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2017 Field Law Post-Secondary Summit Recap

Field Law held its second Post-Secondary Summit on November 30, 2017 in Calgary. Brief summaries of the presentations given at the Summit are provided below, followed by a directory of the lawyers in Field Law’s Post-Secondary Education Practice Group.

Post-Secondary Academic Bargaining Under the Labour Relations Code

As a result of Bill 7, the Alberta Labour Relations Board is now responsible for overseeing post-secondary labour relations. In a discussion led by Jacqueline Lacasse (Director, Employee and Labour Relations, University of Calgary), the panel of William (Bill) Johnson, QC (Chair of the Alberta Labour Relations Board) and Kevin Feth, QC provided insight into how this is likely to unfold. Bill highlighted that, just as post-secondary institutions are new to appearing before the Board, the Board is also new to having post-secondary institutions appear before it. As a result, the Board has made a concerted effort to recruit members from the sector and intends to hear the first few applications from the sector as a panel of five (as opposed to the normal panel of three). The Board intends to invite other post-secondary institutions to intervene during the first applications to ensure the Board has a comprehensive understanding of the interests and concerns at stake. Applications will be scheduled with only limited notice (usually within three months). Kevin noted the importance of the post-secondary institutions consulting with each other now, and working towards common sector position statements on crucial issues like designation and de-designation, as time for consultation and coordination will be short once applications start to arrive at the Labour Relations Board.

Kevin discussed the challenge to post-secondary institutions in operating under the Labour Relations Code ("Code"). Conventional labour relations are grounded in an adversarial system which relies on third party intervention to resolve disputes (e.g. the Labour Relations Board, arbitration, mediation). The Code is a complex statute that creates and regulates rights in a highly adversarial context, promoting positional discourse. In contrast, post-secondary labour relations have historically been anchored in collegial governance and a collegial approach to labour relations in which the interests of the academy and the institution are well-aligned. Decision-making has traditionally been evidence-based and geared towards mutual interest solutions. To resist a full scale migration to conventional labour relations, administrators will have to invest more time in relationship building, consultation about the reasons for institutional changes, and joint communications with staff associations to the academic staff. Another concern with the changes to the Code is the possibility that staff associations will be challenged by other unions as the bargaining agents for the academic staff as of 2022. This might affect the ways staff associations conduct themselves over the next five years. In trying to demonstrate value to their members, staff associations might become more adversarial and positional, demand a greater role in institutional governance and policy making, require more robust consultation, and communicate more directly and in confrontational terms with their membership about board of governors’ decisions and strategic plans. Another concern is the impact of access to unfair labour relations practices complaint and duty of fair representation complaint processes under the Code, and how this might promote positional and adversarial relationships.

Kevin addressed the new review process under section 58.6 of the Code by which a board of governors’ decision to designate or de-designate employees as academic staff members can be challenged. The Labour Relations Board will need to decide whether the primary exercise under 58.6 is to define an appropriate academy to carry out the institution’ mandate, or whether the focus is on an appropriate bargaining unit to advance the interests of workers. Kevin contended that the paramount objective should be to define an appropriate academy. In doing so, the board of governors represents a cross-section of stakeholders and is best positioned to determine how the public interest mandate of the institution is served. Staff associations and other trade unions have mandates that do not fully align with the public interest mandate of the board of governors. Deference should be afforded to the views of the governors in defining the institutional mandate, how it will be carried out, and how the academy is most appropriately defined to perform its function in support of the mandate.

To ensure the Board gives these decisions the deference they deserve, boards of governors should consider how the scope of academic staff membership relates to the institution’s mandate. More specifically, institutions should develop policies, transition plans and public communications expressing how the chosen scope of academic staff membership furthers the institution’s mandate.

As a quick update on essential services, Bill cautioned that the delivery of post-secondary education is not considered an essential service. Kevin similarly cautioned that negotiating essential services agreements is not a quick process, often requiring more than a year. For those sensitive services that are not “essential”, but require regular maintenance or supervision during a strike (e.g. research animal care, maintenance of hazardous nuclear, biological and chemical matter, sensitive research materials like core sample and human tissue), Kevin suggested post-secondary institutions develop strike protocols with their staff associations to provide the necessary delivery of specific services and access to campus facilities during a strike. Many of these non-essential services are necessary to preserve the research interests and investments of academic staff.

Sabotage and Intrigue – The University of Manitoba Association Strike

Gregory Juliano (Associate Vice-President (Human Resources), University of Manitoba) discussed the University of Manitoba Faculty Association strike in 2016. He highlighted that Manitoba is not unique and factors such as 

  1. increasing accountability for how public money is spent,
  2. fiscal conservatism,
  3. the desire to coordinate/differentiate academic programs, and
  4. the need to drive economic development,

have motivated provincial governments to take an increasingly interventionist approach to post-secondary education.

