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HomeMy WebLinkAboutReynolds 22-08-10IN THE MATTER OF AN ARBITRATION Pursuant to the Colleges Collective Bargaining Act BETWEEN: HUMBER COLLEGE INSTITUTE OF TECHNOLOGY AND ADVANCED LEARNING (“Employer”) - and – ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL562 (“Union”) (Grievance of B. Reynolds – Threshold Issue) SOLE ARBITRATOR: Jasbir Parmar On Behalf of the Employer: William Hayter, Counsel Irene Kosmas Vera Beletzan Eloise Etcubanes Stephan Allen Heather Black On Behalf of the Union: Stephanie Hobbs, Goldblatt Partners Willow Petersen, Goldblatt Partners Pearline Lung Rene Borovilos Brett Reynolds Catherine Dunn Miriam Novick Milos Vasic Written submissions received in March and April 2021, following by oral submissions on May 4, 2022. 1 ISSUE [1] I have been appointed to hear a grievance filed by Brett Reynolds alleging a breach of Article 13 of the collective agreement. Article 13 addresses academic freedom. Briefly, it is alleged that the College breached the collective agreement by “arbitrarily and unjustifiably changing faculty-assigned grades without properly consulting with Professor Reynolds, and without recognizing Professor Reynolds as the individual most qualified and capable of assessing the academic performance of these students”. [2] This decision, by agreement of the parties, addresses a narrow issue: whether Article 13 incorporates the concept of academic freedom as it is generally understood in the university sector (the “threshold issue”). BACKGROUND [3] The following is the context in which it was agreed that the current issue should be determined on a preliminary basis. The grievance was filed June 20, 2018, and the first day of arbitration was June 13, 2019. That day was spent engaged in case management discussions. As a result of the pandemic, a number of hearing dates were unfortunately lost, and so the hearing did not commence until February 2, 2021. During its opening statement, the Union advised that while it intended to call expert evidence as part of its case, it did not yet have an expert report to provide to the College. It anticipated having that report by March 2021. For its part the College indicated that it anticipated objecting to the admissibility of expert evidence. Also at issue was the admissibility of a number of documents upon which the College sought to rely, to which the Union objected. It was agreed that the admissibility of the expert report would be deferred until the College received the expert report, and that in the interim the admissibility of the other documents would be addressed by way of written submissions so that the scheduled hearing dates in March and June 2021 could be used to hear viva voce evidence. [4] Subsequently, in the course of the written submissions on the admissibility of certain documents, the College expressed a concern that it had not yet received the expert report as it felt the issues of admissibility were interrelated and therefore should be determined together. During a conference call on May 28, 2021, the Union advised it still had not received the expert report and furthermore had no confirmed date of when it could expect to receive it. The College expressed a concern about its ability to cross-examine the Union’s witnesses in the absence of having received the expert report, along with a concern about the hearing being delayed for a report that may ultimately be inadmissible. It was agreed then that the parties would argue the issue of the admissibility of the expert report on the basis of relevance (leaving aside for the moment any other basis upon which the College may object), relying 2 simply on the Union’s retainer letter to their expert. The parties made those submissions on June 10, 2021. Specifically, the Union sought to lead expert evidence about, inter alia, “the ‘fundamental principle of academic freedom” including a discussion of its historical evolution and current expression in Canadian post-secondary contexts with reference to universities and colleges”. [5] It was clear in the course of those submissions that the parties disagreed on a basic aspect of Article 13. The Union submitted that Article 13 incorporated the concept of academic freedom as it developed in the university sector. The College, on the other hand, submitted that academic freedom as it exists in the university sector is irrelevant to the present case because it was not incorporated into Article 13. Given the significance of this dispute and the fact that it formed the underpinning of the parties’ positions on other issues, the parties then agreed that I should first determine the threshold issue. For clarity, the present decision does not determine the issue of the admissibility of the expert evidence, which remains outstanding and in respect of which submissions have not yet been completed. COLLECTIVE AGREEMENT PROVISIONS [6] There are two relevant collective agreement provisions: Article 13 COPYRIGHT AND ACADEMIC FREEDOM 13.01 [Addresses copyright issues] 13.02 Academic freedom is fundamental to the realization and preservation of the College’s commitment to academic excellence. The purpose of this article is to define the rights and obligations related to academic excellence. The purpose of this article is to define the rights and obligations related to academic freedom. 