Good day, dear colleagues. Welcome to the fall semester! There is nothing quite like the chill in the autumn air and the red and gold hues of the foliage.
I write to you concerning the events of the past three months. In this message, I provide an update on the Association’s search for a new executive director, investigations into the use of force on our campus by the Calgary Police Service, and a unanimous statement against Alberta’s Provincial Priorities Act brought forward by our Association at the General Faculties Council. I also address our Job Action Task Force, successful Fall Social, and the upcoming Association Board retreat.
Finally, recent decisions in two cases are encouraging. In the first, the Alberta Court of King’s Bench weighed academic freedom versus the public’s right to disclosure. In the second, an arbitrator considered agreements made between Alberta Health Services and the University. These agreements greatly affect our members but, contrary to the terms of the Collective Agreement, excluded us from being consulted regarding the terms and conditions of those agreements.
It has been a busy few months! On to the stories.
A. Our Interim Executive Director and Harbour West Consulting
The national search for our new Executive Director continues to the good office of Harbor West Consulting1. In the meantime, our Interim Executive Director, Dr. Jennifer Garrison, has taken the lead in our office with a strong sense of professionalism and ethical decision-making, which, when combined with her expertise in office management, union grievances, and bargaining, has given assurance to both the Association and its employees that we are in good hands.
B. The Encampment & Police Action
After my last message to you, the University administration denied the Association’s request for the security camera footage from the May 9, 2024, police action as well as a timeline and decision tree on the events leading up to and occurring on May 9. The video footage was denied on privacy grounds and the documentary material was denied on the basis that a third review is ongoing and any information that the University might provide outside of that process could be seen as an attempt to improperly shape the narrative.
We do not accept the reasons proffered by the University and therefore we submitted Freedom of Information and Protection of Privacy (FOIP) requests to the Information and Privacy Commissioner for the security footage and all documentary materials, including emails and memoranda related to the U of C Crisis Management Team’s2 decisions and actions from its inception to the incident of May 9 as well as documents and communications of the administration that followed relative to the incident. We have also requested all other administrative communication by the University administration within the same time frame related to the incident. We will keep you informed when we hear from the Commissioner.
The Calgary Police Service also denied our request for information, and so we submitted a FOIP request for the officers’ body camera footage from the May 9 action and all related documents from when the police service was first contacted by the University up to and including May 9. The Canadian Association of University Teachers’ (CAUT) legal counsel is advising us in gaining access to all the above footage and documentation.
The University administration announced it has retained a company, MNP,3 to review the administrative actions up to and on May 9. We understand that the MNP review is half done and will likely be completed by the end of October. Thereafter, the report will go to the Board of Governor’s Environmental, Health and Safety Committee for review, with subsequent steps unknown.4
The lack of cooperative transparency evidenced by the administration refusing to provide the timeline and decision tree of the U of C Crisis Management Team5 and its decisions from inception to the action of May 9 is unfortunate. It does not foster a sense of confidence that the administrative error in not consulting our Association when faced with a possible encampment on campus is not to be repeated in the future. Administrative decision-making works best when there is practical wisdom and not a bunker mentality.
Further, a company hired and paid for by the administration, and given a limited mandate,6 does not give the Association confidence regarding that company’s independence. MNP was apparently not engaged to perform a critical analysis of the events leading up to and on May 9. A “review” by a company paid for by those who are being “reviewed” lacks-on its face-verisimilitude. For that reason, the Association has, as above stated, utilized the legislative power of FOIP and relies upon the Information and Privacy Commissioner to assist us in our search for information.
Related to the above, on July 10, 2024, the General Faculties Council passed a motion stating,
That the General Faculties Council recommends to the Board of Governors to initiate an independent review respecting the use of force against student protestors at the University of Calgary on May 9, 2024.
We await to hear whether the Governors accept the recommendation from General Faculties Council.
As you will recall, we had been told by the University administration that an investigation by the Alberta Serious Incident Response Team7 (ASIRT) was requested. We have been unable to confirm that it is the case, as there is no acknowledgement on the ASIRT website and our phone calls have not been returned.8
Where do we go from here?
We will rely upon the Office of the Privacy Commissioner and our FOIP applications regarding the University administration and the Calgary Police Service, and we will provide more information as it becomes available.
