Executive Summary: Key Legal and Evidentiary Issues

• The authority of the Provost and Dean to suspend enrollment in academic programs without Board involvement was challenged under the enabling legislation.

• Whether the Board complied with s. 10(b) of the Thompson Rivers University Act by seeking and considering the advice of the Senate before discontinuing programs was a central issue.

• The sufficiency and form of the Senate’s advice to the Board, and whether informational submissions met statutory requirements, were scrutinized.

• Adherence to internal policy BD Policy 8-4, including procedural steps and stakeholder consultation, was examined.

• The standard of review for the Board’s decisions and whether they were reasonable and within statutory powers was analyzed.

• The impact of the decisions on faculty members and the role of the collective agreement were raised but not determinative.

Facts of the case

The Thompson Rivers University Faculty Association (“Faculty Association”) filed a petition seeking to set aside two decisions made by Thompson Rivers University (“TRU” or “University”). The first decision was the suspension of enrollment in the Visual Arts programs in March 2023. The second was the Board of Governors’ (“Board”) decision on January 29, 2024, to discontinue four Visual Arts programs within the Faculty of Arts: the Bachelor of Fine Arts (Visual Arts, Major); the Bachelor of Arts (Visual Arts, Minor); the Diploma in Visual Arts; and the Visual Arts Studio Certificate. The Faculty Association argued that TRU breached s. 10(b) of the Thompson Rivers University Act and/or acted ultra vires by suspending enrollment and discontinuing the programs without seeking or receiving the advice of the Senate as required. TRU asserted that it complied with its statutory duties, acted within its powers, and met the standard of reasonableness and procedural fairness.

Governance structure and policy terms

TRU is governed by the Thompson Rivers University Act and the University Act, which establish a governance model involving both the Board and the Senate. The Board manages the property, revenue, and affairs of the university, while the Senate oversees academic programs. Section 10 of the TRU Act requires the Board to seek advice from the Senate, and the Senate to advise the Board, on the development of educational policy for the establishment, revision, or discontinuance of courses and programs. BD Policy 8-4, adopted by the Board, sets out a detailed process for program reductions and eliminations, including written notice, faculty and Senate input, and stakeholder presentations. The policy had not been used prior to the events in 2023.

Events leading to the dispute

Prior to 2023, the viability of the Visual Arts programs was in question due to very low completion rates and high operational costs. On April 20, 2023, the Dean and Provost informed Visual Arts faculty that the possibility of eliminating the programs would be initiated through Senate committees, and that enrollment had already been suspended. The Faculty Association asserted that this suspension occurred without formal Board consideration or Senate advice. The Board and Senate subsequently engaged in a series of meetings, presentations, and consultations from May 2023 through January 2024. The Senate received reports and submissions but ultimately provided the Board with the APPC report, written submissions from stakeholders, and the Arts Faculty Council submission as its advice, without a formal recommendation. On January 29, 2024, the Board resolved to discontinue the four Visual Arts programs.

Legal analysis and statutory interpretation

The court found that the Provost and Dean did not have statutory authority to suspend enrollment and that such authority rested with the Board. However, the issue was moot because the Board had already made its decision. The court determined that the Board sought and received advice from the Senate, as required by s. 10(b) of the TRU Act, even though the advice was informational. The process followed was found to be thorough, fair, and in substantial compliance with BD Policy 8-4. The standard of review was reasonableness, and the court concluded that the Board acted within its statutory powers and met the requirements of procedural fairness.

Outcome and disposition

The petition was dismissed. The court held that the Board acted within its statutory powers, followed a reasonable and fair process, and satisfied its obligations under s. 10(b) of the TRU Act. There was no order for costs or damages specified in the judgment, and no monetary award was granted to either party.