



COURT OF APPEAL FOR ONTARIO

CITATION: Ball v. McAulay, 2020 ONCA 481

DATE: 20200724

DOCKET: C67662

Strathy C.J.O., Lauwers and
    Pardu JJ.A.

BETWEEN

Tyler
    Ball, Gizem Çakmak, Susannah Mulvale,

David Ravensbergen and Stuart Schussler

Applicants (Respondents)

and

Carol
    McAulay
and York University

Respondents (
Appellant
)

Sarit E.
    Batner, Brandon Kain, Peter Leigh and Emilie Bruneau, for the appellant

Sean Dewart
    and Adrienne Lei, for the respondents

Heard: in writing

On appeal
    from the order of the Divisional Court (Justices Julie A. Thorburn, Frederick
    L. Myers, and Lise G. Favreau), dated June 18, 2019, with reasons reported at
    2019 ONSC 3775.

Lauwers
    J.A.:

[1]

The respondents were graduate students attending
    York University and were employed there as teaching assistants.
[1]
During a legal strike by their
    union against York, they engaged in conduct that the York University Tribunal
    found warranted discipline under Yorks
Code of Student Rights and
    Responsibilities
, despite s. 17(4) of the
Back to Class Act (York
    University), 2018
, S.O. 2018, c. 10, Sch. 3, which states: Any dispute
    between the parties concerning discharge or discipline in respect of activities
    that took place [during the strike period] shall be determined through the
    grievance procedure and arbitration procedure established in the new collective
    agreement.

[2]

The Tribunals findings and sanctions against
    the respondents were upheld by the York University Appeal Panel. The
    respondents did not appeal the Tribunals decision on jurisdiction; instead,
    they brought an application for judicial review of that decision. The
    Divisional Court allowed the respondents application for judicial review on
    the basis that a labour arbitrator had exclusive jurisdiction over their discipline.
    A panel of this court granted leave to appeal from that decision.

[3]

For the reasons set out below, I would dismiss the
    appeal.

The issues on
    appeal

[4]

The appeal raises four issues:

1)

What is the applicable standard of review?

2)

Did the Tribunal have jurisdiction to discipline
    the respondents for misconduct?

3)

Should the Divisional Court have refused
    judicial review because an appeal to the Appeal Panel was an adequate
    alternative remedy?

4)

Did the Tribunal breach the duty of procedural fairness?

I address these issues in turn.

I.

Issue One: The Applicable Standard of Review

[5]

This court's approach to an appeal from the
    Divisional Court on an administrative law matter is to step into the shoes of
    the lower court and focus on the decision of the tribunal under review:
Agraira
    v. Canada (Public Safety and Emergency Preparedness)
,
2013 SCC 36
,
[2013]
    2 S.C.R. 559
, at paras. 45-47;
Groia v. Law Society of Upper Canada
,
    2018 SCC 27, [2018] 1 S.C.R. 772, at para. 49;
Ottawa Police Services v.
    Diafwila
,
2016 ONCA 627
, at para. 51.

This court does not owe deference to a
    judicial review decision of the Divisional Court; its findings are not binding:
Diafwila
, at para. 51.

[6]

The appellant, Carol McAulay, initially asserted
    that the standard of review to be applied to the Tribunals jurisdictional
    decision was reasonableness, but now accepts that the standard is correctness
    because the appeal raises questions related to the jurisdictional boundaries
    between two or more administrative bodies:
Canada (Minister of Citizenship and Immigration) v.
    Vavilov
, 2019 SCC 65,
441 D.L.R. (4th) 1, at paras. 17, 53, 63-64, 69. As the majority
    instructed in
Vavilov
, this court may choose either to uphold the
    administrative decision makers determination or to substitute its own view
    (citations omitted): at para. 54. The majority added that: While it should
    take the administrative decision makers reasoning into account  and indeed,
    it may find that reasoning persuasive and adopt it  the reviewing court is
    ultimately empowered to come to its own conclusions on the question:
Vavilov
,
    at para. 54; see also

Bell Canada v. Canada (A.G.)
, 2019 SCC 66, 441
    D.L.R. (4th) 155, at paras. 4, 35.

II.

Issue Two:
Did the Tribunal
    have jurisdiction to discipline the respondents for misconduct?

[7]

The jurisdictional issue is at the heart of the
    appeal. In this part of the reasons I address: the factual context; the
    decisions of the Tribunal and the Divisional Court; the governing principles on
    jurisdiction; and the application of those principles.

1.

The Factual Context

(a)

The Parties

[8]

The appellant, Ms. McAulay, is Yorks Vice
    President, Finance and Administration. Campus safety and security fall within
    her portfolio of responsibilities.

[9]

The respondents are graduate students at York
    and are employed as teaching assistants. They are members of the Canadian Union
    of Public Employees, Local 3903 (the Union).

[10]

The Union represents graduate student teaching
    assistants, contract faculty, and graduate assistants in three bargaining
    units. Unit 1 consists of approximately 2,000 full-time graduate students who
    are also part-time employees engaged in teaching, demonstrating, tutoring, or
    marking. Unit 2 represents contract faculty, of which there are approximately
    1,100 members. Unit 3 consists of full-time graduate students receiving
    financial assistance from or through York and are employed in administrative,
    clerical, or research work, but not where that research relates to their
    program and degree requirements. Its total membership is not stated in the
    record.

(b)

The Strike

[11]

The members of the Union went on legal strike on
    March 5, 2018.

[12]

Unit 2 members ratified a Memorandum of
    Settlement with York on June 15, 2018, with some matters referred to interest
    arbitration. The Unit 1 and Unit 3 strikes continued until July 25, 2018 with
    the enactment of the
Back to Class Act
, which referred outstanding
    issues to interest arbitration.
[2]
The strike was the longest at a post-secondary institution in Canadian history.


[13]

William Kaplan, Industrial Disputes Inquiry
    Commissioner, wrote the Report that led to the
Back
    to Class Act
. He noted that since 1998, York has
    negotiated 79 collective agreements, and the only labour disputes  meaning
    strikes  involve Local 3903: Ontario,
Report In the Matter of an
    Industrial Inquiry Commission Pursuant to Section 37 of the Labour Relations
    Act, 1995 and In the Matter of the Negotiation of New Collective Agreements to
    Replace the Ones that Expired on August 31, 2017
(Toronto: Labour, Training
    and Skills Development, 2018) (William Kaplan), at p. 7.
He accepted Yorks submission that the current dispute was part of
    a pattern  a pattern of acrimony and labour disruptions that it experienced
    with none of its other bargaining units: at pp. 5, 9. Mr. Kaplan concluded
    that the strike could only be resolved by interest arbitration, adding his
    observation that the unions bargaining parameters and culture [are]  not
    normative: at p. 8.

[14]

This case bears the unfortunate marks of that unusual
    and longstanding pattern of acrimony. The protagonists in the dispute are York
    and the Union, representing the respondents. Both sides had legal representation.
    The parties moves in the unfolding of their struggle for dominance were
    strategic at every step  in the selection of the forums, the timing of procedural
    thrusts, and the language and substance of the submissions, to mention only a
    few. The Union has resolutely opposed the idea that a York-controlled tribunal
    could determine the fate of its members, and York has resolutely opposed the idea
    that an outside tribunal should review its decisions.

(c)

The Discipline Complaints Against the Respondents

[15]

On August 3, 2018, just over one week after the
    strike ended, Ms. McAulay filed complaints against the respondents with Yorks
    Office of Student Community Relations (OSCR) under the
Student Code
.
    The
Code
applies to non-academic student conduct on-campus; it also
    applies off-campus if the conduct in question has a real and substantial link
    to York:
Student Code
, s. 3.

