SAIT Academic Faculty Association v Southern Alberta Institute of Technology, 2016 ABQB 463

Court of Queen ’ s Bench of Alberta Citation: SAIT Academic Faculty Association v Southern Alberta Institute of Technology, 2016 ABQB 463 Date: 20160819 Docket: 1401 06177 Registry: Calgary Between: SAIT Academic Faculty Association Applicant - and - The Board of Governors of the Southern Alberta Institute of Technology & Alberta Labour Relations Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C.S. Brooker _______________________________________________________ Introduction [ 1 ] The SAIT Academic Faculty Association (“the Faculty Association”) brings an application for judicial review of a May 22,

2014 decision (the “Decision”) of the Alberta Labour Relations Board (the “Board”). [ 2 ] The Faculty Association sought declarations under the Public Service Employee Relations Act , RSA 2000, c P-43 (“ PSERA ”) regarding whether the collective agreement between the Board of Governors of the Southern Alberta Institute of Technology (“SAIT”) and the Faculty Association also applies to fee-for-service instructors (“FFS Instructors”). [ 3 ] SAIT filed a preliminary objection seeking to summarily dismiss the Faculty Association’s application on the grounds that the Faculty Association’s authority under the Post-secondary Learning Act , SA 2003, c P-19.5 (“ PSLA ”) is limited to representing academic staff members only. [ 4 ] The Board accepted SAIT’s preliminary objection and dismissed the Faculty Association’s application.

It held that the Faculty Association is a construct of statute and its powers are limited to those specifically granted by PSLA .

The Board concluded PSLA does not give the Faculty Association authority to represent the FFS Instructors; its representational rights are limited to academic staff members only. [ 5 ] Given its findings on the preliminary objection and its dismissal of the Faculty Association’s application, the Board did not consider the remainder of the Faculty Association’s application on its merits. [ 6 ] The Faculty Association brings this application for judicial review and asks that the Board’s decision be quashed and that its application be remitted to a different panel for redetermination.

Factual background [ 7 ] SAIT is a “public post-secondary institution” as defined by PSLA , s 1(p). [ 8 ] PSLA establishes two categories of employees at public post-secondary institutions: academic staff members and non- academic staff members (ss 1(

c) and 1(j)). Academic staff members are those who have been designated, as a group or individually, as academic staff members by the institution’s board under s 60(2). Thus, if an employee is not designated as an academic staff member, by default that employee is a non-academic staff member. [ 9 ] The Faculty Association is an organization of employees, more specifically, an academic staff association established under s 37 of the Technical Institutes Act , continued by s 128 of PSLA , its replacement legislation.

Section 85(2) of PSLA defines the Faculty Association as a corporation that “consists of the academic staff members of the public post-secondary institution.” Section 85(3) grants the Faculty Association exclusive authority to negotiate and enter contracts, including collective agreements, on behalf of academic staff members. [ 10 ] In March 1983, SAIT passed a resolution establishing categories of academic staff members (the “1983 Resolution”). The 1983 Resolution excluded from the academic staff member designation: (

a) positions allocated to the Management Compensation Plan; (

b) positions excluded from consideration for bargaining unit membership under sections 21 and 22 of PSERA , based primarily on the functions and duties of the position or on professional status; and (

c) persons employed in a fee-for-service category . [Emphasis added.] [ 11 ] Thus, FFS Instructors are excluded from the academic staff member designation and are considered non-academic staff members. There are 280 FFS Instructors at SAIT, however, 80 of them are academic staff members who have taken on additional fee- for-service work because the latter does not pose a conflict with their academic duties. [ 12 ] Since 1983, the Faculty Association and SAIT have negotiated a series of collective agreements setting the terms and conditions of employment for academic staff members.

