University of Saskatchewan Faculty Association v University of Saskatchewan

IN THE MATTER OF THE SASKATCHEWAN EMPLOYMENT ACT

AND GRIEVANCE #2020-04

Between:

The University of Saskatchewan Faculty Association,

Grievor/Association

- and -

The University of Saskatchewan,

Employer

Before:

For the Association:

For the Employer:

Anne M. Wallace, QC, Arbitrator

Keir Valance

John Beckman, QC and Robert Emes

Award

I.

Introduction

1. The University of Saskatchewan Faculty Association (the “Faculty Association” or

the “Association”) is the certified bargaining agent for all full-time academic

employees at the University of Saskatchewan (the “University” or the “Employer”).

2. The parties are subject to a Collective Agreement with force from 2017 to 2022 (the

“2017 Agreement”). Past collective agreements relevant to this matter covered

periods from 2010 to 2013 (the “2010 Agreement”), 2014 to 2017 (the “2014

Agreement”) and 2014 to 2017 (the “2014 Agreement”).

3. The parties have appointed me to hear a grievance brought by the Faculty

Association on July 29, 2020, (the “Grievance”), which says:

Re:

Grievance# 2020 04 College of Education, Breach of MOA Scope and Jurisdiction

(MOA-Scope) November 2013 & Appendix B, Failure to Follow Adjudication Process

In a Memorandum of Agreement dated November 2013 (attached), the parties set out the terms

of an agreement reached regarding the scope of a number of positions. In consideration for a

written scope adjudication procedure respecting Associate Deans (found in Appendix B to the

November 2013 MOA), the Association agreed to join the employer in a joint application to the

Labour Relations Board to revise the certification order in accordance with the terms of the MOA.

That application was made, and the certification order was amended.

Article 8 of the 2013 MOA -Scope specifically established a protocol for determining the

appropriate designation of an Associate Dean position. Following the creation of a new Associate

Dean position, the Association could either agree the position was appropriately designated as an

out of scope Associate Dean position, or could specify that it should be designated as an in-

scope Assistant Dean position. In the event of a dispute, Appendix B established a binding

adjudication process.

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In July of 2019, pursuant to the requirement of Appendix 8, the employer provided the

Association with a job description of Associate Dean Research of Scholarship of Teaching and

Learning (SOTL) in the College of Education, advising that "Per the MOA, the designation of the

position must now be reviewed by both parties". The Association was requested to provide its

comments.

Through a series of subsequent correspondence, the Association ultimately disputed that the

position was appropriately designated as an Associate Dean position, and communicated this

disagreement to the employer.

In a letter dated October 1, 2019, the University abruptly took the position that the 2013 Scope

MOA was redundant and of no effect, and therefore refused to participate in the scope

adjudication process pursuant to Appendix B.

The Association seeks a declaration that the employer violated the 2013 Scope MOA by denying

its validity and failing to follow the procedures therein, together with an Order directing the

employer to follow the terms of that MOA such that the scope of the Associate Dean SOTL

position be determined by the adjudication process in Appendix B.

4. The Grievance arose because of a June 16, 2020, decision of the Saskatchewan

Labour Relations Board (the “LRB”). On October 21, 2019, the Association brought

an unfair labour practice application to the LRB claiming that the Employer had

unilaterally declared a new Associate Dean Research and Scholarship of Teaching

and Learning (“SoTL”) position in the College of Education to be out of scope. The

University objected to the LRB’s jurisdiction on the basis that “…the issue arises

directly out of a Memorandum of Agreement (MOA) in the Collective Agreement…,”

and should be brought before an arbitrator. Substantively, the University took the

position that the relevant Memorandum of Agreement (MOA #2 in the 2017

Collective Agreement, also referred to as the “Appointment MOA”) does not require

the Association’s agreement when the University creates out-of-scope positions.

5. Before the LRB, the Association argued that the University’s actions in relation to the

Associate Dean, Research and SoTL breached a Memorandum of Agreement

between the parties signed in November of 2013 (the “Scope MOA”). The University

argued that a decision in favour of the Association would be contingent on a finding

that the Scope MOA forms part of the Collective Agreement and that the dispute is

more properly for an arbitrator under the Collective Agreement.

6. In its June 16, 2020, Reasons for Decision the LRB concluded:

[52]

The Board agrees with the USFA that the unfair labour practice question puts in issue the

conduct of the University. The question of whether the University has committed an unfair labour

practice is within the jurisdiction of the Board. However, the University's defense to the unfair

labour practice appears to be grounded in the Appointment MOA. The Board is satisfied that the

parties, should they proceed to arbitration pursuant to the CBA will seek and receive direction as

to the applicable MOA, as well as the applicable negotiated process.

[53]

A decision that the governing MOA is the Scope MOA could provide a suitable alternative

remedy for the USFA, by providing clear direction to the parties. Perhaps said remedy would turn

out to be incomplete. But the Board would have to prejudge the issues to justify redirecting the

matter to the negotiated adjudicator, and could occasion even more delay by doing so. It is not for

the Board to decide which MOA applies.

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7. As a result, the matter is now before me. At the outset of the hearing the parties

confirmed that:

a. They agree to my jurisdiction to hear and determine the Grievance;

b. In the interval since the Faculty Association brought the Grievance, for

financial reasons the University has decided not to proceed with the

appointment of an Associate Dean Research of SoTL, so no decision will be

necessary with respect to that position. The issue that gave rise to the

Grievance is moot.

c. The Faculty Association, however, wants to proceed with the Grievance as a

policy grievance, and the University has agreed to proceed on that basis. The

Faculty Association seeks a declaration that the Scope MOA remains in effect

and specifically that when the University seeks to create any new Associate

Dean position, the University is still bound by paragraph 8(a) and Appendix B

of the Scope MOA.

8. The parties filed a set of documents by consent as to authorship and authenticity

and reserved the right to argue relevance and weight. The Faculty Association called

Faculty Association Chair and Chief Negotiator, Allison Muri, and Faculty

Association Professional Officer, Maureen Fryett. The University did not call any

witnesses.

II.

The Evidence

Allison Muri

9. Allison Muri testified that:

a. Muri has been a professor in the Department of English in the College of Arts

and Science at the University since 2009. She teaches English Literature and

Digital Humanities. Muri is the Chair of the Faculty Association and Chief

Negotiator for the Association.

b. As the Chair and CEO, Muri’s duties include making sure the Association

constitution is upheld, carrying out policies of the Association, and chairing

meetings of the membership and the Executive Committee. Muri is

spokesperson for the Association. She calls special meetings as required. As

Chief Negotiator, Muri’s duties include engaging in collective bargaining with

the University’s board of governors to bargain a collective agreement. She is

also involved in negotiating letters of understanding and memoranda of

agreement. Muri also oversees planning for collective bargaining.

c. As Chief Negotiator, Muri was involved in negotiating the 2017 Agreement.

That negotiation went on for well over a year. Muri was involved in negotiating

changes to the Appointment MOA which is attached to the 2017 Agreement.

The latter MOA has been in collective agreements in similar form since 1990.

d. During the negotiations, there were no discussions to suggest the Scope

MOA was being eliminated or superseded because of changes to the

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Appointment MOA. There were no discussions about whether the

adjudication process in the Scope MOA would be eliminated or superseded.

e. In the negotiations for the 2017 Agreement and the changes to the

Appointment MOA, there were no discussions at all about the Scope MOA on

Scope and Jurisdiction. The parties did not discuss the Scope MOA at all.

f. The Faculty Association ratified the 2017 Agreement on July 23, 2019. The

last bargaining session regarding the 2017 Agreement was June 21, 2019.

The Association Bargaining Committee recommended the 2017 Agreement

be ratified. Muri does not recall formally notifying the University that the

Association was recommending ratification, but that was certainly the

assumption at the end of bargaining establishing the tentative agreement.

g. On July 18, 2019, Jim Basinger sent Doug Chivers a letter dated July 17,

2019 about the proposed position of Associate Dean Research and

Scholarship of Teaching and Learning. The second last paragraph says:

In accordance with the Memorandum of Agreement between The University of

Saskatchewan and The University of Saskatchewan Faculty Association on Scope and

Jurisdiction dated November 2013, attached please find a job profile for the Associate

Dean, Research and Scholarship of Teaching and Learning (SoTL), College of

Education. This is an additional associate dean position within the college with the intent

to strengthen the leadership team. The Associate Dean Research and Scholarship of

Teaching and Learning will provide leadership and direction over the development and

implementation of the research agenda of the college and the overall strategic direction

of the SoTL. Per the MOA, the designation of this position must now be reviewed by both

parties.

The university has reviewed the position and determined that the designation of the

position as an associate dean is appropriate given that the individual in this position:

1. is a member of the senior leadership of the college;

2. performs functions that are of a managerial character;

3. has primary duties that include activities that are of a confidential nature in

relation to labour relations, business strategic planning, policy advice, and budget

implementation or planning; and

4. acts as the dean’s delegate if necessary.

As per the MOA between The University of Saskatchewan and The University of

Saskatchewan Faculty Association on Scope and Jurisdiction the provost has approved

this position.

In order to ensure that the college can proceed with filling this position in a timely

manner please provide me with your comments by end of day on Monday, July 29.

h. Muri took that to refer to the Scope MOA on Scope and Jurisdiction. Muri

thought the determination the Association had to make was whether the

Association agreed this position was appropriately designated an Associate

Dean. The Association eventually disputed that the position was an Associate

Dean position.

i. On July 23, 2019, once the Faculty Association ratified the 2017 Agreement,

Muri sent an email to Cheryl Carver, Chief Negotiator for the University,

advising Carver of the ratification.

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j. Johanne Brossard sent an email to James Basinger on July 30, 2019:

Hi Jim. I’m just back from vacation and yesterday afternoon was the first chance I had to

raise this matter with Doug. It will need to go to the USFA Executive Committee and I will

ensure it is on the agenda for the next meeting. In the meantime, if you could provide

responses to the following questions, it would be appreciated.

1.

There are currently three senior academic administrators in the College of

Education (Dean; Associate Dean Research, Graduate Support and International

Initiatives; Associate Dean Undergraduate Studies, Partnerships and Research) in a

college with approximately 40 faculty members. Why is another senior academic

administrator needed?

2.

What are the differences between the duties of this Associate Dean and the

Duties of the current Associate Deans, notably with respect to research as that is part of

the title for this proposed position and both current Associate Deans?

Thanks.

k. Muri does not have experience with what is typical in terms of responding to

notice that the University proposes a new Associate Dean position, but in her

view the July 29 date in Basinger’s letter was a very short time. While the

letter was dated July 17, 2019, it was actually sent to the Association around

4:30 or so on July 18, 2019. This was at a time when an important staff

member, Johanne Brossard was on holidays and members of the executive

were on holidays. That made it quite difficult to make a quick decision.

l. Those who were around had a lot of questions. They didn’t know what the

“SoTL” was in the profile. They didn’t know if that was a center or a unit of

some kind or a research group, so they didn’t know what managerial duties

there might be for such an entity. The Association didn’t get answers to a lot

of questions until August 13 and 19, 2019.

m. Crespo Martin telephoned Brossard on August 13 and gave her some

answers verbally, and then Crespo Martin followed with written answers in an

email on August 19:

Further to your email and our phone conversation, I am including below and attached

contextual background that hope will assist in addressing your questions and outlining

the need to establish this new Associate Dean position in the College.

Currently, the college counts with two Associate Dean positions:

-

Associate Dean Research, Graduate Support and International Initiatives. David

Burgess is currently appointed to this position.

-

Associate Dean Undergraduate Programs and Partnerships. Dawn Wallin is

currently appointed to this position.

The College received a major donation to grow and expand on research on student

engagement and research in the scholarship of teaching and learning. As a result, the

college is working on creating and establishing what has been initially conceptualized in

general terms as Scholarship of Teaching and Learning (SoTL), an initiative that while it

will be new to the college, will be strongly linked with supporting, enhancing and

expanding the research mission and research endeavors of the College.

In this context, the college has identified the need to create and establish the new

Associate Dean position and realign the portfolios of in particular one of the other

Associate dean position:

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-

The role and portfolio of the Associate Dean Undergraduate Programs and

Partnerships remains unchanged (incumbent Dawn Wallin)

-

The role and portfolio of the Associate Dean Research, Graduate Support and

International Initiatives has been updated and will become transition to Associate Dean,

Strategic [sic] perations, Graduate Programming and International Initiatives. Incumbent

remains David Burgess.

o The research aspect of the portfolio of the position has been removed and the position

will expand on strategic operations and initiatives, retaining graduate initiatives and

internationalization.

-

The new position, Associate Dean, Research and Scholarship of Teaching and

Learning (SoTL) will undertake the overall research portfolio as well as the Scholarship of

Teaching and Learning and as part of this role, the position will have the responsibility to

getting the SoTL off the ground.

In addition to the profile of the Associate Dean Research and Scholarship of Teaching

and Learning that was submitted to the request for the determination of scope for the

position, I have attached to this email the updated profile for the Associate Dean,

Strategic [sic] perations, Graduate Programming and International Initiatives. Both

profiles describe in detail the accountabilities entrusted with the positions, and how the

different portfolios and responsibilities have been defined for each of the positions.

Please note that this new position is important as the College requires this leadership

position to continue to advance the research mission and would like to move as soon as

possible with the work required to establish the SoTL initiatives. The Dean meets with the

Donors in September [sic] ctober and it will be important to report the advances made in

this regard. The delay in setting up this new position will also have a delay to some

degree in the recruitment of other positions that will support SoTL a task that it will be

difficult to undertake without having this position in place.

Please note that the new position is not being created as a need based on a ratio of

leadership positions vis a vis the faculty complement of the college, rather, the creation of

the new position is required to advance and strengthen the strategic initiatives of the

college and in particular to enhance the research agenda and the new business and

strategic needs associate with the establishment of the SoTL.

In our view, the position represents appropriately the responsibilities and accountabilities

expected of an Associate Dean. We also deem that the designation of the position as an

Associate Dean is appropriate given the individual in this position will be a member of the

senior leadership of the college, will perform functions that are of a managerial character

and will act as the Dean’s delegate when necessary, and ultimately, will have primary

duties that include activities that are of a confidential nature in relation to labour relations,

business strategic planning, policy advice, and budget implementation.

Given the sense of urgency associated with the establishment of this new position and

the need to initiate its recruitment process as soon as possible, please advise at your

earliest convenience your determination with respect to scope and jurisdiction.

n. On September 12, 2019, Basinger sent an email to Chivers, the relevant part

of which says:

I wanted to give you a quick heads up that the USFA Exec considered the issue of the

new Associate Dean in the College of Education. I am sorry to say that we have yet to

make a decision. The Exec requested more information than Johanne or I could provide.

We will reconsider this issue as soon as possible. September 20th is our next Executive

meeting. I may be in contact at a later time to request a bit more information from you.

6

o. On September 12, 2019, Basinger sent an email to Chivers:

I must differ with your understanding of the issues.

Article 10.5 clearly states that employees have the right to participate in USFA business,

and are entitled to rearrangements in their normal duties, but this right if fettered by the

statement in Article 10.5.4, provided that satisfactory arrangements can be made with,

and are approved by, the Department Head or Dean to fulfill the responsibilities of

employees so engaged. Similar language is found in Article 10.5.8 for officers of the

USFA.

