A recent Ontario Court of Appeal case reaffirmed that for certain purposes, academic complaints are properly brought to court, rather than addressed in university internal processes. In Lam v. University of Western Ontario, 2019 ONCA 82, the Ontario Court of Appeal allowed Lam’s appeal from the decision of a motions judge that his complaint should have been brought as a complaint to the university and not as a claim for damages in superior court. The test for determining where to bring the complaint, said the court, is not the nature of the dispute (here, academic), but “whether the genuine issues of fact he found existed would, if resolved at trial as the appellant claims they should be, make out a cause of action in contract for which damages were claimed” [para. 34].
This approach might be contrasted with that in labour relations cases as a result of Weber v. Ontario Hydro, in which the Supreme Court of Canada held some 20 years ago that where a dispute arose (broadly defined) out of the collective agreement, it was appropriately addressed through arbitration and not the courts.
After Simon Lam had begun a Master’s degree at Western, he was allowed to transfer into the PhD program in 2011. His supervisor advised him in June 2012 that she had received a grant that would fund Lam’s research, along with her own and that of other graduate students, until its completion. However, the supervisor died and it was necessary to establish a new supervisory committee. By the spring of 2013, the committee began to be critical of Lam’s work and told him that he would be better to transfer to a Master’s program. It also told him that the funding he had been relying on was no longer available. In fact, the funding was available and was used by one of the committee members “‘for other purposes'”. Lam transferred; a committee member indicated on his transfer request that the committee could not provide the supervision required and that there was no one with the necessary expertise to act as his supervisor in the PhD program.
In September 2014, Lam commenced his action in superior court, eventually claiming breach of contract and breach of fiduciary duty [para. 21]. The university denied the claim and moved for summary judgment: ” The principal basis for its motion was that the claim relates to decisions about teaching, mentoring, supervising and administering the Ph.D. program and thus to matters that are “purely academic” in nature, and therefore the claim fails to disclose a reasonable cause of action.” [para. 21] Although stating that there were issues of fact that required a trial, the motion judge granted summary judgment because “academic and legal issues must be distinguished when reviewing a university’s conduct; academic issues are to be resolved using a university’s informal operational and formal appeal processes and thereafter by judicial review” [para. 23]. The motion judge took into account that the internal processes were better placed by virtue of “expertise, policy and practicality”. Therefore,
the motion judge concluded that the appellant’s complaints would have been more appropriately resolved within the University, subject to judicial review. He held that the subject matter of the claim involved academic advancement and administration of a university program within the sphere of the University’s discretion, and in areas where the University has more expertise and could have given faster and more direct remedies (even if they were not the remedies the appellant now seeks). He therefore held that as a matter of law the appellant’s claim should be dismissed.
Relying on previous jurisprudence, the Court of Appeal held that the motion judge had erred in law:
. if a plaintiff alleges the constituent elements of a cause of action based in tort or breach of contract, while claiming damages, the court will have jurisdiction even if the dispute stems from the scholastic or academic activities of the university in question. The question to be addressed was therefore whether the factual issues the motion judge found to exist could, if resolved in the appellant’s favour at trial, make out a cause of action for breach of contract. Because they could, the University’s motion ought to have been dismissed.
The Court of Appeal rejected the question the motion judge asked (“whether the complaint falls on the academic or legal end of a spectrum and then determine the answer by considering which, as between a court and an internal university process, is the more desirable forum from the standpoint of efficiency, policy and practicality”) in favour of “ask[ing] whether the complaint is one for damages for breach of contract or tort, as opposed to an assertion that what the university did was something it had a discretion to do” [para. 32]. Lam was seeking damages for breach of contact, a legal remedy over which the court has jurisdiction” [para. 46].
Lam’s claim in contract was grounded in Western’s Graduate Student Handbook, which provided that supervisors “[S]hould have sufficient familiarity with the field of research to provide appropriate guidance and supervision, or indicate a willingness to gain that familiarity before agreeing to act as supervisor” and that the supervisor should communicate specific information about funding relating to the amount and duration, among other issues [paras. 39 and 40]. In addition, the supervisor had a common law contractual duty to communicate honestly (duty of “honest performance”). However, this raises the crucial question of what constitutes a contract in the academic sphere that takes it outside the university’s broad discretion to act. For example, does a statement about how a paper will be assessed, especially (but not necessarily?) if approved by the department, constitute a contract; could a failure on a paper that resulted in a student’s subsequent lack of employment opportunity be framed as breach of the grading contract for which damages could be claimed as a remedy? Without addressing the issue in this way, Lam suggests it would not, but it is not entirely clear why that is the case. Or are grading decisions within the university’s broad discretion and therefore properly addressed through the internal processes, which are subject to judicial review?
And so for academic complaints, we should see how the complainant has framed their allegation, along with the remedy, and although the matter might be concerned with an academic matter and might arise out of the agreement reflected in, say, the Graduate Student Handbook (or other documents?), the courts have jurisdiction or, put another way, do not have to defer to the internal academic processes. In short, “[i]t is the remedy sought that is indicative of jurisdiction” [para. 31].
