Canada: 2019 Field Law Post-Secondary Summit Recap

The fourth annual Field Law Post-Secondary Summit was held on November 28 in Calgary and was co-chaired by Frank Molnar, QC and Greg Harding, QC. Brief summaries of the presentations given at the Summit are provided below.

Innovative Governance During Challenging Times
Christine Tausig Ford and Mike Mahon

Christine Tausig Ford and Mike Mahon led an open discussion regarding higher education governance. Christine noted that generally Boards are not well understood by colleagues, communities, media or governments and they now need innovative governance to meet the demands of a challenging economic landscape. Mike turned to bicameral governance and emphasized that as most institutions are facing challenging times from a fiscal perspective, bicameral governance has become more vital than ever before.

The discussion considered the complexities of the PSLA. Alberta is one of the most interventionist jurisdictions in Canada when it comes to higher education and this can create some unique challenges. Mike and Christine noted that the challenge for institutions in this environment is to do all they can to maintain good governance while dealing with the reality of government policies.

Indigenous knowledge and participation in governance was also discussed i.e. beyond simple quotas of indigenous representation on the Board – institutions have a way to go.

A question was posed as to how institutions are implementing policies of equity, diversity and inclusion. The need to have diverse backgrounds, competencies and views on boards is extremely important and a key facet of good board governance. One suggestion as to how to better achieve in this area was the implementation of unconscious bias training.

Update on Recent Labour Relations Board Decisions
Frank Molnar, QC and Geoff Hope

Geoff Hope and Frank Molnar, QC discussed recent labour relations board decisions and considered the effects of Bill 21 on post-secondary institutions.

Bill 21 considerations included:

• PSLA was amended to suspend the pre-existing tuition freeze – tuition increases will be permitted up to 10%
• Student loan interest increase of 1% is also permitted

Labour Relations Code

• The ban on using temporary workers during a strike (essential services) was reversed.

The discussion then turned towards some recent decisions of relevance, including:

Ball v Mcaulay, 2019 ONSC

• Graduate students working as TA's at York University were part of a bargaining unit, there was strike activity and some of the students were involved in secondary picketing
• VP Finance filed a complaint against the students citing misconduct under the Student Code
• The students then requested judicial review
• The court sided with the students and ruled that it was not appropriate to cite the complaint under the Student Code
• The essential nature of the dispute was labour relations, not the student code of conduct and the case belonged at a labour relations board

Northern Lakes College (Alberta Labour Relations Board)

• The Faculty Association applied to the Labour Relations Board to decide whether persons employed as Chairs by the Board of Governors are "academic staff members"
• A decision was made in 1997 not to designate Faculty Supervisors – now called Chairs
• Chairs have the responsibility to conduct performance evaluations on Academic Staff members
• No attempts to change this decision or consult had been made since 1997
• The Labour Relations Board declined to decide the application and sent it back to the parties for consultation and confirmed the parties should look to the criteria set out in s. 58.6(2) of the Labour Relations Code
• The Board considered whether deference should be given to the original designation decision of the Board of Governors and said it was not required but they would consider it – depends on the criteria were applied and the unique nature of the institution.
• The fact the Chairs exercise managerial authority did not mean they should be automatically excluded
• The Board gave the following guidance on consultation: 1) should involve a bilateral interaction by the parties; 2) decision maker has a duty to inform itself of the other side's position and 3) each side has the opportunity to give and receive information
• In establishing policies, the Board of Governors should establish criteria in consultation with the Faculty Association

Acadia University v Acadia Faculty Association (Nova Scotia Arb.)

• Dismissal of a tenured professor who then brought grievances
• The parties settled before arbitration, and the terms of the settlement provided for a sum of money to be paid, the university admitting no liability, and an express statement that the terms would be confidential
• Professor put on Twitter that he had been "vindicated" amongst other things
• He was advised by the Faculty Association to stop posting on Twitter and to take his posts down, which he refused to do
• He then continued posting on Twitter
• The University cited breach of the confidentiality agreement. The Faculty Association took no position
• The arbitrator ruled that the professor would no longer receive the settlement monies as he had breached the agreement

Ryerson University v Ryerson Faculty Association (Ont. Arb.)