I am finding that not all of the faculty in question have actually communicated their USFA

duties to the unit head, and therefore no approval of reassignment has been obtained.

Then there is the statement in 10.5.9 that, The Employer shall make 200,000 available

annually to fund release time of designated Association representatives from assigned

duties. There seems to be some misunderstanding of how this funding of release time

actually occurs. In at least one case, duties had already been reassigned in anticipation

of USFA service, but funds for time release have been paid directly to the individual, not

to the unit as intended by the article.

Article 10.5.9 also anticipates disagreement, such that, Disputes about the assignment of

duties to these employees shall be referred for resolution to the Joint Committee for the

Management of the Agreement.

It is essential that we adhere to the terms of the Collective Agreement, particularly those

referring to approval by deans and department heads. I will undertake a clarification of

procedure well in advance of ne t year s assignment of duties.

p. On September 23, 2019, Ana Crespo Martin from Human Resources sent an

email to Johanne Bressard of the Association:

It is my understanding that the USFA executive was to continue the conversations and

consider the request for the determination of scope with respect to the new Associate

Dean position in Education. Could you please advise of the determination reached over

this position? It has been over two months since the position was submitted to the

USFA’s attention for consideration and it is important that we proceed with next steps

without further delay.

q. On September 25, 2019, Basinger sent an email to Chivers:

The purpose of my email is to follow up with you regarding the Associate Dean, Research

and SoTL position in the College of Education. The profile for the position was submitted

to the attention of the USFA for determination of scope on July 18th, 2019, with an initial

request to respond by July 29th. The USFA requested additional information and

background for the position on July 30th, to which we responded on August 19th. At that

time, we stressed the importance of having a timely response to this request and the

urgent business needs associated with implementing this position given the substantial

donation provided to the College to support SoLT [sic], and the requirement to have this

position in place in order to implement this important strategic initiative. The USFA

informed us that the position was going to be considered at the USFA Executive

Committee scheduled for September [sic] th.

Further to the deliberation of the USFA Executive on September [sic] th, we received

notification from you indicating that the Executive had yet to make a decision and was

going to reconsider this issue at its September 20th meeting. We followed up again on

September 23rd with respect to the status of your decision in this regard and we have not

yet received a response.

The absence of a response and unduly delay of the USFA in providing a response and

determination over the scope of the position is stalling the process unnecessarily and

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presents an inability for the College to move forward on this important strategic initiative.

This delay has also the associated risk of losing future funding and is negatively

impacting the reputation of the College and the University, and ultimately the trust the

donor has placed in the College to implement this initiative.

Given the need to proceed with next steps without further unnecessary delay, please

note the university is proceeding with putting in place the new Associate Dean Research

and SoTL position in the College of Education on an interim basis and will commence the

required search and appointment process to fill the position. We deem the position, given

the designation, authority and accountabilities, to be appropriately at an Associate Dean

level, and therefore falls out of scope of the USFA. To confirm the scope of the position,

absent a clear response by the USFA, the university will proceed with an application to

the Saskatchewan Labour Relations Board requesting a determination and confirmation

of scope for the position based on the profile and supporting information provided.

r. On September 30, 2019, Basinger sent an email to Chivers:

In follow up, I am addressing this only to you, and understand that you will share this with

your team as appropriate. Please note that Allison has reached out to me today in your

absence.

As we have informed the USFA, the university has considered application to the

Saskatchewan Labour Relations Board (SLRB) to request the determination of the scope

for the new Associate Dean Research and SoTL in the College of Education given the

absence of a response from the USFA on this matter. However, we would like to explore

other possible options to address this request without the need to proceed with this

formal application in front of the SLRB.

As we have indicated, it is our view that the designation of the position as an associate

dean is appropriate given the primary duties and accountabilities of the position are of a

managerial nature. The position has been created based solely on the business needs of

the College and to support and advance the research portfolio of the College as well as a

very important strategic initiative supporting the scholarship of teaching and learning

sponsored through the support of a very generous donation to the College.

It is not the intent of the university to create or irresponsibly increase out-of-scope senior

administrative positions in the College of Education, or indeed in any other unit. The

creation of this position is supported by a careful assessment of needs. We understand

that there are other concerns the USFA has raised in relation to the College of Education,

to which the university is fully committed to continue discussions and to explore options

for resolution; however, we also believe that those matters are not relevant to the

determination of scope for the position, nor should this be used as a tool to unnecessarily

halt the implementation of the position. We can provide assurances to the USFA that it is

not the intent of the university, through the implementation of this new Associate Dean

position, to create the potential for undue representation of out-of-scope membership in

any collegial processes, where those collegial committees should appropriately be

formed by employees.

As we have also previously indicated, the university needs to proceed with the

implementation of the position as soon as possible. The formal announcement of the

SoTL, with the support of the donor, is scheduled to take place on [sic] ctober 4th. It is

critical that we can confirm with the donor the position is feasible and will be in place to

support the initiative in advance of this announcement. A response from the USFA in

support of this initiative - critical not only for the College but also for the support it will

provide to the faculty of the college in advancing their research efforts prior to this

announcement, will be of much importance.

If the USFA is unable to support this new position at this time, as an alternative to the

SLRB application, the university is considering following the direction provided in the new

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language incorporated under MAo. 2 [sic] of the Collective Agreement for the

appointment and reappointment of senior administrators, and whereby the parties have

agreed that the university shall notify the Joint Agreement of the Management of the

Agreement when new Senior Administrator positions are created. Given the timely

response and action required for this particular position, we will formalize the notification

of the creation of this new position to JCMA as required by M A o. 2 [sic].

s. The first the Faculty Association heard that the University was taking the

position that the Scope MOA did not apply was on October 1, 2019. The letter

says:

Re:

Creation of a New Senior Administration Position – Notification to JCMA

In accordance with the Memorandum of Agreement (MOA) No.2 of the 2017-2022

Collective Agreement between the University and the Faculty Association – Appointment

and Reappointment of Senior Administrators, I am writing to inform you, as Chair of the

Faculty Association, and to formally notify JCMA, that the University has created a new

Associate Dean position in the College of Education. Please see attached profile for your

records.

Associate Deans are positions specifically listed under MOA No.2 and considered Senior

Administrator positions subject to the search procedures outlined in the policy documents

issued by the Board of Governors in 1997 and subsequently updated Board of

Governor’s approved guidelines for the Appointment and Reappointment of Senior

Administrators. In addition, Associate Deans are listed as positions expressly excluded

from the scope of the Faculty Association as per the Certification Order issued by the

Saskatchewan Labour Relations Board – LRB File No. 062-14.

The university initially submitted the request for the determination of the scope of the

position by the USFA on July 17, 2019 in accordance with the Memorandum of

Agreement between The University of Saskatchewan and the Faculty Association on

Scope and Jurisdiction dated November 2013. Since that request, however, the newly

ratified 2017-2022 Collective Agreement between the University and the USFA has come

into effect. Accordingly, the terms negotiated between the parties under the new MOA

No.2, now in effect, supersede the terms of the MOA dated 2013 with respect to the

creation of new Senior Administrator positions, including new Associate Dean positions.

The notification of the creation of this new Senior Administrative position is therefore

being re-submitted under the terms of the new MOA No.2 now in effect.

t. This was the position that originally sparked this Grievance. On September

30, 2019, Muri met with Jim Basinger in his office to tell him the Association

would be invoking the Scope MOA adjudication process. At that point,

Basinger speculated that the Scope MOA was superseded by the changes to

the Appointment MOA. Later that evening, Basinger wrote an email to Doug

Chivers where he said the University was looking into whether it could simply

notify the Association instead of following the adjudication process.

u. Before the September 30, 2019, discussion and email, Muri was not aware of

any discussions with anyone to the effect the University was taking the

position the Scope MOA had been eliminated or superseded.

v. Muri is a member of the Joint Committee for the Management of the

Agreement (“JCMA”). She was first appointed to the caucus in 2009 and then

to JCMA itself in 2011. She has served on JCMA ever since except when she

was negotiating the most recent collective agreement. Muri has been a

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member of the caucus, a member of the committee itself and has been co-

chair of JCMA.

w. JCMA is a joint committee of Employer and Association representatives. It is

tasked with dealing with matters placed before it specifically by items in the

Collective Agreement. It approves various processes. It also occasionally

deals with questions that arise from the application of the Collective

Agreement. It is established as a way to encourage cooperation between the

two parties and is a forum for the exchange of information.

x. Muri created a three-page Process Chart (the “Process Chart”) in consultation

with several people. She consulted with JCMA caucus, with Association staff

members Johanne Brossard and Maureen Fryett, and with the Association’s

lawyer Gary Bainbridge. Muri started the Process Chart in December of 2019

when Muri proposed, at a meeting with the then Provost and the VP Faculty

Relations and other people, that this be developed through JCMA. It was

completed in March of 2020. The chart was intended as a way to proceed

with a harmonious process for appointments of senior administrators that are

out of scope. There have been snags and disputes arising from

appointments, so it was really intended to try to find a way of readily following

the process in easy steps. In preparing the document, Muri footnoted the

documents she used. That included the Scope MOA, the Appointment MOA

in the Collective Agreement, other articles in the Collective Agreement and

the Certification Order.

y. Muri gave the Process Chart to the Employer’s representatives at JCMA. No

one raised any issue with the contents of the Process Chart. In March 2020,

at a JCMA meeting the Employer’s representatives told the Association

representatives that they had distributed the Process Chart to senior

administrators who would be chairing the committees that are involved with

appointment and re-appointment, and that they would be using the chart for

education of senior administrators. In April 2020, the Employer’s

representatives at JCMA also said they were using the Process Chart and

were condensing it for the same purpose to distribute to senior administrators.

z. The Process Chart has a process for appointment and re-appointment of

positions in the Certification Order and another process for positions that are

not in the Certification Order. In January 2021, Muri had communications with

University admin about the appointment of a Deputy Provost position. For that

position, the second page of the Process Chart would have applied because

that position is not listed in the Certification Order. Muri sent the process

charts to Crespo Martin at the time. Crespo Martin did not raise any

objections at the charts at the time.

aa.At this time Muri was asking for assurances from Crespo Martin and the

President that the Process Chart would be followed for creation of the new

Deputy Provost position. Muri asked, in an email to Martin on January 18,

2021, “Would Peter be able to provide assurance that the search process

would be the same as for one that is already listed there, and that we would

10

update the MoA accordingly?” Crespo Martin responded the same day that,

“We can give you those assurances.”

bb.On January 20, 2021, Muri told Crespo Martin in an email:

I think I can safely say at this point that there will be no objections from the Association

concerning the creation of this new position, given your assurances, and the process

chart we are agreed to follow. I will share the profile with the Executive at our meeting on

Friday afternoon, and follow up to confirm.

cc. The “process chart” Muri was referring to was the Process Chart she

prepared and sent to everyone. She copied the email to Ken Wilson, then VP

Faculty Relations. Neither Crespo Martin nor Wilson ever objected to the use

of the Process Chart. Neither said the Process Chart was inaccurate. No one

at JCMA ever said they thought the Process Chart was inaccurate.

10.In cross-examination:

a. Muri confirmed she was not involved in the negotiation of the Scope MOA.

Counsel reviewed the Scope MOA with Muri. She agreed that the parties

agreed in paragraph 1 of that MOA to make a joint application to amend the

Certification Order. That involved removing some excluded positions from the

Order and adding other exclusions. Muri said she believes that application

happened. She agreed the parties have complied with paragraph 1.

b. Counsel suggested that the issue of Unified Heads referred to in paragraph 2

of the Scope MOA has since been resolved by agreement between the

parties in the Appointment MOA in the 2014-2015 Collective Agreement and

the 2017 Agreement. Unified Heads are no longer an issue, and they are

excluded from the bargaining unit.

c. Muri agreed that the reference to Article 15.8 in paragraph 3 of the Scope

MOA became a reference to article 15.7 in the 2014 Agreement.

d. Muri agreed that the positions referred to in paragraph 4 of the Scope MOA

were all dealt with in the Appointment MOA of the 2014 Agreement.

e. Muri said she thinks the University may have recommend changes to the

Guidelines for Establishment of Chairs as referred to in paragraph 5 of the

Scope MOA. She is not sure. Muri is not aware of any complaint that the

University did not comply with paragraph 5. However, she has limited

knowledge because she was not on the Association Executive during that

whole time.

f. Muri agreed that paragraph 6 of the Scope MOA was complied with because

MOA #3 was removed from the Collective Agreement.

g. Muri agreed the University has not launched any proceedings to take

Department Heads out of the scope of the bargaining unit. To date, the

University has complied with paragraph 7.

h. Muri agreed that paragraph 8(a) of the Scope MOA means to her that if the

University designates a new position as an Associate Dean position, then the

process in Appendix B to the Scope MOA would be used. The first step is that

11

the parties discuss the position. Then, if they cannot agree, they can engage

the Appendix B process. The Association’s position is that this process is still

in play.

i. With respect to paragraph 8(b) of the Scope MOA, Muri does not know what

was agreed or not agreed with respect to the positions listed.

j. Muri said she believes paragraph 9 means that the positions listed in

paragraph 1(b) would be out of scope effective the date the Labour Relations

Board issued the certification amendment.

k. Counsel suggested that in the recent round of bargaining that produced the

Appointment MOA, the parties now use generic titles to deal with positions

that are not tagged to a specific college. Muri said the Appointment MOA

does not deal with exclusions. They are not tagged to a specific college. The

list in the Appointment MOA is generic, but it does not define who is in-scope

or out-of-scope. It lists the positions to which the search and review policies

and procedures apply. It means, for example, that the search and review

policies and procedures apply to any Associate Dean who is appointed or re-

appointed. It’s does not define scope, i.e., whether the position is actually an

Associate Dean position.

l. Upon repeated questioning, Muri said the policies and procedures for

appointment and reappointment of senior administrators applies to all the

former associate deans and any other associate deans. The Scope MOA

does not deal with the same issue. The Scope MOA deals with scope issues.

The Appointment MOA deals with the search and review processes and

procedures.

m. Counsel suggested to Muri that the University’s position is that paragraph 8(a)

in the Scope MOA was superseded by paragraph 2 in the Appointment MOA

to the 2017 Agreement. Muri said she understands the argument but counsel

is wrong. She said that unlike the Scope MOA which was a discussion

between the Association and the Employer, paragraph 2 in the Appointment

MOA is notification to the Join Committee of the Management of the

Agreement. They have no say in anything. It is just a notification, a sharing of

information. That is one of the functions of the JCMA. It is just a notice. JCMA

has no ability to discuss or determine scope.

n. Counsel suggested that the notice to the JCMA could result in the Faculty

Association grieving whatever position the Employer has said is out of scope.

Muri said that would not be the case for because there is a specified process

in the Scope MOA.

o. Counsel suggested that under paragraph 2 of the Appointment MOA, if the

Employer advises the JCMA that they have a new senior administrative

position, the Faculty Association, if they think it doesn’t apply for any reason,

can grieve it. Muri said the Faculty Association can grieve any number of

things, but the notice under the Appointment MOA is not a notice about

scope, it is a notice about search and review.

