QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 299 Date: 2014 09 16 Docket: Q.B.G. No. 913 of 2014 Judicial Centre: Saskatoon BETWEEN: THE UNIVERSITY OF SASKATCHEWAN and THE UNIVERSITY OF SASKATCHEWAN FACULTY ASSOCIATION Counsel: John R. Beckman, Q.C. Marie K. Stack for the applicant Gary L. Bainbridge for the respondent JUDGMENT LAING J. September 16, 2014 [1] The University of Saskatchewan (the “University”) applies for judicial review of decision by Arbitrator Andrew Sims (the “Arbitrator”) rendered on March 24, 2014. The award results from grievance filed by the Faculty Association (the “Association”) on behalf of professor who was approved for tenure at the University by the Tenure Appeals Committee established under the collective bargaining agreement (the “Agreement”), which decision was subsequently reversed by the president of the University and upheld by the Board of Governors (the “Board”) on the basis of the president’s submission that the Board had to accept the president’s decision. The Arbitrator found after reviewing The University of Saskatchewan Act, 1995, S.S. 1995, c. U-6.1 (the “Act”) and the Agreement that the president’s personal recommendation to the Board was not required, and the Board was not obliged to follow the president’s recommendation before considering an application for tenure submitted by one of the committees assigned the power to recommend pursuant to the Agreement. The Arbitrator referred the matter back to the Board to consider the Tenure Appeals Committee decision as if the same had been transmitted to them by the president in accordance with the terms of the Agreement. [2] The grounds of the University’s application are: 1. The Arbitrator exceeded his jurisdiction, made an unreasonable decision, or committed an otherwise reviewable error of law by misinterpreting sections of The University of Saskatchewan Act, and in particular Section 51. 2. This error resulted because, among other things, the Arbitrator failed to apply principles/doctrines of statutory interpretation; including but not limited to his failure to consider: the context and purpose of the legislation; the doctrine of presumed intent of the legislature; the contextual approach; and, the doctrine that the interpretation should not produce an absurd result. [3] Section 51 of the Act states: Power of appointment 51 For the purposes of clause 49(1)(j): (a) no person is to be appointed as faculty member unless that person has been nominated for the position by the president; and (b) no faculty member is to be promoted or removed from office except on the recommendation of the president. ... The issue before the Arbitrator was whether decision on tenure is an appointment within the meaning of s. 51(a) or promotion within the meaning of s. 51(b). The issues on this review are: (1) The standard of review applicable to the Arbitrator’s interpretation of s. 51; is it correctness or reasonableness? (2) Does the interpretation of s. 51 by the Arbitrator meet the applicable standard of review? BACKGROUND FACTS [4] The parties agreed to lengthy statement of facts and the admissibility of number of documents before the Arbitrator. summary of the facts set out in the arbitration decision follows. [5] Effective July 1, 2002 Dr. Despina Iliopoulou was appointed as probationary assistant professor in the Department of Sociology for period of three years ending June 30, 2005. The Agreement provided in Article 13, which is entitled “Appointments”, that probationary period would be extended for further three years, during which period of time the candidate was expected to apply for tenure in the fourth, fifth or sixth years of the probationary period. In letter dated April 5, 2005 the president on behalf of the Board of Governors advised Professor Iliopoulou that her probationary period had been renewed. On August 17, 2007 Professor Iliopoulou requested one-year extension regarding her application for tenure and was granted the same in letter dated October 1, 2008. Her tenure request proceeded during the academic year of 2008, which ended on June 30, 2009. [6] Professor Iliopoulou was recommended for tenure by her Department Renewals and Tenure Committee, but was denied tenure by the next level of peer review, the College Review Committee, which was upheld by the University Review Committee. Professor Iliopoulou then appealed to the Renewals and Tenure Appeal Committee, who upheld her appeal and granted her tenure. [7] The Renewals and Tenure Appeal Committee decision was brought to the attention of the University president by the vice-provost, who was of the opinion the decision was wrong and should be reviewed by the president. The president received portions of the tenure file. He then discussed the file with the provost who thought Professor Iliopoulou’s application was weak one. The president then decided to reverse the decision made by the Renewals and Tenure Appeal Committee. In letter dated June 24, 2009 he informed Professor Iliopoulou that her application for tenure was not granted. [8] This matter earlier proceeded to arbitration before different arbitrator. The earlier award was set aside on judicial review in this court (2011 SKQB 322 (CanLII)) on the procedural ground the president’s decision had not been considered by the Board. The Agreement in Article 15 stated tenure was to be granted only by the Board acting in accordance with the provisions of the agreement. The right to grieve decision on tenure was only permitted under the agreement when the Board had reversed decision of one of the committees, including the Renewals and Tenure Appeal Committee. The review decision left