An interesting contract can be made briefly with the test developed by the Supreme Court of Canada in 1995 in Weber, which gives arbitrators exclusive jurisdiction over claims arising out of the collective agreement, even though they would not normally be considered such claims (such as tort or defamation). Weber was reinforced by the 2003 decision of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, which held that collective agreements incorporate the substantive rights and obligations of the Human Rights Code and of other employment-related statutes. This arises from section 48(1) and (12)(j) of the Ontario Labour Relations Act, which states,
.48 (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
(12) An arbitrator or the chair of an arbitration board, as the case may be, has power,
(j) to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.
Weber had brought an action in tort and contravention of Charter rights when investigators entered his home through misrepresentation at the instigation of his employer who believed he was abusing his sick leave benefits. Writing for the majority, McLachlin J., rejecting the the concurrent and overlapping models, held that the appropriate way of addressing disputes arising out of the collective agreement was through the exclusive jurisdiction of the courts, requiring “the judge or arbitrator determining the appropriate forum for the proceedings [to] centre on whether the dispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and the ambit of the collective agreement.” [para. 51]. It is necessary to determine the “essential character” of the dispute: “The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.” [para. 52]. There are exceptions; for example, this approach cannot oust the inherent jurisdiction of the court to grant certain remedies.
Put another way, McLachlin J. stated,
The issue is not whether the action, defined legally, is independent of the collective agreement, but rather whether the dispute is one “arising under [the] collective agreement”. Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it.
In Brown v. University of Windsor, Brown claimed that the university had failed to abide by the terms of the Employment Insurance Premium Reduction Program when it did not provide the employees with a share of the reduced premiums it obtained through the program. This issue was not addressed in the collective agreement. However, the Ontario Court of Appeal considered that the reduction program was “employment-related” and provided for substantive rights and obligations, concluding,
The collective agreement may not deal with the EIPRP, but it does deal with pay and benefits. It would be a violation of the collective agreement to fail to provide employees with the pay or benefits to which they are entitled under the collective agreement.
On this view, exclusive jurisdiction lies in the arbitrator even when “there is a real contextual connection between the [relevant provisions] and the collective agreement such that a violation of the [provisions] gives rise, in the context, to a violation of the provisions of the collective agreement”. [para. 45] Similarly, the Ontario Superior Court of Justice held that a unionized worker’s civil claim for defamation (arising out of the employer’s finding that she had harassed other employees) arose out of the collective agreement and therefore should be addressed through the arbitral process: De Montigny v. Roy.
In contrast, the Manitoba Court of Appeal in Northern Regional Health Authority v Manitoba Human Rights Commission et al held that a unionized employee’s complaint of discrimination against her employer should be before the human rights commission. The employee had been terminated because of conduct related to alcohol; the union filed a grievance and she was reinstated, but she was again terminated for similar conduct and this time the union did not file a grievance. The employee filed a human rights complaint against the employer for not accommodating her alcohol dependency. The Court of Appeal stated that “the
interplay of the Act and the Code leads to the conclusion that an alleged breach of the Code, giving rise to the termination of the employment of a unionized worker, is a matter within the exclusive jurisdiction of a labour arbitrator appointed pursuant to the relevant collective agreement to hear and decide” [para. 67]. However, the Court then said, ” there is simply no evidence in this case to support the conclusion that the dispute between the complainant and the NRHA before the Commission arose out of the collective agreement” [para. 78]. The employee did not pursue claims of unjust dismissal and the grievance procedure. Accordingly, in determining the nature of the dispute, it is not appropriate to consider the collective agreement: it is not in issue. Designing an accommodation policy for alcohol dependency goes beyond the individual employee to affect others related to the workplace. Therefore, “the essential character of the dispute is the manner of
accommodation to be afforded to a worker suffering from a drug or alcohol dependency who is in a position of trust over vulnerable persons. That is a dispute within the jurisdiction of an adjudicator to decide under the [Human Rights]Code” [para. 88]. As the Court pointed out, the arbitrator in the first termination grievance could consider accommodation and discrimination; that grievance was settled and therefore, although the human rights adjudicator could consider any outstanding human rights matters outside the collective agreement, she could not consider the issues addressed in the settlement [paras. 101 and 103]. It is not insignificant that had the human rights forum not had some jurisdiction in this matter, the employee would have no possible recourse re her complaint. At the same time, as Brown shows, courts go to some lengths to link disputes that arise outside the collective agreement to obligations under the collective agreement.
Although both Lam and Weber provide for some exception, it is illuminating to consider the dominant test for determining jurisdiction in each case. Weber‘s core message is that it is not the cause of action that is determinative of jurisdiction, but the essential nature of the dispute and its relationship to the collective agreement, in a sense the governing document of the unionized workplace. Nevertheless, determining the “essential nature of the dispute” is not always clearcut, with the relationship to the collective agreement seemingly tenuous in some cases. Lam, on the other hand, stands for the proposition, in a different context, the academic context, that it is the cause of action that is determinative of jurisdiction. What is different about the cases is their contexts. The Supreme Court considers labour relations and disputes in the unionized workplaces to be a matter of the expert domain of labour arbitrators, even when the actual issue may require the usual parties in a grievance to reach beyond their usual scope of expertise. But there is nothing “special” about similar issues that arise in the academic context: that breach of contract arises there is just happenstance, it appears and cannot be left to those resolving academic disputes who .do not necessarily bring any particular expertise to their considerations.