AI-0737
COURT FILE NO.: 312/07
DATE: 20080522
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM, A.C.J., CARNWATH & FERRIER JJ.
BETWEEN:
UNIVERSITY OF WINDSOR FACULTY ASSOCIATION
Lyle Kanee & Emma Phillips, for the Applicant
Henry Dinsdale, Priscilla Platt & Michael Smyth, for the Respondent
HEARD: March 28, 2008
Applicant
-and-
UNIVERSITY OF WINDSOR
Respondent
BY THE COURT:
[1] The University of Windsor Faculty Association ("the Faculty Association") applies for judicial review of an arbitration decision by Arbitrator Gail Brent ("the Arbitrator") dated February 19, 2007 ("the Award").
[2] The Award disposed of a policy grievance filed by the Faculty Association which alleged that the University of Windsor's ("the University") publication of Student Evaluations of Teaching ("SET") scores on the Registrar's Student Information System ("SIS") was contrary to the collective agreement in effect between the parties and was also contrary to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as amended ("FIPPA"). The Arbitrator dismissed the Faculty Association's grievance, finding that the publication of the SET scores on the SIS neither violated the collective agreement nor FIPPA.
[3] The issues to be decided are:
a) What standard of review applies to the Arbitrator's decision on the collective agreement?;
b) Applying that standard, should the Arbitrator's decision on the collective agreement stand?
c) What standard of review applies to the Arbitrator's decision on FIPPA?; and,
d) Applying that standard, should the Arbitrator's decision on FEPPA stand?
BACKGROUND
[4] The Faculty Association and the University are parties to a collective agreement with a term of July 1, 2004 to June 30, 2008 ("the Collective Agreement"). The Faculty Association is the exclusive bargaining agent for all employees of the University employed in the job classifications of faculty (including limited term), sessional lecturers, librarians and ancillary academic staff, subject to certain exclusions (hereinafter referred to collectively as "faculty"). The Faculty Association was certified as a bargaining agent in 1976.
[5] The University has been collecting student evaluations of faculty and using them in the promotion, tenure and review process for faculty for over twenty years. The Student Opinion Survey of Teaching ("SOST") form was used from the early 1980's until September 2004, with some amendments during that period. The SET forms were introduced in the Spring of 2004.
[6] When faculty apply for promotion, tenure or contract renewal, their department head is required to ensure that the candidates' SOST scores and SET forms have been completed and provided for all years in which the faculty member taught on campus. They are included with the documentation provided to the University Committee on Appointments Promotions and Tenure ("UCAPT") as part of the promotion, tenure and renewal process.
[7] In the Spring of 1999, the University decided to publish the results of faculty and course evaluations on the University's website. The University Senate approved the publication and the SOST scores were published on the University's website in 2000. However, the University removed the information and stopped posting it on the website in 2001 in response to concerns about the ability of those outside the University community to access the information. The issue of limited, secure access was ultimately addressed and at a meeting of the Senate on May 12, 2004, the Senate was informed that the SOST scores were available for viewing on the SIS.
[8] The SIS is a web-based system used by students to conduct academic and financial business with the University. In order to access the SET scores on the SIS, one must have an authorized code. Such codes are provided only to students and other authorized individuals within the University community. In the Spring of 2004, the University introduced the SET form for collecting information on students' views of faculty and courses and discontinued using the SOST forms.
[9] Students evaluate faculty and courses on the SET form by answering a number of questions along a spectrum of "Extremely Poor" to "Outstanding" or "Strongly Disagree" to "Strongly Agree", depending on the particular question. Each student's answers are converted into numerical scores and the responses of each class are aggregated into so-called "SET scores" for each question on the SET form. SET scores are compiled by IT services at the University and published on the SIS. The information that is published on SIS is the aggregated scores summarizing students' evaluation of faculty as well as their evaluation of courses.
[10] Before the filing of the Faculty Association's grievance, the University had published SET scores on SIS in March 2005, June 2005, October 2005, February 2006 and May 2006. On March 27, 2006, the Faculty Association sent a letter to the University's Freedom of Information and Protection of Privacy Co-Ordinator expressing concern about the posting of SET scores in anticipation of FIPPA applying to the University. On June 10, 2006, FIPPA began to apply to the University.