• Student filed a complaint of sexual harassment eight years after the event
• It happened at an event off campus
• The University investigated and while the investigation was underway:
  • The professor was prohibited from contact with the student
  • He was banned from campus
  • No unsupervised activity on/off campus with students
• The last two conditions were grieved by the Professor
• The arbitrator sided with the university and said the conditions were reasonable although the rationale behind the conditions was not necessarily agreed with
• In evaluating whether it is appropriate to impose interim measures, the University is required to make an assessment of the particular nature of the allegations that comprise the Complaint
• It is imperative that the University's "legitimate safety and reputational concerns not lead to arbitrarily painting all allegations of sexual misconduct/violence with the same brush"
• The arbitrator suggested that the "current climate" tipped him in favour of the University

University of Saskatchewan Faculty Association v University of Saskatchewan (Sask. Arb.)

• The Dean had been recording proceedings of meetings of the College Review Committee, which the Faculty Association had no knowledge of. The recording was done for accuracy
• The arbitrator ruled that the Association did not establish that the recordings were surreptitious but there was an expectation of privacy
• While the arbitrator was satisfied that the Dean did not deliberately circumvent the collective agreement, it was necessary that the Committee institute a right to record proceedings in its operating procedures
• Arbitrator issued a declaration that by recording the committee meetings, the Dean had breached the collective agreement.

Bicameral Governance Under the Psla – Q+A Session
Greg Harding, QC, Marion Haggarty-France and Jason Kully

Greg Harding, QC moderated a question and answer session led by Marion Haggarty-France and Jason Kully on bicameral governance under the Post-Secondary Learning Act. The session featured a wide-ranging discussion including:

• The importance of understanding bicameral and collegial governance as more institutions transition to this governance structure and as institutions contend with external and internal pressures. There was recognition that orientation for governance members, both new and old, is important and that opportunities where members can learn and understand the role of other bodies are vital. Informal learning opportunities and shared committees where members of the governance bodies can interact were identified as possibilities
• Reconciling the role and authority of the GFC and the Board of Governors. Comments included the importance of reviewing the PSLA to determine the powers granted to each body and to determine where overlap and challenges may exist. It was recognized that often the legislation is not clear and that the roles of each body within bicameral governance have been defined through practice and tradition
• The settlement of question authority found in section 63 of the PSLA and how it could be used as a method to determine the scope of powers within an institution. Attendees noted that this gave the Board of Governors significant decision making power
• Bicameral governance and labour relations. Comments ranged from the need for bodies to exercise their statutory power and authority, to the challenges created by an increasing move towards traditional labour relations regimes within a collegial governance model

Harassment Investigation and Adjudication
Kelly Nicholson and Leanne Monsma

Kelly Nicholson and Leanne Monsma discussed harassment investigations and adjudications at post-secondary institutions.

Kelly started by talking about what "harassment" actually means. He identified what the word generally means and highlighted that certain pieces of legislation, such as the Occupational Health and Safety Act, actually include definitions as well. He also emphasized though, that collective agreements or workplace policies may include their own definitions of harassment. Kelly and Leanne also highlighted that at post-secondary institutions, harassment (and sexual harassment) may occur in many different directions. For example, in a standard workplace, harassment most often occurs between employees. However, at a post-secondary institution, harassment may occur between employees (including various types of employees), but it may also occur between students, or between employees and students.

Leanne also addressed whether post-secondary institutions should treat sexual harassment differently than other forms of harassment. Leanne pointed out that there is something inherently unique about sexual harassment, but in all events the current social climate suggests that post-secondary institutions should treat sexual harassment differently than other forms of harassment. With reference to the #metoo movement, Leanne pointed out that all entities are subject to an increased level of scrutiny when allegations of sexual harassment are made. As such, it is imperative that post-secondary institutions have special tools and mechanisms in place to deal with these types of allegations. Leanne highlighted a few important steps that post-secondary institutions may wish to take in order to recognize the unique nature of sexual harassment: (1) establish a standalone policy on sexual harassment; (2) establish additional procedures or guidance documents on how complaints of sexual harassment will be handled; (3) ensure that complainants have access to support; (4) consider using specially trained investigators for these types of allegations; and (5) consider using specially trained adjudicators for these types of allegations. With respect to special training, Leanne pointed out that this has been a major trend in recent years. Numerous resources are now available to ensure that first responders, investigators and adjudicators all receive special training, which may include training on myths and stereotypes, trauma informed training or sensitivity training.

