Link sent to Senators and other campus lists, 16 November 2012.
Dear Queen’s Senators and Colleagues:
Queen’s Secretariat has released Justice Frank Iacobucci’s legal opinion (dated Nov. 12) “Re: The Senate’s role in Queen’s University Governance.” It was written pursuant to the motion approved in Queen’s Senate, 28 February 2012,
That the Senate obtain independent legal advice from a law firm with experience dealing with public law issues that answers the following questions:
In general, what is the authority and responsibility of Queen’s Senate with respect to decisions that are intrinsically academic in nature or that have significant academic impacts?
And in particular,
1. Whether the Senate is legally required to consider and approve any decision that will result in the closure of an academic program;
2. Whether the Senate is legally required to consider and approve any decision which may result in the closure of an academic program, including a suspension of enrolment; and
3. Whether the Senate is legally required to consider and approve any decision to merge academic units or that will result in the merger of an academic program with an academic unit.
Justice Iacobucci was chosen by the Principal as the person best suited to write this opinion, “given his experience in private practice, academia, government and the judiciary,” and given also his position as “Chair of the Higher Education Quality Council of Ontario” (Senate Minutes, Mar. 2012).
I am no legal scholar, but Justice Iacobucci’s opinion is, in my view, cause for celebration.
His approach to the questions is very balanced and might seem to some to be equivocal. But that is actually an affirmation of Senate’s interests in these questions, and of its right to involve itself in decisions with academic impacts. As mover of the February motion, I did not argue that Senate should rule, but rather that the Deans should not act as if they, as “officers” of the Board of Trustees, could rule unilaterally. I argued that it had to be decided “cooperatively, how Queen’s financial and academic authorities can henceforth cooperate in decisions that have both financial and academic dimensions.” Justice Iacobucci supports that very contention.
1. On two of the three specific points queried by the Senate motion, he directly affirms the authority of Senate: in his opinion, both closures of programs and mergers of units “require senate approval” (p. 14).
2. On the third of these points, concerning decisions, such as admissions freezes, that “may result in the closure” of a program, he states that the legal authority is “less clear,” since the Purpose and Functions of Senate document doesn’t address it specifically (p. 14). He says that “it is likely lawful for the Senate’s academic delegates to make decisions on matters that the Senate has not expressly reserved to itself” (p. 15). But he also says that “That does not mean that Senate lacks authority entirely over a decision of this type” (14).
3. According to Justice Iacobucci, even though Senate may legally lack authority where it has delegated it in practice, it has the right to get this authority back: “The Senate does have the authority to continue to require that decisions falling within its broad power over academic matters be brought before the Senate. That power has not been lost” (p. 15). Again: “Senate’s delegation of the exercise of its authority to others within the University does not, as a matter of law, derogate from the Senate’s authority over academic matters as set out in the Royal Charter. The Senate retains the legal authority to require that any decision falling within the Senate’s jurisdiction be brought back to the Senate for consideration and approval” (10-11).
4. Justice Iacobucci places great emphasis on “the importance of the collegial or partnership relation between Senate and the Board. After all, the Senate and the Board have to live and work together in the best interests of the University…” (17). That is, once again, an affirmation of the Senate’s position. It means that the governance of Queen’s must not be unilateral on the part of the Board and the upper Administration.
Justice Iacobucci speaks mostly in terms of the opposition between the Senate and the Board of Trustees. That is as it should be, since the question was framed that way. But the practical background to the questions posed to him was a disagreement between the Senate and the upper Administration, especially the Dean of Arts and Science. With the support of University Lawyer Diane Kelly’s contention (which the Dean called a “ruling”) that Deans had “managerial” rights to act unilaterally in all matters involving “resources,” the Dean of Arts and Science closed academic programs in 2009 and froze academic admissions in 2011 without the approval of Senate; in the latter case, without so much as informing the Faculty Board or Senate beforehand.
So it is important not to lose sight of this distinction in the reception of Justice Iacobucci’s opinion. This opinion means more than that everyone must get along or that we need more joint “retreats” of the Senate and the Board. What it really means in practice is that the upper administration can no longer go around amalgamating and closing things down without so much as informing Senate beforehand. Justice Iacobucci’s opinion gives Senate explicit affirmation of its authority over program closures and amalgamations. And it gives Senate encouragement to reassert its authority over suspensions of admissions. It says no to Diane Kelly’s dictate, and it says yes to the involvement of Senate. But it also says that Senate needs to assert its willingness to involve itself in academic governance. Where it does not assert this, the upper Administration has power to rule.
 In our historical practice, this refers to the Deans, since they are the ones who have assumed powers that are theoretically Senate’s. But when Justice Iacobucci cites historical examples of delegation, the delegation has been explicitly to the Faculty Boards, not to the Deans (see pp. 9-10). In Arts and Science, the relative authority of the Dean and the Faculty Board remains in some confusion, for on three occasions the Dean of Arts and Science has simply refused to obey directions moved and duly approved by his Faculty Board (April 2009, March 2010, December 2011). See Mark Jones, “More Reasons Not to Consider Restructuring Faculty Board” (11 April 2012).