[11] On June 21, 2006, the Faculty Association filed a policy grievance alleging a violation of Article 27 and any other such articles within the collective agreement that may apply and sections 1, 2, 10, 21, 37, 38, 39, 41, 42 and such other sections within FIPPA that may apply.
a) What standard of review applies to the Arbitrator's decision on the collective agreement?
[12] Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 S.C.C. 9 was released by the Supreme Court of Canada on March 7, 2008, after the parties had filed their respective facta. Accordingly, supplementary facta were provided.
[13] By collapsing the patent unreasonableness and reasonableness simpliciter standards of review into a single standard of reasonableness, the Supreme Court of Canada took what many have felt was a necessary step in articulating appropriate standards of review.
[14] In the present case, both parties agree that following Dunsmuir, the standard of review of the Arbitrator's interpretation of the Collective Agreement is reasonableness. We agree.
[15] Where previous case law has defined the appropriate standard of review, Dunsmuir directs us not to engage in a fresh standard of review analysis. Bastarache and LeBel JJ. state, for the majority, at para. [62]:
[62] In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.
(Dunsmuir, above)
[16] Further, at para. [63] of Dunsmuir:
[63] The existing approach to determining the appropriate standard of review has commonly been referred to as 'pragmatic and functional'. That name is unimportant Reviewing courts must not get fixated on the label at the expense of a proper understanding of what the inquiry actually entails. Because the phrase 'pragmatic and functional approach' may have misguided courts in the past, we prefer to refer simply to the 'standard of review analysis' in the future.
[17] Further, at para. [64] of Dunsmuir:
[64] The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue; and, (4) the expertise of the tribunal.
[18] The review of labour arbitrators' interpretations of collective agreements has always been approached with deference and this remains so following Dunsmuir. As stated by the majority at para. [68]:
[68] This Court has often recognized the relative expertise of labour arbitrators in the interpretation of collective agreements, and counseled that the review of their decisions should be approached with deference….
[19] The Court was careful to point out in para. [48] that this move towards a single standard of reasonableness
…[d]oes not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. In this respect, the concept of deference, so central to judicial review in administrative law, has perhaps been insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision-makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law.
b) Applying the standard of reasonableness, should the Arbitrator's decision on the collective agreement stand?
[20] In the present case, the appellant argues that the Arbitrator's interpretation of Article 27:06 of the Collective Agreement was unreasonable in that the decision does not fall "within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law". They argue that the Arbitrator's brief reasons fail to demonstrate a rational basis for her interpretation of Article 27:06 and do not meet the requirement for "justification, transparency and intelligibility within the decision-making process". We disagree.
[21] The Arbitrator was called upon to interpret Article 27:06 of the Collective Agreement. The essence of this Article reads as follows:
Except as authorized (by this Agreement or otherwise)…all health and psychiatric records, transcripts, letters of reference and assessment, or material reflecting the salary history or the existing salary rate or other personal information of any member under the direct control of the university shall be kept confidential…
[Emphasis added]
The Faculty Association urged that the University's confidentiality obligation in Article 27:06 regarding "letters of reference and assessment" should encompass SET scores. The Arbitrator rejected this argument. She held that by choosing to use the phrase "letters of reference and assessment", the parties intended to refer to written, non-statistical opinions of a faculty member's ability or suitability. In challenging the Arbitrator's interpretation of Article 27:06, the Association now contends that the Arbitrator should have interpreted the phrase "other personal information" in Article 27:06 to include SET scores.
[22] In our view, it was reasonable for the Arbitrator to conclude that the phrase "personal information" should be interpreted in the context of all of the other items enumerated in Article 27:06. The statistical material in the SET scores is not similar to the rest of the confidential items listed in Article 27:06. Therefore, it is reasonable to conclude SET scores are not captured by the phrase "personal information". Moreover, the phrase "personal information" in Article 27:06 does not include SET scores because these scores are the sort of statistical data specifically referred to in Article 27:04 of the Collective Agreement. That is"…statistical information gathered as a result of any collective teacher evaluation made by students and approved by the Senate". Finally, it is reasonable to conclude that Article 27:06 does not make SET scores confidential because the phrase "personal information" "relates to information about the individual employee as an individual". SET scores do not fall into this category of information.
