Hosseini v Red Deer College, 2022 ABQB 850

Court of King’s Bench of Alberta Citation: Hosseini v Red Deer College, 2022 ABQB 850 Date: 20221216 Docket: 2110 00968 Registry: Red Deer Between: Seyed Saleh Hosseini Yazdi aka Saleh Hosseini Applicant - and - The Red Deer College Board of Governors and Peter Nunoda, in his capacity as President of Red Deer College Respondents _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D. J. Kiss _______________________________________________________ I. Introduction [ 1 ] The Applicant, Mr.

Hosseini, seeks judicial review of a decision made by the Respondent, Peter Nunoda, in his capacity as President of Red Deer College (“the President”), refusing Mr. Hosseini a continuous appointment to the academic staff of the College. [ 2 ] By the time this application came before the Court, Red Deer College had legally changed its name to “Red Deer Polytechnic”. The Respondent “The Board of Governors of Red Deer College” is now “The Board of Governors of Red Deer Polytechnic” (“the Board of Governors”). To avoid confusion, I will continue to refer to the educational institution as “Red Deer College”.

As well, Peter Nunoda is no longer President. However, I will continue to refer to him, for the purposes of this application, as the President. [ 3 ] The Applicant submits that the President’s decision was unreasonable and unfair. The Applicant seeks a declaration that the President arbitrarily exercised his jurisdiction and an order quashing the decision of the President. The Applicant requests that the Court (1) replace the President’s decision with a decision on the merits; or (2) remit the issue back to the President for redetermination; or

(3) instruct the Respondent to grant the Applicant a one-year extension to his probationary period with the opportunity to apply for continuous appointment thereafter. [ 4 ] The Respondent, the Board of Governors, submits that the Court does not have jurisdiction to review the President’s decision and that it should have been reviewed by application to the Labour Relations Board.

The Respondent further argues that, even if the Court does have jurisdiction, the decision of the President was a reasonable one given the broad discretion reserved to the President to determine whether a probationary faculty member is approved for a continuous appointment to the academic staff. The Respondent asks that the application be dismissed. [ 5 ] The President did not provide any submissions or otherwise participate in this application. I. Issues [ 6 ] The issues before the Court for determination are therefore as follows: (

a) Is the decision of the President subject to judicial review? (

b) If the President’s decision is subject to judicial review, was the President’s decision reasonable? II. Background [ 7 ] The Applicant, Mr. Hosseini, was hired as a full-time probationary instructor in Red Deer College’s Mechanical Engineering Technology Program, commencing August 2016. [ 8 ] As a member of the academic staff, the Applicant was a member of the Faculty Association of Red Deer College (“FARDC”), which is the statutory bargaining unit of the academic staff of Red Deer College.

The Respondent and FARDC were parties to a Collective Agreement that governed the terms and conditions of employment of academic staff (the “Collective Agreement”). As such, the Applicant’s employment was subject to the terms and conditions of the Collective Agreement. [ 9 ] Under the Collective Agreement, a probationary instructor at Red Deer College is typically required to serve a three-year probationary period before being eligible for a continuous appointment.

In the case of the Applicant, his probationary period was extended, by agreement made between the Applicant and his Dean on September 17, 2019, for an additional year, until December 2020. [ 10 ] In the last half of 2020, the Applicant was considered for potential appointment to a full-time continuous instructor role, in accordance with the procedure outlined in the Collective Agreement. Under that procedure, a Continuous Appointment Committee (“CAC”) was struck.

It was chaired by the Vice-President, Academic and Research, and comprised of two continuous faculty members and a Dean from a different school or division than the Applicant’s school. [ 11 ] The CAC conducted a hearing on December 8 and December 9, 2020. The CAC made a recommendation to the Vice President, Academic and Research, who was the designated “Chief Academic Officer” and responsible for making the decision under the Collective Agreement.

By letter dated December 20, 2020, the Vice President, Academic and Research, communicated her decision to the Applicant declining to appoint the Applicant as a continuous faculty member.

The Vice-President’s decision reflected the unanimous views of the CAC. [ 12 ] On January 8, 2021, the Applicant initiated an appeal of the decision of the CAC to the President, in accordance with the procedure provided for in Appendix A of the Collective Agreement. [ 13 ] A Continuous Appointment Appeal Committee (“CAAC”) was then struck, consisting of two senior academic administrators appointed by the President and two continuous faculty members, who were current or former members of FARDC’s Professional Standards Committee.

None of the members of the CAAC had participated as members of the CAC that had considered and denied the Applicant a continuous appointment. [ 14 ] Between January and March 2021, the CAAC received written submissions from the Applicant and the Respondent. On March 15, 2021, the CAAC communicated its recommendation to the President. The CAAC recommended that the Applicant be granted a continuous appointment. [ 15 ] On March 22, 2021, the President dismissed the Applicant’s appeal.

