UWOFA files Notice of Application for Judicial Review

LONDON, October 11, 2023 – The University of Western Ontario Faculty Association (UWOFA) has served and filed a Notice of Application for Judicial Review related to their Employer’s unilateral decision to “integrate” Brescia University College into the University of Western Ontario, the process followed in reaching that decision, and the steps taken in furtherance of the decision to date.

What is a Judicial Review?

Judicial Review is the process by which courts ensure that the decisions of administrative bodies are fair, reasonable, and lawful. This includes ensuring that statutory powers are exercised in a manner that is consistent with the relevant enabling legislation, and in accordance with the duty of procedural fairness owed to stakeholders whose rights, privileges, and interests may be affected by the decision.

What has the Employer done? 

Western and Brescia’s presidents signed a Memorandum of Understanding on September 21, 2023. The Memorandum of Understanding states on its face that most of its provisions are not legally binding; however, it clearly articulates a well-formed and specific plan for our Employer to integrate Brescia, including by absorbing all of its students and operations, continuing its unique educational offerings, upholding its founding vision and mission, and offering employment to all of its staff and faculty. The administration has begun acting on the decision and implementation plan and is not being transparent about those efforts. 

Importantly, although Western has been acting as if the integration is a fait accompli, the decision has not gone through the appropriate decision-making processes. 

Why a Judicial Review?

The judicial review has been made necessary by the Employer’s strident unilateral conduct and the opacity with which they have operated and are continuing to operate with respect to this matter.

The Employer may claim that this is a typical corporate acquisition within its exclusive managerial power and discretion. This is not true. Universities are public institutions and management is bound by long-established rules and principles of post-secondary governance.

The UWO Act sets out a bicameral system of governance – in other words, it provides for shared power between the Board and the Senate. The Board’s managerial powers are not absolute; they are subject to the Senate’s powers over the academics of the university. Furthermore, as with any administrative decision maker, Western owes a duty of procedural fairness to parties whose rights, privileges, and interests are affected by its decisions – including UWOFA, and others.

The Employer has ignored these legal responsibilities in the manner it has approached the Brescia integration. The decision was made without involvement from the Senate. While it may ultimately be put to Senate, it is clear that the decision has been made and is being acted upon such that any Senate process would be a sham – at best, an attempt to legitimize an illegal decision after-the-fact. Furthermore, the decision was made without any consultation with UWOFA, or indeed any notice prior to the public media releases. This is problematic from a procedural fairness perspective given the far-reaching implications for UWOFA Members and their Collective Agreements with Western.

UWOFA has raised these concerns with senior administration. Unfortunately, instead of making efforts to correct course or engage in good faith with UWOFA since announcing the integration, the Employer has continued a troubling pattern of withholding or misrepresenting information. They have taken steps in furtherance of the integration without transparency to UWOFA, meeting with Members without informing or inviting UWOFA, creating additional workload for department Chairs, and circumventing established processes for Appointments.

This is alarming and is unprecedented in Canadian higher education. It is an attack on the core of collegial governance. 

What is UWOFA hoping to achieve?

Through the Judicial Review, UWOFA calls on the courts to scrutinize the process and decision Western has made. The Notice of Application seeks standard remedies available in these circumstances, including asking the court to quash Western’s decision and stop taking steps to implement it, to declare that Western has not complied with its legal obligations, and to require Western to do so. 

Most importantly, UWOFA has taken this step in order to protect the basic principles of collegial governance and to demonstrate that managerial overreach will not go unchecked.

Why is collegial governance so important? 

Collegial governance is the cornerstone of academic freedom, and essential for the transparent exercise of academic judgement in decision making. It is, in essence, a form of peer review in the operation and management of post-secondary institutions and it is essential for scholarship, teaching and our duty to the public. 

The fundamental principle is that post-secondary institutions are operated jointly by administrators and by academic staff. This happens through representation on the Senate and various committees and subcommittees, as well as through the processes set out in our Collective Agreements. For example, the Faculty Collective Agreement sets out clear processes for Appointments and Promotion, Tenure, & Continuing Status, which involve faculty involvement in the decision-making processes. Western purports to bypass these processes in the context of the Brescia takeover. 

UWOFA represents over 1600 full-time and part-time faculty, and 44 Full-Time Librarians and Archivists. 

For more information contact: Maram Hijazi, UWOFA Communications Officer, uwofaco@uwo.ca.