Premier Gordon Campbell and the Minister of Advanced Education, Murray Coell, have recently, and with great fanfare, announced the continuance of five British Columbia institutions of higher learning as universities. The new status of Capilano University, Emily Carr University of Art and Design, Kwantlen Polytechnic University, University of the Fraser Valley and Vancouver Island University (formerly, Malaspina University College) provides each of these institutions with exciting challenges and opportunities.

The announced changes are effected pursuant to amendments to the University Act (the “Act”). These amendments (which at the time of this article have had first reading) will create a new category of university, distinguished from the four universities which are already subject to the Act (namely Simon Fraser University, The University of British Columbia, University of Northern British Columbia and University of Victoria). Royal Roads University and Thompson Rivers University will continue to be governed by their own statutes (which incorporate by reference only portions of the Act). As announced, the pending changes reflect the desire of the Government of British Columbia to better define the role of higher learning institutions in the province, to provide enhanced access to university degree programs in all regions of the province and access that is closer to home for many British Columbia residents. The changes also help clarify the roles of what were formerly the university colleges in British Columbia. The new designations are a reflection of some of the principles set out in Campus 2020, a discussion of which can be found in the May 2007 edition of Campus Counsel.

The five new universities are all continued from their current status. In other words, they are not new legal entities, but have only changed their names and status. They will cease to be governed by the College and Institute Act. Each will be identified as a special purpose, teaching university, which has a number of implications. First, unlike the four universities which are currently governed by the Act, research will not be a primary part of their mandate. Instead, the new universities will either serve a particular geographic area or region of the province or serve the whole province in respect of specific designate academic endeavours. The focus of universities serving particular areas will be to provide adult basic education, career, technical, trade and academic programs leadings to certificates, diplomas and baccalaureate and masters degrees. The primary focus of universities serving the entire province will be to provide applied and professional programs leading to baccalaureate and masters degrees subject to and in accordance with the regulations. Only if their resources permit, will these new universities from time to time undertake applied research and scholarly activities in order to support the programs they offer. A second implication is that the role of the special purpose, teaching universities and the primary areas which they serve may be limited to some extent by regulation. A third significant difference between these universities and the existing research universities is that their senates will be more akin to an education council under the College and Institute Act than the senates of the larger universities. The role of their senates is expressed in different terms and, most notably, within their areas of reference, the senates’ role will be advisory.

No doubt many issues will need to be considered once the amendments and the new regulations under the Act come into force and are applied to the five new universities. In particular, the impact of the regulations may be very significant. In the meantime, here are some of the issues which the five new universities should address sooner rather than later:

1. Appointment of Chancellor: Each of the new universities will require a chancellor. Under section 11 of the University Act, as amended by the new Act, a chancellor is to be appointed on nomination by the alumni association and after consultation with the senate. However, for the new universities, under section 29(4) the first chancellor is appointed by the board without nomination or consultation.

2. Name Change: Of course, the new universities will wish to change their names wherever they appear on stationery, websites, manuals, brochures, marketing materials and signage. In addition, each of the institutions will want to change its web domain name. Also each of the institutions will wish to file a Form 17 under the Land Title Act to ensure that all legal titles registered in their names are updated.

3. Existing Agreements and Contracts: Under the Act, the five institutions which are becoming universities are “continued” as universities. As a result, their existing legal rights and obligations will flow through under the new name without the requirement for amendments to existing agreements. In other words, they remain the same institutions they were previously, with new names. However, if existing agreements need to be amended in the future, the institutions may find it helpful to reference their old name to demonstrate that they are the same institution. For instance: “University of the Fraser Valley (formerly, University College of the Fraser Valley)”

4. Implications to Collective Agreements: The existing collective agreements of the new universities will continue in full force and effect after the changes to the Act come into force. The enabling legislation which authorizes the changes in the Act is silent on the subject of collective bargaining. Depending upon each collective agreement for these institutions, amendments may be required to deal with the different status of the employer as a university. Also, to the extent that a collective agreement for a college, institute or university college was not bargained individually, the affected institution will need to consider what affect its new status will have on negotiations when its collective agreements expire in 2010. Currently, most universities bargain individually; whether that model is appropriate for the newly created universities will depend upon the size of their various bargaining units, their union affiliations, and their specific issues and academic model.

