The third annual Field Law Post-Secondary Summit was held on November 29 in Edmonton, and was co-chaired by Greg Harding, KC and Derek Cranna. 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.
Navigating Governance Relationships
In a discussion led by Greg Harding, KC (Partner, Field Law), a panel consisting of Douglas Stollery, KC, Robert Teskey, KC (Counsel, Field Law), Eric Spink, KC, and Sasha van der Klein (President of the Graduate Student Association at the University of Alberta) discussed how to navigate governance relationships considering the complex role that post-secondary institutions have. The goal of the session was to build tools to assist clients in navigating the relationships between post-secondary institutions and the government, the Board of Governors, the constituents of the Board, other internal relations, Board/administrative relationships, and the General Faculties Counsel/academia relationship.
Bob Teskey highlighted that post-secondary institutions have moved towards a best-practices model of governance, with much more government involvement in the operation of boards for all major decisions. This is a significant change that requires board sensitivity to governmental involvement and oversight. Because of this oversight, by the time boards receive proposals they have often passed through many layers of review and revision. However, this should not be an excuse for the board to pass the proposal without thoughtfully considering its purpose and effects. The board needs to remain aware of compromise with faculty members, as almost all their decisions will impact the educational experiences at the institution. Bob also discussed Bill 19, which amends the preamble of the Post-secondary Learning Act, and its role to encourage the development of personal relationships in addition to the subject matter of the board.
Doug Stollery spoke about the relationship between boards and the community, as the heart of the public institution is to serve the public interest. He emphasized the importance of having a strong relationship with local communities, and determining how to communicate the value of the institution to that community. There is a risk that institutions can be perceived to be an “ivory tower,” so it is critical that institutions engage in meaningful ways to ensure community buy-in and support. As of late, universities are being treated more like corporate boards or commissions, when they actually have a unique role. A university’s autonomy is critically important, and has to be communicated to students. It’s vital that a wide range of research is being done at institutions, not just research that clearly leads to an economic benefit. Autonomy allows for innovation, which allows us to ultimately progress technologically and scientifically beyond what we otherwise would have.
Eric Spink discussed the relationship between constituent representatives on boards and their relationships with their stakeholders. A constituent representative is any board member who is nominated by an entity to represent their interests. However, while these representatives may represent interests of their stakeholders, all board members bear the same fiduciary duty to act in the best interests of the institution. The Alberta Business Corporations Act has a unique provision which states that in determining whether an action is in the best interests of the institution, constituent board members may give special but not exclusive consideration of their nominating group. The Supreme Court of Canada has held that it is legitimate to also consider the interests of shareholders, employees, the government, the environment, and others. Often, stakeholder interests and the interests of the institution align, but if they do not, all directors must represent the institution’s interests.
From Sasha van der Klein’s perspective, trust was a very significant part of the relationships between board members. Trust also allows members to understand what their constituents have experienced, and to thoughtfully create the institution’s identity and way that it is experienced. Sasha also addressed the difficult topic of tuition increases. This is a difficult issue as students undoubtedly want tuition to stay low, but institutions may require increases to survive. The question becomes how to educate constituents and communicate the reasoning behind tuition increases. It’s important that constituent board members clearly explain how they question proposals, what they accept in proposals, and why/how a government would allow a group of constituents to participate in drafting legislation.
Extended Q+A Workshop
The session continued in the afternoon and featured a wide-ranging discussion:
- On how to best manage representative Board members who are at odds with perceived best interests of the institution. Comments ranged from noting the responsibility of the Chair to manage, to some situations calling for swift and decisive action. It was recognized as critical that once the Board has made a decision, it speaks with one voice.
- On the meaning and scope of “Academic freedom” -- an expression observed to sometimes be used as a catch-all phrase that called for more precisely definition depending on context. One perspective voiced was that academic freedom should be properly left to administration as in the better position to manage.
- The amendment to the preamble of the Post-secondary Learning Act as found in Bill 19. The changes appear to emphasize the interests of students e.g. accessibility and affordability.
- As to the need for and importance of a Board being cognizant of their long-term vision – and interests. While immediate problems may call for immediate attention, the strength of tomorrow requires long term planning and consideration on how today’s decisions will impact the future.
- With respect to “drivers” of change at post-secondary institutions. Finances and funding were identified as key influences. Another driver identified was public perception.
