nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 179 Date: 2007 05 24 Docket: Q.B. 66/2007 Judicial Centre: Regina BETWEEN: FIRST NATIONS UNIVERSITY OF CANADA and UNIVERSITY OF REGINA FACULTY ASSOCIATION and AN ARBITRATION BOARD CHAIRED BY BETH BILSON, Q.C. RESPONDENTS Counsel: Larry F. Seiferling, Q.C. for the applicant Victor P. Dietz, Q.C. for the University of Regina Faculty Association JUDGMENT WIMMER J. May 24, 2007 [1] This is an application for judicial review of a Board of Arbitration Award which held that the First Nations University of Canada had violated certain provisions of a Collective Agreement in force between the parties. The facts of the case are reasonably straightforward. [2] On May 12, 2005, the University of Regina Faculty Association filed grievance on behalf of Dr. Blair Stonechild who is First Nations University faculty member. The grievance alleged that the University had interfered with his academic freedom. The allegation had to do with the withdrawal of an invitation to Dr. Stonechild to be the keynote speaker at National Symposium on Post Secondary Education Policy and Funding which was held the previous month. The symposium was an initiative of the Federation of Saskatchewan Indian Nations and although the event was held on campus, the University itself was not directly involved. It was drawn into the controversy between Dr. Stonechild and the Federation in circuitous way. [3] During the relevant period, former student of Dr. Stonechild, Ms. Danette Starblanket, was employed by the Federation as Director of Higher Learning and Research. In that capacity, she was instrumental in the planning and organization of the symposium and it was she who invited Dr. Stonechild to participate as speaker. That was in mid-March 2005. [4] Ms. Starblanket’s idea was that Dr. Stonechild would make presentation based upon his Ph.D. thesis which is entitled “Pursuing the New Buffalo: First Nations Higher Education Policy in Canada.” He had received his Ph.D. degree from the University of Regina in 2004. Apparently some misunderstanding arose because Dr. Stonechild believed he was being invited to present the results of research he had more recently done for the Assembly of First Nations national First Nations political organization. In any event, there is no disputing the fact he was invited to speak at the upcoming symposium. [5] Later, after Ms. Starblanket had examined Dr. Stonechild’s thesis, she decided it would not provide suitable foundation for the symposium’s keynote address. On March 31, she advised him that his services would not, after all, be required. [6] Dr. Stonechild was disappointed at this turn of events and he sought to have the decision reversed. On April 10, he sent a letter to the President of the First Nations University enquiring whether its Board of Governors might be asked to intervene and request the symposium’s organizing committee to reconsider the matter of his presentation. The Board of Governors met on April 12 and Dr. Stonechild’s letter was on the meeting’s agenda. [7] The Chair of the Board of Governors at the time was Morley Watson who was also Vice-Chief of the Federation of Saskatchewan Indian Nations. The Arbitration Board Award describes the relationship between the University and the Federation. Throughout the document, acronyms are used when referring to most institutions and organizations. nan The FNUC is unique institution. It is federated college of the University of Regina, and derives academic authority from that association. On the other hand, it is also signifier of the important role of post-secondary education as vehicle for fulfilling the aspirations of First Nations people in Saskatchewan and across the country. The FNUC was created under statute of the FSIN, the provincial body representing First Nations. Under this statute, the FNUC has Board of Governors, the majority of whom are chiefs who are also part of the governing body of the FSIN. At the time relevant to this grievance the Chair of the Board of Governors was the First Vice-Chief of the FSIN, Mr. Morley Watson. [8] By way of background, the Award refers to certain other events which were taking place at the University at the time. On February 17, 2005, prompted by concerns about fiscal and administrative issues, representatives of the FSIN, including Vice-Chief Watson, entered the FNUC and assumed responsibility for many administrative functions. Several senior administrators were relieved of their duties, and comprehensive forensic audit of the University finances was ordered. Several people closely connected with the FSIN were appointed to replace FNUC administrative personnel who had been displaced. These actions by the FSIN engendered considerable public controversy, and created tension between the FSIN and some of the faculty and administrators within the FNUC. Dr. Stonechild was one of the faculty members who had expressed concerns about how the academic credibility of the University might be affected by these actions. [9] At the Board of Governors meeting on April 12, the progress of the forensic audit and related issues were discussed. When it came to Dr. Stonechild’s request, Mr. Watson made some inappropriate comments. He demonstrated personal irritation or antagonism toward Dr. Stonechild, all seemingly associated with the events that began to unfold on February 17. He linked his feelings about Dr. Stonechild to the question on the table concerning the symposium. The meeting ended with no decision having taken place regarding the matter raised in Dr. Stonechild’s letter. [10] After fully canvassing all of the facts, the Board of Arbitration came to this final conclusion: It may be true that Vice-Chief Watson did not in fact play role in the decision that Dr. Stonechild should not be on the program. It may also be true that Vice-Chief Watson was persuaded by Chief Fiddler’s intervention to contemplate resolution of the dispute, and that, in any case, it was far too late for anyone to reverse the decision removing Dr. Stonechild from the list of speakers. We have concluded, nonetheless, that by suggesting that his dispute with Dr. Stonechild should affect the opportunity for Dr. Stonechild to appear at the Symposium to present his research, Vice-Chief Watson failed in his obligation to refrain from interfering in and to defend the academic freedom of a faculty member. In this respect, we find that the Employer violated the collective agreement, and we therefore uphold the grievance in part. As well as challenging these findings of the Board, the University advances jurisdictional arguments as reasons for setting aside or quashing the Award. [11] First, it contends that the