The President did not accept the recommendation of the CAAC and, instead, upheld the decision of the Chief Academic Officer to decline the Applicant a continuous appointment. [ 16 ] On August 13, 2021, the Applicant filed an Originating Application with this Court, seeking judicial review of the President’s decision. Issue #1: Is the President’s decision to refuse Mr. Hosseini a continuous appointment subject to judicial review? a. Position of the Parties i. The Respondent

[17] The Respondent argues that, if a collective agreement has a method for resolving differences with respect to the agreement,then the Court has no authority over the matter, citing Weber v Ontario Hydro, (SCC), [1995] 2 SCR 929 [Weber]. Asa result, the central issue is whether the difference arises from the Collective Agreement. If it does, then the Court has no authority. If itdoes not, then the Court has authority. [18] In line with this position, the Respondent argues the difference in this case arises out of the Collective Agreement.

Article 6 ofthe Collective Agreement deals with the probationary and continuous appointments of academic staff, and Appendix A provides anexhaustive method for resolving any difference relating to a continuous appointment decision. As such, the Court has no authority overthe dispute. [19] Moreover, the Respondent argues that the method for resolving differences set out in the Collective Agreement falls under s135 of the Labour Relations Code, RSA 2000, c L-1. Accordingly, a decision made under that process can only be reviewed by theLabour Relations Board, per s 145. It cannot be challenged by judicial review. ii. The Applicant [20] The Applicant agrees with the Respondent that

Article 6 of the Collective Agreement puts the authority to decide adisagreement about continuous appointment with the President; agrees that Appendix A sets out the appeal process; and agrees that theappeal is not an arbitration. In support of this position, the Applicant points to

Article 18 of the Collective Agreement, which sets out anarbitration process for resolving differences arising from the Collective Agreement.

Article 6 is specifically excluded from thisarbitration process. [21] Against the Respondent’s position, the Applicant argues that Weber does not apply, because that case dealt with the OntarioLabour Relations Act, RSO 1990, c L.2, which required all decisions relating to a collective agreement to be made by arbitration.

Bycontrast, the Alberta Labour Relations Code allows other ways to make decisions. [22] The Applicant further argues that s 145 of the Labour Relations Code does not apply to a decision under Appendix A of theCollective Agreement, because on its face it only applies to an award or proceeding of an arbitrator, arbitration board, or other body.According to the Applicant, this list should be interpreted esjudem generis, meaning that an “other body” must be similar to an arbitratoror arbitration board.

The President’s role under Appendix A is sufficiently different from that of an arbitrator that he cannot beconsidered an “other body”, and therefore s 145 does not apply. [23] The Applicant submits that that, as s 145 does not apply, the Labour Relations Board does not have jurisdiction to review thePresident’s decision, and there is a “gap” that should be filled by this Court through the exercise of its inherent jurisdiction to conductjudicial review. b.

Analysis [24] Under the Labour Relations Code, every collective agreement must contain a method for settling any differences arising fromthe collective agreement.

Section 135 provides: Every collective agreement shall contain a method for the settlement of differences arising (

a) as to the

interpretation, application or operation of the collective agreement, (

b) with respect to a contravention or alleged contravention of the collective agreement, and (

c) as to whether a difference referred to in clause (

a) or (

b) can be the subject of arbitration between the parties to or persons bound by the collective agreement. [25] Under s 145 of the Labour Relations Code, no award or proceeding of an arbitrator, arbitration board, or other body can bereviewed in court on an application for judicial review: s 145(1). Instead, a decision of an arbitrator, arbitration board, or other body maybe reviewed through an application to the Labour Relations Board made no later than 30 days after the date of the decision: s 145(2). [26] Both parties agree the President is the decision maker required under s 135 of the Labour Relations Code.

However, theydisagree about whether the President is an “other body”, such that s 145 applies, and judicial review is not available. [27] From a statutory

interpretation perspective, it does not make sense that you could appoint a decision maker under s 135 otherthan an arbitrator, arbitration board, or other body. Both s 135 and s 145 fall under

Part 2, Division 22 of the Labour Relations Code.After s 135, which sets out the requirement for a method to settle differences arising from a collective agreement, the remainingprovisions of that division govern the operation of the required method for settling differences. [28] Notably, s 136 sets out model arbitration provisions that automatically apply if a collective agreement does not include amethod for settling differences, as required under s

Section 138 sets out a process for resolving issues with the appointment of anarbitration board or other body.

Section 141 provides that a decision of the majority of the members of an arbitration board or other bodyis the decision of the arbitration board or other body.