[16]

Ms. McAulay complained that the respondents had engaged
    in personal misconduct in breach of the
Student Code
between April 13,
    2018 and July 7, 2018 when they participated in strike-related protests and
    secondary picketing at York and at off-campus locations. Despite her senior
    position, Ms. McAulay asserted that she made the complaints as a representative
    of other staff who had complained to her in her personal capacity, not in her
    capacity as a senior administrator at York.

[17]

The alleged misconduct included: (i) attending at
    locations on and off campus, including private law firm offices, and refusing
    to leave until police arrived; (ii) encircling York staff and administrators,
    pushing them, and preventing them from leaving; and (iii) engaging in verbal
    insults and profane language, including through social media. Some details
    follow:

April 13,
    2018: Empire Club

·

Participants:
    Ms.
Ç
akmak, Ms. Mulvale and Mr.
    Ravensbergen

·

The
    group created a disruption by shouting, occupying the stage while holding a
    large banner, and chanting/singing loudly to prevent York President, Rhonda Lenton,
    from delivering her address to paying guests. Their conduct resulted in the
    cancellation of the event.

May 1, 2018: Kaneff
    Tower/York Lanes

·

Participant:
    Ms.
Ç
akmak

·

The
    group gathered outside the building where the Board of Governors meeting was
    scheduled to occur. Ms.
Ç
akmak
    and others linked arms and surrounded two individuals they thought were Board
    members to prevent them from attending the meeting. The two individuals
    informed the group that they were not Board members; they were members of
    Yorks administration/staff. The group started chanting while these individuals
    were in the middle of the circle. Those encircled tried to leave but were
    physically pushed back, yelled at, and chanted loudly at to prevent them from
    communicating with each other or others on their phones. They were held in the
    circle for close to one hour.

May 1, 2018:
    Shoppers Drug Mart

·

Participant:
    Mr. Ravensbergen

·

The
    group protested outside the store while York staff and a member of the Board of
    Governors were inside. The group followed the individuals to the West Office
    Building on campus. Mr. Ravensbergen was one of the loudest in the group 
    yelling, using profane language, and calling the individuals names.

May 9, 2018:
    Private Office of York Governor Randy Williamson

·

Participant:
    Ms.
Ç
akmak

·

The
    group entered the private premises of a law firm and were asked to leave after
    being informed the law firm was preparing for a firm-wide event featuring a
    high-profile keynote speaker. Ms.
Ç
akmak
    demanded to meet with Mr. Williamson and threatened office staff, in a loud
    voice, that she would disrupt the event if denied a meeting. She and the group
    refused to leave the premises, remained in the office for about 45 minutes, and
    hung up posters about Mr. Williamson around the office, which office staff
    removed. The disruption interfered with the ability to proceed with the event.

May 12, 2018: Private Office
    of York Governor Antonio Di Domenico

·

Participants:
    Ms. Mulvale and Mr. Ravensbergen

·

The
    group entered the private premises of a law firm, gathered in the reception
    area, and loudly chanted/sang for about 45 minutes. The group caused a
    significant disruption and only left when they learned Toronto Police Services
    had been called.

May 25, 2018: Offices
    of the Vice President Students

·

Participant:
    Mr. Ravensbergen

·

This
    incident lasted several hours. At some point, the group forced their way
    through a doorway, that two staff members had blocked, into the private office
    space. Mr. Ravensbergen caused a significant disruption, including by chanting,
    singing, and banging on workstations.

May 31,
    2018: Private Office of York Governor Jacques Demers

·

Participant:
    Mr. Ball

·

The
    group entered private premises uninvited and refused to leave after being
    informed Governor Demers was not there. They threatened staff by saying that
    the event could promptly end if the staff could get Governor Demers on the
    phone and that the group would return later if the staff did not cooperate. Mr.
    Ball tweeted about Governor Demers being a negligent parent. The group left
    only when Toronto Police Services arrived.

June 7,
    2018: Private Office of York Chancellor Greg Sorbara

·

Participants:
    Mr. Ball and Mr. Ravensbergen

·

The
    group entered private premises uninvited and refused to leave, remaining on the
    premises for over an hour and causing a significant disruption. They engaged in
    chanting/singing and Mr. Ball propped open a door from the reception area to
    the private office area with his foot. The group left only when York Regional
    Police arrived.

(d)

Procedural History

[18]

On September 17, 2018, the respondents filed
    grievances under the collective agreement challenging Ms. McAulays complaints
    on the basis that any disciplinary action by York should have been taken under
    the
Labour Relations Act, 1995
, S.O. 1995, c. 1, Sch. A
.
The next
    day, the respondents filed an application with the Ontario Labour Relations
    Board claiming that in making the complaints Ms. McAulay engaged in an unfair
    labour practice on Yorks behalf under s. 96 of the
Labour Relations Act
.

[19]

On September 24, 2018, Yorks OSCR told the
    respondents that the Tribunal would hear together the complaints against them
    so that the same panel of members could consider the common issues.

[20]

The respondents brought nine motions before the Tribunal
    on a variety of issues, including: (i) the jurisdiction of the Tribunal to
    adjudicate the complaints; (ii) the removal of Tribunal members on the basis of
    a reasonable apprehension of bias; and (iii) the timeliness of the complaints. The
    respondents also requested that the proceedings be postponed until after the
    parallel grievance arbitration proceedings were completed.
[3]
The Tribunal found that it had
    jurisdiction to hear the complaints. It refused most of the interim relief
    sought.

[21]

The Tribunal heard the complaints on the merits
    over a number of days in February 2019 and issued its merits and sanctions decisions
    on March 8, 2019. The respondents brought five appeals before the Appeal Panel
    regarding the interim relief and the Tribunals merits and sanctions decisions.
    The Appeal Panel dismissed all of the appeals, and its final decision on the
    merits and sanctions appeals was issued on May 14, 2019.

[22]

Instead of appealing the Tribunals
    jurisdictional decision, the respondents applied for judicial review of that
    decision.
[4]
The Divisional Court granted the respondents application for judicial review
    on June 18, 2019. The

very next day, counsel for
    the respondents wrote to
the Ontario Labour Relations Board
and withdrew the unfair
labour practice complaint on which a
    decision was pending.

[23]

This recital of the procedural history shows how
    acrimonious and hard-fought every step leading to this court has been.

2.

The Decisions

(a)

The Tribunals Decision

[24]

The Tribunal determined that it had jurisdiction
    to hear Ms. McAulays complaints. It accepted the submission by Ms. McAulays
    counsel that the complaints were raised by her on behalf of York community
    members and not as an agent for the employer, York.

[25]

The Tribunals brief jurisdictional decision was
    carefully written. It invoked the governing precedent,
Weber v. Ontario
    Hydro
, [1995] 2 S.C.R. 929. It used the language of
Weber
and
    tracked the arguments made to the Divisional Court and this court by counsel. However,
    the decision did not mention or grapple with the unique provisions of the
Back
    to Class Act
and their possible application to the discipline being pursued,
    except inferentially.

[26]

The Tribunal observed that the respondents employment
    as teaching assistants was dependent upon their being York students. The
    Tribunal acknowledged that the conduct at issue occurred during a labour
    disruption but did not accept the argument that any conduct during a strike by
    an employed York graduate student was a labour issue to be governed solely by
    the collective agreement. The Tribunal considered that the respondents unionized
    status did not supersede their independent responsibilities as students under
    the
Student Code
, and held:

The essential character of this case is that
    the purported actions of students  are alleged to be in violation of the [
Code
];
    it does not arise from the collective agreement. The fact that the alleged
    breaches of the [
Code
] occurred during a time of heightened tensions at
    York University, or that the [respondents] are members of a labour union, does
    not remove the responsibilities of students under the [
Code
] or the
    jurisdiction of the Panel.