open whether the Board was bound by the president’s recommendation. Foley J. in that decision stated: 18 ... It will also be for the Board to deliberate on whether the Act requires the President’s recommendation as to Dr. I’s tenure and, if so, whether it is obliged to follow that recommendation. ... [9] Following Justice Foley’s decision, the president and the vice-president of human resources submitted request for decision to the Board for its meeting on December 9, 2011. The decision requested was: It is requested that the Board of Governors accept the president’s decision not to nominate Dr. Despina Iliopoulou for permanent tenured position at the University of Saskatchewan or promote her to tenured position, thereby reversing the positive recommendation of the Renewals and Tenure Appeal Committee. The motion was passed by the Board at its meeting. The motion reads: That the Board of Governors accept the president’s decision not to nominate Dr. Despina Iliopoulou for permanent tenured position at the University of Saskatchewan or promote her to tenured position, thereby reversing the positive recommendation of the Renewals and Tenure Appeal Committee. THE UNIVERSITY ACT [10] The relevant sections of the “Act” with respect to this grievance are: Primary role of university 4(1) The primary role of the university is to provide post‑secondary instruction and research in the humanities, sciences, social sciences and other areas of human intellectual, cultural, social and physical development. (2) The board, senate and council are responsible for determining the manner in which the university shall fulfil its primary role having regard to: (a) this Act; and (b) the recognized principles of academic freedom. ... Powers of the board 49(1) The board may: ... (j) subject to sections 50 and 51, appoint the president, the vice‑president or vice‑presidents, the secretary, the faculty members and any other officers and employees that are required to be appointed by this Act or that it considers necessary for the purposes of the university, fix their salaries or remuneration and define their duties and terms of office or employment; ... Term of employment 50 If no term of employment is stated by the board, the term of employment for any person appointed pursuant to clause 49(1)(j) is deemed to be during the pleasure of the board. Power of appointment 51 For the purposes of clause 49(1)(j): (a) no person is to be appointed as faculty member unless that person has been nominated for the position by the president; and (b) no faculty member is to be promoted or removed from office except on the recommendation of the president. PART VIII Officers of the University 73(1) The president is responsible for supervising and directing: (a) the academic work of the university, its faculty members and student body and its officers and employees employed in connection with that work; and (b) the business affairs of the university and its officers and employees employed in connection with those affairs. (2) The president may exercise any powers and shall perform any other duties that are conferred on or assigned to the president by the board. (3) The president shall: (a) call meetings of the board, council and assembly in accordance with their respective bylaws and this Act; (b) make recommendations to the board respecting the appointment, promotion or removal of any faculty member or any of its officers or employees, but the president shall consult an advisory committee set up for that purpose under the bylaws of the board before recommending the appointment of faculty member or of an academic officer; ... The Advisory Committee referred to in 73(3) to be set up for the purpose of advising the president had not occurred, and the committee did not exist. THE COLLECTIVE AGREEMENT [11] The 2007-2009 Agreement is extremely detailed in the matter of faculty appointments, promotion, and tenure. Article 13 deals with appointments to the faculty. Article 13.1 states: 13.1 Appointments to the Faculty. All appointments to the faculty, except Sessional Lecturers, are made by the Board in accordance with the procedures specified in this Agreement. Thereafter follows 11 pages of procedures. Article 13.3.1 states that all appointments to the rank of faculty member are probationary unless otherwise specified. Article 13.3.4 states in part: ... The Appointments Committee will submit to the President for transmission to the Board, the University’s recommendation for the award of tenure on appointment. ... [emphasis added] Article 15 of the agreement addresses the topic of tenure. Article 15.1 defines tenure as follows: ... Tenure means the appointment of an employee to permanent position on the academic staff of the University. Such appointment shall continue subject only to the provisions of Article 15.16. Article 15.3 states: Authority to Award Tenure. Tenure is granted only by the Board acting in accordance with the provisions of this Agreement. The decision of the Board is final and there shall be no appeal within the University against the Board’s decision other than resort to the Grievance Procedure as provided for in Article 15.18, Article 15.19, and Article 28 of the Agreement. The committee process outlined in Article 15 is multi-tiered. Article 15.10.3 (viii) requires the College Review Committee to: (viii) to submit the College’s positive recommendations for renewal of probation to the President for transmission to the Board; its negative recommendations for renewal of probation to the University Review Committee; all its recommendations concerning the award of tenure to the University Review Committee. [emphasis