12

p. Counsel suggested that under the Scope MOA, the University only had to go

through the process under paragraph 8(a) with respect to Associate Deans.

Muri said that if there is a newly created Associate Dean position, the parties

start with paragraph 8(a) and discuss whether designation of the position as

Associate Dean (out-of-scope) is appropriate. If the parties disagree, then the

parties follow Appendix B to resolve the issue.

q. Counsel suggested that under the Scope MOA, the Appendix B process is

linked to Associate Deans where under the Appointment MOA in the current

Agreement, the notice provision is broader than that and includes all the

positions in paragraph 1 of the Appointment MOA. Muri said, “I will reiterate

that these are different processes.” the Appointment MOA solely applies to

the positions that are covered by the search procedures outlined in the policy

documents. It is about procedures. Who sits on the committee? Who chairs

the committee? The Scope MOA is about a completely different issue – and

that is to determine scope.

r. Counsel suggested that in the negotiations under the Appointment MOA, the

Association gets more notification than they do under the Scope MOA. Muri

said, no, there is another article that is about the Association itself being

notified when there is an appointment of someone who is out of scope. It

requires the Employer to provide reasons why that position should be out of

scope. That is referred to in the Process Chart. There has always been a

requirement that the Employer notify the Association when a position is

created. the Appointment MOA requires the Employer to notify the JCMA

when they are undertaking an appointment or re-appointment process. The

purpose of that is for sharing information and to notify the JCMA creating the

policy and procedures document that there is a new position that they might

consider including in the policy regarding procedures for appointment and

reappointment. That is about establishing search committees and review

committees and who chairs them and who is on the committee.

s. Counsel suggested the fact is that under the Scope MOA, the Employer only

needs to worry about Associate Deans because that’s what 8(a) says, that

the process of adjudication is restricted to the question of whether the position

is an Associate Dean or Assistant Dean. Muri said this provision creates a

process of adjudication to try to avoid applications to the Labour Relations

Board with respect to the designation of Associate Deans. Muri agreed that

the Appendix B process does not deal with Provosts or Vice Provosts. It deals

with Associate Deans.

t. Counsel then suggested the Appointment MOA under the current Agreement

suggests if the University wants another Vice-Provost, Dean, Vice-President,

whatever, they have to notify the JCMA, so it is broader than Associate

Deans. Muri said, paragraph 2 of the Appointment MOA is broader than

Associate Deans, but it doesn’t apply to determination of scope like the Scope

MOA does. It only applies to the search procedures outlined in the policy

documents.

13

u. Counsel suggested that the Appointment MOA means that whenever the

University has a new senior administrator position, they have to advise the

JCMA. Muri said the Appointment MOA says, “the following represents their

[the parties’] understanding with respect to the appointment and

reappointment of senior administrative officers…”. Item 1 in the Appointment

MOA says the search procedures outlined in the policy documents issued by

the Board of Governors shall be interpreted to include, and then there is a list.

This list and the policies and procedures only have to do with the search and

reappointment procedures in those policy documents.

v. Counsel suggested it also has to do with who is excluded from the unit. Muri

said the positions listed are excluded from the bargaining unit, but this list

used to include other people. The list is not about determining scope. The

parties agreed that the search procedures should not apply, for example, to

the Associate VP People and Resources, so they took that out. It was not

about determining scope. It was determining who the search procedures

applied to. The Associate VP People and Resources is still out of scope, but

not subject to the search and review procedures.

w. Counsel suggested that the University in the Appointment MOA had a win

with an improvement in their position because the positions listed are generic

positions. Counsel suggested that in the Appointment MOA in the previous

Collective Agreement, it shows a number of the positions are more specific as

opposed to the generic in the Appointment MOA to the 2017 Agreement. Muri

said most of them are more generic in that list in 2017. It was a win for the

Association, actually. The Director of VIDO-INTERVAC in the Appointment

MOA is not generic. Muri agreed that there are fewer specific positions in the

Appointment MOA than in its previous version. Muri said that if there is a new

specific Associate Dean position created, that appointment now must follow

the procedures for appointment and reappointment. The University was quite

regularly changing titles and changing names and it was getting quite

confusing. Martin Phillipson proposed that the parties make the list more

generic so that the Association doesn’t have to worry if there is some new re-

naming of a position. The search and review procedures would apply to all

those positions. If this list is generic, the search and review procedures must

apply to them all. That is a win for the Association.

x. Muri said the Appointment MOA means that if there is a new, for example,

Executive Director position the University invents, the search and review

procedures would apply to that new Executive Director. Counsel suggested

then this person would be out of scope. Muri said this does not determine

scope. What is in or out of scope is listed in the Certification Order.

y. Counsel then suggested the Appointment MOA means that the listed

positions are out of scope. Muri said, no, because if you look at the

Certification Order, it lists the positions that are in or out of scope. The

Appointment MOA can’t determine who is in or out of scope, nor can JCMA

determine that. Counsel suggested the parties can determine, by agreement,

14

who is in and out of scope. Muri said, yes, they can determine that, and they

can sign an agreement to the effect like they did in the Scope MOA.

z. Counsel suggested to Muri that the University never agreed with the Process

Chart. Muri said they agreed with the Process Chart by agreeing to use it for

the appointment of the Deputy Provost. Counsel suggested the Deputy

Provost is not a position excluded under the Certification Order. Muri agreed

and said that is why page 2 of the Process Chart applied to that. Muri agreed

it was not a position listed in the Appointment MOA because the position

never existed before. That is why they used page 2 of the Process Chart.

aa.Counsel then suggested the University never agreed to page 1 of the Process

Chart. Muri said they agreed in so far as they told the Association twice at

JCMA that they were distributing this Process Chart in its entirety to for the

education of those senior administrators who would be chairing the search

and review processes that are outlined in that policy and procedures

document. They distributed it for the education of senior administrators and to

Muri’s mind that would suggest they agreed with it.

bb.Counsel suggested they only used the chart for the second proposition where

the position is not included in the Certification Order. Muri said there are two

steps. Is the position in scope or out of scope? They used the second chart

because that was the situation they encountered. Muri agreed again that the

Deputy Provost was not in the Certification Order or listed in the Appointment

MOA, so they used the second Process Chart. Muri said the first Process

Chart covers the situation where the position is in the Certification Order.

cc. Muri said that when it comes to scope of a new position, the University has

agreed that in the case of proposed Associate Deans they will follow the

procedures the Scope MOA. They have to have discussions about whether

the designation of Associate Dean is appropriate. If the Faculty Association

suggests the designation is not appropriate, the parties have agreed to an

adjudication process. Muri is not sure if there has been an adjudication

process with respect to any proposed Associate Dean positions. She is not

personally aware of any adjudication process.

dd.Asked if she has ever heard about an adjudication process for an Associate

Dean, Muri said she has heard of an adjudication process insofar as she has

heard many discussions of this MOA. She has not heard of any particular

process for any particular appointment.

ee.Counsel directed the witness to paragraph 1 of the Appointment MOA and

asked if Deans, Associate Deans and Vice-Deans were excluded from

collective bargaining. Muri said it depends on what is listed in the Certification

Order and what the parties have agreed to in writing outside the Certification

Order. Counsel asked the witness to agree that paragraph 1 excludes

Executive Directors, Executive Directors and CEOs, and Associate Executive

Directors of Institutes and Schools. Muri said it depends on what is listed in

the Certification Order and what the parties have agreed to in writing outside

the Certification Order.

15

ff. Muri agreed in turn that any of Director of VIDO-INTERVAC, Vice Provosts,

Associate Vice-Provosts, Assistant Vice-Provosts, Vice-Presidents, Associate

Vice Presidents, the Provost and Vice-President Academic, and the President

that are listed in the Certification Order are not members of the Faculty

Association. If the University creates a new Vice Provost position, for

example, the position would have to be discussed. She does not have in her

head a list of all the Vice Presidents and Vice Provosts. If the position is listed

in the Certification Order or if the parties have agreed in writing that they are

out-of-scope, then they are out-of-scope. The list in the Appointment MOA is

a generic list.

11.On questioning from the chair, Muri said the Scope MOA was never attached to a

Collective Agreement.

Maureen Fryett

12.Maureen Fryett testified that:

a. Fryett is the Faculty Association’s Professional Officer since August of 2004.

She assists in the administration of the Collective Agreement. She is the staff

person assigned to the Association Grievance Committee, the Joint

Grievance Committee, the Benefits Committee and the University Review

Committee. She assists individual members with their confidential inquiries as

to their rights under the Collective Agreement. She also assists them as they

go through the tenure and promotion processes.

b. Along with then Faculty Association Senior Professional Officer, Jim

Cheeseman, Fryett was involved in the negotiations for the Scope MOA. At

that time, Cheeseman was also the Chief Negotiator for the Faculty

Association. Fryett does not sit at the negotiating table for the main

agreement.

c. In July or August 2013, the University sent the Faculty Association a proposal

on Scope and Jurisdiction University. That culminated in the Scope MOA in

November 2013. This was not attached to a collective agreement.

d. Fryett recalls that around that time the Province of Saskatchewan was looking

at bringing in the Saskatchewan Employment Act (the “SEA”), and there was

a provision in the new SEA that supervisory personnel couldn’t be in the

same bargaining unit as those they supervised. Department Heads are in-

scope of the Faculty Association as are Assistant Deans. There was some

discussion about the scope of Department Heads. The Faculty Association

met with a lot of the Department Heads, and they did not want to go out of

scope. They were adamant they did not want to be out of scope. In paragraph

7 of the Scope MOA, the University agreed that they would not seek to have

Department Heads excluded from the Certification Order unless there was a

material change in duties.

e. There had been some situations involving Associate and Assistant Deans.

Fryett was involved in one in the College of Nursing where the University

turned several Assistant Dean positions into Associate Dean positions. That

16

caused quite an uproar in the College. The same thing happened in the

College of Arts and Science where there had been an Assistant Dean of

Aboriginal Affairs that all of a sudden became an out-of-scope Associate

Dean. There have been many scope issues in the College of Medicine. The

Faculty Association was very concerned that they were losing in-scope

Assistant Dean positions because they were being turned into out-of-scope

Associate Dean positions.

f. The Faculty Association wanted an opportunity to challenge or to have a

more fulsome discussion with the University so they could understand in each

case when a new Associate Dean position was created, how it was created.

Was it previously an Assistant Dean? What now made it an Associate Dean?

What changes to the position made it an Associate Dean? The parties

discussed whether there was a way to do this that would not involve a long

grievance process or a long labour relations board process. They wanted to

look at a way that was quick and easy to help them deal with the issue. The

Faculty Association thought if the parties hired an external adjudicator without

a full-blown hearing, that would work. People would put the documents before

the adjudicator. They would explain what was happening. If there was a

dispute, this would be a quick determination of the scope issue.

g. In paragraph 8 of the Scope MOA, the parties agreed to first discuss any

newly created Associate Dean positions, and if they could not agree, use the

process set out in Appendix B to the Scope MOA. The parties then included a

list of existing positions in paragraph 8(b) to be reviewed as the positions

became vacant. They didn’t want to disturb those who had gone through the

appointment process and were already appointed as an Associate Dean. The

Faculty Association didn’t want to disturb an appointment in the middle of the

term. As they finished the appointments, usually for five yeas, when the

position became vacant, the parties would look at those specific positions.

h. Paragraph 8 of the Scope MOA only applies to whether someone is an

Assistant Dean or an Associate Dean. Appendix B sets out the process.

i. The main benefit to both parties with using the Appendix B process is a quick

determination. A vacant position needs to be filled. They thought instead of

dragging it out in arbitration or the Labour Relations Board which can take

years, this was a quick and easy way to avoid having acting positions for a

long time. The process didn’t contemplate an oral hearing. The exception was

the ability to question an incumbent Associate Dean.

j. When the parties created the Scope MOA, there was no discussion about an

expiry date to the MOA or to the Appendix B process. There are still

Associate Dean positions at the University, and they are still out-of-scope.

There are still in-scope Assistant Deans. There are still Department Head

positions at the University, and they are still in-scope.

k. Fryett still sees value in the Appendix B adjudication process. For example,

right now the University is undergoing challenges with respect to funding. If

you are an Assistant Dean, more often than not, the thing that makes you an

17

Assistant Dean is that it is not necessarily a full-time position, so you still have

teaching duties. Some Associate Deans also teach, but rarely. With the

financial crunch, the number of faculty left to do the in-scope teaching is

becoming a worry and a concern for faculty.

l. The line between the Associate Dean and the Assistant Dean is whether the

position really has duties that take the position out of scope.

m. Since the Scope MOA, the University has not had any discussions with Fryett

about any change of scope of the Department Heads. She is not aware of any

discussions with anyone else either.

13.In cross-examination:

a. Counsel suggested that almost everything in the Scope MOA has been

incorporated in a collective agreement between the parties. Fryett said the

parties changed the Certification Order in accordance with the Scope MOA.

The scope issues in the College of Medicine have gone through significant

iterations since the Scope MOA was negotiated. There were scope issues

with respect to scope of faculty in the College of Medicine. Some parts of the

Scope MOA may have ended up in the Collective Agreement.

b. With respect to paragraph 5, the Joint Committee on Professorships is a

University Council committee. Fryett understands Cheeseman followed up,

and after this agreement, the University had some discomfort imposing a

Faculty Association participant on the committee, so the Faculty Association

never got to be an observer at that committee. The Faculty Association did

not push the issue.

c. Fryett agreed that the Scope MOA including paragraphs 7 and 8, was never

incorporated into the Collective Agreement.

d. Fryett agreed that at the time of negotiation of the Scope MOA, the Faculty

Association was concerned that under the new Saskatchewan Employment

Act the University might take the position that department heads should be

out-of-scope of the Faculty Association. Fryett agreed the University has

never gone to the Saskatchewan Labour Relations Board to ask to have

Department Heads excluded.

14.The University did not call any witnesses and relies on the documentation in

evidence.

Documents

15.Other documents in evidence, including provisions of the current and previous

collective agreements and memoranda of agreement, are relevant to this case. I will

discuss those documents here.

18

16.The Scope MOA, signed by the parties in November 2013, in its entirety says this:

WITHOUT PREJUDICE & WITHOUT PRECEDENT

MEMORANDUM OF AGREEMENT

BETWEEN

THE UNIVERSITY OF SASKATCHEWAN

AND

THE UNIVERSITY OF SASKATCHEWAN FACULTY ASSOCIATION

SCOPE AND JURISDICTION

This Agreement is made between the University of Saskatchewan (hereafter referred to as the

"University") and The University of Saskatchewan Faculty Association (hereafter referred to as

the "USFA") to resolve matters of scope and jurisdiction relating to the positions referred to

below.

The parties have reviewed position accountabilities and have agreed as follows:

1.

The USFA and the University agree that upon the execution of this agreement, and in

accordance with the terms of this agreement, the positions listed in 1.b) will be out of scope

or will remain out of scope of USFA, and the parties wilt make a joint application to the

Labour Relations Board (LRB) to amend the current certification order dated November 20,

2008 as follows:

a) To delete "Extension Specialists", "members of the Department of Cancer Research

holding academic appointments", the "Director of Extension Division", the "University

librarian", and ''Associate Librarian" from paragraph (a) of the certification order;

b) To add the following positions as exclusions from the USFA bargaining unit:

i) Unified Heads who hold a joint headship appointment in an academic department in the

College of Medicine and the corresponding clinical department in a health region;

ii) Vice-Deans in the Colleges of Arts and Science and Medicine;

iii) Director, Global Institute of Water Security;

Iv) Executive Director and CEO, Global Institute for Food Security;

V) Director, VIDO-INTERVAC.

vi) Executive Directors of the Schools of Public Health, Public Policy, Environment and

Sustainability.