The collective agreements expressly exclude FFS Instructors. For example, the most recent agreement states at clause 15.03: 15.03 This collective agreement does not apply to Instructors delivering instruction on a fee-for-service basis, except for

Section 9, Association Membership and Dues Deduction. [ 13 ] Oddly, clause 9.03 requires FFS Instructors to pay the Faculty Association dues in spite of their exclusion from the rest of the collective agreement: 9.03 All instruction offered by any contractor, fee-for-service individual, etc., in either regular programming or other programming offered under SAIT auspices on or off the SAIT campus is subject to the payment of Association dues. [ 14 ] Similar requirements to pay dues in spite of exclusion from the benefits of the collective agreement also exist in the previous collective agreements. [ 15 ] The Alberta Union of Provincial Employees (“AUPE”) is certified under PSERA to represent all SAIT employees who are employed in general support services.

Academic staff are expressly excluded from the application of PSERA by s 4(2) of the

Schedule to that Act. The Faculty Association’s application arises because non-academic staff members, including FFS Instructors, are effectively employees for the purposes of PSERA , yet they are not employed in general support services. As such, most FFS Instructors are not represented by AUPE, nor are they represented by the Faculty Association. [ 16 ] PSLA contemplates the existence of a non-academic staff association, which is defined at s 1(

k) as “a bargaining agent, as

defined in the Public Service Employee Relations Act , representing non-academic staff.” The Faculty Association seeks to be recognized as the non-academic staff association for FFS Instructors.

To this end, it applied to the Board under PSERA for declarations that SAIT is the employer; that the 280 FFS Instructors are employees; that the collective agreement between SAIT and the Faculty Association be declared a collective agreement under PSERA applicable to FFS Instructors; and, that the FFS Instructors are members in good standing of the Faculty Association. [ 17 ] As stated above, SAIT made a preliminary objection regarding the Faculty Association’s jurisdiction.

The Board framed the question as “whether SAFA [the Faculty Association], an academic staff association, has the authority to represent non-academic staff members, such as the FFS instructors.” [ 18 ] The Faculty Association argues that the Board incorrectly, and thus unreasonably, interpreted PSLA to conclude that the Faculty Association’s authority is restricted to representing academic staff members only and that the Faculty Association does not have the legal status to associate with and represent any employees other than academic staff members, including employees under PSERA . [ 19 ] The Faculty Association submits that the application before the Board was not made under PSLA and the Faculty Association’s legal status under that Act was immaterial.

It argues the Board should have considered the Faculty Association’s status to bring an application under PSERA based on the Faculty Association’s constitution read in light of the statutory labour relations regime and governing principles of labour law that regulate unions and their activities. The Faculty Association argues it is a trade union and bargaining agent for the purposes of PSERA . [ 20 ] SAIT argues the Board made no legal errors in making its Decision. It submits the Board carefully reviewed the facts and law and reached a conclusion that fell within the “range of reasonable outcomes”.

The decision-making process was transparent, intelligible and justifiable. It submits the Board was acting within its area of expertise, interpreting labour legislation, and the Decision is entitled to deference. SAIT also submits the Decision was correct. [ 21 ] The Board participated in the proceedings before me to speak to the question of standard of review and to the meaning of that standard. Issues [ 22 ] This judicial review raises the following issues: 1. What is the appropriate standard of review? 2.

Was the Board’s conclusion that PSLA limits the Faculty Association’s representational rights to academic staff members only reasonable? Analysis 1. What is the appropriate standard of review? [ 23 ] The parties disagree on the applicable standard of review.

The Faculty Association submits the standard of review is correctness, while SAIT and the Board argue for the more deferential standard of reasonableness, which is commonly applied to labour board decisions: Health Sciences Association of Ablerta v Alberta Health Services , 2011 ABQB 684 at para 25 ; United Food and Commercial Workers Canada Union, Local 401 v North Country Catering Ltd. , 2012 ABQB 306 at para 48 . [ 24 ] The Faculty Association submits the question here is a true question of jurisdiction or vires and that it is a question of general law of central importance to the legal system as a whole and outside the Board’s specialized area of expertise. [ 25 ] The Faculty Association submits the Board must be correct in its determination of jurisdiction.