Tale of the Tape: Update on Recent Labour Board Decisions
Jason Kully and Evie Maldonado, lawyers in Field Law's Labour and Employment group, discussed recent developments in labour board jurisprudence and legislative amendments.
Jason began by discussing Bill 29, the Public Service Employee Relationship Amendment Act, which recently passed committee and is likely to be passed right away. This legislation proposes to move non-academic staff under the Labour Relations Code, and out of the Public Employees Act. This change would provide more consistency and ensure that all employers and employees have the same rights and responsibilities. There would however be a number of key differences, which could increase the number of non-academic staff who would become properly part of bargaining units.
Jason highlighted a Manitoba labour relations board decision between the University of Manitoba and its Faculty Association, wherein during bargaining, the provincial government forced the U of M to withdraw an offer to increase salaries. The University did not tell the Faculty about the change in circumstances until a few weeks later. The MLRB ultimately found that the University had engaged in bad-faith bargaining by failing to disclose its restrictive governmental mandate. This is significant to post-secondary institutions as there can be a duty of unsolicited disclosure for any information that will have a serious impact on the employees and bargaining. This may also create some sensitivity around confidential mandates from the government. Beyond bad faith bargaining, universities may also suffer reputational risks, legal costs, and other remedies should they fail to disclose.
Evie addressed the topic of conflict of interest, in a series of key British Columbian cases that have focused on the #MeToo movement and potential abuse of power. To illustrate, UBC terminated an advisor who was a 16 year employee for using a dating app on campus that created a potential conflict as he could have a sexual encounter with the very students he provided advising services to. The tribunal held that UBC had not discriminated against the employee for his sexuality, and had a valid reason to dismiss him due to a failure to disclose a conflict of interest. The institution had an obligation to safeguard against possible misuse of power, regardless of whether the parties were consenting adults.
Evie also addressed the question of how long a temporary contract can endure for. There were instances, such as in the case of the Athabasca Faculty Association v Athabasca University, where professors were kept on temporary contracts for over 12 years to teach the same course and perform fundamentally the same job. Parties must look to their collective agreements for guidance to determine if a temporary contract is still appropriate, or if circumstances have changed from the commencement of the contract to justify a shift to a regular, permanent position.
In a question and answer session following their presentation, Jason and Evie fielded questions including how institutions can address the challenge of anonymous complainants in sexual harassment allegations, which requires institutions to devise safeguards that guide the process for investigating and addressing complaints in a manner that protects the interests of all affected parties. They also addressed the issue of cannabis on campus, following its recent legalization. There is the potential that academic institutions will face some student or staff-use issues, but the biggest expected area for growth is in academic research opportunities relating to cannabis as a therapeutic drug.
Affinity Programs: Maximizing Revenue Sources
Dino Fidanza gave a short presentation on the important of maximizing revenue sources with affinity programs. It was reinforced that an institution’s alumni are a critical component of their roots in terms of their past and future. Further, in most cases, alumni are very loyal to their institution. How do you take this to the next level?
Dino covered some new and trending products including warranties (electronics/home warranty/auto), cyber/identify theft protection, pet insurance, legal expenses and travel insurance. There are also non-insurance products. Carriers tend to like alumni programs due to the spread of risks and recurring/renewal revenue streams. Alumni have high affiliation: once they purchase a product through an institution, there is a high renewal rate.
The importance of the DOC principle was explained and emphasized:
- Disclosure: data and information equals power. This means getting the information from the insurance companies and bringing it back in house to understand what information and data you have. Institutions can then identify claim-trends and assist the carrier with negotiations. You can use data management for marketing initiatives.
- Ownership: This is how you build asset value: owning records is important. This means that when you build up an insurance base, this becomes an asset to your institution. If there is a time that you want to move or sell, you have the underlying asset of that. It is critical to future longevity.
- Control: You want to ensure access to information and data, and this provides simplicity if the institution changes providers.
Successful programs require robust marketing. An institution must ensure information is easy to locate on their website and user-friendly. The information is data driven and doesn’t require much staffing. It should be remembered that targeted messaging is helpful and people are loyal for convenience.
