Dalhousie Faculty Association v. Dalhousie University

Dalhousie Faculty Association v. Dalhousie University Court Court of Appeal Date 2002-01-10 Citation 2002 NSCA 1 Docket CA 170698 Judge/Registrar/Adjudicator Flinn, Edward J. (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Dalhousie Faculty Association v. Dalhousie University - 2002 NSCA 1 - 2002-01-10 - Library Sheet Decision Content Date: 20020110 Docket No.: CA 170698 NOVA SCOTIA COURT OF APPEAL [Cite as: Dalhousie Faculty Association v. Dalhousie University, 2002 NSCA 1] Roscoe, Bateman and Flinn, JJ.A. BETWEEN: DALHOUSIE FACULTY ASSOCIATION Appellant - and - BOARD OF GOVERNORS OF DALHOUSIE UNIVERSITY Respondent __________________________________________________________________ REASONS FOR JUDGMENT __________________________________________________________________ Counsel: Gordon N. Forsyth for the appellant C. Peter McLellan, Q.C. and Tara A. Erskine for the respondent Appeal Heard: October 1, 2001 Judgment Delivered: January 10, 2002 THE COURT: Appeal allowed per reasons for judgment of Flinn, J.A.; Roscoe and Bateman, JJ.A. concurring. FLINN, J.A.: Introduction [1] The appellant Faculty Association represents Dr. Bruce Mathieson, a professor in the Department of Anatomy (Faculty of Medicine) at Dalhousie University. The association filed a grievance with the University on behalf of Dr. Mathieson when the President of the University decided that Dr. Mathieson not be awarded tenure at the University. The grievance was, essentially, that the President, in denying tenure to Dr. Mathieson, breached the terms of the collective agreement by applying the wrong standards for tenure, and by failing to adequately indicate in his written reasons why Dr. Mathieson did not meet the standards for tenure. [2] Following a hearing of the grievance, a consensual arbitrator, Daniel Soberman, upheld the grievance. He decided that the President’s decision was unreasonable. [3] The University applied to the Supreme Court of Nova Scotia for judicial review of the arbitrator’s decision. The application was heard, in Chambers, by Chief Justice Joseph P. Kennedy. Chief Justice Kennedy decided that the arbitrator had reached his conclusion by “an unwarranted process.” He decided that the arbitrator had failed to answer the question at issue; namely, whether the President’s decision was unreasonable, and instead answered a different question altogether, that question being whether the preliminary decision process was unreasonable. He quashed the arbitrator’s decision and remitted the matter to a different arbitrator for determination. [4] The Faculty Association appeals the decision and order of the Chambers judge. [5] As will be seen later in these reasons, in my opinion the Chambers judge erred in law when he quashed the arbitrator’s decision on the basis that the arbitrator asked the wrong question, and that the arbitrator reached his conclusion by an unwarranted process. As a result the decision of the Chambers judge must be set aside. It will, therefore, be for this court to make an assessment of the merits of the arbitrator’s conclusions, against a standard of patent unreasonableness, about which I will comment more fully later in these reasons. For that reason, it will be necessary in the course of this judgment to examine the arbitrator’s decision in detail. Overview of the Tenure Application Process [6] Initially, it would be helpful to give an overview of the process by which an application for tenure is considered at the University. It is a process governed by the collective agreement between the University and the Faculty Association. It is a collegial process, in which administrators and committees in the relevant faculty and department provide recommendations to the President who, in effect, makes the final decision on tenure. The President conducts a paper review of the candidate’s dossier and submits a final recommendation to the Board of Governors. [7] Since Dr. Mathieson is in the Faculty of Medicine, the various administrators and committees that provide recommendations are, in order, as follows: (a) the Departmental Appointments, Tenure, and Promotions Committee (“ATP Committee”); (b) the Department Chair; (c) the Faculty of Medicine Preclinical Promotions and Tenure Committee (“Faculty Committee”); (d) the Dean of Medicine; (e) if the Faculty Committee recommends that tenure be granted, and if the Dean of Medicine recommends otherwise, the applicant has a right to have his tenure application reconsidered by a University Tenure Committee (UT Committee); and (f) the President. [8] The provisions of the collective agreement govern tenure appointments. Certain sections of the collective agreement are relevant to a consideration of this matter and I will refer to them here. [9] Article 15 of the collective agreement sets out the basic criteria for tenure. Article 15.02 sets the general standard as follows: 15.02 The University expects and endeavours to improve its standard of academic performance year by year and to maintain sufficient flexibility in staffing to meet needs of continuing programmes and evolving needs for change in programmes. Merely spending a number of years on the academic staff of the University will not establish a right to tenure. The Board of Governors will make an appointment with tenure only when it can be firmly predicted that the Member recommended will, in consequence of a demonstrated commitment to intellectual and professional activity throughout his or her career, attain and maintain a high degree of academic proficiency. However, except when a Member has been appointed or reappointed with notice that the appointment is not foreseen as one serving a continuing programme for the reasonably foreseeable future, every full-time and regular part-time Member serving on a tenure-track term contract does, after some specified period of service in the University, have a right to have his or her case for tenure considered with the opportunity of presenting it in the most favourable light. Procedures are established by this Collective Agreement to ensure this right to consideration. [my emphasis] [10] Other relevant provisions of the collective agreement are: 15.07 Each Faculty is responsible for establishing, by Faculty Regulations, the standards it considers appropriate in respect of criteria for tenure within Dalhousie. The standards for part-time Members may differ from those for full-time Members. 15.18 At each stage in the tenure process (Department or other similar unit, Faculty, Dean and President), recommendations that tenure be granted, that consideration be deferred, or that tenure not be granted shall be made known to the Member concerned at the same time it is sent to the next stage. Any recommendation that tenure not be granted or that consideration be deferred (except when the Member has requested such deferral) shall include a written statement of the reasons for the recommendation in respect to each of the criteria specified or provided in Clause 15.02 to Clause 15.06 and, where established by Faculty regulations, to the standards provided in Clause 15.07 and Clause 15.08; where no such standards have been established, then past practices shall prevail. 15.25 The Faculty Tenure Committee concerned, the Dean concerned, or the President acting in turn under these procedures, shall consider any allegation that improper procedures have been followed at earlier stages of any case and shall have authority, if he, she or they believe it may affect disposition of the case, to send the case back for further consideration. 18.11 (b) (iii) while oral communication with outside assessors and others regarding a Member under consideration is discouraged, Members shall be entitled to receive a written summary of any material oral confidential information received regarding the Member that is to be used and which may affect the decision but the identity of the source of such information need not be disclosed. 36.01 The Parties agree they shall exercise their respective rights and this Collective Agreement fairly and reasonably, in good faith and without discrimination, and in a manner consistent with the provisions of this Collective Agreement. 36.02 The Parties are agreed that the rules of natural justice apply to the following proceedings of hearings involving a Member: (a) Department. . .[or] Faculty committees considering a Member for . . . tenure . . . provided that such rules of natural justice are consistent with the provisions of this Collective Agreement. 