5. Trade-mark Protection: Institutions of advanced learning should protect their trade names and logos and any badges, crests, emblems or trademarks which they use under the Trade-marks Act (Canada). The Trade-marks Act expressly acknowledges in section 9 the right of universities and “public authorities” to protect their marks. These issues are discussed in more detail in the October 2006 edition of Campus Counsel. Existing trade-mark protection should be reviewed and updated to reflect the new name and, if new logos are developed, the appropriate protections should be obtained with respect to these logos as well.

6. Foundations and Other Affiliates of the Universities: Each of the new universities should consider whether changes will be required in respect of their foundations or any affiliates which use their old names. If the new universities have a foundation or other association, it will likely be incorporated as a society under the Society Act (British Columbia). Even though five institutions have become universities, their foundations will not automatically become governed by the University Foundation Act (British Columbia), which applies only to the The University of British Columbia Foundation, Simon Fraser University Foundation, the University of Victoria Foundation and University of Northern British Columbia Foundation and Royal Roads University Foundation.

7. Establishing the Board: Section 29(1) of the new Act provides that the board for each of the new universities is the existing board under the College and Institute Act until members of the board are elected and appointed as provided in the University Act. The composition of boards under the College and Institute Act and the University Act are almost identical except that a university board has two elected faculty members, rather than one, and includes the chancellor rather than the chair of the education council. New appointments and elections will have to occur in due course. Under section 20 of the University Act, student members of the board hold office for one year. Other members hold office for three years, except the president and chancellor who are members for the term of their respective offices.

8. Establishing the Senate: Under section 29(2) the education council designated under the College and Institute Act continues as the senate of each new university until members are elected and appointed as provided in the University Act. Section 36 of the Act sets out the terms of office. Once new members are appointed and elected, the composition of the senate will differ from that of the educational council. As with the education council, the senate will include the president as a member and have four elected students, two elected support staff and a non-voting member who may be appointed by the board. However, an education council also has ten faculty members elected by faculty, whereas a senate has two faculty members elected by each faculty. Also, an education council has four educational administrators, whereas a senate includes the chancellor, the academic vice president or equivalent, the deans of faculties, the chief librarian, the registrar and one alumni member.

9. Changes to the Powers of the President: As a result of the change in status of the five institutions, they may want to consider the powers of each of their presidents. Generally, the powers of a president under the Act are broader and more clearly defined than the powers of a president under the College and Institute Act. A meaningful discussion of the details of the differences between the two statutes with regard to the office of the president and the implications of those differences is beyond the scope of this article. However, one important distinction is that the president of a university is a voting member of the board and the senate, rather than a non-voting member of the board and education council, as is the case under the College and Institute Act.

10. Other Issues: Institutions under the College and Institute Act are explicitly agents of the Crown which may afford to them special powers and duties as well as specific financial reporting requirements. As universities, they will no longer be agents of the crown and their reporting requirements under the Act, the Financial Administration Act and related legislation may be somewhat different. It may also be relevant to how they are insured. The new universities will need to consider whether their insurance coverage should continue through the Risk Management Branch or whether it is possible or advisable to be insured through the Canadian Universities Reciprocal Insurance Exchange (CURIE). Likewise, will the new universities join the University Presidents’ Council of British Columbia? There will no doubt be many other issues which new universities should consider with respect to their current practices.

This article was co-written by Brock Johnston, Co-Chair of Clark Wilson LLP’s Higher Learning Practice Group and his partner, Larry Munn, with other colleagues from Clark Wilson, including Pratibha Sharma, Articled Student, who will be joining the firm as an associate upon the completion of her articles in May. If you have any questions regarding the legal implications of the new university designations in BC, you are welcome to contact either Brock Johnston at 604.643.3116 or rbj@cwilson.com or Larry Munn at 604.643.3160 or lm@cwilson.com.