[27]

Each of the Tribunals merits decisions
    contained a similar preamble that buttressed the jurisdiction decision. This
    was the language picked up by the Divisional Court, at para. 37:

While the [Tribunal] recognizes that the
    conduct giving rise to the complaints occurred during a labour disruption, the
    [Tribunal] finds that student conduct must continue to be governed by the [
Code
]
    during a labour disruption. The [respondents] characterization of the conduct
    as picketing by striking employees does not eliminate their responsibilities
    as students under the
Code
.

...

The
Pepsi-Cola
[
R.W.D.S.U., Local
    558 v. Pepsi-Cola Canada Beverages (West) Ltd.
, 2002 SCC 8, [2002] 1 S.C.R.
    156] case lays out that picketing which breaches the criminal law or one of
    the specific torts like trespass, nuisance, intimidation, defamation or
    misrepresentation will be impermissible regardless of where it occurs.

[28]

The Tribunal found that the respondents conduct
    at the various off-campus locations had a real and substantial link to York. It
    rejected the argument that the respondents conduct should be seen as a peaceful
    protest, an activity that is legally protected and is not contrary to the
Student
    Code
.

[29]

The Tribunals findings on the merits regarding
    each respondent
[5]
were expressed in similar terms linked to the language of the
Student Code
:
    the particular respondent breached [his/her] responsibilities under the
Code
to (i) uphold an atmosphere of civility, honesty, and respect for others
    (all respondents); (ii) not disrupt or interfere with University activities (Ms.
Ç
akmak
, Ms. Mulvale
    and Mr. Ravensbergen); and (iii) behave in a way that does not harm or
    threaten to harm another persons physical or mental wellbeing (Mr. Ball, Ms.
Ç
akmak
and Mr.
    Ravensbergen). The Tribunal also found that each of the four respondents 
demonstrated no insight as to why [his/her]
    actions went beyond the limits of the right to expression and assembly,
    refused to take responsibility for [
his/her]
actions, and failed to recognize how [
his/her]
actions
    could affect others.


[30]

The penalties imposed by the Tribunal consisted
    of a mix of suspensions and no-contact directions. The suspensions were: for Mr.
    Ball, 4 months; for Ms.
Ç
akmak
, 12
    months; for Mr. Ravensbergen, 8 months. Ms. Mulvale was banned from
participating in non-essential university activities for

12 months.


[31]

As noted, the Appeal Panel upheld the Tribunals
    merits and sanctions decisions.

(b)

The Divisional Courts Decision

[32]

The Divisional Court granted the respondents application
    for judicial review and quashed the Tribunals jurisdictional decision on the
    basis that the Tribunal did not have jurisdiction to hear the complaints. In
    the courts view, the essence of this dispute is an employer-employee dispute
    governed by the
Labour Relations Act
and must therefore be determined by
    a labour arbitrator not by the tribunal: at para. 51. The court made the
    following points in support of this conclusion, at paras. 51, 54:

1)

All of the acts took place during a legal strike and while the
    respondents were picketing and demonstrating;

2)

Both parties witnesses described the respondents
    actions as labour dispute-related. However ill-advised and/or wrongful, their
    actions were expressions of their dissatisfaction with their working
    conditions;

3)

Section 48(1) of the
Labour Relations Act
clearly provides that all differences between the parties arising from the
    collective agreement shall be determined by a labour arbitrator. Moreover, the
    Acts strong privative clause in s. 114(1) requires a high degree of deference;

4)

Section 17(4) of the
Back to Class Act
specifically provides that
any
dispute over activities during the strike
    must be dealt with under the collective agreement. This is a complete code. It
    does not leave room for other discipline;

5)

No determination as to jurisdiction was sought
    or obtained from a labour arbitrator, and the Tribunal refused to adjourn the
    proceedings to obtain such a decision; and

6)

There is no conflicting legislation that
    specifically empowers the Tribunal to assert jurisdiction in these
    circumstances. [Emphasis added.]

[33]

This review of the factual context and the underlying
    decisions sets the stage for the legal analysis, to which I now turn.

3.

The Governing Principles

[34]

The jurisdictional contest in this case is
    between the Tribunal and a labour arbitrator. In the statutory context and on
    the facts of this case, do they share disciplinary jurisdiction over the
    respondent Union members because they are also students? In answering this
    question, the court must give effect to the legislatures intent as revealed
    in the language of the legislation and by considering its institutional design
    choices:
Vavilov
, at para. 36.

[35]

I begin with a review of the jurisprudence and
    then turn to the legislation. However, I make the observation at the outset that
    the jurisprudence may well be distinguishable because it concerns legislation
    that is longstanding or pre-existing for general purposes. What is engaged here
    is strike-ending legislation that deals with the resolution of discipline
    linked to the strike. It is specific,
ad hoc
legislation that trumps a
    tribunal established pursuant to a student code

governing students
    conduct, not general legislation. That said, I deal with the appellants
    argument as presented.

(a)
The Jurisprudence

[36]

The governing precedents are
Weber
and
Quebec
    (Commission des droits de la personne et des droits de la jeunesse) v. Quebec
    (Attorney General)
, 2004 SCC 39, [2004] 2 S.C.R. 185 (
Morin
).
These cases address the jurisdiction of labour arbitrators when
    another tribunal arguably has responsibility for deciding the issues in dispute
    between the parties.

(i)

Weber

[37]

In
Weber
,
the employer suspended Murray Weber for abusing his sick leave
    benefits on the basis of surreptitious surveillance obtained during a trespass.
    Mr. Weber sued the employer for alleged torts, including trespass, and
    also under the
Charter
: at paras. 33-35. The Supreme Court considered
    three models for addressing the question of jurisdiction: concurrent,
    overlapping, and exclusive jurisdiction.

[38]

The concurrent model contemplates concurrent
    regimes of arbitration and court actions, and leaves each tribunal independent
    and free to proceed, even if the dispute arises in the employment context: at
    para. 39. This model would have allowed Mr. Weber, for example, to proceed with
    his trespass action in Superior Court, regardless of the collective agreement. The
    overlapping model uses the metaphor of overlapping spheres under which a
    court action can be brought if the issues raised go beyond the traditional
    subject matter of labour law: at para. 47. Mr. Weber argued that the
    trespass and torts pleaded in his action went beyond the parameters of the
    collective agreement: at para. 47. Under the exclusive jurisdiction model, the
    labour arbitrator has jurisdiction to the exclusion of the court: at para. 50. These
    descriptions apply, with necessary modifications, when the jurisdictional contest
    is between a labour arbitrator and another statutory tribunal.

[39]

The
Weber
court rejected the first two models
    and adopted the exclusive jurisdiction model, but later acknowledged in
Morin
that this was not an absolute rule:
Weber
, at para. 67;
Morin
, at
    paras. 14-15.

[40]

In adopting the exclusive jurisdiction model in
Weber
,
    the court noted that the key question was whether the dispute or difference
    between the parties arises out of the collective agreement: at para. 51. In
    answering this question, the

court found that the
Labour Relations
    Act
conferred exclusive jurisdiction on the labour arbitrator, relying on
    the nature of the dispute, employment benefits, and the ambit of the collective
    agreement in its broad language, both of which supported the arbitrators
    exclusive jurisdiction: at paras. 67, 71 and 73.

[41]

The
Weber
court rejected the concurrent
    model for three reasons. Jurisprudentially, it had been rejected in
St. Anne
    Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219
,
    [1986] 1 S.C.R. 704, on the basis that mandatory arbitration clauses in labour
    statutes deprive the courts of concurrent jurisdiction: at para. 41. The court
    also rejected it because concurrency would not be consistent with the language of
    the
Labour Relations Act
, which required all
differences
between
    the parties arising from the interpretation, application, administration or
    alleged violation of the agreement to be referred to arbitration (emphasis in
    original): at para. 45. Lastly, giving effect to the concurrent model would [undercut]
    the purpose of the regime of exclusive arbitration which lies at the heart of all
    Canadian labour statutes: at para. 46.