36.03 A Member has the right to reasonable notice of and the right to attend any proceeding or hearing or portion thereof involving the Member’s specific case which is held by a Committee referred to . . . [above]. [11] The collective agreement does not provide detailed criteria for granting tenure. As required by Article 15.07 of the collective agreement, the Faculty established “Promotion and Tenure Guidelines for the Faculty of Medicine.” The express purpose of these guidelines is stated to be the following: The express purpose of the Faculty of Medicine Promotion and Tenure Guidelines is to assist and inform those involved in the promotion and tenure process at all levels: faculty members, department heads, department promotion and tenure committee members, faculty promotion and tenure committee members and administrative staff. These guidelines outline the Dalhousie University promotion and tenure process and formal procedures, including deadlines, routing, levels of responsibility, eligibility, criteria and documentation. In accordance with Regulations 5.4.1 and 6.2.2., these guidelines also include appropriate standards applicable to the Faculty of Medicine for tenure and promotion criteria established by the University. [my emphasis] [12] These guidelines establish standards in teaching, research and administration. The standards with respect to administration are not relevant for the purposes of this appeal. The guidelines establish five standards in teaching and five standards in research. They permit tenure to be awarded if a candidate meets the required standards in either teaching or research. Those guidelines are as follows: TEACHING 1. Activity - Has undertaken and shows a commitment to contribute educationally in a number of roles, such as lecturing, tutoring and supervising undergraduate, medical undergraduate, and graduate students, including postdoctoral fellows. 2. Quality - Considered a very good to excellent teacher by students and peers. 3. Recognition - Winner or cited for a department, faculty or external award for teaching. 4. Program Development - Is active and innovative in the development of educational materials or programs (e.g. introduction or modification of educational course or evaluation methods, case writer, software development, development of teaching syllabus, video, etc.). 5. Administration Direction - Is an effective member of a university, faculty or a department committee responsible for a major educational program. RESEARCH 1. Activity - Is responsible for an ongoing program or major research project. 2. Recognition - Is consistently publishing papers in leading journals in which a major contribution has been made to the work. 3. Support - Is receiving consistent support from peer reviewed granting agencies. 4. Teaching - Has a consistent record of supervising full-time advanced students in research (this includes graduate students, BScMed undergraduates, BScHonours undergraduates, and postdoctoral fellows). 5. Collaboration - Is a member of a research group or otherwise actively interacts with other research scientists. [13] Further, the guidelines provide a commentary to the effect that the candidate can be favourably recommended for tenure if that candidate meets four of the five standards in teaching together with standard 5 in research, or four of the five standards in research together with standard 1 in teaching. The Arbitrator’s Decision [14] I will now review the decision of the arbitrator in some detail. [15] After initially referring to the fact that the parties had agreed that he had been properly appointed as sole arbitrator pursuant to the provisions of the collective agreement, and that he had the requisite jurisdiction to deal with the matter in dispute, the arbitrator set out his role by referring to the collective agreement and making the following comments: The following articles of the Collective Agreement apply to this grievance: 29.29 The Single Arbitrator shall be subject t[o] the same limitations as a university grievance committee, as provided in Clause 29.20. [below] 29.20 (c) Where by the terms of this Collective Agreement, judgment or discretion is to be exercised by the Board or any person or body, the committee shall not substitute its own judgment for that already made unless it finds such judgment or discretion to have been unreasonable or improper. Accordingly, unless I find that the recommendation to deny tenure made by President Traves is “unreasonable or improper”, I do not have authority to substitute my own judgment. To quote briefly from the award of Kenneth P. Swan in the Tindall case: . . . the onus is upon the grievor to demonstrate that the decision not to grant him tenure was unreasonable, in the sense that it was not made in the light of proper principles and criteria, that all relevant considerations were not adverted to, or that irrelevant factors were not excluded from the process or decision. [16] The arbitrator then gave a brief overview of the process by which Dr. Mathieson’s tenure application, which is the subject of this appeal, was considered. There were substantial differences of opinion by the various persons and groups who reviewed Dr. Mathieson’s application. [17] Dr. Mathieson’s application was made on September 15, 1998. [18] The first group to consider the application was the Departmental Appointments, Tenure, and Promotions Committee (ATP Committee). By a majority vote, on November 12, 1998, the ATP Committee recommended that Dr. Mathieson not receive tenure. [19] The next person to review Dr. Mathieson’s application was the head of the Department of Anatomy, Dr. Hopkins. By letter dated November 12, 1998 to the Dean of Medicine, Dr. Hopkins advised that he was not able to recommend Dr. Mathieson for tenure. [20] The application was then considered by the Faculty of Medicine Preclinical Promotions and Tenure Committee (FTP Committee). In a letter to the Dean of Medicine dated December 22, 1998 the FTP Committee unanimously recommended that Dr. Mathieson be granted tenure. [21] By letter dated January 8, 1999 the Dean of Medicine, Dean Ruedy, advised the President of the University that he disagreed with the FTP Committee and recommended that tenure be denied. [22] Because of the disagreement between the Dean of Medicine and the FTP Committee, Dr. Mathieson, as was his right under the collective agreement, requested that his application be reconsidered by the University Tenure Committee (UT Committee). The UT Committee considered Dr. Mathieson’s application. By letter to the President of the University dated April 30, 1999 the majority of the UT Committee recommended that Dr. Mathieson be granted tenure. [23] On May 28, 1999 the President of the University wrote to Dr. Mathieson and advised him, in a remarkably brief letter, that he had concluded that Dr. Mathieson had not met the standards for tenure, and that he would not be awarded tenure. [24] Having conducted this initial overview the arbitrator noted the “substantial differences of opinion among those making recommendations regarding Dr. Mathieson’s tenure application.” The arbitrator then said in his decision: What factors might lead to such differences of opinion? Clearly, one major factor is the perceived standard - or level - of performance expected of the candidate by those upon whom the decision rests. However, there is another major factor - the clarity of the rules and guidelines set out in the agreements governing tenure and how the interpretation of those rules and guidelines affect the standard that is applied. [25] The arbitrator then conducted a detailed review of the recommendations of the various committee and administrative officers who considered Dr. Mathieson’s application for tenure. The Appointments Tenure and Promotion Committee (ATP Committee) [26] The arbitrator first reviewed the decision of the ATP Committee which had recommended that Dr. Mathieson not be granted tenure. The arbitrator’s first comments were with respect to the manner in which the ATP Committee dealt with teaching standard 2. He referred in his decision to the ATP Committee’s determination in this respect, from their written report as follows: Interpreting the Faculty Guidelines with Respect to Teaching With respect to “Teaching Standard 2 - Quality, Considered very good to excellent by students and peers”, the majority stated, “...the student evaluations of his teaching performance and effectiveness are very good.” But it went on to state, “...his teaching evaluations, while very good are not clearly better than average in the department.” and further, “...his skills as a teacher are greatly valued by students and his colleagues ... In fact, the Department has no concerns about the quality of Dr. Mathieson’s teaching or teaching skills.” Finally in the majority’s overall assessment, it stated, “...the majority of Committee believes that ... his teaching evaluations although very good, are neither excellent overall, nor exceptional. [the emphasis is the arbitrator’s] [27] The arbitrator commented on the ATP Committee’s interpretation of teaching standard 2 as follows: Counsel for the employer suggested that there are two standards for judging teaching - “good to very good” and “very good to excellent”. It was asserted that there was some divergence of opinion as to whether Dr. Mathieson was merely “good to very good”, rather than “very good to excellent”. Where does the addition of the phrase “good to very