Keynote Presentation: Hon. Marlin Schmidt, Minister of Advanced Education
Ayla Akgungor (Partner, Field Law), introduced the Hon. Marlin Schmidt. An overview of the sectors and institutions was provided, recognizing the uniqueness of the institutions across Alberta.
Minister Schmidt discussed the need to ensure government oversight and also institutional independence. There needs to be appropriate checks and balances. Governing an institution has unique considerations and this includes the unique responsibility of being on a Post-Secondary Institution’s board. Because of this uniqueness, the Government took step to improve PSI Boards, and to ensure that they are fair, transparent, and open to all Albertans. He reiterated that they should reflect the province they are asked to serve.
Under the most recent Government, boards are now 53% female 47% male (they were previously two thirds male). They are comprised of a more diverse pool of immigrant communities.
With this influx of new board members, the Government wanted to ensure there was a smooth transition and introduced the Board Development Program. This board orientation program was developed with input from many partners. It clarifies the roles and responsibilities of the board, and means there is a common orientation for all board members. The goal was a consistent level of board orientation. While many were already offer something, the Government wanted to offer support to fill in the gaps, with the hope that it would empower and strengthen governance.
The Minister also discussed some of the changes made by the Government including improvement of affordability of tuition fees to make post-secondary institutions more accessible. Mount Royal and MacEwan University will be moving to a bicameral model with the benefit of more consistency across Alberta. There are also now more student representatives on board of governors, with two undergraduate student representatives. Although this may change the balance of power on boards, the Minister stated that boards must change with the times. More institutions will be moving to become universities which will involve a change in governance.
The Minister anticipates continued post-secondary growth across the province for the next decade. There must be more student voices, as well as others such as academics. There remains a delicate balance of multiple and complex considerations.
Land + Commercial Development Primer
In his presentation,
Paul Girgulis of Field Law gave attendees an overview of commercial land development as it applies to public post-secondary institutions as defined in the
Post-Secondary Learning Act ("PSLA"). The focus was on commercial land development with respect to “excess land” (land that is owned by an institution which is not needed for its core purposes such as classrooms, faculty and administration offices, student housing, research facilities, sporting facilities, etc.).
Post-Secondary Learning Act
The first element to consider is an institution’s mandate. A board of governors is required to prepare a mandate for its institution, which must be approved by the responsible Minister. According to the PSLA, “a board shall not engage in or carry on any activity that is not within its approved mandate.”
The basic provisions setting out the ability of a board to acquire an interest in land or to dispose of land are contained in sections 66 and 67 of the PSLA. Section 121 of the PSLA and the PSLA’s Land Use Regulations provide the legal framework for a university’s ability to develop its own land. Section 121(2) of the PSLA also imposes the obligation on a board of a university to create “a long-range land use and development plan relating to land owned or leased to that board,” in accordance with the Land Use Regulation. Public colleges, technical institutes, and the Banff Centre do not enjoy some of the privileges, and are not burdened by the restrictions set out in Section 121 of the PSLA.
Income Tax Act
Since all public post-secondary institutions are not-for profits and registered charities for the purposes of the Income Tax Act ("ITA"), it is critically important for a post-secondary institution to maintain their registered charitable status. Paul reiterated that it is critically important for a post-secondary institution to always seek legal and accounting advice if any registered charity is considering undertaking any commercial activity.
The main charitable purpose of a public post-secondary institution is providing educational services to students, therefore it’s highly likely that commercial land development by such an institution would be considered an ‘unrelated business’ by the Canada Revenue Agency, which could result in a revocation of its charitable status.
Paul told listeners that a registered charity may only uses its resources (whether it be funds, personnel or property) in two ways:
- It can devote those resources to its own charitable activities, which are conducted under its direction and control; or
- It can only donate its resources to ‘qualified donnees’, which is a class of entities in the Income Tax Act that includes other registered charities, municipalities, governments, and some public institutions.
Solutions
In the final section of his presentation, Paul examined several ways in which public post-secondary institutions have developed lands commercially while presumably abiding by the provisions of the ITA.
One of the most common ways to comply with the provisions of the ITA is to incorporate or otherwise create a separate entity to undertake the commercial development of lands. Consideration must be given to how the entity’s governance will operate, including the composition of its board of directors, as it will have to operate largely independently of the institution.
Some institutions have created a separate, not-for-profit corporation devoted to land development. In this scenario, land or interests in land are transferred to a corporation, who develops it with an eye to creating a profit, which is then paid or donated to the institution.