[23] The Arbitrator noted that the parties had specifically agreed in Article 27:04 that "…statistical information gathered as a result of any collective teacher evaluation made by students and approved by the Senate" would be exempt from the category of "anonymous material" that could not be kept or used by the University. By reaching this agreement, the parties expressly considered the treatment of statistical information generated from student evaluations of faculty and agreed it would not be considered anonymous material, even though the information would be tabulated so as not to identify the author. The parties could have included "… statistical information gathered as a result of any collective teacher evaluation made by students and approved by the Senate" in the list of information in Article 27:06 to be kept confidential. They chose not to do so. It was therefore open to the Arbitrator and reasonable for her to interpret "personal information" as referring to information related to a faculty member "as an individual". It is important to note that many of the categories enumerated in Article 27:06 have both employment and non-employment related features. By using the term "individual employee", the Arbitrator recognized that a category of information may have two aspects – a personal aspect about the "individual" and also an employment-related aspect By interpreting "personal information" as relating to information about the individual employee "as an individual", the Arbitrator did not qualify her conclusion by saying the information had to be "exclusively" about the person as an individual. In other words, the information must relate to a faculty member as an individual, meaning there must be some personal, non-employment-related component to gain the protection of Article 27:06.
[24] Given that all the classes of information enumerated in Article 27:06 can rationally be interpreted as including non-employment information, it was reasonable for the Arbitrator to interpret "other personal information" as sharing this unifying feature and it was reasonable for the Arbitrator to find that SET scores were employment-related and had no personal or "individual" component. We agree with the University that Article 27:06 can reasonably be interpreted as striking a balance between the interests of the University in using faculty members' information and the parties' express agreement that particular types of information will be kept confidential. For example, the Collective Agreement's treatment of a faculty member's CV as non-personal information is consistent with the Arbitrator's interpretation of "personal information" as relating to information about the "individual". The express exclusion of curriculum vitae from "personal information" in Article 27:06 suggests that a curriculum vitae would otherwise fell within the scope of that phrase. Since a faculty member's CV would include both employment and non-employment information, the necessity of expressly excluding it from "personal information" is consistent with that phrase encompassing information with a non-employment or personal component.
[25] The Collective Agreement language was negotiated and adopted before the application of FIPPA to the university sector. The Collective Agreement was entered into on November 16, 2004, well before June 2006 when FIPPA began to apply.
[26] There is nothing to suggest that the phrase "personal information" in the Collective Agreement is in any way related to the meaning of that phrase under FIPPA or that the parties intended to adopt a statutory definition that would later come into effect. According to ordinary rules of interpretation, therefore, the phrase, as the Arbitrator noted, should be interpreted in the context in which it was used in the Collective Agreement. The Arbitrator's conclusion was reasonable. The application related to the Arbitrator's decision on the Collective Agreement is therefore dismissed.
c) What standard of review applies to the Arbitrator's decision on FIPPA?
[27] Earlier in these reasons, we concluded that the standard of review for the Arbitrator's consideration of the Collective Agreement was that of reasonableness.
[28] When the Arbitrator turns to consider FIPPA, a different standard of review may be required. As noted earlier, the Supreme Court of Canada, in Dunsmuir, eliminated the "patent unreasonableness" standard of review in judicial review of tribunal decisions. The Court collapsed the "two variants of reasonableness review" resulting in a system comprising two standards: correctness and reasonableness (para. 45). The analysis is now called the "standard of review analysis", not the "pragmatic and functional approach", though the same four factors are considered.
[29] If the appropriate degree of deference has already been determined, there is no need to reevaluate it. (para. 62). An extensive review is not required in every case. (para. 57) Where there is a need to re-evaluate the standard of review, it should be noted that the standard of correctness may apply in the following situations:
• Constitutional questions (para. 58)
• True questions of jurisdiction 'in the narrow sense of whether, or not the tribunal has the authority to make the inquiry' (para. 59)
• Question of general law 'that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise' (para. 60)
• Questions re: jurisdictional lines between competing specialized tribunals (para. 61)
[30] In contrast, the reasonableness standard may apply where there is a:
• Question of fact, discretion or policy (para. 53)
• Privative clause: this is a statutory directive … indicating the need for deference (para. 55)
• Discrete and special administrative regime in which the decision-maker has special expertise (para. 55)
• Question of law [that is not both of central importance to the legal system as a whole and outside the specialized area of expertise of the decision-maker] and that may be compatible with a reasonableness standard where the latter two factors above so indicate (para. 55)
[31] Whereas a correctness analysis requires a court to "undertake its own analysis of the question" (para. 50), the reasonableness standard requires an inquiry into the "qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes" (para. 47):
[47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decisionmaking process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[48] The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. […] Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determination of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. …
[49] … In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.