13.03 All members of the College community shall support and protect the fundamental principle of academic freedom. 13.04 Every faculty member is able to exercise academic freedom in the performance of his/her duties. Academic freedom at the College includes the right to enquire about, investigate, pursue, teach and speak freely about academic issues without fear of impairment to position or other reprisal. 13.05 The exercise of academic freedom is subject to the following responsibilities: (i) In exercising academic freedom, employees shall be responsible for adhering to legal parameters (such as but not limited to The Human Rights Code, Criminal Code of Canada, civil liability, collective agreement obligations), institutional regulations, Ministry Directives, requirements of accrediting bodies, and program and curriculum requirements. 3 (ii) Academic freedom carries with it the duty to use that freedom in a manner consistent with the scholarly obligations to base research and teaching on an honest search for knowledge. In exercising such freedom, faculty have a responsibility to respect the academic freedom and rights of other members of the college community. (iii) The College affirms that faculty shall be free to act and speak in their capacity as public citizens provided they indicate they are speaking as individuals and not acting as representatives of the College * * * CLASSIFICATION DEFINITIONS FOR POSITIONS IN THE ACADEMIC BARGAING UNIT CLASS DEFINITION PROFESSOR Under the direction of the senior academic officer of the College or designate, a Professor is responsible for providing academic leadership and for developing an effective learning environment for students. This includes: (a) The design/revision/updating of courses, including: ….. (b) The teaching of assigned courses, including: - Ensuring student awareness of course objectives, approach and evaluation techniques; - Carrying out regularly scheduled instruction; - Tutoring and academic counselling of students - Providing a learning environment which makes effective use of available resources, work experience and field trips; - Evaluating student progress/achievement and assuming responsibility for the overall assessment of the student’s work within assigned courses (c) The provision of academic leadership, including:… In addition, the Professor may, from time to time, be called upon to contribute to other areas ancillary to the role of Professor, such as student recruitment and selection, time- tabling, facility design, professional development, student employment, and control of supplies and equipment. BARGAINING HISTORY [7] This is the first grievance between these parties involving academic freedom. The content of Article 13 is a new addition to the collective agreement between these parties, a result of the interest mediation-arbitration award of Arbitrator Kaplan, Ontario Public Service Employees’ Union and College Employer Council, dated December 20, 2017. For clarity, Ontario colleges bargain collectively and have 4 a single collective agreement. The parties to the collective agreement are the Union and the College Employer Council (“Council”), which bargains on behalf of the college employers. [8] Both parties submit the context in which this language was added to the collective agreement is relevant to the interpretation of Article 13. However, while the language of Article 13.02 to 13.05 was added to the collective agreement pursuant to Arbitrator Kaplan’s award, the award did not include any explanation of how Arbitrator Kaplan came to conclude these provisions should be added. Accordingly, the parties’ submissions to me focused exclusively on the briefs filed during the interest arbitration and available to Arbitrator Kaplan. [9] On review of those briefs, it is apparent Arbitrator Kaplan awarded the content of Article 13 as proposed by the Union. In contrast, the Council had proposed, instead of adding any academic freedom language to the collective agreement, the creation of a new Letter of Understanding regarding Academic Freedom (the “LOU”), whereby every college would be obliged to have an academic freedom policy containing certain specified elements. Of note there was similar language in the content of Article 13 as proposed by the Union and the content of the LOU proposed by the Employer, although there were also some differences. [10] The Union’s proposal on Article 13 was accompanied with a proposal about the Class Definition for Professor. Specifically, the Union proposed that the Class Definition be amended such that “under the direction of the senior academic officer” be replaced with “in consultation with the senior academic officer”. The Council objected to such amendment. [11] In its brief to Arbitrator Kaplan, the Union submitted that college faculty currently had no right to academic freedom, and expressed concern about the fact that “management controls what is taught, how it is taught, and how it is evaluated”. However, the Union also noted that academic freedom was already a concept that existed on Ontario college campuses, as many colleges had already enacted