Lastly, Paul noted that a more popular solution is the establishment of some form of land trust. A trust is a relationship between parties where the legal ownership of property is separated from the beneficial ownership of that property. A trust has four key elements:
- The Settlor: the person or entity that creates a trust by ‘settling’ trust property onto a trustee. This is usually accomplished via a written instrument called a trust deed that sets out the scope and purpose of the trust, including how the trust can be varied, added to, or ended.
- The Trustee: can be an individual or a corporation. The trustee has a fiduciary duty to manage the trust in the best interests of the beneficiary or beneficiaries, in accordance with law, and according to any specific provisions contained in the instrument that created the trust.
- The Beneficiary: can be just about anyone - an individual, a corporation, an educational institution, or several such persons, or even a defined class of persons.
- The Trust Property: essentially any type of property or interest in property can be held in trust. This can include land, interests in land such as long-term leases or mineral rights, cash, personal property, and financial investments.
In-House Legal Counsel Roundtable
In a discussion led by
Derek Cranna (Partner, Field Law), a panel consisting of Brad Hamdon (University of Alberta), Amy Nixon (Mount Royal) and Michelle Plouffe (MacEwan University) discussed the inner workings of in-house counsel. The conversation ranged from how to best utilize your resources, OH&S changes, risk in the workplace and when to use outside counsel. Michelle Plouffe also provided an analysis and reflection of MacEwan’s recent social engineering fraud, and they key takeaways for other institutions.
Brad Hamdon acknowledged that when he had started as General Counsel at the University of Alberta, he had a vision of a legal department that was practical, proactive and understood the overall vision of the institution. Most importantly, he wanted a department that clients were comfortable coming to.
He noted that when speaking to clients, it was critical to be speaking to them in a language they understood. If done successfully, an institution will recognize the importance of complying with regulations, legislation and acting ethically.
Michelle Plouffe, as General Counsel for MacEwan University, has focused on building meaningful partnerships and being a trusted advisor. Prior to Michelle joining MacEwan, she felt the legal department was not setup for success. There was no relationship with the Board and they did not have a seat at the Executive table. Michelle stressed the need to understand the big picture and be a part of the team.
In her current position at Mount Royal, Amy Nixon quickly coined the phrase #WhenInDoubtGiveLegalAShout. In her former role as Chief of Staff to the President of Mount Royal University, she was able to see all the institutional functions. She has found great benefit in having a prior relationship with Executive Members.
Each of the panellists stressed the importance of managing external counsel and speaking the language they understand. They say that it was their role to act as a translator in matters where external counsel is not aware of the nuances of the institutions policies and practices.
Michelle believes she has achieved successes in three key areas:
- Establishing the Office of General Counsel at MacEwan and within that, building relationship with the Board that had not existed previously.
- Leading and building a sexual violence portfolio. She has implemented key policies and response processes on campus.
- Leading the recovery effort to have as much of the 11.8 million dollars that was stolen returned across global jurisdictions. To date they have recovered 10.89 million.
It was acknowledged by the panelists that whether you have a large or small legal department you will need external counsel on particular issues. Further, it is important to have someone who can oversee the relationship with external counsel and the institution. Brad noted that it is critical to bring external counsel into decisions and discussion early. If they do not know what you are asking for, they may provide you with more than what you need. It was mentioned that it is critical to have the right lawyer for the right job. Sometimes it does not need to be most senior partner. That way you manage costs and still get good results.
When assessing risk, all the panelists recognized that their role was not just to assess legal risk. They must be aware of other types of risk, such as reputational risk, contractual risk, media risk etc. When it comes to risk, lawyers are uniquely positioned and qualified to slow down the process and re-evaluate. However, this can only be done if you have an established relationship and strong partnership.
With the changes to OH&S Legislation and Regulation, we are seeing a landscape that is difficult to manage from an institutional perspective.
The new changes to regime raised three issues:
- Multiple venues for claims. This can create unique procedural problems and duplicity.
- The new processes require a joint workplace. Though we are getting useful input from employees and identifying hazards, these raises further procedural roadblocks.
- Definitional changes under the new Act. The old Act can be seen as directed at blue collar workers, now the new Act talks about to psychological harm and injuries. Institutions will now need to address new definitions like “social well-being”. This is a substantive provision that now imposes renewed obligations on employers.