[32] The Faculty Association submits that the proper standard of review is correctness involving as it does the interpretation of ss. 65(6) of FIPPA. The Faculty Association submits this is a pure question of law in respect of a legal question which is not "at the core" of an arbitrator's expertise and which involves a statute which is not the Arbitrator's constituent legislation.
[33] The University submits the standard of review is reasonableness. It points out the strong privative clause in s. 48(1) of the Labour Relations Act, 1995, S.O. (1995), c. 1 Sch. A, s. 48(1), which expresses the Legislature's intent that arbitration constitutes a "final and binding settlement of differences between the parties". As well, s. 48(12)(j) of the Labour Relations Act, 1995 expressly confers on the Arbitrator the power to interpret and apply "employment-related statutes" which, says the University, includes workplace privacy legislation. The University submits that the purpose of the Labour Relations Act, the expertise of the Arbitrator in interpreting legislation intimately connected with her mandate all point to a standard of review of reasonableness.
[34] Neither party drew to the Court's attention any reported case in Ontario where a court considered the standard of review to be applied where a labour arbitrator considered the application of FIPPA in the like circumstances of this case. We find it necessary, therefore, to proceed to an analysis of the factors making it possible to identify the proper standard of review as directed in para. 62 of Dunsmuir.
[35] First, we note the privative clause in s. 48(1) of the Labour Relations Act, 1995 and the direction in Dunsmuir at para. 55 that a privative clause is a statutory directive indicating the need for deference.
[36] Second, the purpose of the Labour Relations Act, 1995 is to secure prompt, efficient and cost-effective dispute resolutions that are final and binding. Third, the alleged expertise of the Arbitrator with respect to the question in issue requires an analysis of the applicable sections of FIPPA. Subsections 65(6) and (7) of FIPPA provide, as follows:
s. 65(6) Subject to subsection (7), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following:
Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.
Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding.
Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has a interest.
(7) This Act applies to the following records:
An agreement between an institution and a trade union.
An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment-related matters.
An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees.
An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment.
[37] Looking first at ss. (7) of s. 65, we find that the SET scores do not fall within any of the exceptions in ss. (7) that would make the Act apply.
[38] Paraphrasing ss. 65(6), the University submits that the SET scores are records collected, maintained and used by the University and are communications about labour relations and/or employment-related matters in which the institution has an interest. That being so, says the University, the Act does not apply to the SET scores,
[39] As noted earlier, no case was cited to us where a labour arbitrator considered FIPPA. However, our Court of Appeal dealt with an analysis of ss. 65(6) of FIPPA where an Assistant Privacy Commissioner ("the Commissioner") was involved. (Ontario (Solicitor General) v. Mitchinson (2001), 2001 8582 (ON CA), 55 O.R. (3d) 355 C.A.)
[40] In Solicitor General, the Commissioner held that certain records did not fall within ss. 65(6) and were therefore not excluded from the Act but, rather, subject to the Act. Simmons J.A., writing for the Court, held that the standard of review was correctness.
[41] Simmons J. A. began her analysis by recognizing the relative expertise of the Commissioner:
[29] Relative expertise is no doubt a highly significant factor in the determination of the appropriate standard of review. This court recognized the expertise of the Privacy Commissioner in Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 1998 7154 (ON CA), 41 O.R. (3d) 464, 164 D.L.R. (4th) 129 (C.A.) as follows [at pp. 472-73 O.R.]:
'The commissioner is required to develop and apply expertise in the management of many kinds of government information, thereby acquiring a unique range of expertise not shared by the courts. The wise range of the commissioner's mandate is beyond areas typically associated with the court's expertise….the commission is a specialized agency which administers a comprehensive statute regulating the release and retention of government information. In the administration of that regime, the commissioner is called upon not only to find facts and decide questions of law, but also to exercise an understanding of the body of specialized expertise that is beginning to develop around systems for access to government information and the protection of personal data. The statute calls for a delicate balance between the need to provide access to government records and the right to the protection of personal privacy. Sensitivity and expertise on the part of the commissioner is all the more required if the twin purposes of the legislation arc to be met.'
