Administrative law – Decisions of administrative tribunals – Arbitration Board – Universities – Student discipline – Medical residents – Harassment – Judicial review – Labour law – Collective agreements – Arbitration – Jurisdiction of labour arbitrator to hear disciplinary grievances
University of Saskatchewan v. Wilde,  S.J. No. 736, Saskatchewan Court of Queen’s Bench, October 4, 2007, J.D. Koch J.
The Appellant University had imposed discipline against the respondent, Dr. Wilde, a medical resident, as a result of complaints of harassment from two female laboratory technologists. Despite a preliminary finding that the allegations did not meet the University’s standard to be considered as formal harassment charges, it was determined by the College of Medicine that Dr. Wilde failed to meet the required standard of professional behaviour for the medical profession. The College required Dr. Wilde to sign a document in which he agreed to a six-month probationary period and various other terms.
The Respondent, the Professional Association of Internes and Residents of Saskatchewan, is the certified bargaining agent for all medical residents in Saskatchewan, and has a collective agreement with the University. It filed a grievance pursuant to the collective agreement, contending that the University had imposed disciplinary action arising out of the harassment complaints in the absence of an affirmative finding pursuant to the investigation.
The University challenged the jurisdiction of the arbitration panel on the ground that the issue was academic in nature and thus not arbitrable pursuant to the collective bargaining agreement. The panel made an interim decision, finding that the grievance was arbitrable. The University applied for judicial review of that interim decision.
The Court was unable to accept the contention on behalf of the University that the determination of the College, that the issue was academic, is not subject to review. Medical residents have a dual role, concurrently studying at the College of Medicine and serving as employees of the University, assisting in the treatment of Saskatoon Health Region patients. The educational aspect of the residency program overlaps in these circumstances with the employment aspect. However, by any objective standard the professional behaviour of Dr. Wilde, while undoubtedly having some bearing on his education to prepare him to become a medical specialist, was tangentially academic at best.
While the College must have considerable latitude in determining whether any given issue is to be regarded as academic or as employment related, the College’s determination in this case was simply untenable. If there were no way to objectively scrutinize the categorization imposed by the College, the provisions of the collective agreement, which are intended to protect the rights of residents, could easily be rendered meaningless.
The Court went on to find that even if the issue was an academic matter, it was nevertheless arbitrable under Article 24.1 of the collective agreement, which makes the grievance procedure available “with respect to all non-academic matters … or formal complaints of intimidation and harassment.” In this case, there was no doubt that the complaints were formally launched and that the investigation had a formal outcome.
Finally, the Court found that in essentially rejecting the harassment complaints but nevertheless imposing severe disciplinary consequences, the College had failed to fulfil its obligation pursuant to Section 3.5 of its Discrimination and Harassment Policy. The Court rejected the University’s contention that the probation contract focused entirely on remediation with respect to alleged unprofessional conduct in that it was not disciplinary or punitive. The fact that the punishment and discipline imposed were for remedial purposes does not change their essential character.
In the result, the application was dismissed.
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