The #MeToo and free expression movements have been prominent across Canada over the last two years. Brad stated that freedom of expression is in the University of Alberta’s strategic plan. However, freedom of expression must be balanced with the right to have a work and study environment free from harassment and hate. The key to managing this area is to have effective policies in place and to be constantly reviewing them.
Michelle was in a unique position to speak to crisis and/or emergency management following MacEwan’s social engineering fraud case.
Upon reflection, she has determined the key elements of crisis management as:
- Establishing a response team. Who needs to know and when, in what way? Communications experts need to be there from the beginning
- Gathering facts immediately and securing evidence.
- Knowing who the key players are – that helps to determine your communication plan.
- Taking a pause when appropriate.
- Implementing crisis education and fraud awareness.
- Following the crisis, go through the lessons learned with key institutional partners and players.
- Speaking of experience openly and transparently.
- Reflecting on how you responded and improve.
Current Litigation + Recent Case Law Round Up
Presented by Field Law lawyers
Derek Cranna (Partner) and Leanne Monsma (Lawyer), the focus of this session was to identify trends in the case law and to provide an overview of recent or pending decisions involving post-secondary institutions.
Vexatious Litigation
Over the past number of years, there has been an emphasis on ensuring that individuals are able to access processes to address their issues. Recent decisions demonstrate that the courts remain respectful of institutional autonomy over academic issues and are quite willing to strike out claims that do not disclose a proper cause of action. However, administrative tribunals often have a more difficult task when it comes to refusing to hear claims given that their purpose is to provide broad access to dispute resolution processes.
Post-secondary institutions should:
- Recognize that complainants have the ability to file multiple complaints.
- Try to identify the core issues in the dispute. What is the complainant really upset about and what is the most proper venue for dealing with that issue?
- Identify a person or an office at the institution to “quarterback” the proceedings. Institutions must ensure that there is a main person or office that has at least some knowledge of the various actions, proceedings, complaints, etc. that are underway.
- Develop a strategy. Will there be applications to have claims, complaints or requests struck or dismissed? Will there be an application to have the individual declared a vexatious litigant?
(Noor v Queen’s University at Kingston, 2018 HRTO 1571; Green v Bell, 2018 MBQB 2; Green v The University of Winnipeg, 2018 MBQB 4; Green v University of Winnipeg, 2018 MBCA 11; Green v Bush, 2018 MBCA 12; Stuart v University of Western Ontario, 2017 ONSC 6980; Williams v Simon Fraser University, 2018 BCSC 1787)
Sexual Harassment
Unsurprisingly, we are seeing an increase in the number of sexual harassment complaints being made in the wake of the #MeToo movement. Dealing with these complaints requires finding the balance between conducting a fair and impartial investigation, while also providing a safe and supportive environment for complainants.
It is generally better for an institution to err on the side of doing “too much” in response to these types of complaints, as opposed to risking being seen as having done “too little”. In one recent case, this was acknowledged by the arbitrator and various interim measures imposed by the university against a faculty member in the context of a complaint of sexual misconduct were upheld.
Institutions must remain mindful of their role in these types of cases. Institutional processes serve a different purpose than criminal or civil court processes. The investigation and adjudication of these complaints assessment of these cases is only for the purpose of determining issues relevant to the institution – that is, the regular conduct of academic or employment related functions in a safe and appropriate environment.
(Ryerson University and Ryerson Faculty Association, Brian Sheehan, October 11, 2018)
Defamation
Post-secondary institutions continue to be the subject of, or at least implicated in, actions in defamation. These types of claims potentially raise jurisdictional issues. Where the action relates to statements which arose in the workplace context, the civil claim may be struck on the basis that the proper jurisdiction for the dispute is arbitration under the collective agreement.
Reputational Risk
A post-secondary institution’s reputation is everything. A case that is currently before the Supreme Court of Canada (a hearing date has not yet been set) highlights the importance of remembering that you never know how something you do today might impact your reputation tomorrow. Colleges and universities must constantly be alive to this reality.
(Lynne Threlfall, personally, in her capacity as liquidator of the succession of George Roseme and as tutor to the absentee George Roseme v Carleton University, 2018 CanLII 68343)