else risk contestation that may result in considerable costs and delays.
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