Ontario Superior Court of Justice – Divisional Court

Kulchyski v. Trent University

Date: 2000-10-02

Counsel: John B. Laskin, Sharon Haward-Laird and Shaheen Hirani, for the applicants; John C. Murray and Angus T. McKinnon, for the respondent.

(File No. 41/2000)

[1] O'Driscoll, J. [orally]: The Applicants are described in the affidavit of Professor McLachlan, an Applicant, as follows:

"1. I am the Chair of the Cultural Studies Program at Trent University, which is based at Peter Robinson College. I have been a faculty member of Trent University since 1970 and was the Master of Peter Robinson College from 1977 to 1982. I am also a member of Trent's Senate.

"4. My co-applicant, Andrew Wernick, is the Director of Trent's graduate program in Methodologies for the Study of Western Culture. Dr. Wernick has been a faculty member of Trent since 1971. Dr. Wernick has a Master of Arts degree from Cambridge University, and a Master of Arts and a Doctorate of Philosophy from the University of Toronto."

[2] On June 21, 2000, on their own behalf, these Applicants commenced this application for Judicial Review under s. 2 of the Judicial Review Procedure Act and seek an Order quashing the resolution of the Board of Governors (Board) of Trent University, dated November 12, 1999, insofar as it purported to authorize the closing, sale or relocation of Peter Robinson College and Catharine Parr Traill College.

[3] The Board's resolution states:

"THAT the Capital Development Strategy, 2000-04 dated November 12, 1999 (Attached as Appendix A to the master copy of these minutes) be approved; and

"THAT the President be authorized to submit, on behalf of the University, a proposal under the SuperBuild Growth Fund consistent with this strategy for a $39,653,000 capital development project."

[4] In a nutshell, the Applicants submit that the Board of Governors did not have the jurisdiction to pass such a resolution because on November 9, 1999, Senate of Trent University passed a resolution stating:

"Whereas the college system, including the two downtown colleges, forms an integral part of Trent's educational policy which falls under the jurisdiction of Senate as defined in the Trent Act, be it resolved, that Senate supports an application to the SuperBuild Program, but under no circumstances can such an application be based on either a change of location or a net reduction of facilities at any downtown or Symons Campus college."

[5] It is the submission of counsel for the Applicants that the Board only had jurisdiction to pass its resolution if it had a concurring motion from Senate.

[6] Trent University's legal existence came about when the Legislature of Ontario enacted the Trent University Act, S.O. 1962-63, c. 192: Section 4:

"The University has power to establish and maintain such faculties, schools, institutes, departments, chairs and courses as the Senate deems necessary and as shall be approved with respect to finances and facilities by the Board."

[7] Section 10:

"Except as to such matters specifically assigned by this Act to the Senate or the councils of the faculties, as hereinafter referred to, the government, conduct, management and control of the University and of its property, revenues, expenditures, business and affairs are invested in the Board … "

[8] Section 12:

"The Senate is responsible for the educational policy of the University, and with the approval of the Board insofar as the expenditure of funds and the establishment of faculties are concerned, may create such faculties, departments, schools or institutes or establish chairs as the Senate may determine, may enact by-laws and regulations…

[9] Assuming without deciding: (1) that the Applicants' have status to bring this Judicial Review Application; and (2) that judicial review is available on the facts of this case, we are of the view that:

(a) The Board is an independent autonomous party which has been granted broad powers of governance over the University's affairs. Section 10 of the Trent Act vests the Board with plenary authority over the government, conduct, management and control of the University and over its property, revenues, expenditures, business and affairs, subject only to such powers that are granted to Senate. As such, the Board has residuary authority over all matters of governments within the University, which are not specifically assigned to another party; and

(b) We are also of the view that under s. 12 of the Trent Act, Senate is granted a series of powers limited to specifically enumerated matters. All of these matters relate to educational matters within the University. Amongst the powers granted, is the power "to control, regulate, determine the educational policy of the University". Senate does not have jurisdiction over all matters of "policy" or all matters relating to education within the University. Rather, it only has jurisdiction over matters of "educational policy".

(c) We are of the view that while s. 4 of the Trent Act permits Senate to determine "what faculties, schools, institutes, departments, chairs and courses are necessary", the same section specifically provides that Senate's authority is limited in this regard, by the Board's authority "with respect to finances and facilities". Senate's jurisdiction in respect to matters pertaining to education is also limited by the specific grants of authority to the Board such as the authority over the hiring of Faculty.

(d) We are of the view that a review of the specified powers allocated to Senate under the various subsections of s. 12 of the Act demonstrate that each power is intimately linked to the delivery of the academic programme. These powers are clearly distinct from both the general governance power granted to the Board and the Board's specific authority over property and expenditures. In both such areas, the Board's authority is paramount.

(e) We are of the view that the Board's specific and residuary powers grant it exclusive jurisdiction over the management and control of the University's property, revenues and expenditures including financial responsibility for provision of facilities.

[10] In the case at bar, the Board consulted with Senate and sought its endorsement. It did not seek Senate's approval.

[11] In summary, we are of the view that the Board had jurisdiction under the provisions of s. 10 of the Trent University Act to pass the impugned resolution of November 12, 1999.

[12] On reviewing the Act of the Legislature creating Trent University, we see no uncertainty or ambiguity as to the power vested in the Board of Governors as set out in s. 10 of the Act. We are of the view that the Board of Governors' impugned resolution does no violence to the bicameral governance structure established by the Trent University Act.

[13] In Cartwright Public School Trustees v. Cartwright (Township), [1903] O.L.R. 699 (C.A.), 702, Garrow, J.A., in delivering the judgment of a five-judge court, said:

"There could be no estoppel or waiver of the public right. Sir John Robinson, C.J., in the Counties of Peterborough and Victoria v. Grand Trunk R.W. Co. (1859), 18 U.C.R. 220, at p. 224, says that 'the doctrine of estoppel can never interfere with the proper carrying out of the provisions of Acts of Parliament.' As applied to public rights and public duties, this statement of the law, could, if necessary, be fortified by numerous more modern decisions, which it is not necessary to cite."

[14] In the result, this application is dismissed.

(f) With the concurrence of my colleagues, I have endorsed the back of the Application Record, Volume 1, as follows:

"This application is dismissed for the oral reasons given for the court by O'Driscoll, J. We have heard submissions as to costs. Costs of this application are fixed at $20,000.00 payable by the Applicants to the respondents."

Application dismissed.