policies or other documents acknowledging, to varying degrees, the critical importance of academic freedom. In addition, the Union noted that the Postsecondary Education Quality Assessment Board, the provincial advisory agency which makes recommendations on college applications for ministerial consent to grant degrees, explicitly assesses the colleges against their demonstrated commitment to academic freedom. The Union submitted to Arbitrator Kaplan that the Council’s bargaining proposal of addressing academic freedom through policies was inadequate, in that it could lead to inequities across colleges as well as disputes about enforceability. The Union provided Arbitrator Kaplan with academic freedom language included in the collective agreements of a number of Canadian colleges, which they described as the “comparators” to consider for the purposes of achieving replication (a principle followed by interest arbitrators). As for the Class Definition, the Union submitted to Arbitrator Kaplan that the current language 5 “suggests that management has complete control over faculty’s academic activities” and that “cannot be reconciled with meaningful protection and respect for academic freedom at the Colleges”. [12] As noted above, the Council opposed addressing academic freedom in Article 13 in favour of an LOU. The Council submitted that its position was based on the specific characteristics of the college system in Ontario: first that colleges are designed to perform a specific role entirely distinct from that of universities; that the colleges are distinct from one another in terms of their needs and cultures; that colleges are subject to legal and procedural requirements that govern and inform program development and delivery; and that curriculum and program review and development at the colleges is influenced by multiple stakeholders and should remain under the ultimate direction of senior academic leadership within each college. The Council also submitted that it appeared that the Article 13 language proposed by the Union was drawn from Queen’s University. The Council submitted it could not agree to language imported from the university or non-Ontario college sector, because they do not share the same mandate and are not subject to the same statutory and regulatory oversight. The Council also submitted that the Union’s objective in adding academic freedom to the collective agreement, given its corollary proposal to amend the Class Definition, was to no longer have faculty subject to the direction of senior academic leadership, as part of an attempt to change the governance model in the college system. [13] Ultimately, Arbitrator Kaplan directed the parties to add to the collective agreement Article 13 as proposed by the Union. However, he rejected the Union’s proposal to amend the Class Definition. BRIEF SUMMARY OF SUBMISSIONS [14] The Union submits that Article 13 incorporates the concept of academic freedom as it developed in the university sector. [15] The Union submits that Article 13 is not ambiguous. It submits that the reference in Article 13 to “the fundamental principle of academic freedom” is a reference to the concept as it exists and is understood in the university sector. The Union submits this is evident from the plain meaning of the language of Article 13, which it asserts references the university landscape, or aspects of colleges that evolved to encompass norms and practices which are more university-like. The Union submits the very word “academic” makes this clear. In support of this, the Union relies on the definitions of “academic” set out in the Merriam-Webster Dictionary: 1a Of, relating to, or associated with an academy or school especially of higher learning. 1b of or relating to performance in courses of study 1c very learned but inexperienced in practical matters 1d based on formal study especially at an institution of higher learning 6 2 of or relating to literary or artistic rather than technical or professional studies 3a theoretical, speculative 3b having no practical or useful significance 4 conforming to the traditions or rules or an official academy. [16] The Union submits that the definitions noted therein, and in particular 1a, 1b, 1d, 2, and 3a, indicate the word “academic” is a reference to the theoretical aspects of higher learning at the College, as opposed to the technical or professional components of the College. The Union also relies on the Merriam-Webster Dictionary definition of the word “fundamental”: serving as an original or generating source. The Union submits that in order for the principle of academic freedom to be fundamental, it must have an origin or source somewhere. It submits that because there is little precedence for academic freedom in the college context and historically none in this collective agreement, this must be a reference to the origins of the principle of academic freedom, which is the university sector. The Union submits that if the parties intended to signal a new type of principle, they could have omitted the word “fundamental”, or referred to it as new or stated that it was subject to some unique constraints associated with the College. Furthermore, the Union points to a number of other terms in Article 