2.

a) The parties agree that current incumbents occupying the position of a Unified Head in

the College of Medicine will remain in scope until June 30, 2014 and that any new

appointments of Unified Heads will be out of scope effective the date of signing of this

agreement.

b)

The parties acknowledge the primary purpose of Unified Heads is to provide

leadership necessary to ensure the seamless integration of the academic and clinical

activities of the department. As such, the parties agree that the roles and responsibilities

prescribed in the collective agreement to Department Heads will be carried out by the

Unified Heads in the College of Medicine. The parties also acknowledge that the terms

and conditions of employment for Unified Heads are not governed by the collective

agreement; this includes, but is not limited to articles 13.6 and 18.

3.

The parties agree that the provisions of article 15.8. apply to out of scope tenured

employees covered by the provisions of this agreement.

19

4.

The parties agree that Vice-Deans in the College of Arts and Science and the College of

Medicine, Unified Heads ln the College of Medicine, the Director, Global Institute for

Water Security, the Executive Director and CEO, Global Institute for Food Security, and

the Director, VIDO-INTERVAC, Executive Directors for the Schools of the Environment

and Sustainability, Public Health and Public Policy will be added to the list of senior

administrative officers of the University named In MOA No. 7 of the 2010-2013 collective

agreement. It is agreed that a condition of the Joint Committee's recommendation for a

search and review process for the Unified Heads in the College of Medicine is that the

process be acceptable to the health region.

5.

The University agrees to recommend changes to the Guidelines for the Establishment of

Chairs and Professorships to Council and the Board of Governors in order to permit

USFA observer status on the Joint Committee on Chairs and Professorships. The

University also agrees to review the procedures to ensure that they are consistent with

the search and selection provisions in the current collective agreement between the

University and USFA.

6.

7.

The parties agree that upon execution of this agreement and development of an interim

search procedure for Unified Heads handwritten and initialed, the word (“attached”), MOA

No. 3 of the 2010-2013 collective agreement is no longer in effect, and the parties will

advise the Collective Negotiating Committee to delete it from the collective agreement.

The University agrees that following execution of this agreement, it will not seek to have

Department Heads excluded from the certification order for the USFA bargaining unit

unless and until there is a material change in the duties of Department Heads in the

future such that they would no longer qualify as an employee as defined in The Trade

Union Act or subsequent legislation governing labour relations in the Province of

Saskatchewan that is in force, and as may be amended, from time to time. Attached as

Appendix A to this MOA is a job profile prepared by the University dated June 27, 2011.

While not in agreement with that job profile, USFA agrees that this profile will be used as

the benchmark for determining if a material change in the duties of a Department Head

has occurred.

8.

a) Through the process outlined in Appendix B (attached), the University and USFA

agree to discuss whether or not the employer's designation of a newly created position as

an Associate Dean is appropriate.

b) The parties also agree, that as the positions listed below become vacant, to review the

employer's designation of the position through the process outlined In Appendix B

(attached):

i)

Associate Dean, Aboriginal Affairs, College of Arts and Science

ii)

Associate Dean, Undergraduate Studies, Research and Partnerships, College of

Education

iii)

iv)

Associate Dean, North and Northwestern Saskatchewan Campus, Rural and

Remote Engagement, College of Nursing;

Associate Dean, Central Saskatchewan, Saskatoon Campus, and Academic

Health Sciences, College of Nursing

Associate Dean, Biomedical Sciences, College of Medicine;

Associate Dean, Physical Therapy and Rehabilitation Sciences, College of

Medicine; Associate Dean, Research, College of Medicine;

Associate Dean, Rural and Northern Medical Education, College of Medicine;

Associate Dean, Saskatoon, College of Medicine

20

9.

Except where otherwise stated in this agreement, the positions described herein will be

out of scope effective the date of the certification amendment as issued by the LRB. All

other terms of this agreement take effect on the last date of execution of this agreement.

17.Appendix B in its entirety says:

New Position and Review Process for Associate Deans

The process described in this Appendix is intended to address concerns regarding the employer's

designation of the Associate Dean positions listed in paragraph 8.b) of the MOA and the creation

of additional Associate Dean positions. The parties acknowledge that Associate Deans are

exempt from the USFA bargaining unit and that Assistant Deans are in scope of the USFA

bargaining unit by virtue of the current certification order. The parties agree this Appendix is not

intended to examine the scope and jurisdiction of Assistant Deans and Associate Deans, but to

ensure the designation of the position as an Associate Dean or Assistant Dean is appropriate.

1.

a) The creation of an Associate Dean position requires the approval of the Provost and

Vice-President Academic and the Associate Vice-President, Human Resources. The USFA will

be provided with a job profile for the position including any specific duties and accountabilities

particular to the position.

b) A review of the position by the USFA and the University may be conducted to determine

whether or not the employer's designation of the newly created position as an Associate Dean is

appropriate or if the position is that of an Assistant Dean. Each position shall be reviewed only

once.

2.

As new appointments are considered for the vacant Associate Dean positions listed in

paragraph 8.b), a review of the position by the USFA and the University will be conducted to

determine whether or not the employer's designation of the position as an Associate Dean is

appropriate or if the position is that of an Assistant Dean. Each position shall be reviewed only

once.

3.

Where agreement is not reached with respect to the designation of the position, the

parties agree that the dispute will be referred to an adjudicator agreed to by the parties. The

adjudicator will be appointed for an initial two years. The appointment will be considered renewed

for successive two year terms, unless either party chooses to enter into negotiations for a new

adjudicator.

4, The adjudicator will determine the process for the review, but the process will, at a minimum

include a meeting with the parties and the right, should either party so choose, to provide a

written submission and written argument with respect to the Issues to be determined during the

review. Either party may also request that an incumbent be questioned with respect to duties

undertaken in the position. If questioned, both parties may be present during the interview.

5.

The adjudicator shall make a determination in writing as to whether the position will be

designated as an Associate Dean position and exempt from the bargaining unit or whether it will

be designated as an Assistant Dean position and in-scope of the bargaining unit within four

weeks of the date the review was concluded and each party will be provided with a copy of the

decision. The exemption of the position from the USFA bargaining unit shall be determined on the

basis of:

a)

Whether or not the appointee in the position in question, is an "employee" as defined by

section 2 (f) of The Trade Union Act or any subsequent legislation, and any relevant

jurisprudence, and

b)

The work actually done in the circumstances by the incumbent in the position.

6.

The adjudicator's decision will be final and binding and no appeal or application for

review shall be made to any court or administrative tribunal.

7. The costs of the adjudicator shall be shared by the parties, with 50% to be paid by the

University and 50% by USFA.

21

18.The parties made the application to the LRB. By Orders dated April 3, 2014, the LRB

issued a new Certification Order to give effect to their agreement in paragraph 1 of

the Scope MOA.

19.Memorandum of Agreement #3 to the 2010 Agreement (“MOA #3 – 2010

Agreement”) is entitled Search and Appointment Procedures for Single Headships in

Clinical Departments in the College of Medicine. It was signed by the parties on

June 29, 2004. This MOA lists departments of the College of Medicine that will have

a single department head. The parties agree that those single department heads will

be in-scope of the Faculty Association. They also agree to search and appointment

procedures and to an assignment of duties process different from the normal.

20.When the parties agreed to the Scope MOA, they agreed that MOA #3 in the 2010

Agreement would no longer have effect.

21.Memorandum of Agreement #7 to the 2010 Agreement (MOA #7 – 2010 Agreement)

is entitled Appointment and Reappointment of Senior Administrators. It is dated

August 26, 2003. That MOA says:

In the interest of promoting harmonious relations and recognizing that the appointment and

reappointment of senior Administrative officers has an impact on the working conditions of the

Faculty, the University of Saskatchewan and the University of Saskatchewan Faculty Association

agree that the following represents their understanding with respect to the appointment and

reappointment of senior administrative officers of the University:

1.

The University of Saskatchewan agrees that the search procedures outlined in the policy

documents issued by the Board of Governors in 1997, and as amended from time to time, shall

be interpreted to include Deans (including the Dean, University Library), Associate Deans

(including the Associate Dean, University Library), the Associate Vice-President Human

Resources, the Associate Vice-President Information and Communications Technology, the

Associate Vice-President Student and Enrolment Services, the Vice-Provost, the Vice-President

Finance and Resources, the Vice-President Research, the Provost and Vice-President Academic,

the President and additional positions as deemed appropriate by the Joint Committee.

2.

From time to time, a Joint Committee of the Board of Governors and Council will be

established to review the search procedures in respect of the appointment and reappointment of

the senior administrative officers noted above, and will report their findings and any proposed

amendments to the Board of Governors. The appropriate number of faculty or Council members

on the search committees and the appropriate methods for selection of faculty or Council

members will be included in the review.

3.

The Joint Committee shall be comprised of three (3) members appointed by the Board,

and three (3) members drawn from the membership of the General Academic Assembly named

by the Nominations Committee of Council and approved by Council, and an independent Chair

appointed by the Board of Governors from a list of names put forward by the Joint Committee.

The list shall be approved by a majority of the members of the Committee, including at least a

majority of the Council appointees, and a majority of the Board appointees.

4.

The University agrees to make the policy available on the University web site. Print

copies of the policy shall also be available, upon request.

5. The University restates its commitment to follow the policies issued by the Board of

Governors and to allow the full range and extent of consultation envisioned by these policies.

22

22.Memorandum of Agreement #2 to the 2014 Agreement (MOA #2 – 2014 Agreement)

is entitled Appointment and Reappointment of Senior Administrators. It is dated April

7, 2014. That MOA says:

In the interest of promoting harmonious relations and recognizing that the appointment and

reappointment of senior Administrative officers has an impact on the working conditions of the

Faculty, the University of Saskatchewan and the University of Saskatchewan Faculty Association

agree that the following represents their understanding with respect to the appointment and

reappointment of senior administrative officers of the University:

1.

The University of Saskatchewan agrees that the search procedures outlined in the policy

documents issued by the Board of Governors in 1997, and as amended from time to time, shall

be interpreted to include Deans (including the Dean, University Library), Associate Deans

(including the Associate Dean, University Library), Vice-Deans in the College of Arts and Science

and the College of Medicine, Unified Heads in the College of Medicine, the Director of the Global

Institute for Water Security, the Executive Director and CEO of the Global Institute for Food

Security, the Director of VIDO-INTERVAC, Executive Directors of the Schools of Environment

and Sustainability, Public Health and Public Policy, the Associate Vice-President Human

Resources, the Chief Information Officer and Associate Vice-President Information and

Communications Technology, Vice-Provosts, the Vice-President Finance and Resources, the

Vice-President Research, the Provost and Vice-President Academic, the President and additional

positions as deemed appropriate by the Joint Committee.

2.

From time to time, a Joint Committee of the Board of Governors and Council will be

established to review the search procedures in respect of the appointment and reappointment of

the senior administrative officers noted above, and will report their findings and any proposed

amendments to the Board of Governors. The appropriate number of faculty or Council members

on the search committees and the appropriate methods for selection of faculty or Council

members will be included in the review.

3.

The Joint Committee shall be comprised of three (3) members appointed by the Board,

and three (3) members drawn from the membership of the General Academic Assembly named

by the Nominations Committee of Council and approved by Council, and an independent Chair

appointed by the Board of Governors from a list of names put forward by the Joint Committee.

The list shall be approved by a majority of the members of the Committee, including at least a

majority of the Council appointees, and a majority of the Board appointees.

4.

The University agrees to make the policy available on the University web site. Print

copies of the policy shall also be available, upon request.

5. The University restates its commitment to follow the policies issued by the Board of

Governors and to allow the full range and extent of consultation envisioned by these policies.

23.Memorandum of Agreement #7 to the 2014 Agreement (MOA #7 – 2014 Agreement)

is entitled Unified Heads in the College of Medicine. It is dated July 11, 2014. That

MOA says:

The parties agree that the roles and responsibilities prescribed in the Collective Agreement to

Department Heads will be carried out by the Unified Heads in the College of Medicine, except for

Articles 17.3.3, 17.3.3.1 and 17.4.3

– College Salary Committee for Department Heads and Assistant Deans.

The parties also acknowledge that any provisions of the Collective Agreement that govern the

terms and conditions of employment for Department Heads do not apply to Unified Heads.

23

24.Memorandum of Agreement #2 (the “Appointment MOA”) in the 2017 Collective

Agreement is entitled Appointment and Reappointment of Senior Administrators. It is

dated June 4, 2019, and in its entirety says:

In the interest of promoting harmonious relations and recognizing that the appointment and

reappointment of senior Administrative officers has an impact on the working conditions of the

Faculty, the University of Saskatchewan and the University of Saskatchewan Faculty Association

agree that the following represents their understanding with respect to the appointment and

reappointment of senior administrative officers of the University:

1.

The University of Saskatchewan agrees that the search procedures outlined in the policy

documents issued by the Board of Governors in 1997, and as amended from time to time, shall

be interpreted to include:

•

Deans, Associate Deans, and Vice-Deans;

Executive Directors, Executive Directors and CEOS, and Associate Executive Directors

of Institutes and Schools;

•

the Director of VIDO-INTERVAC;

•

Vice-Provosts, Associate Vice-Provosts, and Assistant Vice-Provosts;

Vice-Presidents, Associate Vice-Presidents;

•

the Provost and Vice-President Academic;

•

the President;

•

and additional positions as deemed appropriate by the Joint Committee.

2.

The University shall notify the Joint Committee for the Management of the Agreement

when new Senior Administrator positions are created.

3. From time to time, a Joint Committee of the Board of Governors and Council will be

established to review the search procedures in respect of the appointment and reappointment of

the senior administrative officers noted above, and will report their findings and any proposed

amendments to the Board of Governors. The appropriate number of faculty or Council members

on the search committees and the appropriate methods for selection of faculty or Council

members will be included in the review.

4.

The Joint Committee shall be comprised of three (3) members appointed by the Board,

and three (3) members drawn from the membership of the General Academic Assembly named

by the Nominations Committee of Council and approved by Council, and an independent Chair

appointed by the Board of Governors from a list of names put forward by the Joint Committee.

The list shall be approved by a majority of the members of the Committee, including at least a

majority of the Council appointees, and a majority of the Board appointees.

5.

The University agrees to make the policy available on the University web site. Print

copies of the policy shall also be available, upon request.

6. The University restates its commitment to follow the policies issued by the Board of

Governors and to allow the full range and extent of consultation envisioned by these policies.

25.Memorandum of Agreement #6 to the 2017 Agreement (MOA #6 – 2017 Agreement)

is entitled Unified Heads and Provincial Heads in the College of Medicine. It is dated

June 4, 2019. That MOA says:

The parties agree that the roles and responsibilities prescribed in the Collective Agreement to

Department Heads will be carried out by the Unified Heads or Provincial Heads in the College of

Medicine, except for Articles 17.3.3, 17.3.3.1 and 17.4.3 – College Salary Committee for

Department Heads and Assistant Deans.