good” - which is not part of the guidelines - leave the phrase “very good” itself? It certainly creates ambiguity and doubt about its use in Standard 2. Does this argument mean that it is not sufficient to be “very good”? The report does not state a conclusion as to whether Dr. Mathieson met Standard 2. In my view, this interpretation of “very good” is an unreasonable distortion of language. The only reasonable interpretation is that when a person is assessed as being “very good” he meets the standard of being “very good to excellent”. [28] The arbitrator determined that it would be unreasonable to conclude that a person who was assessed as very good did not meet the standard of very good to excellent. As evidence of the harshness of the ATP Committee report the arbitrator said: It was also suggested by the ATP Com. that, if members of the department as a whole are regarded as having achieved “very good” teaching, it is not adequate for Dr. Mathieson to achieve that same departmental standard. Must he then perform better than his senior peers? If as is also suggested, he must be “excellent overall” or “exceptional” (a word not used in the guidelines), does the phrase “very good” become meaningless? The use of these terms amounts to deprecating Dr. Mathieson’s performance as not achieving the guideline standard: his teaching evaluations - acknowledged to be “very good” - are not sufficient to meet the standard of “very good to excellent”. To meet that standard he must be assessed as “excellent overall”. This interpretation is unreasonably harsh and unfair. [29] The arbitrator then reviewed the ATP Committee’s interpretation of teaching standard 3 as follows: In order to achieve Teaching Standard 3 - Recognition (chart above), we are told that the candidate must be a “winner or cited for a department, faculty or external award for teaching”. However, the alternative to being a winner - “cited for” - is not defined. Does being “nominated for the Dalhousie Alumni Association Excellence in Teaching Award” meet the criterion “cited for”? In its letter, the majority of the committee felt that “this does not meet the criterion for the teaching award recognition, i.e. winning an award for teaching excellence.” It seems that the majority gave no weight to the phrase “cited for” [the emphasis is the arbitrator’s] [30] The arbitrator concluded his review of how the ATP Committee interpreted standards 2 and 3 as follows: If we view the two phrases discussed above - “cited for” and “very good”, as they are stated in Standards 2 and 3 - as being ambiguous in the eyes of the majority of the committee, both were interpreted by the majority in a manner least favourable to Dr. Mathieson. It is hard to reconcile this approach with the requirement of fairness discussed below. [31] The arbitrator then reviewed the ATP Committee’s finding with respect to standards 4 and 5 of teaching, the committee’s conclusion on research performance and the ATP Committee’s interpretation of the external letters of reference. The arbitrator reviewed the six letters of reference from the external referees and concluded as follows: Accordingly, on closer examination of the letters of reference, the committee leaves the impression that it diligently sought out the most negative implications and ignored the positive side of those letters. The committee did not name the referees nor did it discuss their comments in any greater detail than noted in the quotation above. I shall return to these comments in reviewing the recommendations of the FTP Com., below. [32] The arbitrator reviewed the procedures followed by the ATP Committee. In particular, he noted that the committee invited department members to give oral comments before the committee but did not provide Dr. Mathieson with an opportunity to later learn the content of the comments made or provide him with an opportunity to rebut any comments made by those department members. The arbitrator concluded that: The practice amounts to a substantial abuse of fair process. I come to this conclusion for the following reasons: (a) Those department members who appeared before the ATP Com. to make comments about Dr. Mathieson understood that he was unlikely to be present and able to respond; they made their comments in his absence. (b) There is no indication that they were told or that they (sic) their comments would be reported to the candidate or that they would be identified. (c) There was no evidence given that Dr. Mathieson (or any past candidate) was in fact provided with any summary of the comments made. (d) Thus, the department members made their comments in the expectation that the candidate would remain uninformed about them and with no chance to respond. (e) The ATP Committee stated that its recommendation was “based on” information which included the oral comments made at a meeting with other members of the department. This practice is flawed in a material way. If a department believes such meetings aid in their process of reaching a decision and wish to continue using it, then at the very least, the committee should ensure that an objective reporter is present at the meeting, and that as matter of course the committee sends to the candidate - without him having to make a request - the reporter’s summary of the oral comments, before the committee reaches its decision. The candidate would then have the opportunity to respond to any adverse comments about his performance. [the emphasis is the arbitrator’s] [33] Finally, the arbitrator summarized the shortcomings in the report of the majority of the ATP Committee as follows: In summary then, there are significant problems with the report of the majority of the ATP Com: its harsh and unreasonable interpretation of Teaching Standards 2 and 3 of the Faculty Guidelines; the high standards it imposed with respect to Standards 3 and 4; its unreasonable interpretation of several of the letters of reference; and the procedural unfairness and disregard of general requirements of Article 18 (b) (iii) and Article 36.02 of the Collective Agreement in inviting unreported comments of department members. While committee members were not likely aware of their bias, all of the factors discussed above cast serious doubt on the validity of the ATP Com. report and its majority recommendation against tenure. The Report of the Department Chair (Dr. Hopkins) [34] The arbitrator noted that Dr. Hopkins’ three page letter was devoted mainly to assessing Dr. Mathieson’s research. He noted that Dr. Hopkins’ assessment of Dr. Mathieson’s teaching is set out in the following §: With respect to teaching, Dr. Mathieson has fulfilled his teaching commitments to the satisfaction of all concerned but, as summarized by the Departmental Appointments, Tenure and Promotion Committee, his contributions are very good but not outstanding. They are within the range of what is normally expected from all our faculty. He meets standards 1 and 2 for teaching but falls short on standards 3, 4 and 5...[the emphasis is the arbitrator’s] [35] The arbitrator then noted: Unlike the ambiguity in the ATP Com. Report, Dr. Hopkins stated that Dr. Mathieson did meet Standard 2. But he appeared to agree with the ATP Com.’s conclusion that being nominated for a teaching award did not meet the standard of being “cited for” an award as required by Standard 3, and that he did not meet Standards 4 and 5. [36] The arbitrator then noted that Dr. Hopkins was of the view that Dr. Mathieson did not meet research standards 1, 2, 3 or 4. He noted that there was no mention in Dr. Hopkins’ letter with respect to standard 5 - collaboration. He also noted that in an earlier review of Dr. Mathieson, Dr. Hopkins noted “a case was made that productive collaborations had been established.” The arbitrator concluded that Dr. Hopkins gave no opinion with respect to whether or not Dr. Mathieson met standard 5 of the research standard. [37] In his concluding remarks on Dr. Hopkins’ letter the arbitrator said the following: Dr. Hopkins summarized briefly the extent to which he relied on the specific information considered by the ATP Com.: ... I concur with these recommendations and am satisfied that the Committee carefully and thoroughly assessed and weighed all available information to arrive at these difficult decisions. ... As reflected in the Departmental Committee’s recommendation to me and the assessments received in letters and interviews there are differences of opinion as to whether requirements have been met. [the emphasis is the arbitrator’s] [38] The arbitrator also quoted Dr. Hopkins’ conclusion: In conclusion, it does not appear that Dr. Mathieson meets the minimum standards for tenure or promotion. Faculty of Medicine Promotions and Tenure Committee (FTP Committee) [39] The arbitrator noted that the FTP Committee commenced its letter to the Dean of Medicine by stating that it “unanimously recommends that Dr. Bruce Mathieson be granted tenure.” [40] The arbitrator then noted that the committee after reviewing the