The Lawyers Weekly - May 14, 2010

Top court confirms independence of university’s senate

GARY OAKES VICTORIA

ity for academic governance.

“The point is that in a bicameral university, the senate cannot trump the board…and the board… cannot trump the senate, since each derives their respective powers directly from the legislature,” he told The Lawyers Weekly.

“The judgment has served to affirm this and thus preserve the power of the senate,” added Macintosh, who was lead counsel for one of the intervenors on the case, the Association of Universities and Colleges of Canada.

The issue arose after the UBC Faculty Association negotiated a collective agreement with the university through its board of governors.

“On the other hand, the senate had implemented a policy whereby students evaluate professors where such evaluations can affect the employment status of the professors,” noted Macintosh, who is with Farris, Vaughan, Wills & Murphy LLP.

He said the faculty association
grieved and asked an arbitrator to
set aside the senate policy. But the
arbitrator “held that he had no
power to fetter the senate since
his [authority] derived from the
board of governors. The Court of
Appeal agreed.”
Justice Jo-Ann Prowse said
the policy’s purpose “is to improve
the quality of teaching at UBC[,
no paramountcy provision in the
University Act which permits
the board, under its power to
enter into collective agreements,
to trump the right of the senate
to enact policy that falls within
its statutory mandate of aca-
demic governance.

B.C.’s top court has effectively confirmed the independence of the University of British Columbia’s senate and, by extension, that of similarly-gov-erned higher learning institutions across Canada.

Vancouver lawyer George Macintosh explained that like most universities in Canada, UBC “is bicameral in its governance, meaning that the legislature… has given certain powers directly to the board of governors and other[s]…dir-ectly to the senate. The senate, for example, is assigned responsibil-

Macintosh

“If the Board has no power to interfere with the Senate’s exercise of its powers over academic governance in this regard, then surely the Arbitrator cannot find the jurisdiction to do so, either in the Collective Agreement or the [B.C. Labour Relations] Code.

mandate, it can be called to account through judicial review. If an employee is unfairly affected by the application of the policy (as opposed to the content of the Policy), he/she can grieve and an arbitrator clearly has jurisdiction over such a grievance. Accountability of the Senate is also provided by the fact that elected faculty represent a large percentage of its constituency….

“If the Board has no power to
interfere with the Senate’s exer-
cise of its powers over academic
governance in this regard, then
surely the Arbitrator cannot find
the jurisdiction to do so, either in
the Collective Agreement or the
[B.C. Labour Relations] Code.”
Her Court of Appeal col-
leagues, Justices Peter Lowry and
Kathryn Neilson, concurred. ;

something] which…fall[s] within
the Senate’s mandate of academic
governance. It is also apparent
that the Policy has implications
for labour relations issues covered
by the Collective Agreement.”
She pointed out that there is
The appellate judge added
that the board has no right “to
bargain with respect to matters
of academic policy even if the
policy touches upon labour rela-
tions matters. To the extent the
Senate oversteps its statutory

Reasons: Faculty Association of British Columbia v. University of British Columbia, [2010] B.C.J. No. 679.

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Man found drunk in his car wins suit against auto insurer

GARY OAKES VICTORIA

A man who admitted he was drunk when his truck was totaled, but claimed someone else was driving, has won his suit against the provincial insurer because it failed to prove he was the one behind the wheel.

Sarah Klinger, counsel for
plaintiff Richard Laurie, told
The Lawyers Weekly that the
decision “shows that although
the circumstances leading to a
loss might cause an insurer to
infer that there has been a
breach of the contract, they will
not be successful in court with-
out substantial evidence, on a
balance of probabilities, of that
breach.”
Justice Heather Holmes
noted that Laurie had claimed
damages for breach of contract
as a result of the failure of the
Insurance Corporation of B.C.
(ICBC) to pay the agreed cash
value of the truck, $29,000, less
the $300 deductible.

The accident happened in September 2008 in greater Victoria and ICBC denied coverage because his state of intoxication amounted to a breach of the policy.

The B.C. Supreme Court
judge noted that Laurie “agrees
that he was seriously intoxi-
cated, but says that he was not
driving at the time of the acci-
dent. He says that because he
was intoxicated, he accepted the
offer of a man named Tyler to
drive him home in the truck. He
says that he does not know or
remember the accident itself or
how Tyler quickly disappeared
from the truck and the scene,
and, having no information
about Tyler’s identity, has been
unable to find him since.”
Two witnesses who ran to
the scene after hearing the
crash didn’t see anyone else in
the vicinity but said Laurie told
them Tyler had been driving.
One of them reported that Lau-
rie asked whether Tyler was
OK.

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