Isaac v. University of New, 130 N.B.R.(2d) 382 (UNB Visitor)

• Case Date: November 25, 1992
• Jurisdiction: New Brunswick
• Citations: 130 N.B.R.(2d) 382 (UNB Visitor)

Isaac v. UNB, 130 N.B.R.(2d) 382 (UNB Visitor);

    328 A.P.R. 382; 130 R.N.-B.(2e) 382

MLB headnote and full text

In The Matter Of the University of New Brunswick Act, S.N.B. 1984, c. 40

- and -

In The Matter Of an application to the Visitor of the University of New Brunswick

Thomas Isaac (applicant) v. University of New Brunswick (respondent)

Indexed As: Isaac v. University of New Brunswick

Visitor, University of New Brunswick

Lieutenant Governor Finn (as represented by Charles Ferris)

November 25, 1992.

Summary:

Isaac was hired by the University of New Brunswick in August 1989 to act as Don of Aitken House. Isaac was dismissed effective June 30, 1990, by authority of the University President, on the recommendation of the Dean of Students. Isaac applied to the Visi­tor of the University of New Brunswick to review the dismissal. A Commissioner to the Visitor was commissioned to exercise the powers and authority of the Visitor.

The Commissioner to the Visitor held that although the university did not breach any duty of fairness owed to Isaac the dismissal was not authorized by statute and was there­fore an illegal action and ordered that Isaac was entitled to compensation in the nature of damages.

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - [See Administrative Law - Topic 2266 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - Isaac was hired by the University of New Brunswick in August 1989 to act as Don of Aitken House (as a probationary employee for the first year) - Isaac was dismissed effective June 30 and applied to the Visitor of the University of New Brunswick for a review, arguing that the dismissal was arbitrary and in bad faith and that the university breached its duty of fairness - The Commissioner to the Visitor held that the university met the duty of fairness owed to Isaac to assess his per­formance in good faith, to provide him with a fair opportunity to demonstrate his ability, to provide reasons for his dismissal and to give him an opportunity to respond - See paragraphs 70 to 95, 114 to 124.

Education - Topic 4270

Universities - Governing bodies - Board of governors - Powers - To delegate - Isaac was hired by the University of New Brunswick in August 1989 to act as Don of Aitken House - Isaac was dismissed effective June 30, 1990, by authority of the University President, on the recommenda­tion of the Dean of Students - Isaac applied to the Visitor of the University of New Brunswick to review the dismissal - A Commissioner to the Visitor held that Isaac's dismissal was not authorized by statute and he was entitled to damages - The Commissioner held that the Board of Governors had statutory authority to ex­pressly delegate its power to hire and dismiss dons to its Executive Committee only, it did not have the legislative author­ity to delegate such power to the university president alone - See paragraphs 98 to 113, 126 to 127.

Education - Topic 4565

Universities - The university visitor - Jurisdiction - A Commissioner to the Visitor of the University of New Bruns­wick stated that "for the Visitor to have jurisdiction to hear an application, the person bringing the complaint and the subject matter of the complaint must both fall within the scope of the visitorial juris­diction, i.e., the matter must be both ratione personae and ratione materiae within the Visitor's jurisdiction" - The Commissioner to the Visitor held that an application by a former Don to review his dismissal was ratione personae because the applicant was subjected to the rules enacted pursuant to the foundation in­stru­ment and was ratione materiae because the evaluation required a determination of the university's compliance with its internal rules and procedures - See paragraphs 44 to 59.

Education - Topic 4570

Universities - The university visitor - Powers - The Commissioner to the Visitor of the University of New Brunswick dis­cussed the powers of a university visitor - See paragraphs 60 to 69.

Master and Servant - Topic 7515

Dismissal of employees - Probationary employees - The Commissioner to the Visitor of the University of New Bruns­wick stated that at common law the mini­mal duty of fairness owed by an employer to a probationary employee was to assess the employee in good faith and to provide the employee with a fair opportunity to demonstrate the ability to perform the job - See paragraph 120.

Cases Noticed:

Thomas v. University of Bradford, [1987] 2 W.L.R. 677; [1987] 1 All E.R. 834 (H.L.), consd. [para. 45].

Attorney General v. Magdalen College Oxford (1847), 10 Beav. 402; 50 E.R. 637, consd. [para. 49].

Patel v. University of Bradford, [1978] 1 W.L.R. 1488; [1978] 3 All E.R. 841, refd to. [para. 51].

Hines v. Birbeck College, [1986] 1 Ch. 524; [1986] 2 W.L.R. 97; [1986] 3 All E.R. 156, consd. [para. 51].

Vanek v. University of Alberta, [1975] 5 W.W.R. 429; 57 D.L.R.(3d) 595 (Alta. C.A.), refd to. [para. 51].

Casson v. University of Aston, [1983] 1 All E.R. 88, consd. [para. 53].

Green v. Rutherford (1750), 1 Ves. Sen. 462; 27 E.R. 1144, refd to. [para. 60].

St. John's College v. Todington (1757), 1 Burr. 158; 97 E.R. 245, refd to. [para. 60].

Forestell v. University of New Brunswick (1989), 89 N.B.R.(2d) 1; 226 A.P.R. 1, consd. [para. 60].