Section 143 sets out the powers of an arbitrator, arbitration board, or other body.Section 144 provides that the award of an arbitrator, arbitration board, or other body is binding, and the parties must follow the award.Finally, s 146 provides for enforcement of an award of an arbitrator, arbitration board, or other body. [29] Even though s 135 does not use the term “arbitrator, arbitration board or other body”, most of the other provisions in this partdo. Accordingly, if the provisions of

Part 2, Division 22 are read together, it makes sense that the requirement in s 135 is a requirementto appoint an arbitrator, arbitration board, or other body, even if s 135 does not specifically use those terms. Put differently, it does not

make sense that you could appoint a decision maker under s 135 who is not an “other body” and, as such, not governed by the otherprovisions in

Part 2, Division 22. As Ruth Sullivan explains, we presume the provisions of legislation fit together logically, to form arational, internally consistent framework: The Construction of Statutes, 7th ed (Toronto: LexisNexis Canada, 2022) at 11.01. [30] The Applicant argues the President is not an “other body”, because the powers of the President under Appendix A of theCollective Agreement are different from those granted to an arbitrator, arbitration board, or other body under s 143 of the LabourRelations Code. However, this argument begs the question.

If the President is an “other body”, then he has the powers under s 143, evenif they are not granted to him under the Collective Agreement. In other words, there is no need for the Collective Agreement to set outthe powers already granted under the Labour Relations Code. [31] This conclusion is supported by the Alberta Court of Appeal’s decision in Alberta Union of Provincial Employees v Alberta,2013 ABCA 212 [AUPE]. In that case, the Court of Appeal considered whether s 135 of the Labour Relations Code allows theappointment of a decision maker who is partial to the disagreement.

In its decision, the Court held there is no need for an “other body” tohave the same qualities as an arbitrator. If that was the point, then there would be no reason for the Legislature to have provided for amechanism other than arbitration: ibid at paras 34-35. In support of this, the Court took note of the policy reasons for allowing theparties to agree to something other than arbitration, which is expensive and can take months: at para 42. [32] In this case, the parties agreed to have a decision made by the President, who has received a recommendation from anacademic panel.

Presumably, they have tailored the process to the specific question of continuous academic appointments, which areexcluded from the normal arbitration process under the Collective Agreement.

According to the Court of Appeal in AUPE, this type offlexibility was the point of allowing mechanisms other than arbitration to settle differences arising from a Collective Agreement. [33] In Peel (Regional Municipality of) v Mississauga (Town of), (ON SC), [1971] 2 OR 197 (ONSC (H Ct J)),the Court interpreted the expression “board, commission or other body” and came to a similar conclusion as the Alberta Court of Appealin AUPE, albeit in a different way.

Specifically, the Court relied on London County Council v Tann, [1954] 1 WLR 371 (Eng QB) andrejected the application of ejusdem generis, because if “other body” were meant to be in the same genre as boards and commissions,there would be no reason to include the words “other body”, because there is no “other body” that is the same as boards andcommissions but not actually a board or commission.

Applying the same reasoning to this case, the term “other body” must allow forsomething other than an arbitrator or arbitration board, or there would be no reason to include the term. [34] As a last word, both parties made submissions about the application of Weber to this case. In Weber, the Supreme Courtconsidered when parties who have agreed to arbitrate under a collective agreement can also sue in tort or for alleged Charter breaches: at949-50. The Court held that a mandatory arbitration clause under a collective agreement prevents any civil claims based on disputesarising out of the collective agreement.

As such, any dispute over a matter arising from the collective agreement must go to arbitrationand cannot be dealt with in a civil action: ibid at 963. [35] In this case, the question is whether the President’s decision under the Collective Agreement can be subject to judicial reviewor if it needs to be reviewed by application to the Labour Relations Board, per s 145 of the Labour Relations Code.

Legally, this is aquestion of whether there is an adequate alternative remedy to judicial review, not whether a parallel civil proceeding should be allowedto proceed: see Strickland v Canada (AG), 2015 SCC 37 , [2015] 2 SCR 713. As such, Weber is not the governing law, andthere is no need for me to consider the application of that case. Conclusion [36] For the reasons outlined above, I find that s 145 of the Labour Relations Code applies to the President’s decision underAppendix A of the Collective Agreement.

As such, the correct way to challenge the President’s decision was to bring an application forreview to the Labour Relations Board no later than 30 days after the date of the decision: ibid, s 145(2). [37] In light of this finding, there is no need for the Court to address the second issue—i.e., whether the decision of the Presidentwas reasonable. [38] The application is therefore dismissed. Heard on the 22nd of September, 2022 Dated at the City of Red Deer, Alberta this 16th day of December, 2022. D. J. Kiss J.C.K.B.A. Appearances:

Suzanne Alexander-Smith, K.C. Chapman Riebeek LLP Counsel for the Applicant C. Neuman, K.C. Neuman Thompson Barristers & Solicitors Counsel for the Respondents