recommendations against tenure from the ATP Committee and Dr. Hopkins that the committee had interviewed Dr. Mathieson, Dr. Hopkins, Dr. Currie (chair of the ATP Committee) and Dr. Paul Neumann, a colleague in the department who collaborated with Dr. Mathieson in research and wrote in support of granting tenure. The committee said: In reviewing all of this material, the Committee was presented with several disturbing inaccuracies and inconsistencies in the written and verbal assessments of Dr. Mathieson’s teaching and research activities, as well as differing and in some cases unusual interpretations of the “Promotion and Tenure Guidelines for the Faculty of Medicine.” [the emphasis is the arbitrator’s] [41] The arbitrator then noted the comments which the committee made on the recommendations from the ATP Committee and Dr. Hopkins as follows: ... the Faculty Committee notes that these negative decisions seem to have been reached on the basis of applying higher than usual standards in interpretation of the “Promotion and Tenure Guidelines for the Faculty of Medicine. [the emphasis is the arbitrator’s] [42] The arbitrator then referred to the committee’s report with respect to the “variety of Dr. Mathieson’s teaching roles” and it had made the following observations: Reviews of Dr. Mathieson’s contribution to the dental curriculum by students and faculty are uniformly laudatory. Over the past 8 years, Dr. Mathieson’s rating in student evaluations of his effectiveness as an instructor have averaged 4.2 our (sic) of a possible 5.0. Dr. H. Lyttle, Dr. D. Cunningham (Associate Professor, Faculty of Dentistry), and Dr. J. Gerrow (Chair, Clinical Science, Faculty of Dentistry) all praise the high standard of instruction which Dental students have received from Dr. Mathieson. This praise is echoed in letters from former Dental students. ... Overall, the Committee views that Dr. Mathieson’s teaching has been very heavy since his first year at Dalhousie University. The Committee noted that Dr. Mathieson’s teaching load was more than double that of other assistant professors in the Department of Anatomy and Neurobiology at the start of their academic careers ... ... In 1997 Dr. Mathieson was nominated by Lynne Gallant, a former technician in Dr. Paul Neumann’s laboratory, for the prestigious Alumni Award of Excellence for Teaching. This nominations (sic) is supported by several detailed letters from undergraduate or graduate students, as well as by Donald Ferris, a staff member in the Department of Anatomy and Neurobiology. On the basis of the range of supporting documentation, the Committee sees this to be a credible nomination and disagrees with the view of Dr. Hopkins and the Department Committee that this achievement by Dr. Mathieson is not equivalent to being “... cited for a department, faculty, or external award for teaching.” [43] The arbitrator then describes the FTP Committee’s reaction to the interpretation of “very good” given by the ATP Committee and concurred in by Dr. Hopkins in the description of Dr. Mathieson’s teaching as follows: The Faculty Committee perceived these additional (and somewhat dismissive) comments as evidence that both Dr. Hopkins and the Departmental Tenure and promotions Committee used higher than usual standards in Dr. Mathieson’s case in their interpretation of the “Promotion and tenure Guidelines for the Faculty of Medicine. [the emphasis is the arbitrator’s] [44] The arbitrator then said: It seemed quite clear to the FTP Com. that the ATP Com. had taken a rather harsh (“dismissive”) approach in assessing Dr. Mathieson’s teaching performance. In its summary, the FTP Com. concluded that Dr. Mathieson “met standards 1, 2, 3, 4, and 5 for teaching” and, in particular, that he was a “very good teacher”. [45] With respect to the external letters of reference the arbitrator said the following concerning the committee’s views on those letters: In reviewing the six external letters of reference, the committee stated, “Five of the six letters were judged by the Committee to be positive in their assessment of Dr. Mathieson’s suitability for tenure.” The committee then identified each of the referees and dealt with their assessments in rather more detail than had been done by the ATP Com., and found their conclusions to clearly favour the granting of tenure to Dr. Mathieson. [46] The arbitrator then noted the concluding recommendation of the FTP Committee: ... Dr. Mathieson be granted tenure, largely on the basis of his strong teaching performance. Although the Committee acknowledges that Dr. Mathieson has been and is currently active in research, his performance in this area has, until recently, been weak but is now showing promise. However, the Committee also notes that a much heavier than average teaching load for a junior faculty member during the first three years of Dr. Mathieson’s career at Dalhousie University could only have impeded Dr. Mathieson’s efforts to initiate an independent research program. Dr. Mathieson’s summer role as supervisor of student prosectors in the gross anatomy program since 1994 also seems to have had a negative impact on the development of his independent research. [the emphasis is the arbitrator’s] [47] The arbitrator’s conclusion with respect to his review of the FTP Committee recommendation is as follows: In my opinion, the report of the FTP Com. took a substantially more balanced and objective approach in assessing the performance of Dr. Mathieson, than did that of the ATP Com. The Dean of Medicine (Dr. Ruedy) [48] The arbitrator noted that Dean Ruedy did not agree with the recommendations of the FTP Committee and recommended against granting tenure to Dr. Mathieson. The arbitrator observed that Dean Ruedy appeared to have accepted the interpretation of the external letters of reference made by the ATP Committee rather than that made by the FTP Committee. Following his examination of overall student evaluations the arbitrator noted that Dr. Ruedy’s assessment of Dr. Mathieson’s teaching “appears rather selective and narrow. He disagreed with the FTA Committee’s assessment that Dr. Mathieson is a very good teacher.” [49] The arbitrator then noted the sharpest disagreement between Dr. Ruedy and the FTA Committee as follows: Perhaps the sharpest disagreement with the committee arose with respect to Dr. Mathieson’s nomination for a teaching award. As noted earlier, the committee observed that the nomination was: ...supported by several detailed letters from undergraduate and graduate students, as well as by Donald Ferris, a staff member in the Department of Anatomy and Neurobiology. On the basis of this supporting documentation, the Committee sees this to be a credible nomination...” [the emphasis is the arbitrator’s] In contrast, Dean Ruedy stated, Although the ... Committee consider this [nomination] to meet the standard of “winner or cited for a[n]...award” I do not believe that it does. The facts are that letters were solicited to support a nomination from a number of students and a technician in the Department... [the emphasis is the arbitrator’s] The inference appears to be that the letters were not genuine. Surely, the originator of a nomination for an award normally approaches others for support; prospective supporters need to be informed since such support does not otherwise arise. It is the quality and content of the individual letters that determine their credibility. In these circumstances, and after reading the letters, Dean Ruedy’s conclusion on this issue does not seem reasonable. [50] With respect to Dr. Ruedy’s concluding recommendation against granting tenure the arbitrator said: His conclusion, based on an overview of Dr. Mathieson’s performance, must be given due weight in assessing the grievance, but the conclusion remains subject to an examination of specific factors that contributed to his recommendation against granting tenure. University Tenure Committee (UT Committee) [51] The arbitrator noted that a majority of the UT Committee recommended that tenure be granted to Dr. Mathieson. [52] The arbitrator made the following comments on the majority report of the UT Committee: The majority commented on the tenure process before the ATP Com., where eight members of the department gave their opinions on Dr. Mathieson’s performance in his absence. Their conclusions on this matter are: Although according to what we were told, this is in accord with the usual practice of the Departmental ATP Committee, it is, in our assessment, a clear breach of the Collective Agreement. The rules of natural justice, applicable by article 36.02(a), require that an applicant know the substance of the case to be met before the Committee makes its recommendation... Given the de facto practice before the ATP Committee, the right accorded by article 36.03 is illusory in the Department of Anatomy and Neurobiology as regards the solicitation of colleagues’ views. To the extent that the Departmental Committee relied on the views of Dr. Mathieson’s colleagues