Blasser v. Royal Institute for the Ad­vancement of Learning (1985), 16 Admin. L.R. 298; 24 D.L.R.(4th) 507 (Que. C.A.), refd to. [para. 60].

R. v. Dean and Chapter of Chester (1850), 15 Q.B. 513; 117 E.R. 553, refd to. [para. 60].

Philips v. Bury (1694), 1 Ld. Raym. 5; 91 E.R. 900 (H.L.), consd. [para. 61].

R. v. University of London, [1987] 3 All E.R. 204 (Q.B.), affd. [1989] 2 All E.R. 843 (C.A.), refd to. [para. 62].

Kirby Ravensworth Hospital; ex parte (1808), 15 Ves. 305; 33 E.R. 770, consd. [para. 62].

Ritchie v. Intercontinental Packers Ltd. (1982), 14 Sask.R. 206; 16 B.L.R. 74 (Q.B.), refd to. [para. 72].

Nicholson v. Haldimand-Norfolk Board of Commissioners of Police, [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671, consd. [para. 72].

Kirby v. Motor Coach Industries Ltd. (1980), 6 Man.R.(2d) 395 (Co. Ct.), refd to. [para. 72, footnote 2].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; 69 D.L.R.(4th) 489; [1990] 3 W.W.R. 289, appld. [para. 73].

Syndicat des employées de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne, [1989] 2 S.C.R. 879; 100 N.R. 241, refd to. [para. 73].

Malloch v. Aberdeen Corp., [1971] 2 All E.R. 1278, refd to. [para. 77].

Gerrard v. Sackville (Town) (1992), 124 N.B.R.(2d) 70; 312 A.P.R. 70; 89 D.L.R.(4th) 145 (C.A.), consd. [para. 79].

Hughes v. Moncton (City) (1991), 111 N.B.R.(2d) 184; 277 A.P.R. 184 (Q.B.), consd. [para. 79].

Mitchell v. R. (1979), 23 O.R.(2d) 65 (H.C.), refd to. [para. 88].

Roy v. B.N.P.P. Regional Police Commis­sion (1987), 72 N.B.R.(2d) 19; 183 A.P.R. 19; 15 C.C.E.L. 167 (Q.B.), consd. [para. 89].

Stephens v. Morris Rod Weeder Co. Ltd. (1989), 76 Sask.R. 20; 27 C.C.E.L. 92 (Q.B.), consd. [para. 91].

Webb v. Capable Building Cleaning Ltd. (1992), 127 N.B.R.(2d) 1; 319 A.P.R. 1 (Q.B.), refd to. [para. 93].

Morgan v. Acadia University (1985), 69 N.S.R.(2d) 109; 163 A.P.R. 109; 15 Admin. L.R. 61 (T.D.), refd to. [para. 99, footnote 6].

R. v. Harrison, [1977] 1 S.C.R. 238; 8 N.R. 47; 66 D.L.R.(3d) 660, consd. [para. 99, footnote 7].

Ramawad v. Minister of Manpower and Immigration, [1978] 2 S.C.R. 375; 18 N.R. 69; 81 D.L.R.(3d) 687, consd. [para. 110].

Statutes Noticed:

Municipalities Act, R.S.N.B. 1973, c. M-22, sect. 4(3) [para. 80].

University of New Brunswick Act, S.N.B. 1984, c. 40, sect. 4 [para. 46]; sect. 17 [para. 42]; sect. 19, sect. 33(5) [para. 100]; sect. 36(j), sect. 36(w) [para. 82]; sect. 38(2) [para. 83]; sect. 39 [para. 82]; sect. 43(1) [para. 102]; sect. 43(7) [para. 104]; sect. 51, sect. 57, sect. 59(1)(a), sect. 62 [para. 84].

Authors and Works Noticed:

Bridge, J.W., Keeping Peace in the Universities: The Role of the Visitor (1970), L.Q. Rev. 531, p. 541 [para. 65, footnote 1].

Halsbury's Laws of England (4th Ed. 1974), vol. 5, pp. 509 [para. 60]; 512 [para. 62].

Kuttner, T.S., Discharge and the Proba­tionary Employee: Is There a Remedy Before the Labour Boards? (1986), 11 Queen's L.J. 293, p. 302 [para. 72].

Levitt, H.A., The Law of Dismissal in Canada (1985), pp. 20 [para. 72]; 126-132 [para. 96, footnote 5].

Sadler, R.J., The University Visitor: Pre­cedent and Procedure in Australia (1981), 7 U. Tas. L.R. 2, p. 6 [para. 50].

Smith, P.M., Exclusive Jurisdiction of the University Visitor (1981), 97 L.Q. Rev. 610, p. 642 [para. 53].

Smith, P.M., Visitation of the Universities: A Ghost From The Past (1986), 136 N.L.J. pp. 486, 519, 567, 568 [paras. 47, 48]; 570 [para. 62].

Tudor on Charities (7th Ed. 1984), pp. 319 [para. 60]; 324 [para. 65, footnote 1].

Willis, J., Delegatus non potest Delegare (1943), 21 Can. Bar Rev. 257, generally [para. 99].

Counsel:

Gordon Petrie, Q.C., for the University of New Brunswick.

This application was considered by the Visitor of the University of New Brunswick, as represented by Charles Ferris as Commis­sioner to the Visitor, who delivered the following decision on November 25, 1992.