It argues the Board incorrectly concluded that PSLA excludes its jurisdiction to grant the Faculty Association rights outside the scope of that Act. The Faculty Association argues the Board declined jurisdiction based on its

interpretation of the Faculty Association’s status and capacity to act as a corporation under PSLA , a statute that is not closely connected to the Board’s function, nor with which it has particular familiarity. The Faculty Association submits the question of a corporation’s legal status and capacity to act is a question of law outside the Board’s expertise. [ 26 ] SAIT disputes the Faculty Association’s characterization of the Board’s decision.

In SAIT’s view, the Board upheld the preliminary objection not because the Board “lacked jurisdiction” to hear the application, but because the Board determined that the Faculty Association’s representational rights over FFS Instructors were limited by PSLA . I agree. The Board must be taken as having accepted that it was the appropriate tribunal to assess the propriety of the Faculty Association’s claims under PSERA and to assess the impact of PSLA upon those claims.

It did not decline jurisdiction. [ 27 ] Furthermore, SAIT and the Board submit that true questions of jurisdiction are narrow and will be exceptional.

A true question of jurisdiction is one “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”: Dunsmuir v New Brunswick , 2008 SCC 9 at para 59 . [ 28 ] SAIT notes that Justice Rothstein questioned whether such a category of question exists at all in Alberta (Information & Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at para 34 : ...Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the

category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review . However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir , the

interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory

interpretation subject to deference on judicial review . [Emphasis added.] [ 29 ] SAIT submits that PSLA is a statute closely connected to the Board’s function and to its home statutes, PSERA and the Labour Relations Code , RSA 2000, c L01. The Board admits it may not have expertise in relation to all aspects of PSLA , but it requires familiarity with the labour relations provisions in PSLA to understand its jurisdiction when it is called upon to interpret, reference and understand PSLA in its decisions about labour relations in the post-secondary context.

It has significant expertise weighing the many factors and policies at play in the field of labour relations generally. [ 30 ] SAIT also submits that the issues considered by the Board were not matters of central importance to the legal system as a whole. The preliminary objection considered the

interpretation of the powers of an academic staff association within the context of a specific legislative regime in Alberta. Furthermore, the Board’s application of a common law principle related to corporate authority to inform the

interpretation of these statutory powers does not elevate the question to one of central importance.

The Board argues that differing, yet reasonable, applications of the common law principles in this context would not threaten the legal system. [ 31 ] I agree with these submissions by SAIT and the Board and I find that the standard of review is reasonableness. [ 32 ] The Supreme Court of Canada described reasonableness in Dunsmuir at para 47 : Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [Emphasis added.] [ 33 ] This Court must not substitute its own view of a preferable outcome so long as the process and the outcome fit comfortably within the principles of justification, transparency and intelligibility.

The Board’s decision should be approached as an organic whole, without a line-by-line treasure hunt for errors: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd. , 2013 SCC 34 at para 54 . [ 34 ] Deference is neither blind reverence nor subservience to the decision under review; rather, it includes respect for the decision- making process with regard to both facts and law. It acknowledges that government has chosen to vest some decisions with expert administrative tribunals as opposed to the courts: Dunsmuir , at paras 48 & 49 . 2.

Was the Board’s conclusion that PSLA limits the Faculty Association’s representational rights to academic staff members only reasonable? [ 35 ] As with the Faculty Association’s standard of review argument, it submits the Board failed to interpret and apply PSERA , the legislation under which the Faculty Association’s application was brought, because it declined jurisdiction to hear and decide the application based on its narrow

interpretation of the Faculty Association’s status and capacity to act as a corporation under PSLA . [ 36 ] I reject the Faculty Association’s argument on this point. I find that the Board did not decline jurisdiction to hear and decide the application. Rather, it considered the preliminary point raised by SAIT on its

summary dismissal application that the Faculty Association’s authority was limited by PSLA such that it could only represent academic staff members. This conclusion was determinative of the entire matter. [ 37 ] Further, I reject the Faculty Association’s argument that the Board failed to answer the question remitted to it. The Board addressed the preliminary objection raised by SAIT. The conclusion on that preliminary objection resulted in