[42]

For largely the same reasons, the
Weber
court
    rejected the overlapping jurisdiction model, but added an observation that
    parallel proceedings are to be discouraged: at para. 49. This court reiterated
    this stance against parallel proceedings in
Naraine
: 
Weber
stands
    for the proposition that when several related issues emanate from a workplace
    dispute, they should all be heard by one adjudicator to the extent
    jurisdictionally possible, so that inconsistent results and remedies  may be
    avoided:
Ontario (Human Rights Commission) v. Naraine
(2001),
    209 DLR (4th) 465 (Ont. C.A.), at para. 60, leave to appeal refused, [2002]
    S.C.C.A. No. 69
.

[43]

The
Weber
court noted that its decision
    in favour of labour arbitrators exclusive jurisdiction conforms to a pattern
    of growing judicial deference for the arbitration and grievance process and
    correlative restrictions on the rights of parties to proceed with parallel or
    overlapping litigation in the courts: at para. 58. This pattern has not since
    abated. Few tribunals have received more judicial deference than labour
    tribunals and nothing in
Vavilov
detracts from this posture.

(ii)

Morin

[44]

The appellant submits, correctly in my view, that
Weber
s endorsement of the exclusive jurisdiction model is not absolute:
Morin
,

at paras.
11,
    15. In
Morin
, the jurisdictional contest was between a labour arbitrator
    and the Quebec Human Rights Tribunal. Younger, less experienced teachers, who
    had been represented in collective bargaining by a union, brought a complaint
    of discrimination against the union, among others, to the Quebec Human Rights
    Commission. The complaint was that a term of the collective agreement
    negotiated between the union and the province of Quebec discriminated against
    them on the basis of age. The Commission referred the complaint to the Tribunal
    for disposition. The Attorney General, the school boards, and the unions
    challenged the Tribunals jurisdiction: at paras.1-4.

[45]

McLachlin C.J.,
    speaking for the majority, put a gloss on
Weber
, stating that it 
does not stand for the proposition that labour arbitrators always
    have exclusive jurisdiction in employer-union disputes: at para. 11. She added
    that: Depending on the legislation and the nature of the dispute, other
    tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or
    themselves be endowed with exclusive jurisdiction: at para. 11.

[46]

In
Morin
,
McLachlin
C.J. established a two-step
    approach for analyzing the jurisdictional issue where a matter could be
    plausibly found to fall under the jurisdiction of a labour arbitrator and
    another tribunal, at para. 15:

The first step is to look at the relevant
    legislation and what it says about the arbitrator's jurisdiction. The second
    step is to look at the nature of the dispute, and see whether the legislation
    suggests it falls exclusively to the arbitrator.

[47]

The question at the second step is whether the
    legislative mandate applies to the particular dispute at issue: at para. 15.
McLachlin
C.J.
    stipulated that the focus on the particular dispute would discern the better
    fit between the tribunal and the dispute in order to ensure that
    jurisdictional issues are decided in a manner that is consistent with the
    statutory schemes governing the parties : at para. 15. She identified fidelity
    to the statutory scheme as the underlying rationale of
Weber
: at para.
    15.

[48]

The
Morin
court ultimately decided that the
Quebec Human Rights Tribunal
had exclusive jurisdiction, not the labour arbitrator, for several
    reasons. The discrimination occurred in the negotiation of the collective
    agreement in which the union participated. Accordingly, the dispute did not
    arise out of the operation of the collective agreement, so much as out of the
    pre-contractual negotiation of that agreement: at para. 24. The court also noted
    the incongruity of the union prosecuting a grievance when it was one of the
    parties against which the teachers had lodged the complaint: at para. 28. The
    Tribunal was a better fit to adjudicate the complaint because the challenge
    affected hundreds of teachers and a labour arbitrator lacked jurisdiction over
    all the parties to the dispute: at paras. 29-30.

[49]

In my view,
Morin
did not materially qualify
    the
Weber
holding that if the dispute falls under the collective
    agreement, then the labour arbitrator has exclusive jurisdiction. The key
    question remains whether the dispute or difference between the parties arises
    out of the collective agreement, as the Supreme Court prescribed in
Weber
and repeated in
Morin
:
Weber
, at para. 51;
Morin
, at para.
    46.

[50]

In
Vavilov
,
Weber
, and
Morin
,
    the court attended to the statutory scheme and what it reveals about the legislatures
    intention.

(b)
The Statutory Scheme

[51]

The intersection of three statutes forms the
    statutory scheme in this appeal: the
York University Act, 1965
, S.O.
    1965, c. 143, the
Back to Class Act
,

and the
Labour Relations
    Act.

[52]

The ordinary principles of statutory
    interpretation apply in construing this intersecting statutory context. The
Vavilov
majority affirmed the modern principle of statutory interpretation, noting
    that 
the words of a statute must be read in their
    entire context and in their grammatical and ordinary sense harmoniously with
    the scheme of the Act, the object of the Act, and the intention of Parliament:
at para. 117.
The
Vavilov
majority
    explained that this is the proper approach because legislative intent can be
    understood only by reading the language chosen by the legislature in light of
    the purpose of the provision and the entire relevant context: at para. 118.

[53]

This courts task is to construe these three
    statutes in order to determine their proper application to the dispute between
    the parties to this appeal. The intersecting statutes together create a tableau
    in which each is part of the context for the others in the interpretation
    exercise.

4.

The Principles Applied

[54]

Do the Tribunal and a labour arbitrator share
    disciplinary jurisdiction over Union members because they are also students, in
    the statutory context and on the facts of this case?

[55]

The appellant invokes the majoritys decision in
Weber
, which noted that: only disputes which expressly or inferentially
    arise out of the collective agreement are foreclosed to the courts: at para.
    54. In
Morin
,

the Supreme Court confirmed that the exclusive
    jurisdiction model does not necessarily apply where a labour arbitrator and
    another statutory tribunal both have arguable jurisdiction over the dispute: at
    para. 14. The appellant argues that legislative intent may require a
different
    result
 (emphasis in original).

[56]

I agree with this submission. As I explain
    above, in answering the jurisdictional question, the court must give effect to
    the legislatures institutional design choices by putting into practice the legislative
    intent revealed in the language of the legislation:
Vavilov
, at para.
    36. The analytical starting point for considering the jurisdiction of a labour
    arbitrator is the two-step approach to the statutory scheme prescribed in
Morin
:
    at para. 15.

[57]

I address the
Morin
steps in turn.

(a)
The First
Morin
Step: The Legislative Mandate

[58]

The first
Morin
step is to see what the
    relevant legislation says about the arbitrators jurisdiction. I begin with the
York University Act,
on which the appellant places significant weight.

(i)

York University Act

[59]

I accept the appellants submission that universities
    in Ontario enjoy a considerable measure of self-governance flowing from the
    principle of university autonomy affirmed in the seminal
Report of the

Royal
    Commission on the University of Toronto
(Toronto: Queens Printer, 1906).
    The Royal Commission recommended that the internal administration of the
    University of Toronto be separate from the provincial government and that a
    disciplinary body be created to maintain order among students. The
York University
    Act
has its genesis in the
University Act, 1906
, S.O. 1906, c. 55,
    which formed a template for university autonomy in Ontario. That autonomy must
    be taken seriously, as I do.

[60]

Section 13(2)(c) of the
York University Act
provides:

13(2) The President is Vice-Chancellor and
    chief executive officer of the University and,



(c) has
power to formulate and implement
    regulations governing the conduct of students

and student
    activities. [Emphasis added.]