Greg used the University of Manitoba ("UofM") case as a cautionary tale of how things can go if the government pursues its goals without fully addressing the challenges. The institution and the University of Manitoba Association ("UMFA") had a history of difficult and positional bargaining and were in the process of negotiating a new collective agreement. During bargaining, a new Conservative provincial government was elected. Management presented a comprehensive offer to the UMFA that included general increases over a four-year term. The offer was rejected by the UMFA, who called a strike vote. In the meantime, the government stepped in and implemented a “pause” in the public sector, mandating a 0% increase for one year while they sorted out their new environment. Further, the government required discussions to be kept confidential, rendering the institution unable to reveal the freeze to the union. The UofM eventually decided that the union needed to know about a change in circumstances arising from the government’s direction. The UMFA went on strike, but after the strike was resolved, filed an unfair labour practice complaint against the University for failing to disclose a material change in circumstances during bargaining in a timely way (i.e. a delay of three weeks). The Labour Board’s decision is still pending.
Greg presented some advice on how to work with government and unions to develop better relationships and protect institutional values. He noted that institutions should expect more and more government involvement and this trend will continue. He suggested disclosing as much as possible, as soon as possible, to the union because transparency improves relations between parties. Further, he recommended institutions refrain from pushing back publically against their primary funder and that relations with the government rely on affirming the government’s legitimate but limited role, and the importance of respecting the post-secondary institution’s public mandate.

Bargaining Under The Alberta Labour Relations Code

After decades of bargaining outside of the Labour Relations Code ("Code") regime, Alberta post-secondary institutions must now collective bargain in accordance within the requirements of the Code. Frank Molnar, QC (Field Law), provided a summary of the bargaining requirements and restrictions under the Code and identified some of the significant changes and potential pitfalls of this new bargaining regime.
Frank examined the bargaining timelines, notice requirements, and restrictions during bargaining that have been introduced; the necessity of post-secondary institutions to negotiate essential services agreements prior to the commencement of a strike or lock-out, the content of such agreements, and the process for settling such agreements in the absence of agreement; and the duty to bargain in good faith, including the disclosure obligations that the duty imposes. Frank also discussed the process and strategy associated with strikes and lock-outs, as well as picketing and the reinstatement of employees after a strike or lock-out.
Frank concluded by indicating post-secondary institutions should keep their mind turned to what may occur in 2022 when the current protected bargaining agent status of faculty and student association is scheduled to come to an end as this may result in the presence of traditional unions on campuses or the creation of “super” associations, both of which could lead to further significant changes in bargaining.

The 21st Century Legislative Audit Office

Keynote lunch speaker Merwan Saher (Auditor General of Alberta) discussed the role of the “21st Century Legislative Audit Office”. The Office of the Auditor General is responsible for auditing the use of resources by the government and its mandate includes reviewing the actions of the Department of Advanced Education, as well as Alberta’s public post-secondary institutions. Merwan indicated that the Office of the Auditor General applies professional expertise to determine if things are working well and to provide Albertans with information so as to allow them to exercise insight into the actions and spending of government. The key to doing this in Alberta in the 21st century is ensuring the information provided is relevant, reliable, and at a reasonable cost.
Merwan advised that these “three R’s” are being met by adding diversity of thought as a core value and by seeking to add as much added value as possible. As a result, the Office of the Auditor General is engaging people in meeting future opportunities and challenges, developing the capacity and ability to respond to disruptive events, seeking to improve the reporting and integration of financial and non-financial reporting, taking a nuanced view of the fixation with inputs and transparency issues, and improving its reporting and engagement with Albertans through a variety of modern means, including social media, a new website, and communication pieces.
Merwan recommended that the role of the Office of the Auditor General is to add credibility and reliability to the information reported and to get Albertans engaged in the information reported. He submitted that government works most effectively when citizens are engaged and that the best way to get citizens engaged is to provide information on what is happening, why it is happening, and the impact of what is happening.

Governance Framework 

Greg Harding, QC (Field Law) was the Chair of this panel on governance. Panel participants were Carol Ryder (Board Chair, Alberta College of Art and Design); Elizabeth (Liz) Watson, QC (President and CEO, WATSON Inc.); and Robert Driesen (Assistant Auditor General of Alberta).
Speaking to “Excellence in Board Governance”, Carol outlined Board and Committee roles and composition under the Post-secondary Learning Act. She advocated for regular meetings between the board chairs and individual board members as well as the president. Relatedly, Liz advised that presidents should be subject to an annual review process. It was highlighted that feedback should be solicited from everyone (including board members, deans, students, donors, etc.) and that it should be used as an opportunity for the president to learn and become better aligned with the institution.
Liz outlined what she sees as the top five underpinnings of good governance: alignment among parties (including board members, government, donors, etc.); clearly defined roles and responsibilities; clear decision making processes; competent leaders; and transparency and accountability. She also spoke to developing governance trends anticipated to impact post-secondary institutions.
Robert advocated for the adoption of a results analysis framework by post-secondary institutions. In order to achieve results, he identified three ingredients as being key: governance, oversight and accountability - with oversight being the most important. Robert also commented on the role of Office of the Auditor General in relation to post-secondary institutions. For him, public institutions aren’t really that different than private ones. He further explained that his role is to bridge the informational gap that can exist between a board and management. Robert emphasized that while “report cards” aren’t usually management’s favourite thing, they provide a board with an easy snapshot of an institution’s performance.
With respect to having clearly defined roles and responsibilities, the panel discussed how important it is that boards strike the right balance between oversight and involvement (“noses in, but fingers out”) and spoke to how that balance can best be accomplished.

