As we advised in the November 2011 edition of Campus Counsel, the Government of British Columbia tabled Bill 18 – the Advanced Education Statutes Amendment Act, 2011, on November 3, 2011. Bill 18 makes amendments to the College and Institute Act and the University Act, as well as to the Royal Roads University Act. It received royal assent on March 29, 2012. Certain provisions of Bill 18 have now been challenged. This article summarizes and comments on that court challenge.
On Monday, June 11, the Vancouver Island University Faculty Association (“VIUFA”), the British Columbia Government and Service Employees’ Union (“BCGEU”) and two individual plaintiffs, Dominique Roelants and John Ross, on their own behalf and on behalf of members of the VIUFA and the BCGEU respectively, filed a claim in the BC Supreme Court challenging Bill 18.
Among other matters, Bill 18 changed the eligibility of elected representatives to sit on boards of publicly-funded colleges, institutes and universities that are governed by the College and Institute Act, the University Act and the Royal Roads University Act. (A more detailed overview of Bill 18 is described in our November 2011 edition of Campus Counsel.)
Bill 18 responds to certain conflicts of interest in relation to a member appointed to the board of an institution as follows:
- A person is not eligible to be or to remain a member of the board if the person is an employee of a college, institute or university and an executive member or officer of an instructional, administrative or other staff association which negotiates with the board, or which adjudicates disputes.
The Government’s rationale for introducing these changes was apparently to prevent the inherent conflict of interest which arises when a member of the board also serves as an officer of a stakeholder group that negotiates with the board, such as a faculty association or unionized staff members.
In addition, Bill 18 provides that the Lieutenant Governor in Council can remove a board member who has been elected by faculty members, the student body, employees or support staff, upon a two thirds resolution of the board if the board is satisfied that the person should be removed for cause. While there is no provision in the College and Institute Act, the University Act and the Royal Roads University Act (before or after Bill 18) for the removal of the Lieutenant Governor in Council’s appointees for cause, there is nothing to prevent a Board from asking the Lieutenant Governor in Council to revoke the cabinet appointment of a particular governor.
Union Responses to Bill 18
Since Bill 18 was first introduced in the legislature, the three largest post-secondary sector unions, namely the Federation of Post-Secondary Educators, the BCGEU, and the Canadian Union of Public Employees, have argued vigorously that Bill 18 is undemocratic and that it infringes on union members’ constitutional rights.
The unions argue that the changes created by Bill 18 are an “affront to democracy” and erode the constitutional right of their members to freedom of association. This is because senior union members will no longer be able to serve as elected employee representatives on college and university boards. Furthermore, unelected board members now have the power to remove elected faculty, employee and student representatives from the board. The unions view this power as being similar to giving cabinet the power to remove MLAs from their elected positions.
The Court Application
In the BC Supreme Court action, the trade union plaintiffs and the individual plaintiffs seek a declaration that section 23(1)(g) of the University Act and section 59(8) of the College and Institute Act (collectively, the “Impugned Legislation“), which contain the changes introduced by Bill 18, are inconsistent with sections 2(b), 2(d) and/or section 15 of the Canadian Charter of Rights and Freedoms (the “Charter“) and are, therefore, of no force or effect.
Section 2(b) of the Charter protects the right to freedom of expression and Section 2(d) protects the freedom of association. Section 15 protects the equality rights of Canadian citizens.
The plaintiff Roelants is a Chief Shop Steward, voting member of the Executive of the VIUFA and was also an elected member of the Vancouver Island University Board of Governors. On May 17, 2012 Roelants was removed from the board because the Impugned Legislation disqualified him from remaining on the board. Similarly, the plaintiff Ross, who was a member of the Board of Governors of Northwest Community College, was removed from that board on May 30, 2012 because he is a member of the BCGEU and the Chair of its Provincial Bargaining Council.
In addition to the declaration sought by all of the plaintiffs, the two individual plaintiffs seek orders from the Court to be restored to the boards of their respective institutions.
Sections 2(b) and 2(d) of the Charter
In brief, the challenges of the plaintiffs with regard to Section 2(b) and 2(d) of the Charter are as follows:
- The Impugned Legislation curtails the expressive activity of the plaintiffs and frustrates and interferes with their freedom of expression because it prevents political and social participation and self-fulfillment.
- The Impugned Legislation interferes with the values that academic institutions place on academic freedom for persons to be able to put forward their ideas and unpopular opinions without being placed in jeopardy.
- The Impugned Legislation constitutes a substantial interference with the ability of the individual plaintiffs and other members of the trade union plaintiffs to meaningfully exercise their right to associate on the governing bodies of colleges and universities.
- The individual plaintiffs are prevented from meaningfully exercising their rights to associate by expressing views and submissions on important workplace rights to the governing bodies of colleges and universities.
- The Impugned Legislation is discriminatory because it does not regulate or interfere with the rights of management or employer representatives who have responsibilities similar to those of the plaintiffs to negotiate terms and conditions of service.
Section 15 of the Charter
Section 15 of the Charter states that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
With regard to Section 15 of the Charter, the plaintiffs’ argument is as follows:
- The individual plaintiffs were removed from their duly elected positions solely because of their positions with the trade union plaintiffs. This is discriminatory because it is based on their political beliefs, a ground analogous to the grounds stated in Section 15 of the Charter.
- By drawing a distinction between the plaintiffs (on the basis of their involvement in the union executive) and other persons who sit on the boards of colleges and institutes, the Impugned Legislation perpetuates a prejudice or stereotype that individuals such as the plaintiffs are not to be trusted because of their union positions.
- The Impugned Legislation creates a disadvantage for the plaintiffs in that it does not draw such a distinction with regard to other persons who sit on the boards of colleges and institutes, even though some of those persons could have direct or indirect economic interests that could create a potential conflict of interest.
All directors owe common law and statutory fiduciary obligations and must always act in the best interests of their respective organizations. Typically, most boards, including those of colleges, institutes and universities, have codes of conduct that deal with conflicts of interest. The boards of public sector colleges, institutes and universities include members who are appointed by cabinet, and members who are elected representatives of faculty, unionized staff, and students.
While all board members owe the same duty to their institution not to place themselves in a conflict of interest, prior to Bill 18 there was little that boards or cabinet could do if elected representatives were in breach of this duty. Boards could ask cabinet to revoke appointments for cabinet appointed board members but had no such right for elected members. In this regard, the legislation addresses a gap in the prior legislation by allowing for the removal for cause of anyone who was not appointed by the Lieutenant Governor in Council. It goes further by disqualifying as a board member anyone who is an officer or executive member of a union, apparently on the assumption that a board member cannot simultaneously act in the best interests of both the institution and the union since they often have competing interests.
From the point of view of the unions, the Impugned Legislation infringes the Charter rights of its members because it assumes that all union executives are automatically in conflict, without examining each decision they make on a case by case basis, as would be the case for board members who are not union executives. The question before the courts will be whether or not the perception of conflict for union executive board members should be managed on a case by case basis, similar to that applied to board members who find themselves in a conflict of interest as a result of their own business or personal activities and associations.
The Impugned Legislation has resulted in elected members of college and university boards being removed from office and the individuals and the unions have responded vigorously. Consequently, this challenge will be followed very closely by the labour relations community, post-secondary institutions, and generally by other public sector organizations.
We will provide you with updates as they become available.