added] Article 15.10.4 addresses the University Review Committee. Articles 15.10.4(v) and (vii) state: (v) to review College recommendations for the renewal of probation from College renewal and tenure committees and all College recommendations for the award of tenure and approve them if they are not inconsistent with the standards of the Department, College, and University. ... (vii) to submit to the President for transmission to the Board its recommendations for renewal of probation and the award of tenure. [emphasis added] Article 15.13 is entitled Renewals and Tenure Appeal Committee: Powers and Procedures. It states in part: Renewals and Tenure Appeal Committees shall meet at the call of the chair and shall conduct their business with dispatch. Renewals and Tenure Appeal Committees shall have the authority to recommend renewal or tenure, deny renewal or tenure, or recommend an extension of probation up to maximum of two years. ... By March 31, meetings and deliberations shall be concluded, decisions rendered and recommendations made to the President for transmission to the Board. [emphasis added] THE POSITION OF THE PARTIES [12] The position of the parties before Arbitrator Sims was much the same as it is on this application. The University’s position is that the Act gives the president the authority to overrule the Renewals and Tenure Appeal Committee in s. 51 of the Act, which states the Board may act only on the president’s recommendation. Fundamental to the University’s position is that the granting of tenure is either an appointment within the meaning of s. 51(a) and/or promotion within the meaning of s. 51(b). It relies on the British Columbia Court of Appeal decision in University of British Columbia v. University of British Columbia Faculty Association, 2007 BCCA 201 (CanLII), 278 D.L.R. (4th) 445; leave to appeal refused, [2007] S.C.C.A. No. 275 (QL) (Rucker decision) for authority that the Agreement cannot fetter the University president’s statutory authority to recommend to the Board appointments and promotions. [13] The Association takes the position that the grant of tenure is neither an appointment nor promotion within the meaning of s. 51(a) and (b). Its position is the reference in s. 51(a) to appointment refers to the original act of appointment to faculty, not to renewals, and not to grants of tenure. In this respect it refers to the definition of faculty member in s. 2(h) of the Act, which states: (h) “faculty member” means person who is employed on full‑time basis by the university or an affiliated or federated college and who serves as professor, associate professor, assistant professor, lecturer, full‑time special lecturer, full‑time instructor, librarian or extension specialist; With respect to s. 51(b) the position is the word “promoted” means between ranks of academic faculty set out in the definition above. THE ARBITRAL AWARD [14] Arbitrator Sims in his award reviewed the literature on tenure from variety of sources. He noted that the University had since at least 1979 published document entitled “University of Saskatchewan Standards for Promotion and Tenure” and noted that the statement treated promotion and tenure as two separate, although related, concepts. The portions of the document quoted are: The award of tenure represents long-term commitment of the University to faculty member. It is status granted as result of judgement, by one’s peers, on both the performance of academic duties and the expectation of future accomplishments. Promotion of colleagues involves an assessment of their success in performing their academic duties and an evaluation of the likelihood of future accomplishments. Tenure and promotion both take place against background of values most recently articulated in Framework for Planning at the University of Saskatchewan, adopted by University Council in 1998. This document guides all of our decisions at the University of Saskatchewan including the collegial decisions of tenure and promotion, which are essential for the University’s standing within the academic community. At the conclusion of his review of articles and cases on tenure, he stated they reveal that: (a) its roots are ancient but it has taken on more contemporary role; (b) tenure is not essential to University. Universities may operate without it and some historically did so, albeit at their peril in terms of their reputation and ability to recruit; (c) tenure provisions, and more specifically the process by which tenure is achieved, are sometimes set unilaterally by Universities, sometimes negotiated as extra contractual policies (sometimes in the form described as “frozen policies”) and sometimes negotiated as part of collective agreement; (d) tenure is sometimes referred to expressly in the statute creating the particular University and sometimes not; (e) tenure usually involves formal approval or granting process beyond the simple judgment by one’s peers, but there is little uniformity as to whether this involves an official like the President or Governing Board, and little uniformity as to when appeals or arbitration is available, and if so, as to which point in the decision-making process any such appeal or right to arbitrate relates. [15] With respect to the president’s powers pursuant to s. 73 of Act, he noted that the scope of this section covers virtually everything over which collective bargaining takes place. He noted there was nothing in s. 73 that allowed the president to negate articles contained in the agreement. With respect to the University’s position that the literature and the authorities support that it is customary for presidents to have the