[61]

York adopted the
Student Code
under this
    statutory authority.
Section 10 of the
Student Code
established the University Tribunal, which is made up of student, faculty and
    staff volunteers appointed by the Vice-Provost Students. Section 11 permits
    appeals to an Appeal Panel composed of members of the University Tribunal,
    other than those who sat on the first hearing.

[62]

The
Code
s rationale and application are
    set out in ss. 2 and 3:

[
This
Code
] applies
    specifically to students
because the
    behaviours of
non-student members of the University community are held to

comparable standards of account
by provincial laws, University policies
    and
their unions collective agreements
.



York
    is committed to civil discourse and the free and open exchange of ideas between
    community members and as such,
nothing in this [
Code
] is intended as a method or excuse to suppress peaceful
    protest
, civil debate or other lawful conduct
so
    long as student responsibilities as outlined in Section 4 [which prescribes the
    Community Standards for Student Conduct] are being upheld
.



This [
Code
] applies to non-academic student conduct.

[63]

In disciplining students who are also employees,
    the
Code
recognizes the need for the OSCR to 
consult
    with the appropriate offices to determine whether or not the conflict or
    incident in question falls into the purview of the
Code

of Student
    Rights & Responsibilities
: at s. 3.

[64]

The appellants position is that Yorks
    authority to discipline students under the
York University Act
and the
Student
    Code
leads to the conclusion that the Tribunal has overlapping or residual
    jurisdiction under one of the categories recognized in
Weber
. In her
    factum, the appellant puts forward several arguments in support of this view.

[65]

First, the appellant argues that the
Student
    Code
and the Tribunal derive from an exercise of statutory powers under
    Yorks governing statute, which reflects the principle of university
    self-governance. The appellant asserts that the Tribunal is a statutory
    tribunal of co-ordinate status with a labour arbitrator because the authority
    to establish the Tribunal as part of the student discipline process is set out
    in s. 13(2)(c) of the
York University Act.
Accordingly, she argues,
    the Tribunal must have overlapping authority.

[66]

Second, the appellant argues that the legislative
    design gives primacy to the student-university relationship over the employment
    relationship. To hold otherwise, she submits, would ignore the Legislatures
    intent. The appellant asserts: 
To the extent that a
    hierarchy exists at all, it is that the students relationship to the
    University
qua
student takes primacy over its employee relationship, not
vice-versa
. She argues that as a practical matter, [York] cannot lose
    jurisdiction over its students each time they act in an employee context. The
    appellant uses strong language and asserts that:

taking away Yorks ability to govern student-employees pursuant to
    the [
Student Code
], has eviscerated Yorks ability to meet obligations
    it has to other community members.

[67]

While conceding that an arbitrator would have
    jurisdiction over disputes about any employment-related discipline connected to
    the misconduct, the appellant submits that the dispute before the Tribunal
    engages discipline that relates to the respondents in their capacity as
    students, not as employees.

[68]

Third, the appellant points out that Yorks
    ability to impose discipline is not clearly excluded by the other statutory
    provisions in the
Back to Class Act
and in the
Labour Relations Act
.
    She adds that n
othing in the
York University Act
suggests that this authority to discipline students does not apply to students who
    engage in misconduct during civil protests just because they are also acting in
    their capacity as University employees. To the contrary, the appellant notes
    that the
Student Code
, established under s. 13(2)(c) of the
York
    University Act
, expressly contemplates that the Tribunal will have
    jurisdiction over the conduct of student-employees during strikes.

[69]

Fourth,
the appellant submits that the
    Tribunal has residual jurisdiction to grant the 
several
    specialized sanctions for violations of [the
Student Code
], including
    educative requirements, removal from residence, campus restrictions, suspension
    and expulsion. She argues that these remedies are beyond the authority of an
    arbitrator. For example, the Tribunals no-contact direction, designed to
    protect Sarah Millington from further contact with Gizem
Çakmak
, is a remedy the appellant claims
    only the Tribunal possesses. The appellants assertion is that removing
    jurisdiction from the Tribunal would paralyze Yorks system of regulation
    during times of labour strife, leaving student-employees immune from effective
    University regulation. Accordingly, she argues that the Tribunals authority
must be preserved to ensure that the complainants she represents
    are not deprived of appropriate remedies. This claim is attenuated by the fact
    that the actual suspensions and no-contact orders imposed by the Tribunal did
    not engage the special remedies and are not unusual in labour discipline.

[70]

The appellant submits that the jurisprudence supports
her position. She builds on
Morin
by referring to a number
    of other cases for the proposition that there are exceptions to the exclusive jurisdiction
    of labour arbitrators:
Naraine
;
Calgary Health Region v.
    Alberta (Human Rights & Citizenship Commission)
, 2007 ABCA 120, 404
    A.R. 201, leave to appeal refused, [2007] S.C.C.A. No. 280;
Halifax
    (Regional Municipality) v. Nova Scotia (Human Rights Commission)
, 2008 NSCA
    21, 264 N.S.R. (2d) 61, leave to appeal refused, [2008] S.C.C.A. No. 245
. I accept this proposition. The question is whether it applies in
    this case.

[71]

In
    my view, the authorities the appellant relies on do not support her arguments,
    but rather undermine them. They address the interplay between a human rights
    tribunal and another statutory tribunal. Human rights legislation has a
    quasi-constitutional status and prevails over inconsistent legislation in the
    absence of express, unequivocal legislative language:
Naraine
, at para.
    47. The
York University Act
and
    the Tribunal created under it do not enjoy that status.

[72]

The appellant also relies on
Nova Scotia (Securities
    Commission) v. Schriver
, 2006 NSCA 1, 239 N.S.R. (2d) 306
, in which
the jurisdictional contest was
    between the Nova Scotia Securities Commission and the Mutual Fund Dealers
    Association. Cromwell J.A. (as he then was) concluded that the Association did
    not have exclusive jurisdiction to determine whether Mr. Schriver breached its
    rules: at para. 45. He noted that the essential character of the dispute was
whether Mr. Schriver breached s. 30(3) of
    the [
Securities Act
, R.S.N.S. 1989, c. 418]: at para. 34. He found that
    the essential character of the dispute lies at the core of the Commissions
    statutory mandate: at para. 34. This decision gives no comfort to the
    appellant.

[73]

The appellant also relies on a police discipline
    case,
Regina Police Assn. Inc. v. Regina (City) Board of Police
    Commissioners
, 2000 SCC 14, [2000] 1 S.C.R. 360. In that case, Article 8 of
    the collective agreement specifically excluded disputes arising under
The
    Police Act, 1990
, S.S. 1990-91, c. P-15.01 and
The Municipal Discipline
    Regulations, 1991
, R.R.S., c. P-15.01, Reg. 4 from grievance arbitration.
Regina
    Police
offers support for the respondents position, because,

b
y contrast, there is no
    similar carve out in the
Back to Class Act
in this case.

[74]

I do not find the appellants arguments to be persuasive. The
    Tribunal is not a creature of legislation like a human rights tribunal, a
    securities commission, a police services board, or a labour arbitrator
    appointed under a collective agreement governed by the
Labour Relations Act
.
    The Tribunal was established under the
Student Code
, which does not
    amount to a regulation under s. 17 of the
Legislation Act, 2006
, S.O.
    2006, c. 21, Sched. F, and could be easily changed by Yorks president at any
    time. The Tribunal was not established by statute.

[75]

However, while not dispositive, the appellants arguments do establish
    that the choice among the models of
overlapping, concurrent,
    or exclusive jurisdiction is a live issue in this case, as it was in
Weber
and
Morin
. I return to the appellants arguments below after considering
    the rest of the legislative tableau and completing the
Morin
steps.