24

The parties also acknowledge that any provisions of the Collective Agreement that govern the

terms and conditions of employment for Department Heads do not apply to Unified Heads or

Provincial Heads.

The parties agree that when one or more members of the faculty of a Clinical Department in the

College of Medicine is an employee, the search and review committees for appointment and

reappointment of the Head shall include one employee from the Department. When a department

has employee representation and an employee from the department is not able to participate, the

co-chairs shall appoint another employee of the College.

26.I will refer to articles of the Collective Agreement at the relevant places in the

analysis.

III.

The Issues

27.The overall issue in this case is whether the University is bound to follow the

adjudication process in clause 8(a) of Scope MOA when it intends to create a new

Associate Dean position.

28.The specific questions are:

a. On a proper interpretation of the Scope MOA and the Appointment MOA, did

the parties intend expressly or by implication that the Appointment MOA

revoked or supersedes the Scope MOA?

b. In any event, is the Scope MOA spent because all its terms have been

fulfilled?

IV.

Parties’ Positions

A. The Faculty Association

29.The Faculty Association’s overall position is:

a. There is no onus with respect to interpretation of the language of agreements.

It is a matter of law for the arbitrator. When parties negotiate an agreement,

there is a presumption that the document will continue to apply in the absence

of some subsequent agreement between the parties. One party cannot

unilaterally say the agreement is spent or that they will not follow it any

further. Insofar as there is a burden of proof in this matter, it falls upon the

Employer to establish that they negotiated a change and that a portion of the

Scope MOA is no longer operative.

b. The heart of this matter is whether the Employer can do indirectly what it did

not even try to do directly. In particular, the question centres around the

adjudication process, in paragraph 8 of the Scope MOA, and whether it

continues to apply to the thorny question of whether a given position is more

properly an Assistant Dean (in-scope) or an Associate Dean (out-of-scope).

Paragraph 7 is also relevant to this matter.

c. The Faculty Association agrees with the Employer that many of the provisions

of the Scope MOA have been satisfied by virtue of the 2014 amendments to

25

the Certification Order. However, the provision that was integral to the original

Grievance, and remains central to this arbitration, is the agreed-to

adjudication process set out in paragraph 8(a) and Appendix B of the Scope

MOA. As can be seen from Appendix B, the adjudication process is one that

is streamlined and has a narrow scope.

d. The adjudication process deals with a specific issue, and does not

contemplate (at least as a default) the more elaborate processes that would

be part and parcel of a labour arbitration or Unfair Labour Practice

application. The issue of the line between Assistant Deans and Associate

Deans was important enough to the parties that they agreed to a specific

adjudicative process to deal only with that issue. Similarly, the parties agreed

in paragraph 8(b) of the Scope MOA that certain positions, once vacated,

would be subject to the same review process as would a new Associate Dean

position.

e. Paragraph 7 of the Scope MOA provides that the University will not seek to

exclude Department Heads from the bargaining unit. The Faculty

Association’s uncontested evidence is that paragraph 7 was negotiated in

contemplation of the upcoming proclamation of The Saskatchewan

Employment Act and in particular the “supervisory employee” provisions

under s. 6-11. Given that the intention was, in effect, to make an “irrevocable

election” between the parties pursuant to s. 6-11 (i.e. that Department Heads

would not be excluded on the basis they were “supervisory employees”), it

would make no sense for the parties to have intended an implicit expiry of this

provision. Paragraph 7 continues to have relevance into the foreseeable

future. There is no expiry contemplated in paragraph 7, nor would it make any

sense for the parties to have entered into that commitment if it were intended

to expire upon renewal of the Collective Agreement.

f. Nothing subsequent to the Scope MOA has superseded, revoked, or

otherwise rendered unenforceable, the review and adjudication process for

Associate Deans. Similarly, on an objective analysis, the parties clearly did

not intend that there would be a sudden “drop dead” date for paragraph 8 of

the Scope MOA or the Scope MOA in its entirety.

g. There is no dispute between the parties that the Scope MOA was

incorporated into the Collective Agreement or that disputes thereunder are

inarbitrable. Rather, the dispute centres around whether the Scope MOA

survived the renewal of the Collective Agreement and/or the incorporation of

the Appointment MOA.

h. When dealing with the enforceability of an ancillary document such as a

memorandum of agreement, there is a presumption that the document will

continue to apply absent agreement between the parties. In other words, a

party to a memorandum of agreement cannot unilaterally end that agreement

unless the agreement specifically provides that power. Hence, the party

seeking to claim that a memorandum of agreement has expired – in this case,

the Employer - should bear the burden of demonstrating that fact.

26

i. There are three reasons why the Scope MOA was not superseded or

rendered unenforceable by either the renewal of the Collective Agreement for

the 2017-2022 term generally, or the incorporation of the Appointment MOA

into the Collective Agreement:

i. There was no discussion or negotiation regarding the revocation of the

Scope MOA during bargaining, and it is not reasonable to suggest that

the Scope MOA was revoked absent such specific discussion.

ii. The Scope MOA and the Appointment MOA deal with substantively

different topics, and it is not reasonable to suggest that the

Appointment MOA is somehow a replacement for the Scope MOA.

iii. More than one provision in the Scope MOA has, and was intended to

have, ongoing effect. As such, it is not reasonable to suggest that the

Scope MOA is somehow exhausted or otherwise inoperative. The only

reasonable conclusion is that Paragraphs 7 and 8 of the Scope MOA

were intended to continue into the future and nothing that has been

done has replaced or superseded those provisions.

j. The Scope MOA was negotiated to address recurring issues around the

scope of the bargaining unit. To address some of these issues, the Scope

MOA set out the terms upon which the two parties would seek a joint

amendment to the Certification Order to which they were party.

k. One specific issue related to the “grey area” between an in-scope Assistant

Dean position, and an out-of-scope Associate Dean position. The Scope

MOA included a specific provision (paragraph 8(a)) setting out an adjudication

process by which a new position that had been posted as an Associate Dean

position could be determined to be either an Associate Dean or Assistant

Dean position. Another provision (paragraph 8(b)) set out that certain existing

Associate Dean positions would be considered under that same process once

they became vacant.

l. Paragraph 7 of the Scope MOA also deals with an ongoing commitment by

the University not to seek to exclude Department Heads from the bargaining

unit unless and until certain conditions were met.

m. Neither paragraph 7 nor paragraph 8 of the Scope MOA had any specific

expiry condition or expiry date. And neither the adjudication process under

paragraph 8(a), or the Scope MOA itself, was discussed during the most

recent negotiations that resulted in the renewal of the Collective Agreement

for a 2017-2022 term.

n. The Appointment MOA, which the Employer suggests supersedes the Scope

MOA, deals with appointment and reappointment to positions that are

properly out of scope positions. That is, it deals with a process that, if dealing

with an ostensible Associate Dean position, would take place after the

adjudication process in the Scope MOA. The Appointment MOA is a

separate, subsequent process to, and not a replacement of, the Scope MOA.

27

o. The Scope MOA itself deals with the revocation of a prior Memorandum of

Agreement. No such clause appears in the Appointment MOA regarding the

Scope MOA.

p. There is no reasonable basis upon which to find that the parties intended that

the Scope MOA would become unenforceable upon renewal of the Collective

Agreement or upon the Appointment MOA coming into effect.

q. The Association asks that the arbitrator uphold the continuing enforceability of

paragraph 8 of the Scope MOA.

30.The Faculty Association cites the following authorities in support of its arguments:

a. SEIU and Saskatchewan Health Authority (Packet), Re, 2020 CarswellSask

384 (Sask Arb, Wallace), at paras 25-27.

b. Eurocan Pulp & Paper Co. v. C.E.P., Local 298, 1998 CarswellBC 3301 (BC

Arb, Munroe).

c. Re Alberta Wheat Pool and Grain Workers’ Union, Local 333, (1994), 44 LAC

(4^th) 381.

d. Bakery & Confectionary Workers' Int'l Union, Local 322 and Canada Bread

Co Ltd. (1970), 22 LAC 98 (Christie).

e. Family and Children’s Services of Lanark Leeds and Grenville and CUPE

Local 2577 (2015-05), Re, 2016 CarswellOnt 18170 (Ont Arb, Goodfellow).

f. TEAM v MTS Communications Inc, 2004 CarswellNat 2360 (Man Arb,

Graham).

g. Extra Foods v UFCW Local 1400, 2005 SKCA 154, 2005 CarswellSask 872

(SK CA).

31.I will refer to these case authorities and to additional more detailed positions and

arguments in the Analysis section of this Award.

B. The University

32.The University’s overall position is:

a. The declaration sought by the Association requires the Arbitrator to find that

that the Scope MOA forms part of the CBA, that it remains in effect, and that

the University breached its terms.

b. The Scope MOA has been fully performed and, through the collective

bargaining process, has been superseded by the Appointment MOA in the

2017 Agreement. Paragraph 2 of the Appointment MOA replaced the process

set out in clause 8(a) and Appendix "B" of the Scope MOA respecting the

creation of new Associate Dean positions with a process requiring the

University to notify the Joint Committee for Management of the Agreement

when it creates a new senior administrator position that is either expressly

mentioned in paragraph 1 of the Appointment MOA or that has been

approved by the Joint Committee of the Board of Governors and Council.

28

c. It is well known that the words of a contract are to be read in their ordinary

and grammatical sense, consistently with the contract as a whole, and with

regard to the circumstances surrounding its creation. Paragraph 2 of

Appointment MOA in the 2017 Agreement, read in its ordinary and

grammatical sense, in harmony with the remainder of the CBA, and with

appreciation of the circumstances surrounding its execution, requires the

University to do no more than notify the JCMA when it creates a new

Associate Dean or a new senior administrator position listed in paragraph 1.

The words of paragraph 2 could not be plainer.

d. The University proceeded with the creation of the new position under the

Appointment MOA in the manner agreed to by the University and USFA, as

shown by Mr. Basinger's letter of October 1, 2019:

Associate Deans are positions specifically listed under MOA No.2 and considered Senior

Administrator positions subject to the search procedures outlined in the policy documents

issued by the Board of Governors in 1997 and subsequently updated Board of

Governor's approved guidelines for the Appointment and Reappointment of Senior

Administrators. In addition, Associate Deans are listed as positions expressly excluded

from the scope of the Faculty Association as per the Certification Order issued by the

Saskatchewan Labour Relations Board - LRB File No. 062-14.41

e. All that the University was required to do to comply with its obligations was

notify the JMCA of the new position. It did so. Consequently, the Association’s

allegation that the University contravened the agreement by unilaterally

creating an out-of-scope position is without merit. Rather than take issue with

the scope of the new position, the Association instead advised the University

that it disagreed with the interpretation of the Appointment MOA. The

Association opted to file an unfair labour practice application and then

proceed with this arbitration to evade the outcome of the collective bargaining

process, namely, operating under the Appointment MOA in eh 2017

Agreement.

f. Clause 24.7.4 of the 2017-2022 CBA provides:

The arbitrator shall not have jurisdiction to amend or add to any of the provisions of this

Agreement or to substitute any new provisions in lieu thereof, nor to give any decision

inconsistent with the terms of this Agreement, provided, however, that the arbitrator will

not be barred from hearing and rendering an award on the basis of technical irregularity,

if such irregularity has no bearing on the substance of the grievance.

g. This is a very mature bargaining relationship. These parties are very

knowledgeable about what they agree to and what they don’t agree to. The

Faculty Association is a very complicated workplace, but they know what they

are doing. The Appointment MOA means what it says. It says the University

has an obligation to notify the Association of administrative positions the

University thinks are out of scope. That is what the parties negotiated.

h. By asking the Arbitrator to read into the Appointment MOA an obligation not

contained in the text of that agreement, the Association is seeking a remedy

expressly prohibited by the 2017 Agreement.

29

33.The University cites Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53 at

para 47 in support of its position.

34.I will refer to the case authority and to additional more detailed positions and

arguments in the Analysis section of this Award.

V.

Onus and Standard of Proof and Principles of Interpretation

35.The principles with respect to onus and standard of proof applicable to this

grievance arbitration, as articulated in the cases cited by counsel, can be

summarized as follows:

a. The Association bears the overall onus to establish the facts on which it relies

to ground its interpretation of the Collective Agreement and its various

memoranda of agreement.

b. There may be facts with respect to which the Employer bears the onus; for

example, where the Employer seeks to establish past practice or bargaining

history or as in this case where the Employer seeks to establish that the

Scope MOA is spent.

c. The standard of proof with respect to establishment of the facts is balance of

probabilities.

d. Questions with respect to interpretation of the terms of the Collective

Agreement and the various memoranda of agreement are questions of law. I

must determine the meaning of the words of the Collective Agreement and

the relevant memoranda using principles of interpretation. The task is to give

meaning to the language of the Collective Agreement and the memoranda by

finding the intention of the parties from the language they have used.

36.The modern method of interpretation applies to the interpretation of the Collective

Agreement and any ancillary documents. As noted by the Association, I have

previously set out the principles on several occasions including in SEIU and

Saskatchewan Health Authority, supra:

[25] This case involves a question of interpretation of the Collective Agreement. The Union correctly

points out, citing the August 20, 2014 Zuck award in a case involving the Saskatoon Health Authority

and SEIU-West, that there is no onus with respect to interpretation issues.

[26] Brown & Beatty, 3:2400 correctly states the law with respect to onus of proof in cases requiring

interpretation of a collective agreement:

The question of onus of proof arises only where a conflict respecting facts as found has occurred;

it has no bearing in situations involving questions of law, which includes the interpretation of a

term in a collective agreement. Rather, in resolving such issues arbitrators must determine the

true meaning intended by the parties to the agreement, using generally accepted canons of

construction.

In the allocation of the burden of proof, the general principle is that “the onus of proof in all cases

rests primarily on him who asserts a claim to establish and prove it and not on the other side to

disprove the claim”. And in grievance arbitrations, it is generally accepted that the grievor has the

ultimate burden to make out a breach of the collective agreement except in cases of discharge

30

where the initial burden to prove a prima facie case is met by proving the collective agreement,

the fact of employment and the dismissal.

Taking this authority into account and considering the law generally, the principles with respect to

onus and standard of proof applicable to this grievance arbitration can be summarized as follows:

a. The Union bears the overall onus to establish the facts on which it relies to assert

there has been a breach of the Collective Agreement.

b. The standard of proof with respect to establishment of the facts is balance of

probabilities.

c. Questions with respect to interpretation of the terms of the Collective Agreement are

questions of law. I must determine the meaning of the words of the Collective

Agreement using principles of interpretation. The task is to give meaning to the

language of the Collective Agreement by finding the intention of the parties from the

language they have used.

[27] There is no question that the modern method of interpretation, first applied to the

interpretation of statutes, is equally applicable to the interpretation of contracts, including

collective agreements. Other arbitrators have, and indeed this arbitrator has, consistently adopted

the modern method to the interpretation of collective agreement language, so it should be no

surprise that I adopt that method for interpretation of the Collective Agreement in this case. Brown

& Beatty, at 4:2000, cite the modern principle thus:

In the interpretation of collective agreements, their words must be read in the entire

context, in their grammatical and ordinary sense, harmoniously with the scheme of the

agreement, its object and the intention of the parties.