summary dismissal of the remainder of the Faculty Association’s claims before the Board. [ 38 ] In my view, this judicial review turns on whether the Board was reasonable in its conclusion on the preliminary issue, namely, that PSLA limits the Faculty Association’s authority to represent academic staff members only, such that it has no authority to represent FFS Instructors. [ 39 ] The Faculty Association submits that the Board erred in its statutory

interpretation of PSLA . Academic staff associations under PSLA are statutory corporations. The Faculty Association argues these organizations are fundamentally associations of employees. It submits that as an employee association it can have multiple legal statuses under various statutory labour relations regimes and at common law concomitantly. It argues that an association of employees incorporated as a corporation under one statutory regime, can exist and operate as a trade union under a different statutory regime.

It submits that the relationship that each union member has with the union itself is based on the constating documents of the union, in light of the statutory labour relations regime. [ 40 ] The Faculty Association submits that its legislative designation as an academic staff association with the exclusive authority, on behalf of academic staff members, to negotiate and enter into an agreement with SAIT under PSLA does not mean that the Faculty Association as an employee association and a corporation does not have the legal capacity to act outside PSLA .

Basically, it argues that the Faculty Association’s entire legal status is not derived from or dependent on PSLA . It submits, based on s 16 of the

Interpretation Act , RSA 2000, c I-8, that the Board should have viewed the Faculty Association’s powers more broadly.

[41] To accept the Faculty Association’s position would risk thwarting the clear intent of the legislation. By

section 85 of thePSLA the legislature obviously intended to limit the faculty Association’s representation solely to academic staff members. And, thePSLA clearly contemplates the existence of a non-academic staff association (see para.16 supra) to represent those who have not beendesignated as academic staff. [42] I reject the Faculty Association’s argument that the Board failed to apply proper principles of statutory

interpretation. TheBoard thoroughly reviewed PSLA, in its entire legislative context, to determine the nature of the Faculty Association’s authority. Section16 of the

Interpretation Act, which addresses a limited number of corporate rights and powers, does not assist the Faculty Association. [43] I find the Board reasonably concluded that PSLA circumscribes the Faculty Association’s authority and that the FacultyAssociation’s own constitution cannot be used to expand its legislated authority to represent FFS Instructors.

The Board effectivelyanswered the Faculty Association’s original questions: the Faculty Association cannot be a trade union and a bargaining agent underPSERA, because of the limited jurisdiction it has been granted by its constating statute. [44] The Faculty Association submits the Board incorrectly embarked on an “insular examination” of the Faculty Association’slegal status under PSLA, relying on “archaic corporate law jurisprudence having nothing to do with employee associations”.

The FacultyAssociation raises the further objection that the Board relied on corporate law jurisprudence without giving the parties notice and anopportunity to make submissions. [45] SAIT rightly argues that the Board is not bound to give notice of all the law it intends to apply so long as the Board does notintroduce any new principles that were not raised by either party, expressly or by necessary implication. [46] The Board recognized that the issue before it required an understanding of the limits on the powers of a statutory corporation.The Board reviewed the relevant case law, including Communities Economic Development Fund v Canadian Pickles Corp., (SCC), [1991] 3 SCR 388 and Bonanza Creek Gold Mining Co. v R (1916), (UK JCPC), 26 DLR 273, and held thatcorporations created by or under a statute have only those powers that are expressly or impliedly granted to them by that statute. [47] The Board recognized that public post-secondary institutions are unique workplaces and that the Alberta Labour RelationsCode, RSA 2000, c L-1 does not apply to academic staff associations or the academic staff members of a public post-secondaryinstitution: PSLA, s 90.

Instead, they are governed by the terms, conditions and powers set out in PSLA. [48] The Board found that the Faculty Association, as an academic staff association established under s 85 of PSLA, has thepowers granted by that section: 85(1) The Lieutenant Governor in Council shall by order establish an academic staff association for each public post-secondaryinstitution...

(2) Each academic staff association is a corporation with the name given to it by the Lieutenant Governor in Council and consists of theacademic staff members of the public post-secondary institution.

