Executive Summary: Key Legal and Evidentiary Issues

• Judicial review challenged an arbitrator’s decision upholding the university’s use of Manulife to administer short-term sick leave.

• The arbitrator found the university’s decision to outsource was permitted under Article 4.01 of the collective agreement.

• Evidence presented included member testimony, grievance documents, and Manulife communication records.

• Arbitrator ruled that Manulife’s information requests were not unreasonable and must be assessed case-by-case.

• No evidence supported the applicant’s claim of a privacy breach under the Right to Information and Protection of Privacy Act (RTIPPA).

• The court upheld the arbitrator’s decision as reasonable and dismissed the application with costs awarded to the respondent.

Grievance background and arbitration

The Mount Allison Faculty Association (MAFA) filed a grievance in April 2023 alleging that Mount Allison University’s decision to engage Manulife to administer aspects of short-term sick leave violated the collective agreement. Previously, the university had managed sick leave internally. Under the new 2023 policy, Manulife became involved in cases involving complex medical issues or leaves exceeding 30 days. MAFA argued the referral process began too early, the information Manulife requested was intrusive, and its involvement was inconsistent with Articles 4, 11, and 25 of the agreement. The university responded that this fell within its management rights under Article 4.01 and emphasized that no contractual language prohibited contracting out.

The grievance was heard before arbitrator Michel Doucet on August 21, 2023. MAFA presented testimonial and documentary evidence, including from a faculty member ("A") who testified about their experience, finding the Manulife process confusing and stressful. The university presented evidence explaining its rationale for outsourcing and maintained oversight of the cases referred.

In a decision issued on December 5, 2023, the arbitrator ruled in favour of the university. He held that Article 4.01 allowed the employer to manage and operate unless explicitly restricted by the agreement, and that no such restriction applied to the decision to contract out. Article 25.02 was also found not to be violated, as employees continued to report to supervisors prior to any referral. The arbitrator emphasized that while the process should be proportionate and case-specific, there was no evidence in this instance of an unreasonable information request. He recommended revisions to Manulife’s authorization forms to enhance clarity and limit information collection to what is necessary.

Judicial review application

MAFA applied for judicial review on March 4, 2024, arguing that the arbitrator’s decision was unreasonable. It claimed the arbitrator failed to resolve whether direct interaction with Manulife was allowed under Article 25.02, failed to address the intrusiveness of information requested, and neglected to analyze alleged privacy concerns under the Right to Information and Protection of Privacy Act (RTIPPA). The applicant also cited similar cases in which Manulife’s information requests were found unreasonable.

The university opposed the application, maintaining that the arbitrator’s decision met the standard of reasonableness as outlined in Canada (Minister of Citizenship and Immigration) v. Vavilov. It argued the arbitrator had properly assessed the evidence, reasonably interpreted the collective agreement, and made findings consistent with arbitral jurisprudence.

Court’s findings and decision

Justice Christa Bourque applied the reasonableness standard and held that the arbitrator’s conclusions were justified, transparent, and intelligible. She found that the arbitrator had engaged with the key evidence and legal arguments, appropriately interpreted the management rights clause, and reasonably determined that the use of Manulife did not breach the agreement.

The court further upheld the arbitrator’s handling of the medical information issue, accepting that the reasonableness of such requests must be assessed case-by-case. Although MAFA referenced other arbitration decisions, the court noted that only one employee’s experience was presented as evidence, limiting the arbitrator’s ability to rule on a broader policy basis.

Regarding the alleged RTIPPA violation, the court found no evidentiary basis on which the arbitrator could have concluded that a breach occurred. It was reasonable for the arbitrator to refrain from ruling on that issue in the absence of supporting facts.

Conclusion and costs

The court dismissed the judicial review application and ordered the applicant, MAFA, to pay the respondent, Mount Allison University, costs in the amount of $3,000 plus HST. The arbitrator’s decision remains valid and enforceable.