First Nations University of Canada v. University of Regina Faculty Association, 2008 SKCA 162

• Jurisdiction: Saskatchewan
• Court: Court of Appeal (Saskatchewan)
• Judge: Klebuc, C.J.S., Cameron and Lane, JJ.A.
• Citation: 2008 SKCA 162,(2008), 320 Sask.R. 46 (CA)
• Date: 14 January 2008
• Subject Matter: EDUCATION,AGENCY,LABOUR LAW

First Nations Univ. v. Regina Univ. Faculty (2008), 320 Sask.R. 46 (CA);

    444 W.A.C. 46

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JA.003

First Nations University of Canada (appellant) v. University of Regina Faculty Association and an Arbitration Board Chaired by Beth Bilson, Q.C. (respondents)

(No. 1473; 2008 SKCA 162)

Indexed As: First Nations University of Canada v. University of Regina Faculty Association

Saskatchewan Court of Appeal

Klebuc, C.J.S., Cameron and Lane, JJ.A.

December 16, 2008.

Summary:

An arbitration board heard a grievance by the University of Regina Faculty Association on behalf of Dr. Stonechild and concluded that remarks made by Vice-Chief Watson, the Chair of the Board of Governors for First Nations University of Canada (FNUC), at a Board meeting, violated Dr. Stonechild's academic freedom and further, were a breach by FNUC of its contractual obligations to the Faculty Association. The FNUC sought judicial review.

The Saskatchewan Court of Queen's Bench, in a decision reported at [2007] Sask.R. Uned. 45, affirmed the arbitrator's decision and dismissed the application. The FNUC appealed.

The Saskatchewan Court of Appeal granted the appeal, set aside the chamber's judge's decision and quashed the award.

Agency - Topic 323

Creation of relations - Parties - Who constitutes an agent - The Federation of Saskatchewan Indian Nations (FSIN) and the Assembly of First Nations (the AFN) undertook to hold a Symposium on post-secondary education policy and funding at First Nations University of Canada (FNUC), on April 14 and 15, 2005 - Ms. Starblanket, FSIN's Director of Higher Learning and Research, was a member of the organizing committee for the Symposium and played a significant role in its organization - In mid-March of 2005, she invited Dr. Stonechild, a FNUC faculty member to participate as a keynote speaker - He accepted - However, on March 31, Starblanket withdrew the invitation on the grounds that Stonechild's Ph.D. thesis was not a suitable foundation for a keynote speech at the Symposium - She also had arranged for Mr. Lafond, Advisor to the President on Aboriginal Affairs at the University of Saskatchewan, to deliver the keynote speech instead - On April 10, Stonechild sent Dr. Hampton, FNUC's president, an e-mail inquiring whether the FNUC's Board of Governors could be asked to intervene and request the Symposium's organizing committee to reconsider his participation as a keynote speaker - Hampton added the request to the agenda for a Board meeting scheduled for April 12 - Stonechild was later advised that Watson, Chair of the Board, was of the view that Stonechild had previously defamed him, and he would not be permitted to act as keynote speaker at the Symposium without first issuing an apology to Watson - An arbitration board heard a grievance on Stonechild's behalf and concluded that Watson's remarks at the Board meeting violated Stonechild's academic freedom and further, were a breach by FNUC of its contractual obligations to the Faculty Association -A chambers judge affirmed the decision - The Saskatchewan Court of Appeal set aside the decision and quashed the award - The court held, inter alia, that nothing indicated what administrative position Watson allegedly held with FNUC other than as a member of its Board of Governors - In the result, it would have been unreasonable for the arbitration board to determine that he had actual or apparent authority to represent FNUC on matters pertaining to the collective agreement, without first identifying the specific nature of his position and the scope of duties and powers associated with such position - Not all administrative positions would have vested him with the requisite actual or apparent authority to speak for FNUC regarding its teaching staff or the collective agreement - See paragraphs 25 to 39.