(3) Each academic staff association shall have the exclusive authority, on behalf of the academic staff members, to negotiate and enterinto an agreement with the board of the public post-secondary institution. [49] The Board concluded that s 85(2) limits the scope of the Faculty Association as a corporation by providing that it “consists ofthe academic staff members” of SAIT.

The Board concluded that the plain meaning of s 85(2) is that the Faculty Association is made upof academic staff members only. [50] The Board viewed s 85(3) as akin to the statement of purpose of the academic staff association, or the object of thecorporation to negotiate and enter into an agreement with the institution’s board for academic staff members. [51] The Board explained at para 60 that the manner in which the academic association is to achieve this purpose is fleshed out inthe sections that immediately follow: ...Section 86 states an executive will manage the corporation’s business and affairs through the making of bylaws that, at a minimum,permit the corporation to operate and make decisions in furtherance of its affairs.

Section 87(1) contains mandatory language directingthe board and the association to enter into negotiations for the purpose of concluding or renewing an agreement and then sets out, insection 87(3), the minimum provisions required for that agreement. Section 87(6) confirms an agreement reached is binding on theboard, the association and its academic staff members. ...

All of these sections, in one way or the other, relate to or facilitate theachievement of the one named purpose of an academic staff association – to negotiate and enter into an agreement with the boardon behalf of its academic staff members. [Emphasis added.] [52] The Board noted that sections 102 and 122 provide for the dissolution of an academic staff association if the academicinstitution and its board of governors are dissolved by order in council.

The Board noted that, in its view, there was no legislative intentto grant to the academic staff association powers beyond those relating to the achievement of its core purpose or object. It concluded atpara 64 that the Faculty Association’s powers were limited by statute: ...[a] plain reading of this

section makes clear SAFA [the Faculty Association] has one fundamental purpose – negotiating an agreementwith the board for its academic staff members. No other purpose for SAFA can be found within the PSLA. The PSLA does notcontemplate an existence for SAFA beyond that which is directly or indirectly connected to its purpose – negotiating an agreement for itsconstituent members. There is no language that we can find in the act that suggests an academic staff association has greater powers thanthose articulated in the PSLA. [53] The Board found further support for its conclusions in the statutory language used to confer power on the board of governorsof public post-secondary institutions.

Section 59 expressly attaches many of the incidents of a common law corporation to the board of

governors. In particular, it provides that a board has the capacity, rights, powers and privileges of a natural person. By contrast, the Board concluded there is no language in PSLA that could be read as granting an academic staff association the incidents of a common law corporation. The Board wrote at para 67: No such similar language exists in the PSLA for academic staff associations. We think this contrast between the ample language found in the PSLA for a board of governors as compared to the dearth of language relating to an academic staff association is conclusive.

An academic staff association, such as SAFA [ the Faculty Association], is a creature of its constating statute. It has no capacity to act outside of the power granted to it by the PSLA and to the extent that it does such actions will be ultra vires and invalid. [Emphasis added.] [ 54 ] It is clear from the Board’s reasons that it carefully and thoroughly considered the Faculty Association’s arguments. The Board’s decision-making process was transparent, intelligible and justified and the conclusion is reasonable.

The Faculty Association’s arguments have not persuaded me otherwise. [ 55 ] The parties’ submissions made it clear that the inclusion of FFS Instructors under the Faculty Association’s umbrella has been a long-standing issue for that organization. At its root, this dispute is about the 1983 Resolution and its designation of who is and who is not an academic staff member. Under s 60(2)(

c) of PSLA , SAIT has the authority to change this designation, with input from the Faculty Association. It should consider doing so. [ 56 ] The decision of the Board is upheld as reasonable. Dated at the City of Calgary, Alberta this 19 th day of August, 2016. C.S. Brooker J.C.Q.B.A. Appearances: William J. Johnson, Q.C. McGown Johnson for the Applicant, SAIT Academic Faculty Association Barbara Johnston, Q.C. & April Kosten Dentons Canada LLP for the Respondent, The Board of Governors of SAIT Jeremy D. Schick Alberta Labour Relations Board for the Respondent, the Alberta Labour Relations Board