[28] The oft-cited authority with respect to the use of the modern method in interpreting collective

agreements is C.E.P., Local 777 v. Imperial Oil Strathcona Refinery, supra, where Arbitrator

Elliott says:

39

I use as my approach to the interpretation of collective agreements the same

principle that the Supreme Court of Canada has adopted for the interpretation of

legislation. I refer to this approach as the modern principle of interpretation. In my view,

the modern principle of interpretation is a superior statement, as a guide to interpretation,

than the rule stated in Halsbury's Laws of England to which Canadian texts refer, which

relies heavily on the "intention of the parties". The modern principle of interpretation is, I

believe, particularly apt for interpreting collective agreements which, of course, are based

upon legislation.

40

The modern Canadian approach to interpreting agreements (including collective

agreements) and legislation, is encompassed by the modern principle of interpretation

which, for collective agreements, is:

In the interpretation of collective agreements, their words must be read in their

entire context, in their grammatical and ordinary sense, harmoniously with the

scheme of the agreement, its object, and the intention of the parties.

41

Using this principle, interpreters look not only to the intention of the parties, when

intention is fathomable, but also to the entire context of the collective agreement. This

avoids creating a fictional intention of the parties where none existed, but recognizes their

intention if an intention can be shown. The principle also looks into the entire context of

the agreement to determine the meaning to be given to words in dispute.

42

Before applying the modern principle of interpretation to this grievance I will identify

the components of the modern principle and what they encompass. The modern principle

of interpretation is a method of interpretation rather than a rule, but still encompasses the

many well-recognized interpretation conventions. The modern principle directs

interpreters:

31

1 to consider the entire context of the collective agreement

2 to read the words of a collective agreement

• in their entire context

• in their grammatical and ordinary meaning

3 to read the words of a collective agreement harmoniously

• with the scheme of the agreement

• with the object of the agreement, and

• with the intention of the parties.

1 What is the "entire context of a collective agreement"

43

The "entire context" includes

• the collective agreement as a whole document. One provision of a collective

agreement cannot be understood before the whole document has been read

because what is said in one place will often be qualified, modified or excepted in

some fashion, directly or indirectly, in another

• reading one provision of the collective agreement keeping in mind what is

contained in other provisions. In the first instance it must be assumed negotiators

knew not only the provisions specifically bargained but all the others contained in

the collective agreement. An example is the use of words that have defined

meanings. Those meanings must be applied whenever the defined word is used

in the collective agreement

• keeping in mind the legislative framework within which collective agreements

exist and keeping that framework in mind as part of the entire context.

2 Reading the words

44 Words in a collective agreement are to be read

(a) within their entire context in order to figure out the scheme and purpose of the

agreement and the words in a particular article must be considered within that

framework,

(b) in their grammatical and ordinary meaning. Typically this involves taking the

appropriate dictionary definition of a word and using it, unless the dictionary

meaning is modified by a definition, by common usage of the parties or by the

context in which the word is used, and

(c) harmoniously with

• the scheme of the agreement (which could include the arrangement of

provisions and the purpose of the agreement or a particular part of the

agreement)

• its object

• the intention of the parties, assuming an intention can be discerned.

The intention is to be found in the words used, but evidence of intention

from other sources may be appropriate in order to decide on what the

words used by the parties actually mean.

3 The meaning of "context"

45

The word "context" itself means

the circumstances that form the setting ... for [a] statement ..., and in terms of

which it can be fully understood.

32

Concise Oxford Dictionary (10th)

and the Merriam-Webster Dictionary includes in its definition of context:

the weaving together of words; the parts of a discourse that surround a

word or passage and can throw light on its meaning; the interrelated

conditions in which something exists or occurs.

46

And so, entire context in terms of a collective agreement and the interpretation of

the words used in it includes considering

• how words have been weaved together

• how those words connect with other words

• the discourse (other information) that can throw light on the text to uncover the

meaning

• any conditions that exist or may occur that might affect the meaning to be given

to the text.

4

Testing the interpretation

47

Once an interpretation is settled upon, it should be tested by asking these

questions:

• is the interpretation plausible — is it reasonable?

• is the interpretation effective — does it answer the question within the bounds

of the collective agreement?

• is the interpretation acceptable in the sense that it is within the bounds of

acceptability for the parties and legal values of fairness and reasonableness?

It is the modern principle of interpretation that I have used to analyze the collective

agreement, evidence and argument and to make a decision on the grievance.

336. The Employer refers me to Sattva, supra, for the proposition that the surrounding

circumstances are important in interpretation cases:

[47] Regarding the first development, the interpretation of contracts has evolved towards a

practical, common-sense approach not dominated by technical rules of construction. The

overriding concern is to determine “the intent of the parties and the scope of their understanding”

(Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1

S.C.R. 744, at para. 27, per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia

(Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at paras. 64-65, per Cromwell

J.). To do so, a decision-maker must read the contract as a whole, giving the words used their

ordinary and grammatical meaning, consistent with the surrounding circumstances known to the

parties at the time of formation of the contract. Consideration of the surrounding circumstances

recognizes that ascertaining contractual intention can be difficult when looking at words on their

own, because words alone do not have an immutable or absolute meaning:

No contracts are made in a vacuum: there is always a setting in which they have to be

placed. . . . In a commercial contract it is certainly right that the court should know the

commercial purpose of the contract and this in turn presupposes knowledge of the

genesis of the transaction, the background, the context, the market in which the parties

are operating. (Reardon Smith Line, at p. 574, per Lord Wilberforce)

37.Ancillary documents such as letters of understanding and memoranda of agreement,

whether attached to the collective agreement or not, are interpreted using the

modern method to determine the intention of the parties.

33

38.The Association cited several authorities on the question of how agreements

reached during the currency of a collective agreement should be treated. I have

reviewed those authorities including Eurocan, Re Alberta Wheat Pool, Family and

Children’s Services and Canada Bread. I am satisfied the modern approach in that

context is correctly summarized in Family and Children’s Services, supra:

29 I begin by making the following legal observations. First, it is obvious that Eurocan #1, supra

(and, for that matter, Canada Bread, supra), has ceased to have meaning (if, indeed, it ever had

any in this province) except as an historical artifact. What were politely described by Arbitrator

Munroe in Eurocan #2 [referring to Eurocan, supra] as "exceptions" to the "general rule" stated in

Eurocan #1 were really repudiations of that rule. The "modern understanding", which, in my

opinion, properly takes the form of a rebuttable presumption, is that agreements reached

by parties during the currency of a collective agreement (whether in settlement of a

grievance or a potential grievance, or whether understood as "interpreting" or "adding to"

the collective agreement) bind the parties unless and until altered by mutual agreement; it

is not that they will expire, or can be brought to an end, unilaterally, on notice, effective

with the expiry of the prevailing collective agreement. This presumption is supported by the

basic legal principle that there can be only one collective agreement and, most importantly, by

collective bargaining practice. In this province at least, collective bargaining is about change, not

continuity, with the assumption being that all previous terms will continue unless amended, not

that they will cease unless renewed.

30 Second, the terms of a mutually negotiated agreement cannot be brought to an end

unilaterally, on "notice", unless the agreement expressly provides for it. While a unilateral

representation and, therefore, an estoppel, can be brought to an end that way, a contractual

commitment cannot - a fact that, to some extent at least, is reflected in the Union's suggestion

here that the Memorandum did not constitute a "true bilateral agreement" because the Employer

contributed nothing of "fundamental importance". In my opinion, however, notwithstanding some

of the commentary in the cases, any assessment of the relative contributions of the parties to the

agreement is irrelevant. What matters is whether there was an agreement, not how much each

side contributed to it. [emphasis added]

39.I will now apply these principles to this Grievance.

VI.

Analysis

Issue #1 - On a proper interpretation of the Scope MOA and the Appointment

MOA, did the parties intend expressly or by implication that the Appointment

MOA revoked or supersedes the Scope MOA?

Arguments

40.I will begin by setting out the parties’ submissions relevant to this issue. The Faculty

Association submits:

a. The Association’s evidence demonstrates that the parties never intended that

the Scope MOA be superseded or revoked by the Appointment MOA or by

renewal of the Collective Agreement.

b. There was no discussion of revocation of the Scope MOA at the bargaining

table or thereafter. Rather, the Employer seems to have taken an "after the

fact" position, perhaps based on convenience, that the Scope MOA was

implicitly revoked and rendered unenforceable by renewal of the Collective

34

Agreement and the negotiation of the Appointment MOA. However, to uphold

such a unilateral interpretation would go against the thrust of cases.

c. Even after the negotiation of the 2017 Collective Agreement, at least for a

time it the Employer was proceeding on the basis the Scope MOA continued

to apply. Not until some three months after the 2017 Agreement was ratified

did the Employer take the position that the Scope MOA no longer applies.

d. The Scope MOA could have been superseded or replaced, but to do that, the

Employer had to bargain it. That bargaining never took place. Absent that,

given the intention of the parties in creating the MOA, it is obvious at least

some of the provisions were intended to continue past the then current 2010

Agreement, in particular paragraph 7 and 8 of the Scope MOA. The Employer

has not rebutted the presumption of continuing effect of paragraphs 7 and 8.

e. It is notable that within the Scope MOA itself, there is reference to revocation

of an earlier MOA.

f. Had the Employer wished to supersede or revoke the Scope MOA (or any

portion of it), it would have been a simple matter to negotiate a similar clause

in the Appointment MOA. The Employer did not do so - not even broaching

the topic with the Union - and it cannot now insist that it has managed to do

indirectly what it did not even try to do directly. Furthermore, going beyond the

need for explicit bargaining to revoke an MOA, there are at least two

provisions in the Scope MOA that have ongoing effect (paragraphs 7 and 8).

g. The Scope MOA and the Appointment MOA are entirely distinct documents

with entirely different and distinct purposes. The Appointment MOA deals with

the search processes for senior out-of-scope administrators. That

presupposes that the administrator in question is out-of-scope. Meanwhile,

the Scope MOA provides an adjudicative process for one type of position -

specifically the Associate Dean - to determine if that position is properly out-

of-scope or is more properly an in-scope Assistant Dean.

h. The Employer's position is putting the cart before the horse. The Scope MOA,

and the process set out in it, determines if a position is, in fact, an Associate

Dean position (provided the parties do not agree). Once that determination is

made, the Appointment MOA governs, and the search for the Associate Dean

position can commence.

i. The Appointment MOA does not at all deal with the question of the Assistant

and Associate Deans being in or out of scope. In the Appointment MOA, the

University agrees to “notify the Joint Committee for the Management of the

Agreement when new Senior Administrator positions are created” (paragraph

2). The JCMA is not the Faculty Association, though Association

representatives sit on that body. The JCMA has no binding authority to

determine scope, nor has it dealt with scope issues in practice. The

Appointment MOA provides only that the JCMA will be “notified”. This does

not replace the binding adjudication process dealing with scope specifically.

All the Appointment MOA says is that where there is going to be appointment

35

or renewal of an Associate Dean, then the parties will follow the search and

review processes.

j. There is nothing in the Appointment MOA that implicitly or explicitly over-rides

or supersedes the Scope MOA. As such, the Appointment MOA cannot

reasonably be seen as a “replacement” for the Scope MOA.

k. There are ways for the Faculty Association to challenge whether a position is

in or out of scope. The Association can grieve or make an application to the

Labour Board. The Scope MOA deals with an issue that was of concern to the

parties at the time; and, according to Muri, it continues to be a potential issue

on an ongoing basis. The parties decided that this particular dispute about

Assistant and Associate Deans was important enough and potentially costly

enough that a streamlined, more cost effective and faster process would take

the place of the costlier, more time-consuming processes.

l. Paragraph 1 of the Appointment MOA has a fairly generic list of positions and

then at the end of it, it says, “and additional positions as deemed appropriate

by the Joint Committee. Paragraph 3 refers to a Joint Committee of the Board

of Governors and Council. Paragraph 4 speaks to the composition of that

Joint Committee (to be distinguished from JCMA). There is no requirement for

Association representation on the Joint Committee of the Board and Council.

That Committee decides who is covered under paragraph 1; that is, which

positions will be subject to the search procedures. That is not scope. If there

is a scope issue with respect to an Associate Dean position, the Association

can still proceed with the adjudication process created in the Scope MOA.

m. The Appointment MOA does not deal with who is in- and out-of-scope. It

deals with which out-of-scope positions are subject to the University’s search

procedures when the University is going to make an appointment.

n. If the University is suggesting that the LRB was suggesting that the

Appointment MOA is the governing authority for scope issues, paragraph 53

of the LRB decision makes it clear that is not the case. The LRB left open (at

para 53 of the decision) the question of whether the Scope MOA or the

Appointment MOA applies to scope issues. They didn’t give any indication of

what they thought on the matter. They left it to the arbitrator to decide the

issue in the first instance.

41.The Employer submits:

a. As a result of the Scope MOA, MOA #2 to the 2014 Agreement which had

been MOA #7 of the 2010 Agreement, was amended to include numerous

new senior administration positions. Subsequently, in the 2017 Appointment

MOA, the list of senior administrators was expanded again. In addition, the

parties included a new paragraph in the 2017 Appointment MOA not found in

the equivalent memoranda in the 2010 and 2014 Agreements:

The University shall notify the Joint Committee for the Management of the Agreement

when new Senior Administrator positions are created.

36

b. Paragraph 2 was intended to create a process for the joint review of the

creation of new senior administrator positions in general, including but not

limited to new Associate Dean positions. The new process was intended to

replace the process in the Scope MOA requiring the Faculty Association to

agree to, or an adjudicator to permit, the creation of a new Associate Dean

before the University could create one. The broad scope of paragraph 2 of the

Appointment MOA corresponds with the broad scope of paragraph 1, which

was widened by the addition of numerous senior administrator positions and

the generalized language contained in that version of the MOA, compared

with the specific positions listed in MOA #2 of the 2014 Agreement. It was not

intended to create two processes, with one being unique to new Associate

Dean positions and the other being applicable to both new Associate Dean

positions and other new senior administrator positions. It was intended to

replace the obligation to discuss new Associate Dean positions with the

Association with an obligation to notify the JMCA, comprised equally of

representatives of the University and the Faculty Association, of all new

senior administrator positions so discussions relating such new positions,

including new Associate Dean positions, would occur within that committee.

c. The Association is trying to change the Appointment MOA into a document

about search procedures as opposed to one about scope.

d. The LRB decided, in their June 16, 2020, decision, that the parties have

addressed the issue of scope in how they dealt with exclusions. The LRB at

least decided there was an agreement between the parties about scope and

that is why they deferred to the arbitrator.

Application of principles

42.The usual first step in the interpretation process is to examine the relevant language

to see if the words in question are capable of more than one meaning. On

examination, using the modern method, this is a straightforward case of

interpretation with no ambiguity.

43.The core provision at issue is paragraph 8 of the Scope MOA. The parties

negotiated this MOA in 2013 during the currency of the 2010 Agreement. The parties

did not sign the 2014 Agreement until June 1, 2015. The case authorities are clear

that the presumption is that agreements reached during the currency of a collective

agreement bind the parties unless and until altered by mutual agreement. There is

no evidence of overt mutual agreement in this case. The Employer does not suggest

the Scope MOA was not in effect when the parties signed the 2014 Agreement.