decisive role in matters of tenure, Arbitrator Sims noted: These assertions too must be balanced against decisions, which recognize Presidential authority, but also contractual direction as to the way such authority is to be exercised. See for example, Justice Cameron’s observation in Bilson (supra) [Bilson v. University of Saskatchewan (1984), 1984 CanLII 2421 (SK CA), 16 D.L.R. (4th) 31] that “... the president does not give the board his own views; he draws his recommendation from the permanent faculty of the university ...” [Para. 1] Similarly, from Paine (in the Division Court) [Paine v. University of Toronto (1980), 1980 CanLII 1613 (ON SC), 115 D.L.R. (3d) 461] “.. The president must be taken to have acted through the tenure committee and the appeal committee and their actions are taken as his.” [Page 1] In Diamond v. Hickling 1989 Canlii 2902 (BCCA) [56 D.L.R. (4th) 467] (see below) Lambert J. said: “The President has committed himself to follow the recommendation of the senior appointments committee.” [Para. 5] These references indicate differing views on such questions, discussed in more detail below. [16] The University had relied on the British Columbia decision of Wade v. Strangeway (1994), 1994 CanLII 395 (BC SC), 116 D.L.R. (4th) 714, [1994] B.C.J. 1516 (QL) (B.C.S.C.), Aff’d (1996), 1996 CanLII 2729 (BC CA), 132 D.L.R. (4th) 406, [1996] B.C.J. No. 450 (QL) (B.C.C.A.), where the reviewing judge stated: It is common ground that person who seeks tenure seeks to be “promoted” within the meaning of s. 37(f). Arbitrator Sims noted that s. 27 of the B.C. University Act, R.S.B.C. 1979, c. 419 (since rep.), in question did not refer directly to tenure and opined that the Court’s observation was perhaps based on the parties’ agreement in that case that grant of tenure was promotion. He went on to point out while the B.C. legislation is similar to that in Saskatchewan, that the negotiated procedures involved in processing an application for an award of tenure were significantly different. [17] He next referred to the other main decision relied on by the University, the Rucker decision, supra, and acknowledged the majority of the Court in that case had concluded the statutory grant of authority to the president to make recommendations was paramount, and could not be fettered by the provisions of collective agreement. However, he also noted that the case said nothing about whether the award of tenure is an appointment or promotion, only that if it is, presidential action is necessary precondition to an award of tenure. He also noted that the British Columbia legislation did not contain the equivalent provision in s. 73(3) of the Act that the president shall consult an advisory committee set up for that purpose under the bylaws of the Board before recommending the appointment of faculty member or of an academic officer. [18] The Arbitrator concluded with his ruling and reasons on the meanings of s. 51 and s. 73(3)(b). He stated in part: Does section 51 of the Act mean that the Board may never grant person tenure unless and until they are “nominated for the appointment” or “recommended for the promotion” by the President. After considering the arguments, authorities, and articles set out above, my conclusion is that an award of tenure is neither an appointment nor promotion as contemplated by the Act. It is easy to see that, in their common usage, these terms can overlap. However, this is statute creating and dividing up responsibilities within University and these terms should be given meaning consistent with that context. This Act hardly uses the term tenure at all and not directly in this context. Appointments and promotions have been significant features of University life since its inception. The advent of tenure in its current form is more recent, as described above, and it has emerged in significant part through negotiated changes. There are reasons why legislation might regulate the award of tenure in the same way as promotions and appointments, but there are also reasons why it might be left to University to regulate for itself. It might well be adequately left to the Board of Governors, of which the President is statutory member, acting with the guidance of the academic community under process set by policy or collectively bargained, all without legislative constraint. As noted earlier, this is not choice between Faculty decision and Presidential decision. Rather it is choice between Board of Governors decision and Board decision, but only if the President puts the matter forward, and de facto Presidential decision if the President withholds consent. In my view the legislature has, by default or design, chosen not to restrict the Board’s ability to set up the appropriate process and to award tenure itself. Tenure is closely allied with the concept of probation. Academics are hired in anticipation of their seeking and obtaining tenure. If they achieve tenure they continue with their careers. It is only if they do not that their employment expires at the end of fixed term. This is not quite the same thing as applying for new job. In ordinary employment law, the expiry of probationary period is not considered the advent of new and different hiring. While the academic probation process is more sophisticated, the granting of tenure is still more akin to change in status than new hiring. Promotion, in the University setting, has fairly clear meaning tied to the well accepted academic ranks of professor, associate professor and assistant professor and so on. While colloquially, obtaining tenure is promotion in the sense of “one more step up the career ladder”, it is not in the sense