Court File and Parties

COURT FILE NO.: 101/09 DATE: 2009-06-15

SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

RE: The governing council of the university of toronto v. Canadian union of public employees, local 3902

BEFORE: Swinton, Low and Bryant JJ.

COUNSEL: Frank Cesario, for the Applicant Richard A. Blair, for the Respondent

HEARD AT TORONTO: June 8, 2009

Endorsement

Low J.

[1] The applicant seeks judicial review of the arbitration award of arbitrator Deborah Leighton dated January 23, 2009. The arbitrator upheld the union grievance and found that the applicant had violated the collective agreement between the parties by requiring students in the introductory psychology class (the course) at the Scarborough campus of the University of Toronto to mark the work of other students without pay.

[2] The standard of review is reasonableness.

[3] As was stated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 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 [page221] justification, transparency and intelligibility within the decision-making 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.

[4] Prior to the events that underly the grievance, students taking the course were evaluated only by multiple choice exams that were marked electronically. When he began to teach it, Professor Steve Joordens decided to introduce a written component as a part of the course requirement. This element was intended to teach students how to think and write critically. This written element of the course requirement was to make up 10% of the final grade.

[5] Because the size of the class was large, at around 1500 members, Professor Joordens developed the "peerScholar" web program to facilitate the marking of the written component of the course requirement. The web program allows students to post their written assignments, to grade and comment upon the written assignments of other students, and to review the marks and comments which other students have given them on their own assignments.

[6] Professor Joordens stated on his website:

I will be completely honest. The original reason for seriously considering a peer-to-peer evaluation process was financial. We cannot afford to pay a large team of TAs to mark written answers for large classes. Moreover, it would take them so long to do the marking that it also just wouldn't be practical. Peer-to-peer evaluation, when combined with great internet programming, is fast and cheap.

[7] Students enrolled in the course do not receive any remuneration for performing the marking function of the course and it is common ground that the marking that the students do of each other's work is not merely a learning exercise but functions as part of the course evaluation of the student whose work is being marked.

[8] The salient provision of the collective agreement is Article 2:01:

The Employer recognizes the Canadian Union of Public Employees, Local 3902 as the sole and exclusive collective bargaining agent for all persons employed as teaching assistants, teaching fellows, demonstrators, tutors, markers, instructors, teaching laboratory assistants, Chief Presiding Officers in the Faculty of Arts and Science (as defined in Paragaph One of the Memorandum of Understanding dated February 8, 1988), invigilators, and part-time lecturers who are Post Doctoral Fellows, Undergraduate Students in the University of Toronto, and Graduate Students in the School of Graduate Students of the University of Toronto.

[9] Certain other agreements and documents are also relevant to the interpretation and application of the collective agreement.

[10] In the early 1980's the issue of students performing bargaining unit work for no pay was the subject of a grievance, the Nath grievance. The subject of that grievance was additional teaching assistant work which a student teaching assistant had volunteered to do without remuneration. The grievance was settled on the basis that the student was paid for the work he had volunteered to do and upon an agreement that the university would (and did) circulate a memorandum that provided, in part:

The question of University of Toronto post-doctoral fellows, graduate students or undergraduates being 'appointed' or, in other situations, volunteering, to perform teaching assistant duties without pay first arose in early 1980 as the result of a grievance. The resolution of the matter was communicated to all departments in some detail in a May 1980 memo, a copy of which is attached. However, since having written to you, other problems of a similar nature have arisen, such that a restatement of the policy established is now appropriate: no department may appoint or otherwise request or require work without pay, nor can a department or faculty member accept the performance of services without pay.

Previously, departments which have incurred costs resulting from settlement of grievances over this point have been given financial assistance. This will no longer be provided; any such costs incurred in future will have to be met from the department's own budget.

[11] The Nath settlement provided that this policy "shall govern in all future grievances on this subject".

[12] In short, it appears that part of the agreement settling the Nath grievance was that the University would set or restate a policy that there was to be no work without pay for students related to teaching and evaluation and that the policy was to govern future grievances on the subject.

[13] There was another grievance on the same subject, referred to as the "Health Sciences grievance". The subject of the Health Sciences grievance was the use of medical students as anatomy demonstrators. The students were not paid for their work but they received course credit for performing the work.

[14] The grievance was arbitrated by Professor Donald Carter who held that the Nath settlement established an agreed interpretation of the collective agreement and held that the use of student anatomy demonstrators without pay violated the collective agreement. He held, in relation to the memorandum issued pursuant to the Nath settlement, that

"the employer appears to define the union's bargaining unit according to two criteria—student status and the function being performed. Nowhere can there be found any express reference to a third requirement of an existing employment relationship. Thus, it is clear that the language of the settlement adopts an interpretation that would include within the bargaining unit volunteers who was performing bargaining unit work." (p. 9 award)

[15] The application for judicial review of the Carter award was dismissed by the Divisional Court (University of Toronto v. Canadian Union of Education Workers, Local 2, [1984] O.J. No. 1096 (Div. Ct.)).

[16] Arbitrator Leighton decided this grievance with reference to the Nath settlement and the memorandum flowing therefrom and with reference to the arbitration award decided by Professor Carter in the Health Sciences grievance. She concluded that the Nath settlement, which referred to future grievances of a like kind, was intended to be a binding agreement between the parties, and, as observed by Professor Carter in the Health Sciences decision, can be regarded as giving rise to an estoppel precluding a party to the agreement from adopting a different interpretation of the collective agreement from the one agreed to.

[17] On the basis that markers are specifically included in Article 2:01 and as the undisputed facts were that the members of the introductory psychology course were students and that they were marking the work of other students, the arbitrator concluded that they were members of the bargaining unit.

[18] The arbitrator held that the fact that the students performing the marking function were enrolled in the same course as the students whose work they were marking was not a material difference from the facts in the Health Sciences grievance. I agree with that view. The material fact is that students were performing a bargaining unit function, a reality acknowledged by Professor Joordens in his website statement.

[19] The holding in the Health Sciences arbitration award was that membership in the bargaining unit was defined by status and by the function performed and not by a pre-existing employment relationship. There has been no change in the language of Article 2:01 and although terms of the collective agreement have come and gone, the parties have not bargained for a different interpretation of that article.

[20] In my view, it was not unreasonable for the arbitrator to have decided this grievance, which has a fact pattern with no material distinction to that in the Health Sciences grievance, in the same way, following a similar line of reasoning and applying an agreement between the parties (the Nath agreement) in the same way. The use of student labour to perform marking functions without pay was precisely what the policy memorandum flowing from the Nath settlement addressed and proscribed.

[21] In my view, the arbitration award was reasonable and should not be disturbed.

[22] The application is therefore dismissed.

[23] The respondent shall have its costs from the applicant fixed at $4000 all inclusive.

Low J.

Swinton J.

Bryant J.

DATE: 2009-06-15