(ii)

Back

to Class
    Act (York University)

[76]

The most specific statute in the tableau is the
Back
    to Class Act
, which the Legislative Assembly of Ontario  enacted to end the
    strike in which the respondents participated. Section 10 of the Act referred
    all matters remaining in dispute between [the employer and the bargaining
    agent] with respect to the terms and conditions of employment of the employees
    in that unit to a mediator-arbitrator in what is called interest arbitration.

[77]

It is important to note that the Act limits the
    mediator-arbitrators jurisdiction. Section 17 provides:

Restriction 
    discipline and discharge

17(3) The mediator-arbitrator
shall not
    include a provision in an award that prohibits the employer from discharging or
    disciplining an employee for just cause in respect of any activity that took
    place
during the period that begins on the date on which a strike or
    lock-out in respect of the employees bargaining unit became lawful and ends on
    the date on which a new collective agreement is executed by the parties or
    comes into force under subsection 21(5).

Same

17(4)
Any dispute between the parties
    concerning discharge or discipline in respect of activities that took place
during the period described in subsection (3)
shall be determined through
    the grievance procedure and arbitration procedure established in the new
    collective agreement
. [Emphasis added.]

The grievance arbitration provisions
    in the collective agreements referred to in s.17(4) of the
Back to Class Act
connect to s. 48 and other provisions of the
Labour Relations Act
,
    to which I now turn.

(iii)

Labour Relations Act

[78]

In
Weber
, the governing authority on the
    approach to the
Labour Relations Act
, the jurisdictional contest was
    between the court and a labour arbitrator. The Supreme Court held that labour
    arbitrators have exclusive jurisdiction over all differences, including
    torts, arising in the context of a collective agreement (emphasis omitted): at
    para. 45. This statement flowed from the language of what is now s. 48 of the
Labour
    Relations Act
. Section 48 provides:

48(1) Every collective agreement shall provide
    for the final and binding settlement by arbitration, without stoppage of work,
    of all differences between the parties arising from the interpretation,
    application, administration or alleged violation of the agreement, including
    any question as to whether a matter is arbitrable.

[79]

Section 48 of the
Labour Relations Act
applies to the collective agreement in this case. I earlier noted that, under
Weber
and in
Morin,
the key question is whether the dispute or difference
    between the parties arises out of the collective agreement:
Weber
, at
    para. 51;
Morin
, at para. 46. I address this question in detail below.

(iv)

Discussion

[80]

I make several observations about the
    intersection of these three statutes. First, the Legislature was well aware
    that that the members of the two bargaining units ordered back to work were
    both students and employees. This was adverted to in Hansard during the
    Ministers remarks at second reading of the legislation and it is reflected in
    the text of the legislation itself, where the members of the units are expressly
    described as graduate students as well as employees: Bill 2,
An Act
    respecting Hydro One Limited, the termination of the White Pines Wind Project
    and the labour disputes between York University and Canadian Union of Public
    Employees, Local 3903
, 2nd reading, Ontario, Legislative Assembly,
Official Report of Debates (Hansard)
, 1st Sess., 42nd Leg., No. 6 (19 July
    2018) at p. 188 (Hon. Greg Rickford);
Back to Class Act
, s. 1(1).

[81]

Second, the Legislature was familiar with the fractious
    situation at York, as Mr. Kaplan finely detailed in his Report that led to the
    enactment of the legislation: see generally
Report
    In the Matter of an Industrial Inquiry Commission Pursuant to Section 37 of the
    Labour Relations Act, 1995 and In the Matter of the Negotiation of New
    Collective Agreements to Replace the Ones that Expired on August 31, 2017
;
Official Report of Debates (Hansard)
, (19 July 2018).

[82]

Third, the form of the legislation was uniquely attuned
    to that situation. Typical back-to-work legislation does not contain the
    underlined language set out in ss. 17(3) and 17(4) of the
Back to Class Act
,
    which I repeat here for convenience:

Restriction  discipline
    and discharge

17(3) The mediator-arbitrator
shall not
    include a provision in an award that prohibits the employer from discharging or
    disciplining an employee for just cause in respect of any activity that took
    place
[during the strike period]

Same

17(4)
Any dispute between the parties
    concerning discharge or discipline in respect of activities that took place
during the period described in subsection (3)
shall be determined through
    the grievance procedure
[Emphasis added.]

[83]

Contrast, for example, the
York University
    Labour Disputes Resolution Act, 2009
, S.O. 2009, c. 1, which was enacted in
    response to the Unions strike in 2009. There was no similar provision related
    to discipline and arbitration contained in this Act. Section 12(1) gave the
    mediator-arbitrator 
exclusive jurisdiction to
    determine all matters that he or she considers necessary to conclude a new
    collective agreement, without a similar reference to discipline and grievance
    arbitration now found in the
Back to Class Act
.

The 2009 language was more typical of other back-to-work
    legislation in the education sector: see, for example, the following now
    repealed or spent legislation, including
Back to School Act (Toronto and
    Windsor), 2001
, S.O. 2001, c. 1;
Back to School Act (Simcoe Muskoka
    Catholic District School Board), 2002
, S.O. 2002, c. 20;
Back to School
    (Toronto Catholic Elementary) and Education and Provincial Schools Negotiations
    Amendment Act, 2003
, S.O. 2003, c. 2.

[84]

Further, the underlined language in ss. 17(3)
    and 17(4) was not present in the original version of the
Back to Class Act
,
    which
was given first reading on May 7, 2018 and
    was similar in form to the 2009 legislation: Bill 70,
An Act to resolve
    labour disputes between York University and Canadian Union of Public Employees,
    Local 3903
, 3rd Sess., 41st Leg., Ontario, 2018.

[85]

In my view, the underlined language in ss. 17(3)
    and 17(4) of the
Back to Class Act
must be given a purposive
    interpretation in the context of its genesis. The unique language was
    deliberately inserted in the final version of the
Back to Class Act
,
    which was brought forward as part of Bill 2 and introduced for first reading on
    July 16, 2018: Bill 2,
An Act respecting Hydro One Limited, the termination
    of the White Pines Wind Project and the labour disputes between York University
    and Canadian Union of Public Employees, Local 3903
, 1st

Sess.,
    42nd

Leg., Ontario, 2018 (assented to 25 July 2018), S.O. 2018, c. 10,
    Sched. 3.

[86]

I draw three inferences from the genesis of the
Back to Class Act
. First, the Legislature intended York to be free to
    discipline Union members for their activities during the strike period without
    the risk that such discipline would be undone in the mediation-arbitration.
    Second, the Legislature intended the legislation to be comprehensive, using the
    words 
any activity
that took place during the period of the strike
    (emphasis added):
Back to Class Act
, s. 17(3). Third, the Legislature
    required any contested discipline to be resolved under grievance arbitration. I
    explain these inferences in more detail below.

[87]

By using broad language, the Legislature stated its
    intention that the matters of discharge and discipline in respect of
any
    activity
 were to be reserved to the parties and any disputes to be
    resolved ultimately by grievance arbitration (emphasis added):
Back to Class
    Act
, ss. 17(3), 17(4). This text removed authority, which would otherwise
    have existed, from the mediator-arbitrator to impose a collective agreement
    that would resolve differences over discharge or discipline in respect of
    activities that took place, during the strike period:
Back to Class Act
,
    s. 17(4).

[88]

This wording gave York two advantages. First,
    York was left free to impose discharge or discipline in respect of any activities
    that took place during the strike without its authority being nullified by an
    all-in mediator-arbitrators decision that could wipe the discipline slate
    clean. Second, the language put the burden on grievance arbitration by taking
    away from the Union the ability to attack the discipline as an unfair labour
    practice under s. 96 of the
Labour Relations Act
. This course of action
    would prevent a protracted and expensive public hearing before the Ontario Labour
    Relations Board.