Kelly and Leanne went on to identify a number of the main risks associated with complaints of harassment. They highlighted that the risks come from various sources, including the complainant, the respondent and the public. Kelly explained that, over the years, the respondent has increasingly become a major source of risk, with the respondent frequently taking legal action, including by grieving interim measures or the discipline imposed and initiating claims of wrongful dismissal, constructive dismissal or defamation.

From a human rights perspective, Kelly and Leanne discussed the importance of meeting the duty to investigate. Kelly explained that, completely separate from whether or not a finding of harassment is made, employers may be found to have discriminated if, upon receiving allegations of discrimination, they fail to adequately investigate the allegations. In order to meet this duty, Kelly explained that the standard is "reasonableness". In other words, the investigation does not have to be perfect, but it must be reasonable. What is reasonable will depend on the facts and circumstances of each case.

Leanne explained that it is not necessary for a board to be informed of every single harassment complaint that is made at the institution. Leanne suggested that three factors which should be assessed in order to determine whether the board should be informed of the complaint are: (1) the seriousness of the allegation; (2) whether the allegation relates to sexual harassment; and (3) whether a student is involved. In those cases where the board is informed of allegations, the board should have a handle on the following: the terms of reference for the investigation; the status of the investigation, including its timelines; whether any interim measures have been imposed on the respondent; the supports offered and provided to the complainant and others; what the outcome of the investigation was; what discipline, if any, was imposed; and whether any other action was taken in respect of the complainant or the environment (for example, to account for systemic issues).

Kelly and Leanne also addressed a question concerning delays during investigations. More specifically, what should an employer do when a respondent or others refuse to participate in the investigation on the basis that they are not well enough to do so? Kelly encouraged employers to press on with their investigations in these circumstances, but to clearly explain to the respondent that the investigation is going to proceed and the ultimate findings may be impacted by the respondent's failure to participate. Leanne also offered that, rather than simply hitting pause on the entire investigation, employers should consider what other supports can be offered to the respondent (or others) so that their mental health concerns are accommodated, but also so that they're still able to participate in the investigation.

Accommodation and Mental Health Issues
Steve Eichler

Steve Eichler held a session on accommodation and mental health issues in the workplace. The session was an open forum and covered issues such as:

• Getting past the stigma of mental health and changing how we think about mental health in an occupational setting. The difficulty is often with regards to how we "measure" mental health and the lack of objectivity.
• Steve highlighted how societal changes often start at the post-secondary level so their importance in destigmatizing mental health is imperative. Institutions are the front line of how the working world will deal with mental health.
• Questions were raised as to how far an employer has to go with regards to monitoring employees. Ultimately it is up to the employee to bring the complaint forward but is there any time of trigger that leads to a duty to inquire? Typically medical evidence may trigger a duty to inquire, but employers also have to consider whether they have a willing participant in the employee and how far they can go before they infringe on the employee's own rights.
• Accommodation in the workplace was also considered. Accommodation is not limitless and undue hardship is the limit; however, what constitutes undue hardship may vary from workplace to workplace. No individual is entitled to perfect accommodation and accommodation is only granted to those who are deemed to require it.

Freedom of Expression on Campus – Policy + Practice
Scott Matheson, Christine Tausig Ford and Emily Lapper

Scott Matheson moderated a discussion between Christine Tausig Ford and Emily Lapper regarding freedom of expression on campus and how far it should go.

Christine began by considering Ryerson University's report on freedom of speech. The report canvassed how many extracurricular events had been held on campus and how many had been flagged as being either medium or high risk. Overall no events were cancelled and only 13 complaints were made about the lack of free speech on campus. Across Ontario, there were very few complaints raised and so the question was raised as to why this is such a big issue? Christine concluded that a few high profile cases in Canada and the obsession by media and politicians on free speech were to partly to blame.

Much of the discussion centred on whether the Charter of Rights and Freedoms should apply to universities and post-secondary institutions. Christine argued that it should not, as this would decrease post-secondary institutions' independence from the government. She argued that universities must be at arm's length from the government and having the Charter apply would be a slippery slope and could lead to saying universities are a service that government's provide. This institutional independence is imperative.

Emily took the position that application of the Charter does not mean that universities will become government controlled and that ultimately the Charter is not absolute—universities would still be able to make use of Section 1. She recognized that it is difficult for universities to balance the freedom of expression with the desire to create safe spaces for students, but held that the regulation of speech is contrary to the function of universities within society and democracy.