13.05(ii), namely “scholarly”, “research”, and “search for knowledge”, which it submits also are references to the university landscape. The Union submits that had the parties intended academic freedom to mean something other than university-style academic freedom, they would have omitted words which clearly reference the university landscape and included words that were specific to the vocational/training context of community colleges. [17] The Union submits the context in which Arbitrator Kaplan awarded this language supports its position. It submits it is of significance that Council submitted to Arbit rator Kaplan that the Union had drawn the language of its Article 13 proposal from the Queen’s University collective agreement and that it was not appropriate to import academic freedom language from the university sector because there was a material distinction between universities and colleges. In the Union’s view, by awarding the Union’s proposal in the face of such acknowledgement by the Council, Arbitrator Kaplan was finding that it was appropriate to import the concept of academic freedom from the university sector. The Union also submits that having acknowledged before Arbitrator Kaplan that this language imported university-style academic freedom, it is not open to the College to now argue, essentially on the same basis, that this same language is disconnected from the concept of academic freedom in that sector, or that a more limited and constrained concept of academic freedom is the proper interpretation of Article 13. This, it argues, is an attempt by the College to obtain through rights arbitration what it clearly did not obtain through interest arbitration. 7 [18] With respect to the fact the Union’s proposal to amend the Class Definition was rejected, and that the performance of a professor’s responsibilities remains “under the direction of the senior academic officer”, the Union acknowledges that in its interest arbitration brief it stated that its Class Definition proposal was a corollary amendment necessary to effect meaningful access to academic freedom. However, it submits that the only reasonable conclusion to be drawn from the fact that the Union’s proposal on Article 13 was awarded without the amendment to the Class Definition is that Arbitrator Kaplan was of the view that the amendment was not necessary to have Article 13 have meaning. The Union submits it should not be concluded that Arbitrator Kaplan was awarding Article 13 but not intending for faculty to have any meaningful academic freedom right. The Union submits the fact there is a statutory/regulatory distinction between universities and colleges, which it acknowledges exists, is immaterial given that the concept of academic freedom is not an absolute fixed right, but rather a set of entitlements that must constantly be balanced by the legitimate interests of others, whether they be other faculty, students, or the institution itself. Referencing arbitral jurisprudence from the university context, the Union notes that consideration of whether the exercise of academic freedom has been inappropriately constrained is always determined having regard to the specific circumstance within which academic freedom is being asserted. As such, the Union submits that the concept of academic freedom, which is born out of the university context, can be applied and interpreted in the context of Article 13 and the College’s specific circumstances, which includes that faculty may be subject to certain rules and norms. It does not, it asserts, mean that academic freedom in this collective agreement is some entirely new concept. [19] The Union relied on the following authorities: Amalgamated Transit Union, Local 113 and Toronto Transit Commission, 2021 CanLii 77723; Royal Victoria Hospital of Barrie and ONA, 2011 CanLii26324; Neegan Development Corporation Ltd. and IUOE, Local 955, 2020 CanLii6437; Saatva Capital Corporation v. Creston Moly Corporation, [2014] 2 S.C.R. 633; The Town of Oakville and Oakville Professional Fire Fighters Association, 2021 CanLii 46109; Petro Canada Lubricants Inc. and UNIFOR, Local 593, 2019 CanLii 69953; Victorian Order of Nurses and OPSEU, 2017 CanLii 59188; Queen’s University and Queen’s University Faculty Association, 2019 CanLii 17950; York University and York University Faculty Association, 2007 CanLii 50108; Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553; L’Association Des Professeures et Professeurs A Temps Partiel De L’Universite Concordia et L’Universite Concordia, 2014 CanLii 22795; Memorial University of Newfoundland v. Memorial University of Newfoundland Faculty Assn., [2007] N.L.L.A.A. No. 3; Mount Allison Faculty Association and Mount Allison University, 2020 CanLii 33895; University of Ottawa and Association of Professors of the University of Ottawa, 2014 CanLii 100735; Lukits v. Treasury Board (Dept. of National Defence), 2019 FPSLREB 32; University of Manitoba Faculty Association and 8 University of Manitoba, 1991 CanLii 13023; University of Ottawa and Association of Professors of the University of Ottawa, 2008 CanLii 93037. [20] The College also does not assert that Article 13 is ambiguous. The College submits there is no need to resort to dictionary