[89]

This structure was not accidental. Debate at
    second reading pointed to the difference between the new legislation and the original
    version of the legislation: [T]he addition of the discipline and discharge
    clause  prohibits the arbitrator from including language in the new agreement
    to prevent disciplinary action against workers for conduct during the strike:
Official
    Report of Debates (Hansard)
, (19 July 2018) at p. 200. It was also pointed
    out that the new language removes the ability of employees to argue that
    reprisal that is taken against them is an unfair labour practice and requires
    employees to go through the normal grievance procedure if there is discipline
    implemented against them: at p. 200.

[90]

On the other hand, the Union members also
    benefited from the same broad language. York was not free of any constraint in
    discharging or disciplining an employee for just cause:
Back to Class Act
,
    s. 17(3). A fair reading of ss. 17(3) and 17(4) together confirms that 
[a]
ny dispute
between the parties
    regarding the discipline of a Union member in respect of activities that took
    place during [the strike period]
shall be determined
through the
    grievance procedure
by a labour arbitrator (emphasis
    added):
Back to Class Act
, s. 17(4).

[91]

To conclude on the first
Morin
step
    regarding the legislative mandate, s. 17(4) of the
Back to Class Act
is
    the operative provision to understand the scope of an arbitrators jurisdiction.
    In my view, the language chosen was deliberately and uniquely comprehensive in
    labour law terms, as I have explained. It provides, to repeat for convenience:

17(4)
Any dispute between the parties
concerning discharge
or discipline in respect of [any] activities that took
    place
during the period described in subsection (3)
shall be determined
    through the grievance procedure
[Emphasis added.]

[92]

I have inserted any in parentheses to reflect
    the language of s. 17(3), with which s. 17(4) must be read. I see this as the
    legislative mandate to be brought into the analysis. I turn now to the second
Morin
step.

(b)
The Second
Morin
Step: The Nature of the Dispute

[93]

The question in the second
Morin
step is
    whether the legislative mandate applies to the particular dispute at issue:
    at para. 15. The focus is on the particular dispute and on which tribunal is
    better fitted to resolve the dispute under the governing statutory scheme, in
    this case
ad hoc
, time-limited, strike-ending legislation.

[94]

What is the particular dispute in this case?
    It is the discipline imposed on the respondents for their activities during the
    strike. Where does the legislation repose the authority to decide the dispute:
    on the Tribunal, a labour arbitrator, or both?

[95]

Weber
decided
    that the
Labour Relations Act
conferred exclusive jurisdiction on a
    labour arbitrator, because, on the facts,

the dispute or difference
    between the parties arose out of the collective agreement based on the nature
    of the dispute  involving employment benefits  and the ambit of the
    collective agreement in its broad language. Both factors supported the
    arbitrators exclusive jurisdiction: at paras. 67, 71 and 73.

[96]

On the facts of this case, the dispute over the discipline
    the Tribunal imposed on the respondents for their strike-related activities arises
    out of the collective agreement. I say this for five reasons.

[97]

First, the direct and contextual evidence overwhelmingly
    establishes that the activities underpinning the complaints were linked to the
    strike, including the off-campus activities, as the Tribunal acknowledged. None
    were mere random acts of student misconduct completely unrelated to the strike.

[98]

Second, I acknowledge that Yorks ability to
    discipline the respondents for their activities during the strike could
    plausibly be rooted in both the
Student Code
and in the collective
    agreement. It was theoretically open to York to proceed under the
Student
    Code
, under the collective agreement, or under both. It chose the
Student
    Code
as its preferred venue in the face of the Unions dogged opposition.

[99]

Third, York could have responded to each act of
    misconduct immediately, but nothing was done until after the strike. Why?
    Perhaps York had in mind s. 80.1 of the
Labour Relations Act
, which
    prevents the imposition of discipline during a strike. Perhaps York considered
    that initiating student discipline would be unduly provocative during the
    strike. Regardless, it seems obvious that strike considerations played a role
    in the timing of the complaints.

[100]

Fourth, in its earlier January 11, 2019 decision, the Tribunal noted
    that the complaints were submitted within 30 days following the end of the
    disruption of University activities (July 25, 2018) and that the complaints
    cover several incidents that occurred during the labour disruption of 2018. The
    Tribunal held that the end of the strike period was the date from which it would
    assess the timeliness of the complaints.

[101]

Fifth, the complaints were launched by Ms. McAulay, who is a senior
    administrator. I see her, in the overall factual context, as a proxy for York,
    and all of her arguments were aimed at vindicating Yorks position.

[102]

These facts are all demonstrably linked to the strike, to the
Back
    to Class Act
, and to the collective agreement.

[103]

The second
Morin
step also considers which tribunal is the
    better fit for resolving the particular dispute. In my view, this consideration
    favours labour arbitration in this case, for three reasons.

[104]

First, labour arbitrators routinely consider the appropriateness of
    discipline for the activities of employees during a strike. They are presumed
    to have expertise in the assessment of the conduct of Union members and whether
    that conduct fits within the acceptable parameters of primary and secondary
    picketing. There are examples of several labour cases in which terminations and
    suspensions have been upheld, others in which reinstatement has occurred, or
    the period of suspension has been reduced. The nuances are intensely factual
    and fall squarely within the expertise of a labour arbitrator: I note that the
    sanctions imposed by the Tribunal  suspensions and no-contact directions  are
    not different in kind from what labour arbitrators often see: Carolyn Hart,
    Focus 14  Discipline of Managers for Harassing Employees in Adam Beatty,
    David M. Beatty & Donald J.M. Brown,
Canadian Labour Arbitration
,
    5th ed. (Aurora, Ont.: Canada Law Book, 2019).

[105]

Second, labour arbitration is governed by the collective agreement,
    the
Labour Relations Act
, arbitral and judicial case law, and arbitral
    practice. An arbitrator must provide procedural fairness to the parties.

[106]

Third, of particular importance is the impartiality and the
    appearance of impartiality of the decision-maker. A labour arbitrator is not
    connected in interest to the disputants, unlike the Tribunal in this case, and
    is better fitted to resolve disputes over strike-related discipline.

5.

Conclusion on Issue Two Regarding the Tribunals
    Jurisdiction

[107]

This court is obliged to respect the intention and the instructions
    of the legislature as set out in the relevant legislation, as
Vavilov
,
Weber
,
    and
Morin
instruct. The legislative mandate identified in the analysis
    at the first
Morin
step is in the broad and unique language set out in
    s. 17(4) of the
Back to Class Act
, which requires Any dispute between
    the parties concerning  discipline in respect of [any] activities that took
    place during the strike period to be subject to grievance arbitration. The student
    discipline initiated by the appellant is, in my view, a dispute concerning
    discipline in respect of activities during the strike period, to paraphrase s.
    17(4). Any dispute about discipline must be resolved by way of grievance under
    the collective agreement.

[108]

The conclusions drawn at the second
Morin
step reinforce this
    interpretation: this dispute is deeply rooted in the labour conflict and in the
    collective agreement. A labour arbitrator is better fitted to resolve it. The
    legislative language is clear and comprehensive: a labour arbitrator has
    exclusive jurisdiction over disputes connected to discipline for strike-related
    activities. This interpretation is supported by the principles of statutory
    interpretation, which discourage parallel proceedings.

[109]

The appellant has the strong conviction that York must have primacy
    over student misconduct and that it must have the last word, not a labour
    arbitrator. But that does not give effect to the legislative intent driving the
    enactment of the
Back to Class Act.

[110]

The legislation was carefully designed to minimize the intrusion
    into Yorks self-governance. Section 17 of the
Back to Class Act
is a
    situation-specific, short-acting limitation on Yorks autonomy. The appellant
    argues that giving a labour arbitrator the last word improperly gives primacy
    to the employer-employee relationship over the student-University [relationship].
    However, that, in the particular circumstances, is precisely what the Legislature
    intended to do.

