The University of British Columbia Faculty Association suffered a setback last month at the B.C. Court of Appeal, following a string of legal victories in a long-running promotion battle.
In a surprising ruling, the court rejected an arbitrator’s decision to reverse then-UBC president Martha Piper’s refusal to recommend dentistry professor Lance Rucker for full professorship — a promotion backed by the department head, the dean of dentistry and the senior appointments committee at UBC. The arbitrator’s decision had twice been upheld by the provincial Labour Relations Board and the B.C. Supreme Court.
Under the province’s University Act, a university’s board of governors requires the recommendation of the president to promote a member of the teaching staff. In Rucker’s case, Piper refused to honour the consensus for promotion among his peers, citing an insufficient publication record.
The faculty association filed a grievance, alleging Piper had, among other things, acted unreasonably in ignoring Rucker’s extraordinary career achievements, including international renown for ground-breaking innovation in the ergonomics of dental surgery.
The arbitrator agreed, noting Piper had overlooked the collective agreement’s stipulation that distinguished performance in the professional fields is also a criterion for promotion. Having found the president’s decision unreasonable, the arbitrator reversed it under Article 13.07(c) of the collective agreement, ordering Rucker’s recommendation for promotion should be sent to the board of governors.
The UBC administration challenged this decision, but it was upheld by the labour board and the courts on judicial review until it reached the appeal court.
On appeal, one of the issues was the appropriate “standard of review” by which a court judges the merits of an arbitrator’s decision. Because courts lack experience with labour relations, they are required to defer to the expertise of arbitrators or labour boards and can set aside a decision only if it is “patently unreasonable.”
An exception to this rule occurs if arbitrators are required to move outside their area of expertise (the collective agreement and labour relations) and interpret and apply an “external statute.” In these instances, the degree of judicial oversight increases and the court applies a “correctness” standard, giving it much greater leeway to overturn an arbitrator’s decision.
In the Rucker case, the appeal court held that the arbitrator incorrectly interpreted an “external statute” — the University Act. According to the court, the act gives the president unconstrained authority to recommend promotion that the collective agreement could not restrict. Given this, the court showed no deference and found the only correct arbitral remedy — one which did not entail conflict with provisions of the University Act — was to send Piper’s decision back to the president for reconsideration.
In doing so, the court ignored the collective agreement whose language stipulates that flaws in promotion cases arising from procedural error are to be remitted for reconsideration, but unreasonable decisions are to be reversed.
The association’s argument that the arbitrator appropriately harmonized the University Act and the collective agreement was rejected by the majority of the appeal court panel.
In a strongly-worded dissent, Justice Peter Lowry found the outcome of a “reversal” of a president’s decision not to promote is to substitute a recommendation for promotion.
“I do not see how, on any proper reconsideration of her decision, the president could decide other than to recommend Dr. Rucker’s promotion. Remitting the matter to her would not appear to serve any practical purpose,” Lowry wrote.
CAUT president Greg Allain said the case has serious national implications. “The judgement inhibits full arbitral review of decisions dealing with promotion, tenure and discipline — a power of review that both the administration and the association have agreed to,” he said. “The appeal court has undermined the ability of academic staff to collectively determine standards for promotion and ensure university administrations apply those standards in a reasonable fashion.”
The faculty association is now seeking leave to appeal to the Supreme Court of Canada.