in reaching its negative recommendation, and they seem to have been a significant factor, there was a serious procedural irregularity. This conclusion is similar to the one expressed by me at p. 16-17 of this award. [53] In discussing the standards the majority said: ... repeated throughout the [Faculty of Medicine] document, is the qualification that these standards do not preclude flexibility... When questioned about the Standards, Dean Ruedy agreed that someone would get tenure if they met Standards 1, 2, 4, and 5 for teaching, Standard 5 for research and one of the Standards for administration... ... Dr. Ruedy explained that flexibility was meant to allow for the attainment of a slightly different version of the Standard, not to be able to deny tenure where the Standards set out had been met. Dr. Hopkins, in contrast, was of the view that flexibility worked both ways, that there could be denial of tenure even if the Standards were technically met. We do not think that Dr. Hopkins’ view can be sustained. Standards become completely arbitrary and illusory if meeting them does not ensure tenure. [emphasis added] ... Since it was accepted by everyone that Dr. Mathieson’s file is stronger in respect of teaching than research, and that the administration Standard has been met, the issue is whether he has met at least four of the Standards for teaching and at least Standard 5 for research. The Faculty Committee said yes to this question, the Departmental Committee, the Department Head, and the Dean all said no. In our assessment, the negative recommendations reflect strained interpretations of the Standards, in order to avoid the conclusion that at least four of the Standards for teaching and at least Standard 5 for research have been met. Based on the evidence before us, the majority of the Committee concludes that Dr. Mathieson has easily met Standards 1, 2, 4 and 5 for teaching, has met Standard 3 for teaching, has easily met Standards 1 and 5 for research, and has met at least one of Standards 2, 3 and 4 for research. [the emphasis is the arbitrator’s] [54] After reviewing the UT Committee’s detailed review of each of the standards, the arbitrator then referred to the majority’s conclusion as follows: In their summary, the majority stated that: ...Dr. Mathieson has met all 5 Standards for teaching. Even if Standard 3, re citation for an award, is debateable (sic), that still leaves four of the teaching Standards being met, which would mean Dr. Mathieson only needs to meet Standard 5 for research. The fact that the majority of the departmental Committee, the Head of the Department, and the Dean all concluded that Dr. Mathieson has not met the requisite 4 of the Standards for teaching may reflect a reluctance to give full credit for accomplishments in another Faculty. The comments from the Faculty of Dentistry, in contrast, were very supportive of Dr. Mathieson’s teaching contributions as meeting standards for tenure. [emphasis added] It is interesting to observe not only the italicized remarks in the above quote, but also those on the preceding page about giving “deference to peers” in the Faculty of Dentistry. While it would be going too far to conclude that colleagues in the Faculty of Medicine were dismissive of the value and quality of teaching in another faculty, these observations by the majority of the University Tenure Committee might provide a partial explanation for the probably subconscious, negative views of the Department of Anatomy and Neurobiology and the Dean of Medicine in assessing Dr. Mathieson’s teaching contributions in the Faculty of Dentistry. [the emphasis is the arbitrator’s] [55] The arbitrator then made detailed reference to a minority report of the UT Committee; namely, the minority report of Dr. Kwak. The arbitrator said: The minority report of Dr. Jan Kwak agreed that the majority report “accurately reflects the activities of the committee, the material reviewed, and the result of the interviews with Dr. Mathieson and with other persons involved.” However, in Dr. Kwak’s opinion, “Dr. Mathieson has not met the standards required for tenure at Dalhousie University.” Teaching Dr. Kwak referred to Dr. Mathieson as a “valuable and conscientious teacher”. He did not accept that Dr. Mathieson’s teaching load was inappropriate in the years 1990-93, although “it may have been somewhat heavier than that of other recent appointees in his department.” He added, “in the last six years, I cannot discern anything unusually heavy in Dr. Mathieson’s teaching load.” With respect to Standard 2 - Quality, he stated: Dr. Mathieson’s evaluations in the dentistry anatomy course are excellent. His colleagues in the Faculty speak very highly of his contributions. Less material is available on his contributions to the teaching program in his own discipline, including graduate level classes, however, there certainly are no negative assessments. Taking count of his overall contributions, I rate the quality of Dr. Mathieson’s contributions to the teaching program as good to very good, but not outstanding. Thus, if the required standing here is excellence only, as opposed to a strong and worthwhile contribution, in my opinion this excellence standard has not been met when considering his over all contributions at all levels. [the emphasis is the arbitrator’s] Dr. Kwak appears to have ignored the actual wording of this Standard - “very good to excellent” - and stated that Dr. Mathieson’s teaching is “good to very good” and that he has not met the “excellence standard”. This interpretation cannot be construed as a reasonable interpretation of the Faculty of Medicine Guidelines. With respect to Standard 3 - Recognition, Dr. Kwak ignored the detailed discussion of “cited for” by his colleagues on the committee, and stated rather summarily, “Dr. Mathieson has not received awards or citations for his teaching tasks.” He said nothing more on the subject. In his summary, he concluded that Dr. Mathieson, “has not met standard 2 and 3". Research Dr. Kwak reviewed each of the five categories and stated that Dr. Mathieson met “standards 1 and 5 in research”. Conclusions and Recommendation Commenting on the standards in the Collective Agreement, Dr. Kwak stated, “Especially in the case of a tenure appointment, one should be comfortable with the firm prediction that the member will attain and maintain a high degree of academic proficiency.” He later stated: The requirement for flexibility mentioned prominently in the Faculty tenure guidelines, and the text of article 15.02 in the DFA collective agreement indicate to me that both the Faculty of medicine and the university community at large wisely realize that there should be balance in the required achievements in teaching, research and administration. One can receive tenure with less than stellar research record, but it needs to be offset by a very strong record in teaching and administration. In Dr. Mathieson’s case, there are sufficient administrative contributions, but they are not an area of particular strength. The question then is the balance between teaching and research. How excellent does the teaching have to be to balance the research record? To what degree can the University expect that new appointees will always improve its academic standards, and how firm can the prediction really be? In the end, these are matters of academic judgment. In my view, the faculty guidelines explicitly allow flexibility across categories, but understandably especially for a pre-clinical department, they have to require either a strong research record, or, in the absence thereof, an outstanding teaching or administrative record. In my opinion, and applying the standards of the Faculty guidelines as well as my own academic judgment, in Dr. Mathieson’s case these requirements have not been met... [the emphasis is the arbitrator’s] One’s own academic judgment is very important in coming to a conclusion on broad issues, but does it mean one can ignore specific standards that are set out? If a candidate meets the requirements set out in the Faculty Standards, may one’s own academic judgment be permitted to override such a finding? I do not believe it is a rational conclusion to use flexibility in a negative sense; one may not say, “Even though X has met all the standards technically, I honestly do not think he deserves tenure and my academic judgment overrides those merely technical accomplishments.” Of course, Dr. Kwak would argue that Dr. Mathieson did not meet Standards 2 and 3 for teaching, but as I have already noted, in my view his conclusions on those two standards were not reasonable. The President’s Decision (President Traves) [56] With respect to the decision of President Traves the arbitrator said the following: President Traves’ letter is quite brief - less than one page. A short letter from the President may well be standard practice and to note this fact is not in any way a criticism. He began by setting out the various recommendations of the department head, the