Agency - Topic 323

Creation of relations - Parties - Who constitutes an agent - The Federation of Saskatchewan Indian Nations (FSIN) and the Assembly of First Nations (the AFN) undertook to hold a Symposium on post-secondary education policy and funding at First Nations University of Canada (FNUC), on April 14 and 15, 2005 - Ms. Starblanket, FSIN's Director of Higher Learning and Research, was a member of the organizing committee for the Symposium and played a significant role in its organization - In mid-March of 2005, she invited Dr. Stonechild, a FNUC faculty member to participate as a keynote speaker - He accepted - However, on March 31, Starblanket withdrew the invitation on the grounds that Stonechild's Ph.D. thesis was not a suitable foundation for a keynote speech at the Symposium - She also had arranged for Mr. Lafond, Advisor to the President on Aboriginal Affairs at the University of Saskatchewan, to deliver the keynote speech instead - On April 10, Stonechild sent Dr. Hampton, FNUC's president, an e-mail inquiring whether the FNUC's Board of Governors could be asked to intervene and request the Symposium's organizing committee to reconsider his participation as a keynote speaker - Hampton added the request to the agenda for a Board meeting scheduled for April 12 - Stonechild was later advised that Watson, Chair of the Board, was of the view that Stonechild had previously defamed him, and he would not be permitted to act as keynote speaker at the Symposium without first issuing an apology to Watson - An arbitration board heard a grievance on Stonechild's behalf and concluded that Watson's remarks at the Board meeting violated Stonechild's academic freedom and further, were a breach by FNUC of its contractual obligations to the Faculty Association -A chambers judge affirmed the decision - The Saskatchewan Court of Appeal set aside the decision and quashed the award - The court held, inter alia, that to the extent the arbitration board imposed liability on FNUC based on Watson having actual authority to speak for FNUC, it erred because the governing Act did not grant authority to any member of the Board or its Chair "to speak for" it unless specifically authorized to do so and no party maintained that the Board provided the requisite authority - Further, nothing before the court indicated that Watson had apparent authority to speak for FNUC - Joint execution of the collective agreement on behalf of FNUC by Watson and President Hampton was not in itself evidence that Watson had apparent authority to speak for FNUC - See paragraphs 43 to 50.

Agency - Topic 1401

Authority of agent - Apparent authority - General - [See second Agency - Topic 323 ].

Education - Topic 4088

Universities - Powers - Contracts - Collective agreements - [See both Agency - Topic 323 ].

Education - Topic 4261

Universities - Governing bodies - Board of governors - General - The Saskatchewan Court of Appeal stated that the relationship between First Nations University of Canada (FNUC) and its Board of Governors, and the relationship between the Board of Governors and one of its members,were similar to those between an incorporated company and its board of directors and between a board of directors and a member of thereof - Consequently, the jurisprudence regarding the above-noted relationships was relevant even if FNUC was an unincorporated entity - See paragraph 48.

Education - Topic 4261

Universities - Governing bodies - Board of governors - General - The Federation of Saskatchewan Indian Nations (FSIN) and the Assembly of First Nations (AFN) undertook to hold a Symposium on post-secondary education policy and funding at First Nations University of Canada (FNUC), on April 14 and 15, 2005 - Although the Symposium was to take place on its campus, FNUC played no role in it - Ms. Starblanket, FSIN's Director of Higher Learning and Research, was a member of the organizing committee for the Symposium and played a significant role in its organization - In mid-March of 2005, she invited Dr. Stonechild, a FNUC faculty member to participate as a keynote speaker - He accepted - However, on March 31, Starblanket withdrew the invitation on the grounds that Stonechild's Ph.D. thesis was not a suitable foundation for a keynote speech at the Symposium - She also had arranged for Mr. Lafond, Advisor to the President on Aboriginal Affairs at the University of Saskatchewan, to deliver the keynote speech instead - On April 10, Stonechild sent Dr. Hampton, FNUC's president, an e-mail inquiring whether the FNUC's Board of Governors could be asked to intervene and request the Symposium's organizing committee to reconsider his participation as a keynote speaker - Hampton added the request to the agenda for a Board meeting scheduled for April 12 - Stonechild was later advised that Watson, Chair of the Board, was of the view that Stonechild had previously defamed him, and he would not be permitted to act as keynote speaker at the Symposium without first issuing an apology to Watson - An arbitration board allowed a grievance on Stonechild's behalf - A chambers judge affirmed the decision - The FNUC appealed - The Saskatchewan Court of Appeal, held, inter alia, that although the arbitration board did not suggest otherwise, it would have been unreasonable and impractical for the Board of Governors to pass a formal resolution supporting Stonechild's request to substitute him as the keynote speaker approximately one day before the Symposium was to start - See paragraph 54.

Education - Topic 4264

Universities - Governing bodies - Board of governors - Power - Of single board member (incl. Chair) - [See both Agency - Topic 323 ].

Education - Topic 4327

Universities - Professors - General - Academic freedom - [See Labour Law - Topic 7038 ].