Indeed, the University specifically says it was the Appointment MOA in the 2017

Agreement that wiped out paragraph 8 of the Scope MOA.

44.The question before me, then, is whether the parties did something that shows their

intention to revoke the Scope MOA or that they agreed the Appointment MOA in the

2017 Agreement now supersedes the Scope MOA because of the addition of a new

paragraph 2 in the Appointment MOA in the 2017 Agreement. I repeat that

paragraph here:

37

The University shall notify the Joint Committee for the Management of the Agreement when new

Senior Administrator positions are created.

45.The University’s position is that this sentence added to the Appointment MOA in the

2017 Agreement had the effect of wiping out paragraph 8 of the Scope MOA. To

decide whether that is the case, I must examine the Collective Agreement as well as

the language of the relevant memoranda of agreement. On examining the structure

and the language, there is a clear answer to the question.

46.Applying the modern method of interpretation, I begin with the entire context. This

includes the Collective Agreement and relevant legislation. The Collective

Agreement is a lengthy and detailed document negotiated between sophisticated

parties over decades. The parties have captured their agreement on numerous

items in significant detail. They have a mature bargaining relationship. One would

therefore expect them to carefully articulate those matters to which they have

agreed.

47.Turning to the Collective Agreement, Article 4.1 says:

This Agreement applies to all employees of the University of Saskatchewan covered by the order

of the Saskatchewan Labour Relations Board certifying the Association, and by any subsequent

orders amending that order issued up to the date of execution of this Agreement. The Employer

recognizes the Association as the exclusive bargaining agent for the employees covered by the

aforementioned certification in respect of terms and conditions of employment.

48.The parties have agreed that the scope of the bargaining unit is defined by the

certification order. Amendments to a certification order may be made by agreement

of the parties on application to the LRB or by one party making an application to the

LRB to determine the scope of a position. The only other reference to questions of

exclusion from the bargaining unit in the main body of the Collective Agreement is

found in Article 10.6.1(iii):

10.1.6.1.1.1 The Employer agrees to provide the Association with the following information:

…

(iii) a monthly list of all new appointments of persons with faculty or librarian status with an

explanation of why any new appointee should be excluded from the bargaining unit;

…

49.Upon receipt of the monthly list, it is open to the Faculty Association to raise with the

University the issue of scope of any new position. If the Faculty Association does not

agree the position should be out-of-scope, they have the option to grieve or to make

an application to the LRB, in either case claiming that the position meets the

definition of “employee” in the SEA and should not be excluded.

50.In addition, s. 6-11 of the SEA has a process for excluding supervisory employees

from the same unit as other employees and a process for creating supervisory

employee bargaining units. Under s. 6-11(4)(a) the employer and the union can

make an irrevocable election to allow supervisory employees to be in the bargaining

unit.

51.It is open to the parties, by agreement at any time, to remove, add to, or modify the

terms of the Collective Agreement. In the context I have outlined here, during the

38

term of the 2010 Agreement, in 2013 the parties negotiated the Scope MOA. I will

now turn to the grammatical construction of the Scope MOA and its relationship to

the Appointment MOA.

52.The Scope MOA is entitled Scope and Jurisdiction. That MOA is about the scope of

positions. In the Scope MOA, the parties agreed to remove from the Certification

Order several positions that no longer exist. They also agreed that several positions

that were not excluded from the bargaining unit in the Certification Order should be

excluded. That obviated the necessity for the University to make an application to

the LRB with respect to those positions because the Faculty Association agreed

those positions were out of scope. They agreed the Unified Heads in the College of

Medicine would be out of scope.

53.Paragraph 4 of the Scope MOA is clear evidence that the parties considered scope

and appointment to be two different things:

The parties agree that Vice-Deans in the College of Arts and Science and the College of

Medicine, Unified Heads ln the College of Medicine, the Director, Global Institute for Water

Security, the Executive Director and CEO, Global Institute for Food Security, and the Director,

VIDO-INTERVAC, Executive Directors for the Schools of the Environment and Sustainability,

Public Health and Public Policy will be added to the list of senior administrative officers of

the University named In MOA No. 7 of the 2010-2013 collective agreement. It is agreed that a

condition of the Joint Committee's recommendation for a search and review process for the

Unified Heads in the College of Medicine is that the process be acceptable to the health region.

[emphasis added]

54.The positions listed were already excluded from the bargaining unit because of the

agreed-upon amendments to the Certification Order. The addition of the positions to

then MOA #7 of the 2010 Agreement was so that those positions would be subject to

the search procedures for appointment and reappointment of specific persons who

would occupy the named excluded positions. The last sentence with respect to

Unified Heads makes it abundantly clear that MOA #7 of the 2010 Agreement is

about search processes, not about scope. The scope of the Unified Heads was dealt

with elsewhere in the Scope MOA.

55.In paragraph 6 of the Scope MOA, the parties specifically agree MOA #3 in the 2010

Agreement is no longer in effect. MOA #3 agreed that certain department heads in

the College of Medicine would be in scope. They also agreed to advise the

Negotiating Committee to delete MOA #3 from the Collective Agreement. That was

done in the 2014 Agreement.

56.In paragraph 7 of the Scope MOA the University agreed not to seek to have

Department Heads excluded from the bargaining unit unless there was a material

change in the job description which was attached to the Scope MOA as a

benchmark.

57.In clause 8(a) of the Scope MOA, the parties agreed to use the Appendix B process

to discuss whether or not the Employer’s designation of a newly created position as

an Associate Dean is appropriate. In clause 8(b) they agreed to review the

Employer’s designation of a number of existing Associate Dean positions as those

positions became vacant and to use the Appendix B process for that purpose.

39

58.As I have said, there was no overt agreement in the 2017 Agreement or in any MOA

to that Agreement that the Scope MOA or any part of it was being revoked or

superseded. The University, however, says that revocation or superseding is found

in paragraph 2 of the Appointment MOA.

59.The evidence before me is that there has been an MOA on Appointment and

Reappointment of Senior Administrators in successive collective agreements since

at least 1990. The documents before me show that there has been an appointment

MOA in at least each of the 2010, 2014 and 2017 Agreements.

60.A review of each of the appointment MOAs reveals:

 The preamble paragraph in each is identical.

 Paragraph 2, 3, 4 and 5 in the 2010 and 2014 Agreements are identical to

paragraphs 3, 4, 5 and 6 respectively in the 2017 Agreement.



The parties added a new paragraph 2 in the 2017 Agreement requiring the

University to notify the JCMA “when new Senior Administrator positions are

created.”

61.In paragraph 1 in each of the appointment MOAs, the University agrees to use the

search procedures outlined in the policy documents issued by the Board of

Governors for specifically listed positions, plus any position the Joint Committee of

the Board of Governors and Council (the “JCBGC”) decides should be subject to the

search and review procedures.

62.On a plain reading of the words, these appointment MOAs are not about whether a

position is in or out of scope of the bargaining unit. They are about the specific

positions to which the search procedures for appointment and reappointment will

apply. On a proper interpretation of these MOAs, they apply in situations where the

University is seeking to appoint someone in any of the positions named. So, for

example, if the University requires a new dean of the College of Arts and Science,

they must follow the search procedures. The position of dean, however, is already

out-of-scope of the bargaining unit. The position is listed in the Appointment MOA,

whether specifically or generally, to clarify that the search procedures will apply to

that position. If the University chose to create a new Vice-Provost position, for

example, the issue of scope of the position would have to been determined before

the position could be considered to be added to the list of positions subject to the

search process.

63.The flaw in the University’s position is that they are conflating the requirements to

determine the scope of a position with whether the position will be subject to the

search procedures for appointment and reappointment. An Associate Dean position

does not become an Associate Dean position unless the parties agree, or they go

through the Scope MOA Appendix B process and have an adjudicator decide. Once,

by agreement or order, the position is an Associate Dean, then the Appointment

MOA requires the University to follow the search process for appointment and

reappointment of someone in that position.

40

64.When the parties made amendments to the Appointment MOA in 2017, they chose

to list the positions subject to the search procedures more generically than they had

in the past with the result that they will not, going forward, have to constantly revise

the list when and if the University creates new out-of-scope positions that the

JCBGC decides must be subject to the search procedures.

65.The parties have already agreed in Article 10.6.1(iii) that the University must give

notice to the Faculty Association about new appointments and why they should be

excluded from the bargaining unit. Interpreting paragraph 2 in the 2017 Appointment

MOA as a requirement that the University give notice of new positions to the Faculty

Association would be redundant because the requirement to give notice already

exists.

66.More importantly, and in any event, on the plain words of paragraph 2, the notice

required is notice to the JCMA which is a joint committee with no power over scope.

In its context and its plain meaning, all paragraph 2 says is that the University now

must notify JCMA when they are going to fill one of the positions listed with respect

to which the JCBGC has decided must have a search process.

67.I note as well that, while the Scope MOA specifically revokes previous MOA #3 in

the 2020 Agreement, there is nothing in the Appointment MOA or elsewhere that

revokes the Scope MOA. The Scope MOA remains in effect unless and until the

parties specifically agree otherwise.

68.Taking into account the whole of the Collective Agreement and the relevant MOAs,

on a plain language and harmonious interpretation of the provisions, the

Appointment MOA is not about scope, it is about search procedures. The parties

agreed in the Collective Agreement that scope would be determined by the terms of

the Certification Order. They provided in Article 10.6.1(iii) that the University would

give notice to the Faculty Association of appointments along with an explanation of

why any new appointee should be excluded from the bargaining unit. Without more,

the process for adjudicating scope issues would be grievance or the LRB. In the

2013, the parties negotiated the Scope MOA in which they agreed that if there were

scope issues with respect to any position the University seeks to designate as an

Associate Dean, the parties would use the Appendix B process.

69.Alongside the Scope MOA and other MOAs that deal with scope issues from time to

time, the parties have had longstanding MOAs with respect to Appointment and

Reappointment. These MOAs have always designated the positions for which the

University is required to follow the search processes. All paragraph 2 of the

Appointment MOA in the 2017 Agreement did was add a requirement that the

University notify the JCMA when new senior administrator positions are created.

70.This interpretation gives meaning to all the relevant provisions of the Collective

Agreement and the MOAs. There are no redundancies and no gaps. The

interpretation does not amend or add to any provisions of the Collective Agreement,

nor does it substitute any new provisions. The interpretation gives effect to all the

terms in a reasonable manner and gives effect to the terms of both the Scope MOA

and the Appointment MOA as they are written. There are no ambiguities.

41

71.In the result, I have concluded that the Scope MOA remains in force between the

parties and that, unless the Scope MOA has been “spent” as the University claims,

the University is bound by the provisions of Appendix B when it seeks to create any

new Associate Dean position.

Ambiguity?

72.If I am wrong that the words of paragraph 2 of the Appointment MOA are clear and

somehow notice to the JCMA could be interpreted as notice to the Faculty

Association and “when new senior administrative positions are created” could be

interpreted to somehow oust paragraph 8 of the Scope MOA out of existence, then it

would be open to me to consider extrinsic evidence as an aid to interpretation.

Extrinsic evidence, however, does not assist the Employer’s case. For example:

a. Muri testified, in support of the Association’s position that the Appointment

MOA is about search processes, that the parties agreed the search

procedures should not apply to the Associate VP People and Resources, so

they took that position out of the Appointment MOA. The Associate VP

People and Resources is still out of scope, but not subject to the search and

review procedures. This supports an interpretation that the Appointment MOA

is not about scope and that the likely reason for adding paragraph 2 was so

the JCMA could consider in each case whether the position should be subject

to search procedures.

b. Muri’s uncontroverted evidence is that there were no discussions about

revoking the Scope MOA during the bargaining for the 2017 Agreement. For

something as significant as paragraph 8 of the Scope MOA, one would expect

the parties to have negotiated revocation and not left it to implication.

c. It makes no sense to agree by implication to revoke an ongoing commitment

such as that in paragraph 8.

73.I put no reliance on the Process Chart Muri created. It may well be a completely

accurate chart of how the scope and search processes work at the University, but

she created it after the issues in this Grievance arose.

74.The Employer suggests that the LRB decided, in their June 16, 2020, decision, that

the parties have addressed the issue of scope in how they dealt with exclusions. It is

clear, however, from paragraph 52 of the Board’s decision, that the LRB was leaving

it to the arbitrator to decide which MOA applies:

…The Board is satisfied that the parties, should they proceed to arbitration pursuant to the CBA

will seek and receive direction as to the applicable MOA, as well as the applicable

negotiated process. [emphasis added]

75.The LRB has left it to the arbitrator to decide which MOA and which negotiated

process applies. I have concluded that the applicable MOA when the parties are

dealing with proposed Associate Dean positions is the Scope MOA and that paraph

8 and Appendix B of the Scope MOA apply to Associate Dean positions.

42

Issue #2: Is the Scope MOA spent because all its terms have been fulfilled?

76.On this issue, the Employer submits:

a. The Active Certification Order dated April 3, 2014, shows that the parties

applied to the LRB to revise the Certification Order, and that the Certification

Order was amended to accord with paragraph 1 of the Scope MOA. In

addition to amending the Certification Order, the parties also added the

positions listed in clause l(b) to the list of senior administrators in MOA #2 in

the 2014 Agreement. Those positions continue to be excluded under the

Appointment MOA in the 2017 Agreement. Thus, the obligations in

paragraphs 1, 4, and 9 of the Scope MOA were fulfilled.

b. Similarly, a comparison of the Active Certification Order and Rescinded

Certification Order shows the parties fulfilled their obligations under

paragraph 2. Unified Heads of the College of Medicine were excluded from

the Certification Order following the execution of the Scope MOA. That

change is also reflected in MOA #2 and MOA #7 of the 2014 Agreement, the

latter of which provides that Unified Heads in the College of Medicine will

perform the duties of Department Heads without their employment being

subject to the terms of the Collective Agreement. MOA #6 of the 2017

Agreement shows that Unified Heads (along with Provincial Heads) continue

to fulfil the roles of Department Heads without being subject to the terms and

conditions of employment for Department Heads.

c. A comparison of the 2010 and 2014 Collective Agreements demonstrates that

parties also removed MOA #3 from the 2014 Agreement in accordance with

paragraph 6 of the Scope MOA. The 2014 Agreement and 2017 Agreement

show that the University did not seek to exclude Department Heads from the

Collective Agreement. They are still appointed under Article 13.6.38.

d. The terms of the Scope MOA have been fulfilled and were dealt with as

follows:

i. In paragraph 1, the University and the Association agreed to make a

joint application to the LRB to amend the certification order, to delete

certain positions and add to the list of exclusions in the order. The new

Certification Order dated April 3, 2014, addresses this.

ii. In clause 2(a), Unified Heads in the College of Medicine were to

remain in-scope until the 2014 Collective Agreement took effect. The

April 3, 2020, Certification Order excludes this position. MOA #2 in the

2014 and 2017 Agreements lists the Unified Heads as senior

administrators.

iii. In clause 2(b), Unified Heads in the College of Medicine were to

perform the work of Department Heads but were not subject to the

terms of the Collective Agreement. MOA #7 in the 2014 Agreement

provides Unified Heads will act in the role of Department Heads and

are out of scope of the Collective Agreement. This continues under

MOA #6 in the 2017 Agreement

43

iv. Paragraph 3 provides that Article 15.8 of the Collective Agreement

(now Article 15.7) applies to out-of-scope tenured employees. That

clarified the scope of that article of the Agreement.

v. In paragraph 4, certain positions would be added to the list of senior

administrators listed in MOA #7 to the 2010 Agreement (replaced by

MOA #2 of the 2014 Agreement and replaced again by MOA #2 of the

2017 Agreement). MOA #2 in the 2014 Agreement replaced MOA #7

from the 2010 Agreement and included these positions. It was updated

again as MOA #2 in the 2017 Agreement (the “Appointment MOA”)

and still includes them.

vi. In paragraph 5, the University agreed to recommend changes to the

Guidelines for the Establishment of Chairs and Professorships

permitting Faculty Association observer status on the Joint Committee

on Chairs and Professorships. The parties later agreed not to pursue

this provision of the agreement.

vii. In paragraph 6, MOA #3 of the 2010 Agreement would be deleted from

the Agreement. MOA #7 in the 2014 Agreement replaced MOA #3

from the 2010 Agreement and it is now MOA #6 in the 2017

Agreement.

viii. In paragraph 7, the University agreed not seek to have Department

Heads excluded from the Faculty Association bargaining unit unless

the duties of the position changed materially such that they would no

longer qualify as an employee under labour legislation. Department

Heads have remained in scope in the 2014 and 2017 Agreements.

