Relations take on many different forms, grocery clerks can become customers of the store they work in, a firefighter can move to the city they work in, students can teach in the institutions where they study. What happens when the employment relationship is clouded by an overlapping relationship? This question was recently answered by the divisional court in, Ball v Mcaulay, 2019 ONSC 3775, a case involving striking graduate students employed as teachers or, as the Divisional Court found striking teachers who were also graduate students. This case has been long and complicated. Med-Arb could have offered a better solution.
The case dealt with three teaching assistants who were members of CUPE 3903. The TA’s were accused of a number misdeeds during the course of the strike. The accusations included participating in aggressive secondary picketing and circling members of the university administration with a loud protest.
The various complaints were brought to the university tribunal by Carol McAulay. McAulay is York University’s Vice President, Finance and Administration. While the tribunal’s rules contemplate an impacted party bringing a complaint directly to the University Tribunal, the tribunal accepted McAulay as the representative. The parties, and their union, engaged in the tribunal’s mediation process but were unable to reach a conclusion. The union sought an adjournment of the tribunal process until the court answered the jurisdictional issue. The tribunal ruled against the accused parties and imposed sanction.
The Supreme Court of Canada posited that pure jurisdictional questions are rare: “The Supreme Court has acknowledged however, that to date, they have been unable to identify a single instance where this category has been applicable, and the Court has repeatedly declined to characterize an issue which involves the statutory interpretation by a tribunal of its mandate as a “true” question of jurisdiction: Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII),  1 SCR 190 at para. 59; Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12 (CanLII),  1 SCR 339 at p. 43.” But the Divisional Court declared that this case was one of the rare cases that was purely jurisdictional. The court also found that while the policy preference is to let administrative tribunals complete their process prior to the possibility of judicial interference, this case warranted early intervention.
Labour Arbitration or University Tribunal?
The accused parties were both students and workers. Their roles overlapped. The employer viz a viz the tribunal was acting upon their misconduct as students despite the fact that the breeches flowed from their role as workers. The tribunal, in evaluating its jurisdiction, maintained that “While the [University Tribunal] recognizes that the conduct giving rise to the complaints occurred during a labour disruption, the [Tribunal] finds that student conduct must continue to be governed by the [Student] Code during a labour disruption. The Respondents’ characterization of the conduct as “picketing by striking employees” does not eliminate their responsibilities as students under the [Student] Code…” The Divisional Court was unconvinced.
The Court used several factors to conclude the dispute was a labour dispute. The acts took place at a picket set up during a legal work stoppage. The acts were characterized by witnesses for both sides of the case as part of a labour dispute; and Carol McAulay, an individual with labour relations responsibilities, brought the complaint on behalf of others in the administration all led to the conclusion that the complaint had labour relations at its core. The divisional court found: “The Respondents are not permitted to use the alleged misconduct of a student to discipline an employee for collective bargaining activities. The Applicants’ actions while picketing and demonstrating during a legal strike must be determined by a labour arbitrator.” Since the acts were more closely connected to their role as workers the court found the labour relations regime was the appropriate answer; in so doing they found the Tribunal lacked the required jurisdiction.
What could have been done differently?
This dispute was sent to mediation. From the text of the decision, it seems that the mediation was part of the tribunal process. Neutrality is a governing principle in mediation. A mediator who is an employee of the institution that is the complainant and owns the tribunal raises significant process concerns. This case could have benefitted from the aid of a process like mediation arbitration (Med-Arb) with a third party neutral. As it stands it has taken a mediation, a tribunal hearing, and a trip to divisional court over the intervening year, and an arbitration must now be scheduled to deal with the complaint.
The power to discipline under the York University Act is vested in the President but assigned to the tribunal. For the purpose of this case, the power of the president could have been subrogated to a Mediator-Arbitrator who would be further empowered by appointment of the parties to the collective agreement. Med-Arb would have been a more efficient process that sought consensus but was equipped to deal with a lack of it. Proper process design would have helped the parties save significant costs.
Med-Arb is only one of an array of potential solutions to your dispute. If you have a complex conflict and are wondering if Med-Arb could help or what dispute resolution options could help you, contact us for a no obligation phone consultation.
Dave Wakely is a graduate of York University and a graduate student at Osgoode Hall Law School. This article was written based on information contained within the cited case. Dave Wakely has no first hand knowledge of the dispute in question. York University and CUPE were not consulted for the content contained in this article