The appeal by the University of Saskatchewan (the “University”) from an interim arbitration award was allowed where the court found that the probation imposed on a medical resident by the College of Medicine following harassment complaints was academic in nature and not subject to the grievance procedure

Administrative law – Decisions of administrative tribunals – College of Medicine – Universities – Medical residents – Student discipline – Harassment – Labour law – Arbitration – Collective agreements – Judicial review – Jurisdiction – Procedural requirements and fairness – Standard of review – Correctness

University of Saskatchewan v. Wilde, [2008] S.J. No. 814, Saskatchewan Court of Appeal, December 23, 2008, J. Klebuc C.J.S., G.A. Smith and Y.G.K. Wilkinson JJ.A.

Wilde was enrolled at the University’s College of Medicine as a fourth year student resident in general pathology. He was a member of the Professional Association of Interns and Residents of Saskatchewan (the “Union”). Two female lab technicians made complaints about Wilde’s conduct alleging inappropriate physical proximity, attempts to touch, interference with physical movements, intrusive comments and an argumentative and mocking manner. The complaints were investigated and it was found that the allegations did not meet the definition of harassment in the University’s Discrimination Harassment Prevention Policy. The College of Medicine, having received previous complaints about Wilde, determined he was not meeting standards of professionalism and found a period of probation was warranted. It prepared a probation contract, which Wilde signed, providing for a six-month probationary period during which Wilde was required to relinquish his position as Chief Resident, take communications skills and boundaries courses, write a report about literature on communication skills and boundary issues, and apologize to the complainants, amongst other things. The Union filed a grievance on Wilde’s behalf. The College took the position that the probationary actions were not disciplinary but rather educational and remedial. The University refused to proceed with any stage of the grievance process on the basis that this was a matter of academic remediation and not subject to the grievance process. The arbitral board concluded that the grievance was governed by the collective agreement and the grievance process and was therefore arbitral. The University applied for judicial review of this decision. The chambers judge held that an explicit reference to formal complaints of harassment in the collective agreement expanded the scope of the grievance procedures beyond non-academic matters to include any action taken as a result of a formal complaint of harassment, even if the University chose to characterize the action taken as academic. The chambers judge went on to find the provisions of the probation contract punitive in nature. The chambers judge also noted that, because there was no right of appeal from the College’s decision, fairness required that the grievance procedure be available to residents. The University appealed from the dismissal of its application for judicial review.

The Court of Appeal found that the applicable standard of review for the judge’s decision was correctness. The court held that the judge erred in finding that the aribtral board’s decision was correct. The College had jurisdiction to deal with the complaints as a matter of academic assessment and remediation. The court noted that to hold otherwise would leave the College with no option but to fail Wilde, a decision which would not have been grievable. The court was of the view that the College needed to maintain the autonomy necessary to maintain its accreditation to train residents. In this case, the University investigated the complaints and did not find they met its definition of harassment and, consequently, the grievance procedure was not triggered. Fairness did not dictate that Wilde could avail himself of the grievance procedure. The court held that academic matters were excluded from the scope of the collective agreement.

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