University of Saskatchewan files appeal to seek clarity on governance

The University of Saskatchewan (U of S) is asking the Saskatchewan Court of Appeal to reconsider a recent arbitration decision that seems to give the collective agreement with faculty more weight in university governance than does provincial legislation.

The arbitrator's decision suggests the U of S Board of Governors gets its authority from the faculty collective agreement, rather than from the University of Saskatchewan Act (1995) created on behalf of the people of Saskatchewan to govern the university. The decision calls into question the source of the board's authority.

"With the exception of this issue raised in this case, the Act and the collective agreement work together in a system of collegial governance. We want to be certain that the authority of the Act is not eroded," said Ernie Barber, interim provost and vice-president academic. "We think there is value in the balance that we have had and we need clarity on this issue to ensure balance into the future."

The University Act deals with a vast array of governance issues including the role of the board, but also the role of the president and deans, as well as standards and policies for how we conduct the affairs of the university.

The university's position is:

this is an issue of governance;

that "permanent appointment" as referred to in the Act includes the concept of tenure (the permanent appointment of faculty) and that all permanent appointments are matters of governance under the authority of the Act; and

that the Act takes precedence over a collective agreement.

The university's position was initially upheld by an earlier arbitration decision. Court proceedings that followed led to conflicting outcomes.

A March 2014 decision interpreted the Act to be silent on the board's authority for the permanent appointment of faculty, which the university asserts is equivalent to tenure. The university sought judicial review of that decision, but that application was dismissed in September, leaving the university to live with the current uncertainty or proceed to a higher court. The university's legal counsel has recommended the appeal.

"This case raises a critical question about where we look for guidance on how to govern the institution," said Barber. "We must do whatever is necessary to have this question settled and in this case, we need a higher court to decide."

During the proceedings, both parties openly acknowledged this case would likely have to be decided at a higher level of court.

Barber says the matter has always been about seeking clarity on governance.

"The issues of process for how we award tenure (and the president's veto) were dealt with at the bargaining table and at the board level, and we stand by those changes," he said. "That collective agreement, which has now been ratified by faculty and the board, is a good agreement that addresses many concerns the union had. This case is about a larger principle, one that goes beyond individual appointments of tenure."

Barber noted there are legal precedents at other universities, citing two cases from University of British Columbia (UBC).

"In those cases, the jurisdictional issues were similar," he said. "In both cases, the British Columbia Court of Appeal upheld the UBC's position that the University Act superseded a collective agreement, and that the parties to a collective agreement cannot fetter the scope of the Act." The Supreme Court of Canada denied the union's appeal.

Most Canadian universities are governed by provincial legislation like the University of Saskatchewan Act. Barber added, "We expect universities across the country will be watching this case with interest."

The university filed the appeal October 15, 2014 with the Saskatchewan Court of Appeal. It could be many months before the case is heard and a decision is made.

QandA appeal of review Oct2014


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Jennifer Thoma

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