dean and the three committees. He then stated his position: After very careful review of your file and all the commentary and advice provided by the various assessment committees, as well as your responses to their findings, I have concluded that you should not be awarded either tenure or promotion. There is no question that you are a fine teacher, but I am not persuaded that the case for excellence has been made. This is especially important because I find your research record to be wanting. The volume and pace of your publications do not inspire confidence that you will maintain a positive record as a scholar into the future. Under the circumstances, I have concluded that you have not met the standards for tenure or promotion. [the emphasis is the arbitrator’s] President Traves stated that he had reviewed the file carefully; because the reasons provided in his letter are short, I must assume that in coming to his conclusion he relied on the interpretations of the guidelines and the negative findings made by the ATP Com., by Dr. Hopkins, by Dean Ruedy and by Dr. Kwak with respect to Dr. Mathieson’s teaching. He provides no reasons but it appears that he did not accept the more detailed positive findings of the FTP Com. and the majority of the University Tenure Committee. Unless it is shown that the recommendations upon which the President relied were “not made in the light of proper principles and criteria, that all relevant considerations were not adverted to, or that irrelevant factors were not excluded from the process or decision”, in other words, his decision was “unreasonable or improper”, his decision must stand. [57] The arbitrator then summarized the negative recommendations upon which President Traves “must have relied,” as follows: 1. The materially flawed process of listening to the unreported comments of eight department members by the ATP Committee. This irregularity, and its inconsistency with the collective agreement were, both clearly and at length, pointed out to President Traves by the UT Committee. Further, the ATP Committee’s negative interpretation of Dr. Mathieson’s “very good” teaching assessments are specifically criticized by both the FTP Committee and the UT Committee. Accordingly, President Traves should have been aware of the serious shortcomings in the procedures used by the ATP Committee, and also the severe interpretation of the standards applied to Dr. Mathieson’s performance. 2. Dr. Hopkins’ report is a 2 l/2 page letter. On the third page of the letter he devoted only one paragraph to Dr. Mathieson’s teaching. It is evident, therefore, that Dr. Hopkins relied on the findings of the ATP Committee in this regard. 3. Dr. Ruedy’s report followed the negative approach of the ATP Committee and of Dr. Hopkins and ignored the findings of the FTP Committee. The President should have been aware of the careful critique of Dr. Ruedy’s position with respect to the letters of support for Dr. Mathieson which had been set out in the report of the UT Committee. 4. Dr. Kwak’s report. There is no basis for “excellence only” which can be found in any of the published criteria or standards at Dalhousie; therefore, Dr. Kwak’s interpretation of the actual words used - “very good to excellent” is unfounded and unreasonable. Further, after employing a very restrictive interpretation of the words in the teaching standards, Dr. Kwak relied on “flexibility” in the guidelines and his own academic judgment, in coming to the conclusion that Dr. Mathieson had not met the requirements for the granting of tenure. [58] The arbitrator then summarized the positive recommendations relating to Dr. Mathieson’s application to which President Traves makes no reference in his letter: 1. The FTP Committee report, which unanimously recommended that Dr. Mathieson be granted tenure, concluded that Dr. Mathieson met all five teaching standards and that he was a very good teacher. In contrast, President Traves stated, “There is no question that you are a fine teacher, but I am not persuaded that the case for excellence has been made” - thus ignoring the wording in the guidelines. The committee described the external letters of reference in some detail, but the President made no comment about them. 2. The majority report of the UT Committee which dealt with Dr. Mathieson’s teaching performance in detail and concluded that he met all five teaching standards. Following a review of the requirements for tenure the UT Committee majority found that Dr. Mathieson had met the requirements for tenure. President Traves did not comment on this recommendation, and ended his short evaluation, stating, “Under the circumstances, I have concluded that you have not met the standards for tenure or promotion.” [59] The arbitrator said the following in his summary of findings: From the above reviews of the material before President Traves, it is evident that he accepted the restrictive interpretation of the Guidelines by the ATP Com. In addition, he omitted any consideration of the materially flawed procedures of that committee when it heard oral, unreported evaluations of Dr. Mathieson by department members, this despite the strong criticism of the process by the University Tenure Committee. The President accepted the ATP Com.’s negative conclusions about Dr. Mathieson’s teaching and research. These negative conclusions, especially with regard to teaching, were repeated in the recommendations of Dr. Hopkins and Dean Reudy. In sharp contrast, the detailed, positive findings by both the FTP Com. and the University Tenure Committee majority with respect to Dr. Mathieson’s teaching were ignored. [60] The arbitrator then reached three conclusions: 1. In light of the shortcomings in the conclusions of the ATP Committee, Dr. Hopkins, Dr. Ruedy and Dr. Kwak, that Dr. Mathieson’s teaching did not meet at least four of the teaching standards as required for tenure, he concluded: . . . it is unreasonable to conclude that the President could rely on the recommendations that Dr. Mathieson failed to meet the required four Teaching Standards. I find that the only reasonable interpretation is that Dr. Mathieson clearly met Standards 1, 2, 4 and 5. In view of the ambiguity of the word “cited for”, I believe he also met the Standard of being “cited for” a teaching award, but in any event, meeting Standard 3 is not necessary to this finding. 2. With respect to the conclusion that Dr. Mathieson did not meet research standard number 5 - collaboration, the arbitrator concluded: . . . with the possible exception of Dr. Hopkins, and even he is equivocal -no one stated that Dr. Mathieson did not meet Standard 5. The ATP Com. inferred that he did and Dean Ruedy said nothing about it. Dr. Kwak, the FTP Com., and the University Tenure Committee expressly stated he met the Standard. In these circumstances the only reasonable conclusion is that Dr. Mathieson met Standard 5; it would [be] unreasonable for President Traves to conclude otherwise. 3. The third conclusion followed this question which the arbitrator posed: If Dr. Mathieson has met at least four of the five Teaching Standards and Research Standard 5 as required by the Faculty Standards for Tenure, may President Traves reasonably recommend that the University deny tenure on the basis that “in the end, it remains a matter of academic judgment”? May the University, within the terms of the Collective Agreement and the regulations and guidelines properly in force, exercise its discretion and decide that, on examining the larger picture, in its judgment a candidate may still be denied tenure? Article 15.02 states: ... The Board of Governors will make an appointment with tenure only when it can be firmly predicted that the Member recommended will, in consequence of a demonstrated commitment to intellectual and professional activity throughout his or her career, attain and maintain a high degree of academic proficiency... Is it reasonable to interpret this article so broadly that, despite the candidate meeting the published standards, if in the University’s view his research is weak, it may in its discretion impose a higher teaching standard than those set out in the guidelines? May it require his teaching to be “excellent” rather than “very good”? [61] The arbitrator noted that if there are no standards or general principles that govern such decisions, just the ultimate “academic judgment” of the decision makers, there is a risk that some participants may act in arbitrary manner. They may have ignored important information, relied on other information that was improperly obtained, and regardless of their good intentions they may be influenced by improper factors even to a small degree. [62] The arbitrator then said: In any event, does the Collective Agreement contemplate the exercise of such discretion without recourse - even when the evidence demonstrates that intermediate bodies in the decision-making process did not act reasonably? While reasonable deference must be shown to the process, decisions are subject