Board of Arbitration exceeded its jurisdiction by entertaining a grievance which did not involve parties to the collective agreement. It argues that the dispute giving rise to the agreement was between Dr. Stonechild and the Federation not Dr. Stonechild and the University. However, the Board made a clear finding of fact that the alleged breach of the Collective Agreement occurred while Mr. Watson was acting in his capacity as Chair of the University’s Board of Governors and not as an officer of the Federation. That finding brought the issue within the purview of the Agreement. [12] Second, it argues that the Board of Arbitration made a determination of an issue not raised in the grievance namely, a finding that there was a violation of academic freedom. With respect, I do not agree. The formal grievance specifically refers to interference with Dr. Stonechild’s academic freedom in the second paragraph under the heading, NATURE OF DISPUTE. These actions by FNUC and its Board are an abuse of authority and are harassing and intimidating actions against this faculty member. In addition, FNUC and its Board have interfered with the academic freedom of Dr. Stonechild, in violation of the FNUC/URFA Academic Collective Bargaining Agreement (2002-2005). This issue between the parties was clearly joined. [13] Before passing upon the merits of the application it is necessary to determine the standard of review to be applied to the decision of the Board of Arbitration. Since the Supreme Court of Canada decision in Voice Construction Ltd. v. Construction General Workers’ Union, Local 92, 2004 SCC 23 (CanLII); [2004] S.C.R. 609 the law in this regard has been reasonably well settled. Following the pragmatic and functional approach referred to in the judgment, it is clear the standard of review to be applied in this case is one of reasonableness. See also: Bethany Pioneer Village Inc. v. Service Employees International Union, Local 333, 2006 SKQB 370 (CanLII); [2006] S.J. No. 700 QL (Sask. Q.B.). [14] The following passage referring to the standard of reasonableness appears in the judgment of Mr. Justice Iacobucci in Law Society of New Brunswick v. Ryan, 2003 SCC 20 (CanLII), [2003] S.C.R. 247, at para. 55: decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to somewhat probing examination, then the decision will not be unreasonable and reviewing court must not interfere. nan This means that decision may satisfy the reasonableness standard if it is supported by tenable explanation even if this explanation is not one that the reviewing court finds compelling. nan Mr. Justice Iacobucci went on to say that it is not necessary for every element of the tribunal’s ruling to pass the reasonableness test. The question for the reviewing court is whether the reasons as whole support the decision. [15] In the present case, the Board of Arbitration analyzed and then had reference to portions of Articles 2.1 and 2.2 of the Collective Agreement. 2.1 Preamble The First Nations University of Canada is unique institution in both philosophy and mandate and, as such, has distinct responsibility to safeguard and promote academic freedom. It is the policy and intent of the University to revise this statement of Academic Freedom as our collective wisdom grows. 2.2 Academic Freedom General Policy Statement Academic freedom is essential to the teaching, research, scholarship and community development functions of the University. The University will defend the academic freedom of members from interference from any source; however, the University will not be held accountable for infringements of academic freedom originating beyond the control of the University. The Board interpreted these provisions as imposing positive obligation upon the University and its officers to defend and promote the exercise of academic freedom by faculty members and then went on to consider what happened at the Board of Governors meeting on April 12. Thus it reached the conclusion which have already quoted. [16] In effect, the Board of Arbitration found that Mr. Watson’s conduct at the Board of Governors meeting did not comport with the requirements of Articles 2.1 and 2.2 of the Collective Agreement. In my judgment, the reasons as a whole support that finding. The decision meets the reasonableness test. [17] The application is dismissed with costs. J. C.R. Wimmer
Application for judicial review of a board of arbitration award that held the First Nations University of Canada had violated certain provisions of a collective agreement in force between the parties. The grievance alleged that the University had interfered with faculty member's academic freedom. The allegation concerned the withdrawal of an invitation to that faculty member to be the keynote speaker at National Symposium on Post Secondary Education Policy and Funding that was held on campus, although the University was not directly involved. After one of the chief organizers examined the faculty member's thesis and determined it would not provide suitable foundation for the symposium's keynote address, the invitation was withdrawn. The faculty member sought to have the decision reversed, and requested the University's Board of Governors' intervention. When the faculty member's request came up at one of the Board's meetings, one of its members made some inappropriate comments and expressed personal animus towards the faculty member. No decision was reached at that meeting. The respondent Board of Arbitration found that, in failing in his obligation to refrain from interfering in and to defend the academic freedom of a faculty member, the Board member's comportment amounted to a violation of the collective agreement by the employer. The applicant argued that the Board of Arbitration exceeded its jurisdiction by entertaining a grievance that did not involve parties to the collective agreement. Further, it argued that the Board of Arbitration made a determination of an issue not raised in the grievance, namely, a finding that there was a violation of academic freedom. HELD: The application is dismissed with costs. The Board of Arbitration found that the member of the University's Board of Governors' comportment at the meeting did not accord with the requirements of certain articles of the collective agreement. The reasons of the Board of Arbitration support that finding and the decision meets the reasonableness test. The fact that the member of the Board of Governors was acting in his capacity as Chair brought the issue within the purview of the collective agreement. The Court disagrees with the applicant's contention that the Board of Arbitration made a determination of an issue not raised in the grievance directly.