Current Litigation + Recent Case Law Round Up
Derek Cranna and Richard Stobbe

Derek Cranna and Richard Stobbe provided an update and commentary on recent cases of interest including challenges to admission policies, use of social media by faculty members and sexual harassment cases on campus.

Richard considered the ongoing case of Access Copyright v York University. The decision has yet to be released by the Federal Court of Appeal.

York University v The Canadian Copyright Licensing Agency, et al. (Federal Court of Appeal, Court File No. A-259-17)

Richard provided a status update on York University's long-running dispute with Access Copyright. The Federal Court decision in Canadian Copyright Licensing Agency v. York University, 2017 FC 669 (CanLII), created significant controversy when it was released in 2017.

Many in the post-secondary world will recall that the Federal Court decision went against York and gave a win to Access Copyright – finding that York's Fair Dealing Guidelines were not effective to shield a great deal of the course-pack and other copying at York, from the fees Access Copyright claimed to be payable under the Interim Post-Secondary Tariff for 2011-2013.

York filed an appeal of that decision, and the Federal Court of Appeal (FCA) heard arguments on March 5 and 6, 2019. We are awaiting the decision of the FCA..

Stakeholders are hopeful for guidance from the FCA on a number of key issues:

• The scope of "fair dealing": Section 29 of the Copyright Act: "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright." Universities Canada (formerly the Association of Universities and Colleges in Canada) developed a 'Fair Dealing Policy' in 2004 following the decision in CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13 (CanLII).

"Fair" is not defined and is a question of fact depending on the circumstances of each case.

The fairness analysis engages six non-exhaustive factors:

1. purpose of the dealing,
2. the character of the dealing,
3. the amount of the dealing (amount of copying),
4. alternatives to the dealing,
5. the nature of the work, and
6. the effect of the dealing on the work.

• The question of whether Access Copyright tariffs should be mandatory, or whether they are voluntary. The Supreme Court of Canada decision in Canadian Broadcasting Corp. v. SODRAC 2003 Inc. (2015 SCC 57) suggested strongly that such tariffs are not mandatory.
• There are complaints from stakeholders regarding the openness of Access Copyright's repertoire database, and the accessibility of the repertoire that Access Copyright represents.
• There are complaints that the court's guidance on "fair dealing" would permit copying in situations that are not permitted by the tariff, and that as a result the tariff is overreaching since it seeks to prohibit or levy a tariff on activities that would fall into a fair dealing exemption.
• Post-secondary institutions have expressed concern around the overreaching and intrusive records and reporting provisions that are imposed through the Access Copyright tariff regime.

Not all of these issues will necessarily be addressed or clarified in the pending decision of the FCA. It is anticipated that regardless of the outcome, the FCA decision is likely to be appealed to the Supreme Court of Canada.

Cases considered by Derek included:

Yashcheshen v University of Saskatchewan, 2019 SKCA 67

• The case involved an applicant for entrance to the College of Law who did not include an LSAT score with her application, but rather requested accommodation based on her assertion that her disabilities prevented her from having a fair opportunity to write the LSAT.
• The College applied its policy which required all applicants in all categories to include an LSAT score, and so the applicant's application could not be evaluated and she was not offered a place.
• The applicant brought an application for a determination that the College's policy discriminated against her and was prohibited by s. 15 of the Charter of Rights and Freedoms. The court held that the Charter did not apply in the circumstances and that the authority to set admissions standards was a power given exclusive to the University by its incorporation legislation.

Brock University v Brock University Faculty Association (Ont. Arb.)

• Professor drank with a grad student one night, she then alleged sexual harassment.
• The Professor was suspended and then went on a planned leave of absence.
• In May 2018, he planned to return to the university, but some faculty expressed concerns about his return and the University was concerned by the continued negative media interest
• The Professor had teaching assignments for the Fall term but when the University became aware of a Facebook thread about concerns over the Professor's return, they attempted to cancel his teaching assignments.
• The professor filed a grievance stating it was double jeopardy, he had already been suspended.
• The University alleged that this was a non-disciplinary response and they were simply exercising their right to manage workloads of professors
• Arbitrator upheld the grievance and state the University did not have just cause in cancelling the assignments.

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