to review pursuant the Collective Agreement; they must not be “unreasonable or improper”. With the above statement in mind, we may ask what is the effect of the Standards for Tenure on the ultimate decision? May these Standards be ignored? The University Tenure Committee made some useful comments on this matter. It stated: Following this [the Standards], and repeated throughout the document, is the qualification that these Standards do not preclude flexibility... Dean Ruedy explained that flexibility was meant to allow for the attainment of a slightly different version of the Standard, not to be able to deny tenure where the Standards set out had not been met. Dr. Hopkins, in contrast, was of the view that flexibility worked both ways, that there could be denial of tenure even if the Standards were technically met. We do not think Dr. Hopkins’ view can be sustained. Standards become completely arbitrary and illusory if meeting them does not ensure tenure. In other words, a denial of tenure to a candidate who has met Standards properly set out by the appropriate university body would make those Standards illusory: a candidate who made diligent efforts to meet those Standards and succeeded could still be denied tenure. The Arbitrator’s Conclusion [63] The arbitrator’s conclusion is as follows: On the basis of the material just reviewed, on which President Traves must have relied, could one conclude that his judgment was reasonable? I do not doubt the sincerity and good faith of President Traves. Nevertheless, I find that he made a material mistake in relying on the recommendations of the ATP Com., Dr. Hopkins and Dean Ruedy. It was unreasonable, especially, to rely on the report of the ATP Com. since it was seriously flawed in the ways that I have described. Dr. Hopkins and Dean Ruedy repeated those errors and provided only brief, inadequate summaries in their reviews of Dr. Mathieson’s teaching performance. In addition, the careful and detailed reviews by the FTP Com. and the University Tenure Committee were ignored by Dean Ruedy and President Taves respectively. I find that the only reasonable interpretation and application of the “Faculty Standards: Criteria, Methods of Evaluation and Standards for Tenure”, and in particular, the Teaching Standards, is that Dr. Mathieson met those Standards. I agree that Dr. Mathieson’s research performance did not match his teaching performance and that it was not unreasonable to consider it “borderline”. Nevertheless, the evidence is strong that he met at least the required Research Standard 5 - Collaboration; it would be unreasonable to find otherwise. There is also significant evidence that Dr. Mathieson met or came close to two or more other Standards. Accordingly, it is unreasonable to conclude that Dr. Mathieson did not meet the Faculty Standards for Teaching and Research. It has not been contested that he met the requirement of contributing to Administration. . . . In these circumstances and under Article 29.20 (c) of the Collective Agreement, I do not find any reasonable basis, even within a broad definition of “academic judgment”, for the decision of the President to deny tenure to Dr. Mathieson. While the President’s judgment was not rendered in bad faith nor was it improper, I find it that it was an unreasonable judgment based on the information available to him. Accordingly, and following the Majority Recommendation of the University Tenure Committee, I substitute my judgment: my award is that Dr. Mathieson be granted tenure effective July l, 1999. The Decision of the Chambers Judge [64] In his decision, the Chambers judge recognized that the decision which was before him for judicial review was that of a consensual arbitrator selected by the parties. As such, the Chambers judge correctly noted, the decision was entitled to deference by the courts. [65] The Chambers judge said: When the arbitrator's decision involves the interpretation of a Collective Agreement, the court should not interfere, unless the interpretation is "patently unreasonable", or is in excess of the arbitrator's jurisdiction. [66] The essence of the decision of the Chambers judge is found in the following four §: 52 At the outset, the arbitrator acknowledges that his adjudication is governed by the terms of Article 29.20(c) of the Collective Agreement and I quote from his award at p. 1: "Accordingly, unless I find that the recommendation to deny tenure made by President Traves is 'unreasonable or improper', I do not have authority to substitute my own judgment." 53 It is clear therefore, that the arbitrator knew the directions that dictated his review process under the Collective Agreement and it is true that he eventually characterizes the President's decision as unreasonable. However, I am satisfied that he reaches that conclusion by an unwarranted process. 54 The arbitrator proceeds to do a critical analysis of the decisions and recommendations of the various components of the decision-making process and determines that the opinions negative to Dr. Mathieson are flawed and unreasonable, and then assumes that President Traves relied on those unreasonable recommendations and therefore, of necessity, must be said to have reached an unreasonable conclusion when he addressed the requirements of Article 15.02 of the Collective Agreement. 55 I am persuaded by the applicant, that by so doing, the arbitrator failed to answer the question at issue, namely, whether the President's decision was unreasonable and instead answered a different question altogether, that is, whether the preliminary decision process was unreasonable. [67] The Chambers judge decided that since the arbitrator answered the wrong question, that he was “beyond his jurisdiction.” The Chambers judge quashed the arbitrator’s decision and remitted the matter to a different arbitrator for determination. Analysis [68] It is my respectful opinion that the Chambers judge misinterpreted the arbitrator’s decision, and that misinterpretation led to his erroneous finding that the arbitrator reached his conclusion by an unwarranted process; i.e. by answering the wrong question. [69] The following are my reasons for coming to this conclusion. [70] Since the President decided that tenure should not be awarded to Dr. Mathieson, he is required by Article 15.18 of the collective agreement (see § 10 of these reasons) to provide written reasons in respect to each of the criteria set out in the Promotion and Tenure Guidelines for the Faculty of Medicine, since those criteria have been established by the University under Article 15.07. [71] These guidelines, as I have noted in § 11 of these reasons “include appropriate standards applicable to the Faculty of Medicine for tenure and promotion criteria established by the University.” Further, their express purpose is “to assist and inform those involved in the promotion and tenure process at all levels.” [72] In his letter to Dr. Mathieson, the President made no mention whatsoever of these standards. The President rejected Dr. Mathieson’s application for tenure because, although he acknowledged that Dr. Mathieson was a “fine teacher” he was “not persuaded that the case for excellence has been made. This is especially important because I find your research record to be wanting.” [73] Under Article 15.25 of the collective agreement (referred to in § 10 of these reasons) the President is required to consider any allegations that improper procedures have been followed at earlier stages of Dr. Mathieson’s application for tenure; and the President has the authority if he believes that that improper procedure may affect the disposition of the case to send the matter back for further consideration. [74] The President would have been aware, from the report of the majority of the UT Committee, of the serious concerns which the majority of that committee had with procedural irregularities in the process before the ATP Committee (where eight members of the department gave their opinions on Dr. Mathieson’s performance in his absence, and without Dr. Mathieson being advised of the content of those remarks nor having the ability to respond to them before the ATP Committee made its recommendation). [75] There is no indication in the President’s letter to Dr. Mathieson that the President considered that matter; and, even if he did, there is no indication that he did, or refused to do, anything about it. Quite simply, the matter is not mentioned. [76] The standards by which the President judged Dr. Mathieson’s application - as evidenced by his letter - was that no case for excellence in teaching had been made out, and the President considered that particularly important because he found Dr. Mathieson’s research record to be wanting. The President did not explain why he applied that standard, a standard which is not found in the collective agreement or in the guidelines. Further, the President did not, as he is required to do under the collective agreement, explain why Dr. Mathieson did not meet the established