Cyber-Security – The Ransomware Attack on the University of Calgary

Kelly Nicholson (Field Law) was the Chair of this panel. Panel participants were Linda Dalgetty (Vice President (Finance and Services), University of Calgary) and Justin Fong (Partner, Cyber-Security Division, Deloitte).
Justin detailed how cyber-attacks have risen to number five on the world’s top threats list. As the data volume of our organizations increases, so too does our risk of attack. There are a number of different kinds of “hackers” (from casual limited attacks to advanced, persistent threats from hostile nation-states). Alarmingly, most cyber-attacks go unnoticed at first: it takes an average of 241 days to detect an attack and begin to respond.
In May of 2016, the University of Calgary suffered a catastrophic ransomware attack affecting a number of key areas. Linda Dalgetty discussed the importance of utilizing your resources (including following insurance recommendations) and ensuring your board of governors is ready to respond in a timely manner. It cannot be assumed that everyone involved will understand the IT language and issues presented, and it is important to find a common language between parties in order to develop an effective response. She offered guidance on how to stay proactive and consistent in external messaging, and discussed the risk-balance approach that the University ultimately decided to take. For the University of Calgary, reputational risk was the most important component of their decision to pay the ransom. The nature of the University’s research work meant a loss of data could risk the loss of an employee’s lifetime of valuable research and development work.
Justin and Linda emphasized that there are a number of steps an organization can take to prepare for a cyber-attack and respond in a timely manner. In these situations, the first 24 hours are critical. Running regular, thorough assessments of your operational, reputational, and financial risks will ensure you and your organization are not caught unaware by one of the biggest threats of the
modern era.

Emerging Law: Access Copyright v. York University

In the final presentation, Tom O’Reilly (Field Law) offered his insights into the ongoing case of Access Copyright v. York University. Many in the post-secondary world will be aware that the June 2017 decision of Justice Phelan of the Federal Court, in the ongoing case of Access Copyright v. York University. The decision went against York and gave a win to Access Copyright – finding that York’s Fair Dealing Guidelines were not effective to shield a great deal of the course-pack and other copying at York, from the fees Access Copyright claimed to be payable under the Interim Post-Secondary Tariff for 2011-2013.
Tom noted that York has filed an appeal, and it is quite likely that regardless of that outcome in the Federal Court of Appeal, there will probably be another appeal to the Supreme Court of Canada. Justice Phelan made what appeared to be a number of legal errors, and questionable subjective calls on interpretation of some of the key evidence before him, such that there is ample room for an appeal court to come to different results. 
On the “fairness analysis” of the York Fair Dealing Guideline, Justice Phelan emphasized that York admitted they took no active steps to look for non-compliance and undertake enforcement of the copying limits in the Guideline - and the numerical evidence of the quantity and type of copying showed between 11% and 27% of the course-pack and other copying at York exceeded the Guideline limits. The judge felt this made the York Guidelines entirely unfair.
Tom speculated that the judges on appeal will be aware they are making a decision potentially affecting hundreds of educational institutions on the one hand, and thousands of copyright owners on the other, if they find wholly in favour of one or the other of York and Access Copyright – so they are going to be thinking about balancing rights, and the facts and legal issues certainly present the opportunity for a “saw-off” result of some kind on appeal.
Tom also anticipated that the potential appeal result will most likely include a statement by the appeal court to the effect that, even if York’s implementation of the AUCC model fair dealing guideline was “unfair”, the fairness of the AUCC model guideline adopted at other institutions will have to be assessed on the individual facts of each institution’s implementation. In that case, Access Copyright’s best case scenario is that it will still have to pursue every post-secondary institution individually to prove each fair dealing policy is unfair. That will be impractical, so Access Copyright will likely be in a mood to negotiate rather than sue further, once the appeal(s) are finally decided.
Tom advised that, for now, post-secondary institutions should continue to monitor the case as part of normal risk management, and monitor their own copying and fair dealing practices to ensure they are compliant with their own fair dealing guidelines, and generally with the law of fair dealing. The other focus should be on the continuing evolution in digital teaching tools and materials, which within the coming years may make much of the tariff and fair dealing debate unnecessary.