of advancing through the accepted academic ranks, which customarily also involve pay increase. The award of tenure, as understood in the academic world, appears to involve the completion of an academic evaluation process and the consequent removal of the vulnerability inherent with probation. Achieving tenure is the anticipated result, following which they are not longer term or at pleasure appointees but appointees without term who can only be dismissed for just cause and any such just cause, because of tenure, cannot involve an intrusion into academic freedom, although it can include misbehavior or other sufficient cause. interpret appointment in s. 51 as referring to faculty member’s initial appointment, not to each subsequent change in the characteristics of that appointment. interpret promotion as distinct from the attainment of tenure in the same way the distinction is drawn in the University’s own policy statement. [Paragraph 15 supra.] The Strangeway (supra) case clearly proceeds on the basis that tenure is promotion or appointment, but it does so against policy that combines them all together in way different than here, and more significantly it does so on the basis of concession by the parties to that litigation and thus without detailed review of the nature of tenure itself. As result of this interpretation, find no direct clash between the Act and the collective agreement. As result, the University is contractually bound to follow the tenure process it has agreed upon. am reinforced in this conclusion from the evidence of what the parties have done in the past and what has obviously, until the last leg of this dispute, been their common understanding as expressed in the collective agreement, as indicated by their past practice, and as reflected in the University’s own policy statement. However, draw the conclusion above even without considering those factors. These conclusions alone lead me to answer question in the negative. Since tenure is neither an appointment nor promotion within the meaning of those terms in the Act, the power to make an award of tenure, under s. 49(1)(j) is not restricted by the need for Presidential nomination or recommendation under s. 51(3). [19] He then went on to say if he was in error with respect to the foregoing and tenure was in fact either part of appointment or promotion that the Act could be harmonized with the provisions of the Agreement. He referred to the law which discussed the harmonization principle in Durham Regional Police Assn. v. Durham (Region) Police Commissioners, 1982 CanLII 61 (SCC), [1982] S.C.R. 709, 140 D.L.R. (3d) 1, and the cases which followed, which hold that existing legislation must be read in such way as to harmonize with the Agreement unless the operation of the Agreement is clearly excluded by the statute. He concluded: Even if the attainment of tenure is an appointment or promotion within the meaning of the Act, the Saskatchewan Act and this collective agreement can more readily be harmonized. Under the Saskatchewan legislation, s. 73(3)(b) contemplates that the Board will establish an advisory committee for the President. Instead, it has created process through collective bargaining. The existence of s. 73(3)(b) makes it more difficult to conclude the President’s authority should be personal and unfettered, and in my view more reasonable to conclude that it is power to be exercised within parameters set by the Board, which includes collective bargaining. This approach is consistent with those authorities discussed above, including particularly the observation in Bilson that “...the President does not give the Board his own view; he draws his recommendation from the permanent faculty of the university.” Reading the legislation in way that harmonizes its terms with those arrived at through collective bargaining, where possible also accords with the cases that emphasize the value in intra-university dispute resolution. The University’s interpretation would write out the transmission step, the Boards decision-making role in controversial cases and, most significantly, the agreed upon, although limited, ability to arbitrate disputes over the merits and the procedural integrity of the award of tenure process. STANDARD OF REVIEW [20] The parties disagree on the standard of review to be applied to the Arbitrator’s interpretation of s. 51 of the Act. The University’s position is that the standard is one of correctness. The Faculty Association’s position is that it is one of reasonableness. Both parties rely on dicta from Dunsmuir v. New Brunswick, 2008 SCC (CanLII), [2008] S.C.R. 190, in support of their submissions. [21] The passage from Dunsmuir relied upon by the University is para. 60: 60 As mentioned earlier, courts must also continue to substitute their own view of the correct answer where the question at issue is one of general law “that is both of central importance to the legal system as whole and outside the adjudicator’s specialized area of expertise” (Toronto (City) v. C.U.P.E., at para. 62, per LeBel J.). Because of their impact on the administration of justice as whole, such questions require uniform and consistent answers. Such was the case in Toronto (City) v. C.U.P.E., which dealt with complex common law rules and conflicting jurisprudence on the doctrines of res judicata and abuse of process issues that are at the heart of the administration of justice (see para. 15, per Arbour J.). Its submission is that the Act is one of general law, that is both of essential importance to the legal system as whole, and outside the adjudicator’s specialized area of expertise. It relies on the Rucker decision, which held that the standard of review in that case of the British Columbia University Act, R.S.B.C. 1996, c. 468, was one of correctness. [22] The paragraphs from Dunsmuir relied upon by the Association are: 54 Guidance with regard to the questions that will be reviewed on reasonableness standard can be found in the existing case law. Deference will usually result where tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), 1995 CanLII 148 (SCC), [1995] S.C.R. 157, at para. 48; Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 CanLII 378 (SCC), [1997] S.C.R. 487, at para. 39. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of general common law or civil law rule in relation to specific statutory context: Toronto (City) v. C.U.P.E., [2003 SCC 63 (CanLII), [2003] S.C.R. 77] at para. 72. Adjudication in labour law remains good example of the relevance of this approach. The case law has moved away considerably from the strict position evidenced in McLeod v. Egan, 1974 CanLII 12 (SCC), [1975] S.C.R. 517, where it was held that an administrative decision [page 224] maker will always risk having its interpretation of an external statute set aside upon judicial review. 55 consideration of the following factors will lead to the conclusion that the decision maker should be given deference and reasonableness test applied: privative clause: this is statutory direction from Parliament or legislature indicating the need for deference. discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). The nature of the question of law. question of law that is of “central importance to the legal system ... and outside the ... specialized area of expertise” of the administrative decision maker will always attract correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, question of law that does not rise to this level may be compatible with reasonableness standard where the two above factors so indicate. 56 If these factors, considered together, point to standard of reasonableness, the decision maker's decision must be approached with deference in the sense of respect discussed earlier in these reasons. There is nothing unprincipled in the fact that some questions of law will be decided on the basis of reasonableness. It simply means giving the adjudicator’ decision appropriate deference in deciding whether decision should be upheld, bearing in mind the factors indicated. The Association submits that deference applies because on the facts in this matter the three factors referred to in para. 55 of Dunsmuir above point to standard of reasonableness. [23] In the Rucker decision, the University president denied promotion to an assistant professor. The Court’s analysis in that matter with respect to whether the standard was one of correctness involved its interpretation of the Administrative Tribunals Act, S.B.C. 2004, c. 45. The B.C. Act specified the standards of review to be applied to administrative tribunals, and concluded in s. 58(2)(c) that for all matters not otherwise identified, the standard of review to be applied to the tribunal’s decision was correctness. The Court concluded the appropriate standard was correctness because the issue fell within s. 58(2)(c). [24] In the recent case of Cape Breton-Victoria Regional School Board v. Canadian Union of Public Employees, Local 5050, 2011 NSCA (CanLII), 298 N.S.R. (2d) 258, the school board had terminated the grievor’s employment because he had had sex with 15-year-old girl, which was above the age of consent at the time, who attended different school than the one in which he worked. The Arbitrator reinstated the grievor, and in the course of his decision reviewed the provisions of s. 40(1) of the Education Act, S.N.S. 1995-96, c. 1, which set out the duties of support staff members. One of the issues on appeal was the Arbitrator’s interpretation of this section of the Education Act. The school board relied heavily on the Rucker decision, supra. [25] In decision rendered on behalf of the Court, Fichaud J.A. noted Nova Scotia did not have the equivalent of s. 58 of the Administrative Tribunals Act, which had been relied upon in the Rucker decision, and, therefore, the Rucker decision was not helpful. He stated judicial review in Nova Scotia was governed by Dunsmuir, and quoted Justice Bastarache in para. 54 of that decision set out above. He concluded: 25 The arbitrator’s mandate, into which s. 40(1) dovetails, was to apply principles of arbitral jurisprudence to determine whether there was just cause for dismissal within the meaning of the collective agreement. That is labour arbitrator’s core function, and within the court’s zone of deference, attracting reasonableness standard of review: Communications, Energy and Paperworkers’ Union, Local 1520, para. 20 [Communications, Energy and Paperworkers' Union, Local 1520 v. Maritime Paper Products Ltd., 2009 NSCA 60 (CanLII)] and cases there cited. Section 40(1) is “closely connected” to the arbitrator’s function in this grievance, under the principle from Dunsmuir, para. 54. 