Motion of non-confidence by the Faculty of Education Faculty Council Reply

April 25, 2018

The following Motion of non-confidence in the BOG and call for an independent, external, judicial review of the BOG conduct and interpretation of the York University Act was passed by the Faculty of Education at the Special Meeting of Faculty Council on April 25, 2018.

Votes in favour: 25

Votes against: 3

Votes abstaining: 3

Motion: The Faculty of Education rejects the BOG understanding of their responsibilities and authority to include authority to suspend classes during a disruption, and we reject their interpretation of the respective roles of Senate and the Board of Governors under the York University Actand further the Faculty of Education rejects the BOG’s assertion that they are fulfilling their fiduciary duties, all of which was asserted in the April 2, 2018 letter from the chair of the BOG to the chair of Senate. We put forth a vote, a statement of non-confidence in the Board of Governors and a call for an independent, external judicial review of the Board’s conduct and interpretation of the York University Act.

Rationale:
1. Respective roles of Senate and the Board of Governors under the York University Act, 1965
Section 12 of The York University Act, 1965 clearly vests responsibility for academic policy of the university exclusively with Senate and gives Senate the authority to enact by-laws, rules and regulations for the conduct of its affairs, regarding academic policy. And further The York University Act clearly states Senate’s jurisdiction over academic policy is wide ranging, general and without limitation: without limiting the generality of the foregoing.
The language of section 12 is unlimited and gives no overriding power to the BOG to override Senate jurisdiction over educational policy. This means that Senate’s authority over academic policy does extend unilaterally and without limitation over academic policy and all matters that pertain to, and impact on, academic policy. There is no requirement or obligation under the York University Act for Senate to consult with the BOG on academic matters, or to seek its agreement on academic policy, although it has the power (not obligation) to consult, if it so wishes.
Unlike some other university Acts in the province and across Canada, the York University Act distinctly protects the Senate’s powers. There is nothing in the York University Act that accords priority, paramountcy or overriding jurisdiction to the decision of the Board.
By stark contrast the powers of the Board of Governors, under the York University Act, are immediately limited by the language under section 10 of the Act which clearly provides in its opening words that Except, as such matters by this Act specifically assigned to Senate, the conduct, management and control of the University and its property, revenues, expenditures, business and affairs are vested in the Board. This means that except for academic policy, which is clearly the exclusive jurisdiction of Senate as stated in section 12 of the Act, the other conduct is within BOG jurisdiction. It also means that when the BOG’s conduct, management and control over revenue have implications for academic policy the Senate has paramountcy. Under the York University Act, the BOG powers are clearly and unequivocally limited by the Senate’s control over academic matters.
Following the reasoning of Justice Sharpe in the case Kulchyski v. Trent University, 2001, These words qualify all of the Board’s powers, including its general governance power and its specific authority over property and expenditures. I agree with the appellants’ submission that by enacting these words, the legislature provided its own solution to potential conflicts between the Board and the Senate. The legislature subtracted authority over educational policy from the Board’s powers and protected Senate’s power over educational policy from encroachment by any power of the Board. Neither the Board’s powers of general governance, nor its power of the purse, allow it to usurp the role of the Senate to control, regulate, and determine the educational policy of the University. (Paragraph 65)
Explicitly, under the York University Act, the limitations of the Board’s powers are precisely in the area assigned to Senate namely, in the area of academic policy. Preserving the academic integrity of York University is central to academic policy. Any disruption (labour or otherwise) that undermines academic integrity is squarely within the purview of Senates authority. Moreover, s. 12 (b) gives Senate the explicit power to determine such things related to standards, courses of study and requirements for graduation. This also speaks to Senate’s power and authority over class suspension or continuation. In the Kulchyski case, Sharpe J. tells us that Administrative interpretation and practice may be used to assist in determining the meaning of legislation and can be an important factor in case of doubt about legislative meaning. (para 91). Senate policy and the university by-laws support this view and past practice of the university during previous strikes also reflect Senate’s clear authority to cancel classes.
Unlike the Board, Senate’s very expertise is in academic matters. The BOG suggestion that they have the expertise, competence or statutory authority to determine academic matters is preposterous. Their conduct violates the York University Act.
2. Fiduciary duties of the Board of Governors
Since the letter suggests that the BOG fiduciary duties somehow give it the power to overstep its role under the York University Act, we would like to address this notion head on. We reject the assertion that the Board is somehow acting in fulfillment of their fiduciary duties in this blatant power grab and aggressive attack on Senate’s exclusive jurisdiction over academic policy. This interpretation is a gross distortion of the BOG fiduciary duties at law. In the university setting the fiduciary duty of care owed by governors and officers of the university is described by the Association of Governing Boards of Universities and Colleges the following way:
The duty of care generally requires officers and governing board members to carry out their responsibilities in good-faith and using that degree of diligence, care and skill which ordinarily prudent person would reasonably exercise under similar circumstances in like positions. Accordingly, a board member must act in a manner that he or she reasonably believes to be in the best interests of the institution.
 