definitions, because Article 13 on its face states that it defines what academic freedom means in this collective agreement. The College submits that, given this explicit statement, there is no basis to go beyond the content of Article 13 and conclude that it incorporates some notion of academic freedom as it exists elsewhere, such as the university context. In the College’s view, the “fundamental principle of academic freedom” is the principle of academic freedom as defined in Article 13. [21] The College submits it is important to keep in mind that this is not a case about freedom of expression, but rather the final grades given to certain students. The College submits that when Article 13 is read as a whole and in context of the entirety of the collective agreement it is clear that the academic freedom referenced in Article 13 is limited by the parameters that flow from the specific college structure. In respect of this, the College points to Article 13.05(i) (which makes academic freedom subject to adherence to a number of college-specific rules and regulations); Article 11.01.E.3 (which requires a supervisor to consult with faculty before determining the method of evaluation), and the Class Definition (which defines a professor’s responsibilities, including evaluating and assessing students, as being “under the direction” of the senior academic officer). The College submits that all of these provisions suggest that the academic freedom in Article 13 must be interpreted as one that accords with the authority clearly retained by management under this collective agreement. [22] Like the Union, the College submits that its position is supported by the context in which this language was ultimately awarded by Arbitrator Kaplan. The College submits the Union’s submissions to Arbitrator Kaplan did not assert that university-style academic freedom should be adopted. With respect to the fact that Council’s submissions to Arbitrator Kaplan stated that the language proposed by the Union was from Queen’s University, the College submits that Article 13 is not actually similar to the Queen’s collective agreement language. Moreover, it submits it does not matter what Council submitted; it matters only what the Union was saying to Arbitrator Kaplan about its proposal. The College notes that the Union presented other Canadian colleges to Arbitrator Kaplan as the appropriate comparators, not universities. [23] The College also submits it is significant that Arbitrator Kaplan rejected the Union’s proposal to amend the Class Definition, given the Union’s submission to him that the existing language limited faculty’s discretion in carrying out their responsibilities and undermined the “meaningful protection” against managerial control that it hoped to obtain through Article 13. The College submits that given the Union was unsuccessful in having the Class Definition amended, it did not obtain through Article 13 some 9 sort of broad notion of academic freedom as it exists in universities which do not have the same statutory/legislative structure. Rather, it obtained a narrower ability to exercise academic freedom within the constraints of the college structure and the collective agreement, which retains broad authority to oversee and direct faculty in the performance of their job duties. [24] The College relied on the following authorities: Dumbrell v. The Regional Group of Companies Inc. (2007), 85 O.R. (3d) 616 (Ont. CA); Sattva Capital Corporation v. Creston Moly, 2014 SCC 53 (CanLII); City of Sault Ste. Marie and ATU Local 717, 2014 CanLII 71793;City of Kingston and CUPE, Local 109, 2016 CanLii 26000; City of Sault Ste. Marie and ATU, Local 1767, 2014 CanLii 71973; Waterloo Region Record and Unifor Local 87-M, 2014 CanLII 59675; LIUNA Local 183 and Ontario Excavac Inc., 2019 CanLii 10732; Toronto District School Board and CUPE, Local 4400, 2018 CanLii 81938; Royal Victoria Hospital of Barrie and ONA, 2011 CanLii 26234. ANALYSIS [25] Having considered the parties’ submissions, I have determined the answer to the question of whether Article 13 incorporates into the collective agreement the concept of academic freedom as it is generally understood in the university sector is no. [26] This conclusion is clear from reading the plain language of the provision. Article 13.02 states “the purpose of this article is to define the rights and obligations related to academic freedom”. There could be no clearer indication that the definition of the term is to be found in the content of Article 13 itself. In the face of such an express statement, there is no need, and really no valid basis, to look elsewhere, such as dictionaries, to try to understand what “academic freedom” means in this collective agreement. It means whatever Article 13 says it means because that is the very purpose of Article 13 – to define the scope of what academic freedom means. What is notable, for the purposes of the threshold issue, is that nowhere in Article 13, where the rights and obligations relating t o academic freedom must be found, is there any reference to universities or the university context. [27] I did not find the Union’s submissions that certain words in Article 13 are in fact references to the university context to be