26 agree with the judge that the appropriate standard of review to the award, including the arbitrator’s use of s. 40(1), was reasonableness. would dismiss the Board’s ground of appeal that challenges the judge’s choice of the standard of review. [26] In an earlier decision in Toronto Catholic District School Board v. Ontario English Catholic Teachers’ Assn. (2001), 2001 CanLII 8597 (ON CA), 55 O.R. (3d) 737, [2001] O.J. No. 3748 (QL) (Ont. C.A.) MacPherson J.A. on behalf of the Court identified the issue in the case at para. as follows: The appeal requires consideration of the relationship between the reviewing role of the courts and the decisions reached by an arbitrator. The context within which this general issue arises is an arbitrator’s decisions flowing from his interpretation of the terms of both collective agreement and general public statute. The principal legal issue posed by the appeal is the standard of judicial review of the arbitrator’s decisions: is it correctness or patent unreasonableness? At para. 28 he noted: 28 ... Accordingly, the interpretation of Regulation 298 by the arbitrator in the present case is precisely the situation envisaged by Cory J. in City of Toronto when he enumerated the factors that might give rise to judicial deference. The arbitrator’s interpretation of Regulation 298 made under the Education Act involved an “external statute ... intimately connected with the mandate of the tribunal and ... encountered frequently as result” (City of Toronto, supra, at 506). He went on to note in this case in para. 31 there was privative clause in play by reason of s. 48 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A., which required that every agreement “‘provide for the final and binding settlement by arbitration’ of disputes” and that the Arbitrator’s decision was binding upon the parties. He stated the privative clause was clearly intended to protect arbitral decisions from judicial review. He held the standard of review was not correctness, but patent unreasonableness, which was the arbitral standard at the time. [27] The grievance in this matter is brought pursuant to the grievance procedures set out in Article 28 of the 2007-2009 agreement. Arbitrator Sims is one of the three default arbitrators named in the Agreement. Article 28.6 of the agreement states: Powers of the Arbitrator. The arbitrator shall exercise those powers enumerated in The Trade Union Act, [R.S.S. 1978, c. T-17 (since rep. by S.S. 2013, c. S-15.1] as amended from time to time and the arbitrator’s decision shall be final and binding on both parties. Section 25 of The Trade Union Act, R.S.S. 1978, c. T-1 (since rep. by S.S. 2013, c. S-15.1) mandates that alleged violations of collective bargaining agreements are to be settled by arbitration, and states the findings of the arbitrator are final and conclusive, a form of privative clause reflecting the legislature’s intention that such decisions are not to be lightly interfered with on judicial review. [28] The clauses in Article 15 requiring the president to transmit committee decisions to the Board have been in place for at least the last 20 years. This emerges from the Court of Appeal decision in Bilson v. University of Saskatchewan (1984), 1984 CanLII 2421 (SK CA), 16 D.L.R. (4th) 31, 36 Sask.R. 184, (Sask. C.A.). The decision did not involve the interpretation of the Act, but did involve the Court commenting on the Renewals and Tenure Appeal Committee provisions of Article 15 of the Agreement. In para. the Court stated in part: ...By virtue of Section 62(f) of the University of Saskatchewan Act, R.S.S. 1978, c. U‑6, the grant of tenure is matter for the board of governors of the university, acting on the recommendation of its president who is responsible for the general supervision of the academic work of the university, including its teaching staff. But the president does not give the board his own views; he draws his recommendation from the permanent faculty of the university. Indeed collective bargaining agreement between the university and the Faculty Association provides that the president is merely to transmit the faculty's tenure recommendations to the board of governors. The agreement provides for taking the views of the faculty by means of an elaborate mechanism, which, in this case, started with College Tenure Committee. [29] am not able to accept the University’s major premise that the interpretation of s. 51 of the Act is matter of general law “that is of central importance to the legal system as whole”. As noted in para. 60 of Dunsmuir above, answers to questions that are of central importance to the legal system require uniformity and consistency and is the rationale for standard of correctness. The Act in this case is public statute, but it is not statute that has general application to the public at large. It is governance statute relevant only to the University. The interpretation of section of the Act does not impact anyone beyond those involved in the University. [30] As noted by Fichaud J.A. at para. 28 above, the Rucker decision is one of statutory interpretation of the Administrative Tribunals Act in British Columbia, and does not speak to the standard of review applicable at common law. It is also noted that the Rucker decision predates the Dunsmuir decision. Both Fichaud J.A. and MacPherson J.A. referred to above accepted that deference will usually result where tribunal is interpreting its own statute or statutes closely connected to its function with which it will have particular familiarity. They both considered their respective Education Acts, Acts of far more general application than specific University Act, as being sufficiently closely connected to the arbitrator’s function to justify the principle of deference to the arbitrator’s interpretation. The same rationale applies to the decision of the Arbitrator in this case. [31] The Arbitrator in this matter is one of three default arbitrators written into the Agreement. The Act is the constituent Act of the University from which the authority for it to bargain collectively and enter into collective bargaining agreements flows. Thus, it is closely connected to the Arbitrator’s function of interpreting the provisions of the Agreement. There is no evidence on how often