The duty of loyalty means that the board member must not act in their own individual interests, or the interests of another person or organization, but rather must act in the interests of the university and its not- for- profit or charitable purposes. They must act reasonably and in good faith and not out of expedience, avarice or self- interest.[1]
 
In our view, the BOG has certainly been acting out of expedience and quite possibly in bad faith. According to this legal standard, and contrary to the claim in the April 2, 2018 letter, York’s BOG are not fulfilling their fiduciary duties to carry out their responsibilities in good-faith and using that degree of diligence, care and skill which ordinarily prudent person would reasonably exercise under similar circumstances in like positions. In our view, they are not acting prudently or reasonably or with diligence and care. In fact, past practice shows that previous BOG at York, and elsewhere around the country, as well as statute and case law, have all respected Senate’s power over academic policy. This is especially crucial during disputes and disruptions to maintain academic integrity.
Contrary to the assertion in the letter that the majority of governors independent external members who receive no salary or other remuneration who volunteer their time, knowledge and expertise for the benefit of the university and all its stakeholders; current and future students, faculty and staff, alumni, donors, and the public at large, we contend the BOG are, in fact, not acting in the best interests of the university and all its member constituents, nor is the BOG protecting the public interest in its reckless and flawed interpretation of the York University Act. We, as paid employees and academic stewards of this institution are invested in educational governance at York. We are extremely concerned that York’s reputation has been squandered in this strike by the BOG. Chaos and confusion abound as a direct result of the BOG actions in this matter.
This raises issues for us regarding our non-confidence in the BOG’s leadership and, as represented by its Chair. We believe the BOG’s egregious interpretation of theYork University Act compromises their ability to institute any legitimate, internal governance review at York University, and that an external, independent, and judicial review of the BOG’s conduct in this matter is urgently warranted, to ensure that, now and in the future, the respective roles of Board and Senate in a labour disruption are respected and clearly understood by all members of the community, and that any decisions about how to manage the academic implicates of a strike are effectively implemented.
The faculty that have submitted this motion have consulted in-person together at two open invitation meetings to tenure-stream members of the Faculty of Education and on-line numerous times since March 5th, 2018 to prepare this motion.
Appendices:
1. York University Act, 1965

2. Letter from Chair of BOG to Chair of Senate Executive, March 2, 2018

[1] Association of Governing Boards of Universities and Colleges. Governance Brief on Fiduciary Duties. At https://www.agb.org/briefs/fiduciary-duties. Note that the Canadian University Boards Association (CUBA), which York University is a member, directs members to this American association and this document regarding the statement of board duties. Similar statements appear in case law. For example, the fiduciary standard was classically defined by Judge Cardozo in Meinhard and Salmon, 164 N.E. 545 (N.Y.1928) as “Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior, the duty of finest loyalty, and, stricter than the morals of the marketplace.”

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