C. The Provincial Priorities Act (Bill 18)
Following my message of June, the General Faculties Council passed unanimously, with one abstention, our motion decrying the inclusion of the post-secondary sector in Bill 18. Since that time, the Confederation of Alberta Faculty Associations9 has met twice with officials from the Ministry of Advanced Education to discuss Bill 18 and the regulations that will guide its implementation in 2025. It was learned that the Ministry had already conducted consultations with university vice presidents of research about the potential impact of the legislation.
D. The Job Action Task Force
As you know, earlier this year, our Association created a Job Action Task Force. Bargaining is underway, and although we do not assume job action will be necessary, prudence dictates that in the current provincial climate we must prepare for possible job action.10 Our sister universities have also begun similar preparations.
E. TUCFA’s Fall Social
On September 12, members of the Association’s Board of Directors and staff as well as previous and current department representatives were invited to a fall social (pub night). Suggested and led by Melanee Thomas, Jason Wiens, and Justine Wheeler, it was a grand evening to simply get together and meet socially. Kudos to the tripartite team for the idea and work in making the first social gathering a successful reality.
F. TUCFA’s Upcoming Board Retreat
A Board of Directors’ retreat is planned for Friday, November 22, and Saturday, November 23. At that time, issues of governance, our bylaws, and Board Manual, as well as other matters including plans for the future direction of the Association, will be considered. The CAUT Executive Director, David Robinson, and a member of CAUT’s executive, Marc Schroeder, will participate in the retreat and on those important topics. Francine Smith, Leighton Wilks, and Karen Then are planning and coordinating the retreat.
G. Academic Freedom & the Alberta Court of King’s Bench
In Governors of the University of Calgary v Alberta Information and Privacy Commissioner,11 heard by Justice Devlin,[12] academic freedom and the public’s right to disclosure were at issue. This case, albeit at the King’s Bench level, is significant as it reiterates the importance of academic freedom to the core mission of Canadian universities and the broad interpretive application that should be given to that freedom.
Karen Litzcke,13 “an interested citizen,” filed a request to access information from the University of Calgary under Alberta’s Freedom of Information and Protection of Privacy Act (FOIP) (RSA 2000, c F-25). The request sought information regarding
a complaint . . . made by two professors at the University’s Faculty of Law to the Canadian Judicial Council . . . regarding the conduct of a Provincial Court Judge presiding in a sexual assault trial, as well as pertaining to a national newspaper editorial article authored by one of those professors and an academic from another institution.
Litzcke sought “emails, internal reports, meeting minutes, memos, posts to email listservs or online forums, letters, submissions, or other” as well as “relevant direct messages on Twitter and text messages.”
The University denied access to the materials, claiming they were “teaching materials” and “research information” and thus protected. Litzcke sought a review of that decision from the Alberta Information and Privacy Commissioner, and on August 17, 2022, the adjudicator found, in part, in favour of Litzcke. The adjudicator determined that some records sought were not “teaching materials” or “research information” as those terms are used under FOIP and ordered the University to provide access to those records. Further, the adjudicator found “no indication in [FOIP] that these categories are determined via balancing interests in disclosure versus academic freedom” (para. 9; emphasis added). He stated that the question before him was “simply whether the records at issue fall within the categories of ‘teaching materials’ or ‘research information’ as those terms are used in [FOIP]” (para. 9).
The University sought judicial review of the order on several grounds, claiming, among other things, that the adjudicator “did not consider the legislative purpose of the exemptions” and therefore “did not consider the policy reasons for including these exemptions or the impact their narrow definition would have on collaboration at the University” (para. 19; emphasis added).
Justice Devlin issued his decision on August 30, 2024, finding that the adjudicator had erred, as in determining what records must be made available, “both the right of access to information and the principle of academic freedom form the essential groundwork for determining the scope of the exemptions under FOIP for teaching materials and research information” (para. 45; emphasis added). He also noted that “the public’s right of access to information held by public bodies is broad, but not unfettered” (para. 50).