Arbitrator Sims has been called upon to rule on grievances brought pursuant to the Agreement, but as person the law stipulates has special expertise in labour relations, it can be expected he will have some familiarity with the Act. The answer to whether s. 51 of the Act provides the president of the University with veto over matters of tenure does not rise to level that is of central importance to the legal system in Canada. It is of interest only to the two parties to the agreement. The Arbitrator’s decision is protected by form of privative clause. The combination of the foregoing points to standard of deference. [32] I find the Arbitrator’s interpretation of sections of the Act are entitled to deference and the standard of review of such interpretations is one of reasonableness. REASONABLENESS [33] The deferential standard of reasonableness was articulated in Dunsmuir at para. 47 where the following appears: 47 Reasonableness is deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to number of possible, reasonable conclusions. Tribunals have margin of appreciation within the range of acceptable and rational solutions. court conducting review for reasonableness inquires into the qualities that make decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process. But it is also concerned with whether the decision falls within range of possible, acceptable outcomes which are defensible in respect of the facts and law. [34] The University’s position is that the Arbitrator’s interpretation of s. 51 is unreasonable because the Arbitrator did not find that tenure is an appointment pursuant to s. 51(a) of the Act or promotion to permanent faculty position within the meaning of s. 51(b) of the Act. However, the word tenure does not appear in s. 51 or s. 73 of the Act, and so it is not clear from the legislation itself that the words appointment or promotion must include the right to recommend an award or grant of tenure. The fact the University’s position is that the award of tenure is either an appointment or promotion indicates just how unclear it is. 35] However, the history of collective bargaining with respect to tenure clearly indicates the administration of the University did not consider tenure was dependent on the president’s personal recommendation. Where there is doubt about the intention of the legislature, historical administrative interpretation can be relevant factor. In Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworth Canada Ltd., 2002), it was noted at p. 506: The principle governing the use of administrative interpretation was stated by the Supreme Court of Canada in Nowegijick v. R. [1983 CanLII 18 (SCC), [1983] S.C.R. 29] where Dickson J. wrote: Administrative policy and interpretation are not determinative but are entitled to weight and can be an “important factor” in case of doubt about the meaning of legislation. similar point was made by de Grandpré J. in Harel v. Deputy M.N.R. of Prov. of Que. [1977 CanLII 10 (SCC), [1978] S.C.R. 851]: ... am not saying that the administrative interpretation [relied on by the taxpayer] could contradict clear legislative text; but in situation such as have just outlined, this interpretation has real weight and, in case of doubt about the meaning of the legislation, becomes an important factor. The Arbitrator was entitled to consider the history of collective bargaining between the parties as an important factor in deciding the meaning of ss. 51 and/or 73 of the Act. [36] The Arbitrator acknowledged that other universities based on their legislation and/or policies make reference to tenure as an appointment or promotion, but rejected that such was the case in the Act. He noted that the practices with respect to granting tenure are diverse. He outlined why the legislature back in 1907 may not have wished to limit the collegial approach to tenure decision-making by placing limitation on that collegial process by providing the president with the sole final recommendation. He referred to the past practice of tenure being the subject of collective bargaining, and why it was reasonable to leave the final decision with the Board of Governors. His reasoning is transparent and intelligible throughout. It is also rational. [37] That tenure must be included in the word appointment, or the word promotion, in s. 51 of the Act was not the only conclusion that could be drawn in this matter. The Arbitrator provided more than adequate reasons for his decision, and his decision clearly falls within a range of acceptable and rational conclusions available. The decision satisfies the reasonableness standard. [38] The application to set aside the Arbitrator’s decision is dismissed. The Association is entitled to taxable costs on double Column 3. [39] Judgment accordingly.
HELD: The application was dismissed. The court held that the standard of review of the arbitrator’s decision was one of reasonableness. Section 25 of The Trade Union Act states that the conclusions of arbitrators are final and therefore the court noted they should not be interfered with lightly. Further, the court noted that the decision of the arbitrator was not of significant importance to the general public. The court reviewed the history of collective bargaining at the university and found that tenure was not dependent on the president’s personal recommendation in the past. The court found that the arbitrator’s reasoning was transparent and intelligible throughout. To include the word tenure in the definition of appointment or promotion was not the only conclusion that could be drawn. The arbitrator’s decision was within the range of acceptable conclusions and was reasonable.