persuasive. First, with respect to the word “academic”, none of the Merriam- Webster Dictionary definitions upon which the Union relies even indicate that the word refers to universities. All of the definitions except for one (which draws a distinction with technical studies) could apply equally to a university and college, which are both institutions of higher learning and study. Given this provision is contained in a collective agreement that applies to college employees, there is no rational basis to conclude a word that could be applied to colleges or universities must be a reference to 10 universities. As for the suggestion that the word “academic” refers to the more university-like aspects of the education offered by colleges, there is nothing in the language of Article 13 to support such a conclusion. Even if one were to consider the College as providing two distinct types of education, Article 13.04 is clear that “every faculty member” has the right to exercise academic freedom in the performance of his/her duties – drawing no distinction between employees on the basis of the particular types of duties in which they are engaged. [28] It should also be noted Article 13 is not the only use of the word “academic” in this collective agreement. Article 1, the recognition clause, states the Union is the bargaining agent “for all academic employees…engaged as teachers, counsellors and librarians”. There the parties clearly use the word “academic” to refer to the nature of work performed by the bargaining unit employees of the College. In light of that usage, it simply is not logical that its use in Article 13 is now a reference to the university sector. [29] As for the Union’s submission that certain words in Article 13.05, such as “scholarly”, “research”, and “search for knowledge”, are references to the university landscape, I do not see why that would be the case. College employees engage in research and teaching. Just because these duties may be similar to certain duties performed by employees in another sector does not detract from the most obvious conclusion – that these words are references to the duties of College employees. [30] The Union also relied on the Merriam-Webster Dictionary for its submission that in order for the “principle of academic freedom” to be “fundamental” it must have an origin somewhere, and since the concept of academic freedom originated in the university sector this means Article 13 was incorporating that concept. With respect, this submission is an unfortunate misinterpretation of the very definition upon which the Union relies. In Article 13.03 the adjective “fundamental” is used to describe the “principle of academic freedom”. That means it is the principle itself which is fundamental, or to put it another way, it is the principle that serves as the original or generating source. It does not mean that the principle has some original or generating source elsewhere. This is made clear when the use of the word “fundamental” in a different part of the very same Article is considered. Article 13.02 states “Academic freedom is fundamental to the realization and preservation of the College’s commitment to academic excellence”. In other words, academic freedom serves as the origin of or generating source for the realization of academic excellence. When the word “fundamental” is used again in Article 13.03, to confirm that all members of the college community shall support “the fundamental principle of academic freedom”, the most obvious and reasonable interpretation is that it is a reference back to Article 13.02, which noted academic freedom is fundamental to academic excellence. I find there is no basis to 11 conclude the use of the word “fundamental” to describe the principle of academic freedom is a reference to academic freedom as it is understood in the university context. [31] As for the Union’s submission that if academic freedom in Article 13 was to mean some sort of new principle, as opposed to the one broadly understood in the university sector, they could have stated it was subject to some unique constraints, that is actually exactly what Article 13 does. It does this when it states the purpose of the Article is to define the rights and obligations related to academic freedom. It then goes on to define those rights and obligations in Article 13.03 through 13.05, making spec ific reference to specific constraints associated with the college context (i.e., collective agreement obligations, institutional regulations, Ministry Directives, requirements of accrediting bodies, and program and curriculum requirements). [32] I have given consideration to the context in which Article 13 was added to the collective agreement, since both parties submitted such consideration was appropriate. In doing so, I have kept in mind that while it is widely accepted that surrounding circumstances may be considered as an aid to interpretation, this is done with certain cautions. One is that surrounding circumstances should “consist only of objective evidence of the background facts at the time of the execution of the contract…. that is knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting”: Saatva, supra. Also, as noted by Arbitrator Hayes in Waterloo Region