The University of British Columbia Faculty Association (the “Association”) brought a grievance on behalf of a faculty member after the President of the University of British Columbia (“UBC”) decided not to recommend the member for promotion. The President gave the small number of publications in peer-reviewed journals as the justification for the negative decision. The matter went to arbitration, where the President’s decision was found to be unreasonable. The arbitrator held that the President failed to consider the quality of the faculty member’s innovative professional work and how his work was regarded by his peers. Under the collective agreement (Article 13.07(c)) between Association and UBC, when such a decision is found to be unreasonable, the Board shall “reverse” the decision. The arbitrator interpreted the word “reverse” to mean “revoke” or “annul”, and declined to remit the matter back to the President for reconsideration. The arbitrator substituted a decision to recommend the faculty member for promotion for the President’s decision.

26. June 2007 0

Administrative law – Universities – Evaluation of professors – Labour law – Arbitration – Collective agreements – Jurisdiction – Judicial review – Compliance with legislation – Interpretation of legislation – Standard of review – Patent unreasonableness – Correctness – Charter of Rights and Freedoms – Freedom of expression

University of British Columbia v. University of British Columbia Faculty Assn., [2007] B.C.J. No. 667, British Columbia Court of Appeal, April 3, 2007, Rowles, Ryan and Lowry JJ.A.

UBC brought an application to review the arbitrator’s decision, and argued that the interpretation of the word “reverse” by the arbitrator conflicted with the provisions of two external statutes, the University Act, R.S.B.C. 1996, c.468 (the “Act”) and s. 2(b) of the Charter, and that the arbitrator had exceeded her jurisdiction in making such a decision. The decision was upheld, and subsequent judicial review proceedings brought by UBC were dismissed, with the chambers judge finding that patent unreasonableness was the standard of review on issues other than the Charter. UBC appealed.

The first issue was the applicable standard of review of the Board’s decision.

The majority of the Court of Appeal held that on judicial review of a Board decision, where the issue is proper interpretation of an external statute, the applicable standard of review should be correctness.

According to the Labour Relations Code, R.S.B.C. 1996, c.244 (the “Code”), the standard of review to be applied to a decision of the Board is governed by the Administrative Tribunals Act, S.B.C. 2004, c.45 (the “ATA”). Section 58(2) of the ATA provides a standard of review of patent unreasonableness for a finding of fact or law, or an exercise of discretion by the tribunal over a matter within its exclusive jurisdiction, whereas the Court must determine whether the tribunal acted fairly, when considering questions of the common law rules of natural justice and procedural fairness. Any other matters are to be reviewed on a standard of correctness.

The Court of Appeal held that separate findings made by a tribunal in the course of a decision may be subject to different standards of review. While one of the legislative objectives of the ATA was to simplify the analysis required to determine the applicable standard of review, it is also important to recognize that, taken together with the enabling statute of a given tribunal, there is an incorporation of elements of the pragmatic and functional approach that was used prior to enactment of the ATA:

The standard of review applicable to decisions of tribunals with a privative clause in their enabling legislation is governed by s. 58 of the ATA whereas s.59 of the ATA applies where the enabling act contains no privative clause. Under s. 59, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness. (para. 57)

The Court of Appeal held that, by including a provision that the tribunal must be considered ‘expert’ in relation to all matters within its exclusive jurisdiction (ATA s.58(2)(c)), the legislature must have intended the standard of review of correctness to apply to matters over which the tribunal does not have exclusive jurisdiction. The appeal on the standard of review issue was allowed.

The majority of the Court of Appeal determined that there is a conflict between the Act and the Board’s interpretation of “reversal” in Article 13.07(c) of the collective agreement in relation to the remedy that could be granted. The Act makes the President’s recommendation a necessary precondition to the Board of Governor’s exercise of its statutory authority to make faculty appointments, or promote or remove teaching staff. As such, the arbitrator’s purported power to substitute her decision conflicts with the President’s statutory authority and interferes with interaction between the President’s grant of authority and the powers of the Board of Governor’s contemplated by the Act.

The majority of the Court of Appeal determined that the Chambers judge erred in failing to find a conflict between the Act and the arbitrator’s interpretation of the collective agreement, and the matter was remitted to the Board to send the matter back to the President for reconsideration.

Lowry J.A. (dissenting) would have dismissed the appeal, without consideration of the standard of review issue. Lowry J.A. would have found that there was no purpose to considering whether the arbitral remedy was in conflict with the Act, because remitting the matter back to the President would not give any different result than to have the faculty member recommended for promotion.

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