In a robust defence of academic freedom in paragraphs 51-59 of his judgement, Justice Devlin cited various explanations of academic freedom14 and noted that the Supreme Court of Canada has recognized it as “essential to our continuance as a lively democracy” (para. 52).15 He stated:
The concern for protection of academic freedom reflects its centrality to the proper functioning of an enlightened, advancing, rationalist state. Academic freedom permits scholars to engage freely in research and to explore controversial issues without fear of governmental, institutional or public interference.16 (para. 51)
This echoed the decision in McKinney v University of Guelph, where the court said,
Excellence in our educational institutions, and specifically in our universities, is vital to our society and has important implications for all of us. Academic freedom and excellence is essential to our continuance as a lively democracy.17 (para. 53)
Broadening the adjudicator’s definition of teaching materials, Justice Devlin said, “Teaching materials cannot be limited to materials provided to students for use in class” and “must extend to materials arising from activities reasonably necessary to facilitate and/or related to the act of teaching” (para. 66). Further, whereas the adjudicator found “that email discussions among professors about what might be taught in a particular course were not teaching materials” (para. 67), Justice Devlin determined that “the concept of teaching materials is not so confined” and the adjudicator’s decision was thus unreasonable.
And with regard to the adjudicator defining “research” as a “systematic investigation,” Justice Devlin evidenced an appreciation for the nuanced nature of research, connecting it with academic freedom:
While the notion of “systematic investigation” may lend itself well to inorganic chemistry or mechanical engineering, its application becomes more nebulous in respect of philosophy, social work or theatre arts, all recognized academic pursuits.
Debate over history or politics, legal discourse and the writing of poetry and music are all intellectual endeavours one would expect to be undertaken at a university. Yet all are square pegs that do not fit comfortably into the round hole of “systematic investigation”. A more nuanced approach, responsive to the particular discipline in question, is necessary.
Whatever the field, research is rarely a siloed activity. Breakthroughs and progress often occur in the crucible of conversation, contention and controversy. Accordingly, to encourage research and innovation, it may be necessary to protect discussions among academic colleagues. . . . Disclosing records that could reveal important details of a professor’s research may impugn their freedom to pursue that research without interference. (paras. 69-71; emphasis added)
In conclusion, the matter was “remitted to be considered by a different Adjudicator with appropriate reference to the concepts of right to information, academic freedom and collaboration” (para. 87).
H. The Arbitration Award in Favor of the Faculty Association
As we noted in last year’s report, the Alberta Medicine and Health Services Program (AMHSP) and Alberta Precision Laboratories (APL) have legal agreements through Alberta Health Services with the University, whereby Alberta Health Services pays the University to hire medical academic staff. The Faculty Association identified several sections that appear to violate the Collective Agreement. In arbitration in June 2022,18 the Association argued that by signing the AMHSP and APL agreements, the Governors of the University were in breach of their agreement with the Association. The arbitrator’s decision was released on May 27, 2024.
In a long, thorough, and complex decision, Arbitrator Sims found three things:
(1) “The AMHSP agreement and the associated ISA’s [Individual Services Agreements] were third party agreements related to the rights of the Association or its members or the terms of the collective agreement.”
(2) “the University breached its obligation to identify issues relating to the rights of the Association and to address those issues in discussion with the Association prior to entering into the AMHSP agreement or the related ISA’s.”
(3) “the University breached its commitment to provide the Executive of the Association a copy of the AMHSP agreement or the related ISA’s once executed” (p. 66).
He then gave specific directions, including the following:
The University forthwith disclose to the Association the current APL or AMHSP agreements and any draft or replacement agreements currently being discussed. If negotiations with Alberta Health Services are currently underway for a renewal of the APL or AMHSP or similar documents, the University shall immediately identify to the Association any provisions that may relate to the rights of the Association or its members or the terms of the Collective Agreement based on the above findings and any proposed new provisions. Thereafter it must address these issues in discussion with the Association prior to executing any such agreements. (p. 67)
Arbitrator Sims noted that,
TUCFA has emphasized throughout that its objective is not to disrupt these arrangements. Its interest is primarily in disclosure, explanation, and input. It says it may well consent to provisions even if it sees a conflict. It is not seeking any order unraveling what has taken place. (p. 2; emphasis added)
This decision, from which judicial review has not been sought, may have important ramifications in other Canadian jurisdictions. Thus, CAUT has generously agreed to assist our Association in maneuvering though its complexities and implications.