[111]

There is no sense in which the legislation, specific and
    time-limited, causes York more generally to 
lose
    jurisdiction over its students each time they act in an employee context. Nor
    has the legislation eviscerated Yorks ability to meet obligations it has to
    other community members. And it was, and perhaps still is, quite open to York
    to discipline the respondents under the collective agreement.
York could have imposed precisely the sanctions set by the Tribunal
    on the respondents under the collective agreement. The respondents could have
    grieved the discipline, and the task of the arbitrator would then have been to
    determine whether the sanctions were warranted.

[112]

I do not agree with the appellants argument that ss. 17(3) and
    17(4) of the

Back to Class Act
must be
    interpreted to apply only to the respondents as employees, and not to them as
    students. The implied limitation would defeat the Legislatures manifest
    intention, in this high conflict case, to create a single, exclusive process
    for resolving disputes about the discipline of the respondents for strike-related
    activities.
The legislation was a surgical intervention
    designed to restore peace.

[113]

The courts caution in
Weber
and in
Naraine
against
    parallel proceedings applies here, especially given the unusual and unique
    language of
the
Back to Class Act.
There is no
    basis for the appellants argument that there is overlapping or residual
    jurisdiction with respect to the respondents activities during the strike.

[114]

Finally, it is trite law that when a more general provision  the
York
    University Act

conflicts with a
    provision that deals specifically with the matter in question  the
Back
    to Class Act
 the court may resolve the conflict through applying the
    specific provision to the exclusion of the more general one. The specific
    prevails over the general; it does not matter which was enacted first:
Ruth Sullivan,
Sullivan on the Construction of Statutes
, 6th
    ed. (Markham, Ont.: NexisLexis Canada, 2014),
at §11.58.

[115]

The Divisional Court was accordingly correct in its conclusion that
    the Tribunal had no jurisdiction to discipline the respondents for their
    participation in the activities that underpinned the complaints.

III.

Issue Three: Should judicial review have been
    denied because an appeal to the Appeal PANEL was an adequate alternative
    remedy?

[116]

The Divisional Court found that there were exceptional circumstances
    justifying its decision to decide the jurisdictional issue despite the respondents
    failure to pursue an appeal to the Appeal Panel. First, Yorks change in
    position about whether it was too late to appeal to the Appeal Panel cast doubt
    on the adequacy of this remedy: at para. 67. Second, there was no risk of
    fragmentation because the Tribunal and the Appeal Panel had already finally
    determined the merits of the complaints and imposed sanctions: at para. 68.
    Third, there was no utility in requiring the respondents to appeal to the Appeal
    Panel before continuing with the judicial review because there was only one
    outcome: The Legislature had conferred jurisdiction on a labour arbitrator to
    adjudicate discipline disputes: at para. 69. Fourth, there was evidence of
    hardship  for example, one of the applicants risked deportation if suspended:
    at para. 70.

[117]

The appellant argues that the Divisional
    Court erred in not applying the
Strickland
factors for assessing whether
    an appeal from the Tribunal to the Appeal Panel was an adequate alternative
    remedy to judicial review:
Strickland v. Canada (Attorney-General)
, 2015
    SCC 37, [2015] 2 S.C.R. 713. In
Strickland
,

the court considered
    when a court should exercise its discretion to decline judicial review on the
    basis that there was an adequate alternative remedy. The court set out a non-exhaustive
    list of factors to make this determination, at para. 42:

The convenience of the alternative remedy; the
    nature of the error alleged; the nature of the other forum which could deal
    with the issue, including its remedial capacity; the existence of adequate and effective
    recourse in the forum in which litigation is already taking place;
    expeditiousness; the relative expertise of the alternative decision-maker;
    economical use of judicial resources; and cost. [Citations omitted.]

[118]

As the Supreme Court instructed in
Strickland
,
    it is not enough for the court to consider only whether there is an adequate
    alternative; it should also consider the suitability and appropriateness of
    judicial review in the circumstances: at para. 43. This balancing exercise
    requires the court to account for the purposes and policy considerations
    underpinning the legislative scheme at issue: at para. 44. The Divisional
    Court decided, in its discretion, that it was not appropriate to remit the matter
    back to the Appeal Panel.

[119]

I would reject the appellants argument
    that the Divisional Court erred by not considering the
Strickland
factors. While the court did not cite
Strickland
, it did refer to the
    leading case on the adequate alternative doctrine 
Harelkin
    v. University of Regina
,
[1979] 2 S.C.R. 561
:
at
    para. 63;
Strickland
, at para. 40. In my view, the factors the
    Divisional Court considered adequately map onto the
Strickland
factors.

[120]

First, the court noted that it was not
    clear the appeal process was an adequate alternative remedy because it was
    uncertain whether the Appeal Panel would grant a time extension: at para. 67.
    This concern maps onto the
Strickland
factors: convenience of the
    alternative remedy and whether adequate and effective recourse was available in
    the forum in which litigation was already taking place.

[121]

Second, the Tribunal and the Appeal Panel
    had determined the merits and sanctions appeals, and so there was no risk of
    fragmenting the proceedings: at para. 68. Because all the evidence was in, it
    was more expeditious to proceed with judicial review than to send the matter
    back to the Appeal Panel and risk another round of judicial review.

[122]

Third, the court pointed to the clear
    legislative wording that required an arbitrator to adjudicate this type of
    dispute: at para. 69. It seems obvious that the interpretation of the
    legislation is a legal question that neither the Tribunal nor the Appeal Panel
    was better qualified to undertake than the Divisional Court.

[123]

Fourth, the court pointed to hardship,
    prejudice, costs or delay as being factors that may constitute exceptional
    circumstances for the judicial review application to proceed: at para. 70.
    These considerations map onto the
Strickland
factors: expeditiousness,
    economical use of judicial resources, and cost.

[124]

The Divisional Court decided, in its
    discretion, that it was not appropriate to remit the matter back to the Appeal Panel.
    As such, this court should defer unless a legal error was made, or a palpable
    and overriding error of fact. I see neither.

IV.

Issue Four: Did the Tribunal breach the duty of
    procedural fairness?

[125]

The Divisional Court decided that there was a lack of procedural
    fairness in the manner in which the Tribunal scheduled the merits hearings and
    in how the Tribunal addressed requests for adjournments, on the assumption that
    it was wrong on the jurisdictional issue.

[126]

The appellant contests this finding.

[127]

I see no reason to address this issue in light of the disposition of
    the other three issues.

V.

DISPOSITION

[128]

I would dismiss the appeal with costs to the respondents. If the
    parties cannot agree on costs, the court will accept written submissions no
    more than five pages in length beginning with the respondents, to be served and
    filed with the court at coa.e-file@ontario.ca within two weeks of the release
    of this decision, followed one week later by the appellants submissions, and
    any reply within another week.

Released: G.R.S. July 24, 2020

P.
    Lauwers J.A.

I
    agree. G.R. Strathy C.J.O.

I
    agree. G. Pardu J.A.





[1]
The disciplinary complaint against Stuart Schussler was dismissed
    by the Tribunal.



[2]

The interest
    arbitration decisions can be found at:
York University v. Canadian Union of Public Employees,
    Local 3903
, 2018 CanLII
    115050 (ON LA) (Unit 3), 2018 CanLII 115051 (ON LA) (Unit 1), 2018 CanLII
    115052 (ON LA) (Unit 2).



[3]

The court has no information on the current status of the
    grievances filed by the respondents on September 17, 2018.



[4]
The respondents later amended their application for judicial review
    to include the Tribunals merits and sanctions decisions.



[5]

This discussion does not include Stuart Schussler because
    the Tribunal found he did not breach the
Student Code
.