(Solicitor General, above)
[42] Nevertheless, Simmons J.A. went on to find that the Commissioner's expertise was not engaged in interpreting ss. 65(6):
[30] While acknowledging the relative expertise of the Privacy Commissioner in matters requiring it, in my view the very wording of s. 65(5) indicates her expertise is not engaged in its interpretation. By using the words 'this Act docs not apply', the legislature has distinguished exclusions from exemptions, and has declared that the 'delicate balance[ing] between the need to provide access to government records and the right to protection of personal privacy', which engages the expertise of the Privacy Commissioner, plays no role in relation to the enumerated records. Accordingly, relative to the court, the Privacy Commissioner possesses no particular expertise that is significant to the interpretation of that section. In my view, this wording also signifies the legislature's intention that the Privacy Commissioner not have a determinative say in the interpretation of the section. Had it viewed the matter otherwise, it would not have excluded the enumerated records from the operation of the Act.
(Solicitor General, above)
[43] Thus, although the Commissioner's expertise was acknowledged and although the Commissioner's constituent statute was in play, nevertheless, the standard of review was found to be correctness.
[44] In the matter before us, the Arbitrator had neither the Commissioner's expertise nor was she dealing with a constituent statute. Were there nothing more, the ratio of Solicitor General would apply and the standard of review would be correctness.
[45] Nevertheless, recognition of the deference owed by virtue of the privative clause referred to above must be considered in arriving at the appropriate standard of review. Is the deference called for by the privative clause sufficient to overcome the absence of any expertise in the Arbitrator? There is much to be said for concluding that a reasonableness standard of review applies.
[46] However, we conclude it is unnecessary for us to resolve this matter based on the unusual facts of this case. Our conclusion on the correctness of the Arbitrator's decision persuades us to review her decision by the standard of correctness.
[47] The Arbitrator began her analysis by accepting that absent a specific exclusion in ss. 65(6), the privacy provisions of FIPPA would apply to the SET scores. She was correct in doing so.
[48] The Arbitrator then applied the meaning of "record" found in ss, 2(1) of FIPPA to the preamble of ss. 65(6) and found that the word "records" in the preamble included the information gathered in the SET evaluations of teachers by students. She found the "records" were "collected" by the University"maintained" by it and used by it in connection with promotion, tenure and renewal decisions. She was correct in doing so.
[49] The Arbitrator then noted that ss. 65(6)(3) exempted from FIPPA "communications about…employment-related matters in which the institution has an interest". Since the SET scores were a communication from the students to the University used as part of the promotion, tenure and renewal process, she found they were within the definition of "employment-related matters". She was correct in doing so.
[50] The Faculty had argued that the SET scores ceased to be "employment-related matters" once they were made available to the students. The Arbitrator found this submission to be contrary to the decision in Solicitor General at para. [38]:
[38] In my view, the time sensitive element of subsection 6 is contained in its preamble. The Act 'does not apply' to particular records if the criteria set out in any of subclauses 1 to 3 are present when the relevant action described in the preamble takes place, i.e. when the records are collected, prepared, maintained or used. Once effectively excluded from the operation of the Act, the records remain excluded. The subsection makes no provision for the Act to become applicable at some later point in time in the event the criteria set out in any of subclauses 1 to 3 cease to apply.
She was correct in doing so.
[51] The application related to the Arbitrator's decision on FIPPA is dismissed.
[52] For the foregoing reasons, the application for judicial review is dismissed.
[53] If the parties are unable to agree on costs, they may make brief written submissions not to exceed three pages to be received within twenty-one days of the date of the release of these reasons.
CUNNINGHAM A.C.J.
CARNWATH J.
FERRER J.
Released: MAY 22 2008
COURT FILE NO.: 312/07
DATE: 20080522
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM, A.C.J., CARNWATH & FERRIER JJ.
BETWEEN:
UNIVERSITY OF WINDSOR FACULTY ASSOCIATION
Applicant
-and-
UNIVERSITY OF WINDSOR
Respondent
JUDGMENT
BY THE COURT
Released: 20080522
UNIVERSITY OF WINDSOR FACULTY ASSOCIATION
Applicant
- and -
UNIVERSITY OF WINDSOR
Respondent
Court File No. 312/07