Record: The inquiry should not be directed at what the subjective intentions of the parties may now be said to have been. It means that the words used by the parties to express their intention should retain presumptive prominence but context should not be ignored. [33] Where, as in this case, the provision at issue was added to the collective agreement pursuant to an interest arbitration award, consideration of the award may well serve to shed light on the proper interpretation to be given to the provision at issue, since the goal of the interpretive exercise is to give effect to the intentions of the arbitrator: Royal Victoria Hospital of Barrie, supra. In the present case Arbitrator Kaplan’s award did not provide any reasons for why he awarded Article 13, or for that matter why he rejected the Union’s proposal to amend the Class Definition. This is not at all unusual. The award reflects an interest mediation-arbitration process, which is not a traditional, strictly adjudicative process. In med-arb processes, given the labour relations context of parties approaching the dispute in a collaborative, problem-solving way which sometimes cannot be understood by individuals unfamiliar with the complexities of the disputes and their context within an ongoing relationship, articulation of the exact reasons for the outcome is sometimes impossible and, moreover, often unhelpful. 12 [34] As a result, however, I have no reasons from which I could possibly discern Arbitrator Kaplan’s intentions. Both parties submit that I should give consideration of their respective briefs submitted to Arbitrator Kaplan. While briefs submitted in the interest arbitration process may be considered, it must be remembered their usefulness is dependent on the extent to which they contain “objective evidence of the background facts”. Interest arbitration briefs are an advocacy exercise, intended to persuade and influence the arbitrator to accept a party’s position. As such, by their very nature they address controversial issues from a partisan perspective. Caution must be exercised to ensure statements made therein are in fact “objective evidence of the background facts” such that they reveal a common understanding that could assist in the interpretive exercise, rather than partisan characterizations intended to persuade. [35] Having reviewed the briefs, I find there is nothing therein upon which it could be concluded that the briefs communicated to Arbitrator Kaplan that there was a common understanding between the parties that Article 13 incorporated into the collective agreement the concept of academic freedom as it is understood in the university context. In saying that, I am cognizant that the Council’s brief, in objecting to the Union’s proposal, stated that it “cannot agree to academic freedom language imported from the university sector or from colleges in other jurisdictions”, and asserted that the Union drew the language of its proposal from the university sector and Queens University in particular. That was the Council’s characterization of the Union’s position. However, there is nothing in the Union’s brief upon which Arbitrator Kaplan could reasonably have concluded that the Union agreed with that characterization, such that the statements actually represented uncontroversial “background facts”. In fact, not only was there nothing in the Union’s brief which indicated its Article 13 proposal was intended to import academic freedom language from the university sector, there were numerous references to suggest that was not the case. I refer to the fact the Union stated in the brief that there was a need for “academic freedom in the College context”; that academic freedom was already a concept that existed at various Ontario colleges (through policies); that the existence of academic freedom at the Colleges was already assessed as part of a ministerial approval process for the granting of degrees; and, perhaps most significantly, that the appropriate comparators for determining this issue was other Canadian colleges. Nowhere in the brief did the Union reference Queen’s University. [36] Given that Article 13 clearly indicates that the definition of the rights and obligations related to academic freedom are to be found in that provision, given that there is no reference to universities in that provision, and given there is no contextual evidence upon which it could be concluded the parties understood Article 13 was incorporating the concept of academic freedom as it is generally understood in the sector, I find the answer to the threshold question must be no. 13 DISPOSITION [37] I find that Article 13 of the collective agreement does not incorporate the concept of academic freedom as it is generally understood in the university sector. [38] Both parties’ submissions, in my view, expanded beyond the threshold issue, touching upon the actual interpretation of academic freedom in Article 13. I have not addressed those submissions. On agreement of the parties, this decision only addresses the threshold issue. Beyond that, the issue of the proper interpretation of Article 13 remains outstanding. DATED this 10th day of August, 2022. “Jasbir Parmar” ______________________________ Jasbir Parmar, SOLE ARBITRATOR