Labour Law - Topic 7038

Industrial relations - Collective agreement - Enforcement - Arbitration - General - Matters not arbitrable - The Federation of Saskatchewan Indian Nations (FSIN) and the Assembly of First Nations (the AFN) undertook to hold a Symposium on post-secondary education policy and funding at First Nations University of Canada (FNUC), on April 14 and 15, 2005 - Although the Symposium was to take place on its campus, FNUC played no role in it - Ms. Starblanket, FSIN's Director of Higher Learning and Research, was a member of the organizing committee for the Symposium and played a significant role in its organization - In mid-March of 2005, she invited Dr. Stonechild, a FNUC faculty member to participate as a keynote speaker - He accepted - However, on March 31, Starblanket withdrew the invitation on the grounds that Stonechild's Ph.D. thesis was not a suitable foundation for the keynote speech - She also had arranged for Mr. Lafond, Advisor to the President on Aboriginal Affairs at the University of Saskatchewan, to deliver the keynote speech instead - On April 10, Stonechild sent Dr. Hampton, FNUC's president, an e-mail inquiring whether the FNUC's Board of Governors could be asked to intervene and request the Symposium's organizing committee to reconsider his participation as a keynote speaker - Hampton added the request to the agenda for a Board meeting scheduled for April 12 - Stonechild was later advised that Watson, Chair of the Board, was of the view that Stonechild had previously defamed him, and he would not be permitted to act as keynote speaker at the Symposium without first issuing an apology to Watson - An arbitration board heard a grievance on Stonechild's behalf and concluded that Watson's remarks at the Board meeting violated Stonechild's academic freedom and further, were a breach by FNUC of its contractual obligations to the Faculty Association - A chambers judge affirmed the arbitrator's decision on judicial review - The FNUC appealed - The Saskatchewan Court of Appeal granted the appeal - The arbitration board initially had jurisdiction based on the claim that FNUC was involved in the Symposium and caused Stonechild's invitation to be withdrawn - This claim clearly involved the interpretation, application or administration of the collective agreement - However, once the arbitration board found that FNUC was not involved in the Symposium and Watson played no role in Stonechild's invitation being withdrawn, the arbitration board's jurisdiction in relation to the grievance appeared to have been exhausted - Further, the transactions by the Symposium's organizers did not involve matters of academic freedom within the meaning of the collective agreement - Rather, they were of a commercial nature involving Stonechild offering his services as a speaker at an event undertaken by a private organization - See paragraphs 20 to 24.

Labour Law - Topic 7041

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - General - [See Labour Law - Topic 7038 ].

Labour Law - Topic 7401

Industrial relations - Collective agreement - Enforcement - Remedies for breach - General - [See second Education - Topic 4261 ].

Cases Noticed:

Dr. Q., Re (2003), 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, folld. [para. 3].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

Westfair Foods Ltd. v. United Food and Commercial Workers, Local 1400 et al. (2008), 310 Sask.R. 205; 423 W.A.C. 205 (C.A.), folld. [para. 4].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, appld. [para. 5].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 21].

New Brunswick v. O'Leary, [1995] 2 S.C.R. 967; 183 N.R. 229; 163 N.B.R.(2d) 97; 419 A.P.R. 97, refd to. [para. 21].

London Life Insurance Co. v. Dubreuil Brothers Employees Association (2000), 134 O.A.C. 382 (C.A.), leave to appeal denied (2001), 268 N.R. 200 (S.C.C.), refd to. [para. 21].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina (2000), 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23 (S.C.C.), refd to. [para. 22].

Freeman & Lockyer (A Firm) v. Buckhurst Park Properties (Mangal) Ltd., [1964] 1 All E.R. 630 (C.A.), refd to. [para. 45].

Rubinstein v. Doree Hats Inc. (1947), 29 C.B.R. 186; 1947 CarwellQue 30 (S.C.), refd to. [para. 48].

Standard Construction Co. v. Crabb (1914), 7 W.W.R. 719 (Sask. C.A.), refd to. [para. 49].

Toews v. Isaac, [1929] 1 W.W.R. 817 (Man. C.A.), refd to. [para. 50].

G.S. v. Canada (Attorney General) et al. (2001), 211 Sask.R. 164; 2001 SKQB 427, refd to. [para. 50].

Counsel:

Larry Seiferling, Q.C., for the appellant;

Victor Dietz, Q.C., for the respondents.

This appeal was heard on January 14, 2008, by Klebuc, C.J.S., Cameron and Lane, JJ.A., of the Saskatchewan Court of Appeal. Klebuc, C.J.S., delivered the following decision for the court on December 16, 2008.