Best wishes,
Kent Donlevy
President
The Faculty Association of the University of Calgary
2 The Crisis Management Team (CMT) is the primary body for policy direction and interpretation for the university during a crisis. A partial or full activation of the CMT is required for all Level 2 and 3 incidents. The CMT has the following responsibilities: provide support to the Incident Management Taskforce, consider impacts of the emergency on the long term operation of the university in terms of reputation, government regulation, and service delivery, provide interpretation of university policy when needed, communicate with senior levels of government, provide spokesperson to media as required, and communicate with other senior university officials and committees (https://www.ucalgary.ca/risk/emergency-management/what-we-do/emergency-response).
3 The “About” section on MNP’s website says, “National in scope and local in focus, MNP is one of Canada’s leading professional services firms – proudly serving individuals, businesses, and organizations since 1958. Through the development of strong relationships, we provide client-focused accounting, consulting, tax, and digital services. Our clients benefit from personalized strategies with a local perspective to fuel success wherever business takes them” (https://www.mnp.ca/en/about).
4 If we are not provided with an unredacted copy of the MNP report, we will FOIP that document.
5 Other than the stock website list we do not know the participants. https://www.ucalgary.ca/risk/emergency-management/contact-us
6 The Request for Proposal (RFP) # 2024RFP0029 Crisis Management Team Review (Project) explained the objective as follows: To independently review the activities and decision-making process of UCalgary’s Crisis Management Team leading up to the events of May 9, 2024, during that day/evening, and in the weeks following those events (up to June 7, 2024). This process is not intended to be adversarial in nature. This Project may include (but not be limited to) the following steps:
- Review the Terms of Reference of UCalgary’s crisis management procedures.
- Interview CMT members/participants to understand activities and decision-making process from various perspectives.
- Review relevant documentation associated with CMT activities and decision-making process, including various policies, communications, and other documentation.
- The Project shall include a written report and verbal presentation to ELT with recommendations, advice and feedback on the process used by CMT to make decisions, including successes and opportunities for improvement. [emphasis added]
7 https://www.alberta.ca/alberta-serious-incident-response-team
8 This is the case as of October 2, 2024.
10 Interestingly, in the decision of September 26, 2024, the Alberta Labour Relations Board held that teaching assistants (graduate students)-at least in the University’s Psychology Clinic-have been designated as “essential” workers (under Alberta’s Labour Relations Code). In the case of job action, those graduate student TAs would be designated as essential. We do not know if judicial review will be sought from this order. See The University of Calgary Graduate Students’ Association v The University of Calgary, 2024 ALRB 88 (CanLII), https://canlii.ca/t/k70gz.
11 https://www.canlii.org/en/ab/abkb/doc/2024/2024abkb522/2024abkb522.pdf
12 https://albertacourts.ca/kb/resources/announcements/profile-on-the-honourable-justice-nicholas-devlin
13 https://www.conservativebc.ca/karin_litzcke
14 Among which were University of Ottawa (Re), 2012 CanLII 31568 (ON IPC) at para. 29; Theresa Shanahan, Michelle Nilson, and Li-Jeen Broshko, eds, Handbook of Canadian Higher Education Law (Queen’s University School of Policy Studies, 2015) at 174-6; Canadian Association of University Teachers’ Policy Statement on Academic Freedom (last amendment 2011), https://www.caut.ca/about-us/caut-policy/lists/caut-policy-statements/policy-statement-on-academic-freedom.
15 This quotation appears in Shanahan, Nilson, and Broshko, eds, Handbook of Canadian Higher Education Law at 174-6.
16 University of Ottawa (Re), 2012 CanLII 31568 (ON IPC) at para. 29. These judicial comments are relevant to the Bill 18 situation in Alberta.
17 McKinney v University of Guelph [1990] 3 SCR 229 at para 69.
18 University of Calgary and The University of Calgary Faculty Association: Grievances concerning third party contracts, AMHSP and APL. Heard via video conference on June 7, 8, 9, 15 and 29, 2022. Award Issued on May 27, 2024. https://www.canlii.org/en/ab/abgaa/doc/2024/2024canlii52126/2024canlii52126.pdf
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President’s Message