This is a stand still agreement. The University has not sought to pull

the Department Heads out of the Faculty Association unit.

ix. In clause 8(a), the parties agreed to discuss whether the University's

designation of a newly created position as an Associate Dean is

appropriate. The adjudication process in Appendix B was eliminated

when the parties agreed to paragraph 2 of the Appointment MOA in the

2017 Agreement. In the Appointment MOA, if the University chooses to

put forward a new senior management position they have to give the

JCMA notice. That is an increase, a win for the Faculty Association.

The win for the University in this round of bargaining was that all they

have to do is give notice. They don’t have to go through the

adjudication process in 8(a) of the Scope MOA. That is a trade-off

which is what collective bargaining is all about. The Appointment MOA

is what governs now. The University collectively bargained that they

did not need to worry about this adjudication process. The Union got

notice whenever there is a new senior administrative position.

Therefore, the Scope MOA was re-negotiated in the current Collective

Agreement.

44

x. In clause 8(b), the parties agreed the parties would review the

University's designation of certain Associate Dean positions as those

positions became vacant.

xi. In paragraph 9, the positions mentioned in paragraph 1 would be out of

scope as of the date of the amended Certification Order. That has

happened.

e. Therefore, the Scope MOA has been fully performed and is no longer of any

force or effect. Once the things contemplated in the Scope MOA were done,

the agreement was fully performed, and the University was no longer required

to engage the process set out therein at clause 8(a) when creating a new

Associate Dean position.

77.The Faculty Association submits:

a. The Employer’s position that the Scope MOA is exhausted may be informed

by the case of Extra Foods v UFCW Local 1400, supra. In that case a “letter

agreement” was found, upon judicial review, not to have carried forward past

the expiry of the term of the collective agreement in which the letter

agreement had been executed. The Court stated:

9 To put the matter in context, it should be noted that of the five provisions in the letter

agreement, as conceded by counsel for the respondent in the course of argument in our

Court, four were executed, no longer relevant and did not need to be carried forward. The

sole remaining one, i.e., the size of the bargaining unit, was carried forward separately in

the clause in the agreement setting forth the number of members of the bargaining unit.

The matter is accordingly of apparently very marginal interest to the parties except for the

respondent's argument that there may be some ongoing obligation with respect to the

trainee meat cutter positions. This does not appear to be spelled out in the agreement,

nor was there any evidence that this matter was discussed in this way, or any other,

between the parties when the second collective bargaining agreement was negotiated.

10 Further, neither the arbitrator nor the Queen's Bench judge make reference to the

letter of intent, stressed by the appellant in this Court. It refers to both included and non-

included side agreements and does so in the context of saying that the union wants to be

free to raise all material matters that it wishes during the course of the negotiations, that

is, to have a free hand to raise all issues in the agreement and all side agreements. This

alone distinguishes some of the arbitral cases and again, in our view, shows that this

arbitral award cannot be sustained.

11 An analysis of the arbitral award shows it to refer to no evidence of any intent or need

to carry the matter forward except the reference to the bargaining unit size, which as

noted above has been already included in the collective bargaining agreement.

12 There being no evidence at all on which the arbitrator could conclude as he did, he

was so in error that neither the standard of correctness or reasonableness was met.

b. It should be noted that the Court of Appeal’s reasons in Extra Foods are

based on two main points. The first point was that the arbitrator seemingly

ignored, or did not address, a relevant “letter of intent” provided by the union

prior to bargaining, wherein the union stated, inter alia (Extra Foods, para 3):

This letter will serve as notice that from this time forward, the Union will enforce the strict

terms of the Collective Bargaining Agreements in force in all of Westfair Foods' retail

divisions in Saskatchewan.

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The Union will not be bound by any past practices, acquiescences, agreements, or

understandings that are not reduced to writing and form part of the final Collective

Bargaining Agreements to be entered into between the parties after the current round of

bargaining.

This notice covers the entire Collective Agreement in each case and all their appendices

and letters of agreement.

. . . . .

The Union is giving the employer notice at this time so it is able to address any issues it

wishes to in the current round of collective bargaining in relation to each of these

agreements.

. . …

c. This contrasts with the present case, where the Association has made no

such representation regarding memoranda of agreement or letters of

understanding.

d. The second point was that much of the letter agreement had been satisfied.

Indeed, the only point in issue in that case seems to have been, in the Court’s

words, “the respondent's argument that there may be some ongoing

obligation with respect to the trainee meat cutter positions” – an obligation

that was not explicitly set out in the letter agreement in any event. This is in

stark contrast to the present case where we are dealing with express terms of

the Scope MOA.

e. Furthermore, unlike in Extra Foods, the provisions of the Scope MOA deal

with one of the most important aspects of labour relations for the Association

– its rights and obligations to represent its members – and not provisions of

apparently marginal interest to either party.

f. Paragraphs 7 and 8 the Scope MOA have no analogues in the current

Collective Agreement or the Certification Order.

g. Other provisions of the Scope MOA have been satisfied by virtue of the

current Certification Order, as much of the Scope MOA deals with the

amendments leading up to that Order. Nonetheless, at the very least,

paragraphs 7 and 8 of the Scope MOA do not have a specific “expiry” and

deal with significant enough issues that, it is submitted, it is not reasonable to

conclude that the parties, viewing their mutual intent objectively, intended that

the Scope MOA suddenly cease operation upon renewal of the Collective

Agreement.

h. For example, there seems to have been no guarantee that the positions set

out in paragraph 8(b) would become vacant prior to the expiry of the then-

current Collective Agreement or execution of the subsequent Collective

Agreement. It is not reasonable to conclude that the parties intended the

Scope MOA to become inoperative prior to satisfaction of that paragraph.

i. Similarly, it is not reasonable to conclude that the parties would have intended

that the Assistant/Associate Dean issue would suddenly, and at some

indeterminate time in the future, become subject to unfair labour practice

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proceedings rather than a more informal and mutually agreed-upon

adjudication process.

j. Looking at specific provisions raised by the Employer, it is evident that none

address the question of exactly how to determine whether a position is

properly an Assistant Dean or an Associate Dean:

 The Appointment MOA does not address the question of scope or

jurisdiction at all. Nor does its predecessor in the 2014 Collective

Agreement.

 MOA #7 (2014 Agreement) and MOA #6 (2017) deal only with the duties

to be performed by Unified Heads within the College of Medicine, with

some exceptions, as well as the make-up of a search and review

committee for a Head. Again, this does not address scope.

 Article 13.6 of the 2017 Agreement deals with search and appointment

procedures for Assistant Deans but does not speak to scope or any

determination thereof prior to an Assistant Dean position being posted.

k. In sum, while several provisions of the Scope MOA have been dealt with

under the amendment to the Certification Order, some articles dealing with

significant representational issues had no specific expiry condition or expiry

date. Put bluntly, it simply defies belief that the parties would have intended

that the Scope MOA would become unenforceable, or the adjudication

process in Appendix B be discarded, upon renewal of the Collective

Agreement, absent bargaining to the contrary.

l. The Association does not dispute that a lot of the provisions in the Scope

MOA have been taken care of by virtue of amendments to the Certification

Order or potentially other memoranda of agreement within the Collective

Agreement. The gist of this case is paragraph 8. Paragraph strengthens the

Association’s position that the terms of the Scope MOA have not been

exhausted or that they are otherwise inoperative or unenforceable.

m. There was no discussion in bargaining about there being an end date or

expiry date for the Scope MOA. The parties made provision in other spots for

the effective date of the exclusions which was the date of the new

Certification Order. Paragraphs 7 and 8 had no such provision and have not

been spent.

n. Paragraph 7 deals with Department Heads. Fryett testified that what

motivated that provision was the supervisory employee provisions of the then

new Saskatchewan Employment Act which could result in the Department

Heads being kicked out of the Association. The fact the Department Heads

are still in scope now does not address the real issue of paragraph 7 which is

the Employer’s agreement that unless and until they no longer satisfy the

definition of “employee” in the SEA, the Employer will not try to take them out

of the bargaining unit. That clearly has ongoing resonance and relevance.

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o. Under paragraph 8(b), the parties agree that certain positions, upon vacancy

will be addressed. There is no timeline for that, no guarantee of when those

positions will be vacant. Many of those positions may no longer be in issue,

but the clear intent of the parties was that paragraph 8 would continue to have

impact for an indeterminate time down the road. The document does not say

it expires with the passage of a new Collective Agreement. The University still

has Associate and Assistant Deans. That is potentially still an issue down the

road.

p. Appendix B provides for a faster, more efficient process for deciding scope of

the Associate/Assistant Dean positions. That process only applies when the

parties can’t agree. If they agree a position is an Associate Dean position, the

adjudication process is not triggered. The process involves initial discussion

and negotiation. At the end of the day, if the parties cannot agree, the issue

has to be resolved by someone else. The parties agreed to use the Appendix

B process for that purpose. Much like an arbitrator, the adjudicator is there as

the last resort on the Associate verses Assistant issue. The fact the parties do

not appear to have used Appendix B is not the test. Just because the parties

haven’t used Appendix B does not mean the Appendix B process is suddenly

gone, just as not grieving under a collective agreement does not mean the

grievance arbitration process is suddenly gone. The fact the parties have not

had the need to use Appendix B demonstrates this is a mature bargaining

relationship where the parties are able to resolve matters.

q. The Employer raises the Appointment MOA, the MOA #2 predecessor to the

Appointment MOA, MOA #7 in the 2014 Agreement and MOA #6 to the 2017

Agreement. None of these memoranda deal with scope. The Unified Heads

are irrelevant to the scope issues covered by paragraphs 7 and 8 of the

Scope MOA. Article 13.6 of the 2017 Collective Agreement deals with search

and employment provisions for Department Heads and Assistant Deans. This

pre-supposes that the Assistant Dean is in fact an Assistant Dean. The

concern of Article 13.6 is not the Department Heads or Assistant Deans are

out of scope in the same way that a manager or confidential employee would

be. The concern with respect to the Department Heads in paragraph 7 of the

Scope MOA is that they might be considered to be supervisory employees

and be kicked out of the Association into their own bargaining unit or no

bargaining unit at all pursuant to section 6-11 of the SEA. None of these

specific documents address the issues the Scope MOA was meant to

address.

Are all the provisions of the Scope MA spent?

78.Unlike the Extra Foods case cited by the Association, in this case the obligations

with respect to Department Heads and Assistant/Associate Deans appear expressly

on the face of the document in paragraphs 7 and 8 respectively. I have already

found that, unless the provisions are “spent” as the Employer claims, those

provisions remain in full force and effect and subject to the grievance procedure.

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79.Some of the provisions of the Scope MOA, like paragraph 1, have most certainly

been fulfilled. The parties made the joint application to the LRB and the LRB issued

a new Certification Order. The parties have continued to make new agreements with

respect to Unified Heads. The parties added the list in paragraph 4 to the 2014

Appointment MOA.

80.Paragraph 3 with respect to application of Article 15.8 (now 15.7) of the Collective

Agreement may well have continuing relevance.

81.Paragraph 7 clearly has continuing application. The University has agreed that it will

not seek to have Department Heads excluded from the Faculty Association

Certification Order unless and until there is a material change in duties of the

Department Head such that the Department Head is no longer an employee within

the meaning of the then Trade Union Act (now the “SEA”). They included the

Department Head Job Description as a benchmark. The fact the Department Heads

have remained in the bargaining unit in the 2014 and 2017 Agreements, does not

mean paragraph 7 is spent.

82.In the absence of paragraph 7, there would be nothing stopping the University from

attempting to take the Department Heads out of scope as managers or out of scope

under s. 6-11 of the SEA as supervisory employees. Should the University attempt

to do either of those things, it would be open to the Faculty Association to raise

paragraph 7 of the Scope MOA. I make no finding here on the result because each

case must be decided on its own facts and merits, but paragraph 7 is clearly still a

live provision.

83.Paragraph 8, too, is clearly a live provision. As I have already found, paragraph 2 of

the Appointment MOA did not wipe out this provision. The provision itself clearly

specifies what is to happen with respect to potential future events. Clause 8(a)

applies anytime the University proposes a new Associate Dean position. Clause 8(b)

applies anytime one of the listed positions becomes vacant. The Appendix B

process involves discussion between the parties followed by an adjudication

process. The fact the parties may not yet have used the Appendix B process is

irrelevant. Many provisions of collective agreements are never triggered. Paragraph

8 and Appendix B have ongoing, relevant application. They are not spent. Paragraph

8(a) and Appendix B will apply every time the University proposes that a newly

created position is an Associate Dean position that should be out-of-scope.

84.All the provisions of the Scope MOA have not been fulfilled. It matters not that some

of the provisions may have been completely fulfilled. The University and the

Association have made some commitments of an ongoing nature. Those include, at

a minimum, paragraphs 7 and 8 of the Scope MOA.

85.Conclusion

86.In summary I have found that:

a. On a proper interpretation of the Scope MOA and the Appointment MOA, the

parties did not intend expressly or by implication that the Appointment MOA

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revokes or supersedes the Scope MOA. As a result, the Scope MOA remains

in full force and effect.

b. The Scope MOA has not been spent or totally fulfilled. The parties made

commitments of an ongoing nature, including at a minimum those in

paragraph 7 and 8 of the Scope MOA.

87.In the result, I allow the Grievance and I declare that:

a. The Scope MOA remains in effect unless and until the parties negotiate

otherwise; and

b. On any occasion when the University seeks to create a new Associate Dean

position, the University is bound by paragraph 8(a) and Appendix B of the

Scope MOA.

Dated at Saskatoon, Saskatchewan, June 24, 2022.

________________________________

Anne M. Wallace, Q.C., Arbitrator

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