Included in Discovery: Atlantic Education & the Law – Issue 12

By Scott Campbell, Jennifer Taylor, Folu Adesanya

A long-standing dispute over governance practices at the Cape Breton University Board of Governors was recently resolved in the Board’s favour. Calvin Howley (the “Applicant”), a faculty representative on the Board, had been excluded from an in camera portion of a Board meeting on October 22, 2021. The Applicant sought judicial review of this decision.

In Howley v Cape Breton University Board of Governors, Justice Ann E. Smith dismissed the application for judicial review. Justice Smith found that the Board acted reasonably and fairly in following its established policy for in camera meetings, which excluded “internal members” — faculty, staff, and students — from discussions of certain personnel and labour issues.

This decision underscores the importance of having well-considered policies in place for in camera discussions. Such policies help to navigate the “structural conflicts” that may often arise on university boards given the diverse stakeholder groups involved.

Background Facts

The CBU Board of Governors was created by the Cape Breton University Act to manage the affairs of the University. Board membership is set out in the Act: it includes the CBU President; a senior administrator; 12 members appointed by the Minister of Education; four faculty representatives; four students; and two members appointed by the Cape Breton Development Corporation. Those members can then appoint up to 12 additional people.

While the Act includes some procedural requirements, the Board is generally empowered to regulate its own meetings and procedures. Of particular relevance to Howley was Bylaw 9 on meeting procedures, which provided that Board meetings would be generally open to the public, but certain topics (including personnel matters, labour negotiations, and legal advice) would be discussed in camera, and the content and minutes of in camera meetings would be kept confidential.

Board members must also abide by a Code of Ethics, requiring them to “carry out their functions with integrity and good faith in the best interests of the University…” and to avoid “situations in which there may be a real, apparent or potential conflict between their personal interest and their duties as Members…”^[1]

Over time, the Board developed a practice by which “internal members” (faculty, staff, and students) would be asked to excuse themselves from certain discussions. The Applicant raised concerns about this practice in late 2020. In doing so, he was backed by the Association of Nova Scotia University Teachers and the Canadian Association of University Teachers.

The Board’s Ethics Committee then took up the issue, conducting “extensive research” on in camera sessions and engaging an external consultant for advice. From there, the Committee reported to the Board in February 2021, providing a cross-country survey of university governance policies.^[2]

Ultimately, the Committee recommended that the Board revise its policy to specify that only the President and external Board members would be present for in camera discussions of “human resources, personnel and labour issues, which present a real conflict of interest for faculty/staff and students” (referred to as a “structural conflict”). The Committee also recommended that these presumptive in camera sessions be limited to “information and discussion”, with no motions at stake.^[3] Should the need for a Board decision arise, the Board would then follow its more general process regarding conflicts of interest and recusal.

The Board adopted the Committee’s recommendations on March 5, 2021, by majority vote.

Over the next several months, the Applicant expressed concerns about the new policy, and at one point said he would not comply. In June 2021, a written warning was issued to the Applicant, advising that his “failure to abide by the Board’s procedure” for in camera discussions “would be considered a violation of the Code of Ethics.”^[4]

Matters culminated on October 22, 2021, when the Board, and its Executive Committee, met in person. The Applicant again objected to the in camera process being followed. On November 25, 2021, he applied for judicial review. The hearing took place on September 12, 2022.

Legal Findings

There was an initial issue regarding what “decision” the Court was actually being asked to review. Because the proceeding was not commenced until November 25, 2021, the Applicant was out of time to seek judicial review of the Board’s March 2021 decision to implement the in camera policy. Instead, Justice Smith found that “the Board’s October 22, 2021 decision was to follow a procedure it had adopted at its March 5, 2021 meeting.”^[5] The “true nature of the Board’s action,” Justice Smith noted, “was to follow its own procedure.”^[6]

Having identified the “decision” at issue, Justice Smith applied the reasonableness standard of review, in accordance with Canada (Minister of Citizenship and Immigration v Vavilov. Justice Smith concluded that the Board “made an entirely reasonable decision” when internal members of the Board were excluded from the in camera discussion on October 22, 2021: “When it did so, the Board was following its duly voted upon and adopted procedure for such discussion sessions.”^[7] Similarly, the Board did not violate the Cape Breton University Act, or its own Bylaws, in following a procedure that it was “expressly empowered” to adopt.^[8]

Justice Smith also upheld the decision on procedural fairness grounds, applying the factors from Baker v Canada (Minister of Citizenship and Immigration).

Justice Smith agreed that the Applicant, “as a Board Member, was owed a duty of fairness.” However, the Applicant had only “rudimentary procedural rights” in the context of the October 2021 meeting: namely, he “was entitled to be afforded the opportunity to voice his concerns.”

Justice Smith pointed out that the Applicant also had the “opportunity to express his concerns about the process” when it was debated at the March meeting — and to vote on the Ethics Committee’s recommendation. As Justice Smith noted, there was “no suggestion that the voting process was flawed or invalid in any way.”^[9]

Key Takeaways

Although it was not the Court’s role to determine “best practices” for in camera meetings,^[10] Howley is still a good reminder that university boards will benefit from detailed policies for holding in camera sessions.

In developing and reviewing these policies with an eye to effective governance, university boards should consider:

• the provisions of their governing statute, and their bylaws;
• comparable policies at other post-secondary institutions; and
• whether to have a board committee conduct a review and offer recommendations.

Clear policies on in camera discussions can help maximize the contributions of every board member, while minimizing the potential for conflicts.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the authors.

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[1]     Howley at para 23.
[2]     Ibid. at paras 66-68, 73.
[3]     Ibid. at paras 29, 69 (see also para 70).
[4]     Ibid.at para 119.
[5]     Ibid.at para 104 (see also para 98).
[6]     Ibid.at para 102.
[7]     Ibid.at para 113.
[8]     Ibid.at para 118 (see also para 146).
[9]     Ibid.at para 142.
[10]    Ibid.at para 116.