standards. Thus, the arbitrator, of necessity, inferred that the President must have relied on the recommendations against tenure, ignoring the flawed process ( which had been identified by UT Committee) by which some of those recommendations came about. [77] The arbitrator said: I find that the only reasonable interpretation and application of the “Faculty Standards: Criteria, Methods of Evaluation and Standards for Tenure”, and in particular, the Teaching Standards, is that Dr. Mathieson met those Standards. ... Accordingly, it is unreasonable to conclude that Dr. Mathieson did not meet the Faculty Standards for Teaching and Research. ... In these circumstances and under Article 29.20 (c) of the Collective Agreement, I do not find any reasonable basis, even within a broad definition of “academic judgment”, for the decision of the President to deny tenure to Dr. Mathieson. While the President’s judgment was not rendered in bad faith nor was it improper, I find it that it was an unreasonable judgment based on the information available to him. [78] As the arbitrator correctly pointed out these matters are not decided solely on the basis of the President’s academic judgment. If the President could exercise his academic judgment as he saw fit he would be immune from review and there would be no need for standards. Therefore, the conclusion by the arbitrator that the President’s decision was unreasonable does not involve, in the words of the Chambers judge, any “unwarranted process.” [79] I agree with counsel for the appellant when he states in his factum: The fact that the President relied upon the previous flawed recommendations is helpful to understand why the President came to the conclusion that he did; that reliance does not detract from the fact that, in the end, the President’s conclusion that the standards were not met was found by Arbitrator Soberman to be an unreasonable conclusion. [80] The President could not have decided to deny tenure unless he relied on the negative recommendations, some of which were arrived at through what the arbitrator concluded was a flawed process. [81] The essence of the decision of the Chambers judge is found in § 54 of his reasons which I quote, again, as follows: The arbitrator proceeds to do a critical analysis of the decisions and recommendations of the various components of the decision-making process and determines that the opinions negative to Dr. Mathieson are flawed and unreasonable, and then assumes that President Traves relied on those unreasonable recommendations and therefore, of necessity, must be said to have reached an unreasonable conclusion when he addressed the requirements of Article 15.02 of the Collective Agreement. [82] With respect, that is not, in my opinion, a correct interpretation of the arbitrator’s decision. [83] It is apparent from the arbitrator’s decision, as I have noted in § 24 of these reasons, that he was troubled by the “substantial differences of opinion among those making recommendations regarding Dr. Mathieson’s tenure application.” Further, if the President in his decision did not provide reasons for applying the standards which he did, and did not indicate how Dr. Mathieson did not meet the established standards, it seems only logical that the arbitrator would attempt to find some rationale for the President’s decision. Because the President’s letter denying tenure did not address the issues it was required by the collective agreement to address, the arbitrator was driven to an analysis of the process leading to a denial of the tenure application, in order to determine whether there was a reasonable basis for the President’s decision. [84] Under these circumstances, there is nothing unreasonable about the arbitrator doing a detailed review of the process which preceded the decision of the President in an effort to determine why the President came to the conclusion that he did, and what he must have relied upon in coming to that conclusion. That process came about solely because the President chose not to disclose what he relied on either in his letter to Dr. Mathieson which preceded the grievance, or in his letter (for whatever relevance it is) which he provided to Dr. Mathieson after the grievance had been filed. [85] In conclusion then, in my opinion the Chambers judge erred in deciding that the arbitrator had reached his conclusion (that the President’s decision was unreasonable) by an unwarranted process, thereby losing jurisdiction. [86] The fact that the Chambers judge erred, in deciding that the arbitrator lost jurisdiction, does not end the matter. There remains outstanding the University’s position, which the Chambers judge did not deal with; namely, that the arbitrator’s conclusion is patently unreasonable and should be set aside. [87] It is acknowledged that the arbitrator’s decision is that of a consensual arbitrator, and that matters within his jurisdiction warrant considerable deference by the court. Since in my opinion the arbitrator did not exceed his jurisdiction in this matter, the court may only interfere with his decision if it is patently unreasonable. [88] The Arbitration Act, R.S.N.S. 1989, c. 19 and the collective agreement clearly establish that the decision of the arbitrator is final and binding on the parties. As such, it is protected from judicial review for non-jurisdictional errors. Section 5(h) of the Arbitration Act reads as follows: The award to be made by the arbitrators or umpire shall be final and binding on the parties and persons claiming under them respectively. In addition, Article 29.41 of the collective agreement reads as follows: In the case of an Arbitration Board, a decision of the majority shall be the decision of the Arbitration Board, and where there is no majority decision, the decision of the chairperson shall be the decision of the Arbitration Board. The decision of the Arbitration Board or Single Arbitrator shall be final and binding on all parties. [89] An arbitrator’s interpretation of a collective agreement lies within his or her jurisdiction, provided the interpretation is not patently unreasonable. In Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre) (1996), 134 D.L.R. (4th) (S.C.C.), Mr. Justice Major stated at pp. 5-6 as follows: The Board was a tribunal established by agreement of the parties under art. 12 of the collective agreement. Its decisions are protected by the privative clause in art. 12.04. It is a generally accepted principle that a decision of a properly constituted labour arbitration board in the interpretation of a collective agreement should not be interfered with by a court unless it is patently unreasonable: see Alberta Union of Provincial Employees v. University Hospitals Board, [1991] 3 S.C.R. 201, 2 W.A.C. 156, 117 A.R. 156. However, when such a tribunal interprets and applies questions of general law, such as application of the Code, the Board's decision is reviewable on a standard of correctness: see McLeod v. Egan (1974), 46 D.L.R. (3d) 150, [1975] 1 S.C.R. 517, 74 C.L.L.C. Patent unreasonableness was described by Beetz J. in Re Syndicat de employés de production du Québec et de l'Acadie and Canada Labour Relations Board (1984), 14 D.L.R. (4th) 457 at p. 463, [1984] 2 S.C.R. 412, 84 C.L.L.C. [Patently unreasonable refers to an error in] interpretation of a provision which an administrative tribunal is required to apply within the limits of its jurisdiction. This kind of error amounts to a fraud on the law or a deliberate refusal to comply with it. As Dickson J. (as he then was) described it, speaking for the whole court in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp. (1979), 97 D.L.R. (3d) 417 at p. 425, [1979] 2 S.C.R. 227, 26 N.B.R. (2d) 237, it is “... so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review.” An error of this kind is treated as an act which is done arbitrarily or in bad faith and is contrary to the principles of natural justice. In considering the Board's interpretation of the collective agreement, the court should not interfere unless the decision cannot be rationally supported by the collective agreement. The focus will be on whether a rational basis for the Board's decision exists. [90] In United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd. (1993), 102 D.L.R. (4th) 402, Mr. Justice Sopinka stated at pp. 418-419 as follows: Once it has been determined that curial deference to a particular decision of a tribunal is appropriate, the tribunal has the right to be wrong, regardless of how many reviewing judges disagree with its decision. A patently unreasonable error is more easily defined by what it is not than by what it is. This court has said that a finding or decision of a tribunal is not patently unreasonable if there is any evidence capable of supporting the decision even though the reviewing court may not have reached the same conclusion (W.W. Lester (1978) Ltd. v. U.A, Local 740, (1990), 76 D.L.R. (4th) 389 at pp. 418-19, [1990] 3 S.C.R. 644, 48 Admin. L.R. 1), or, in the context of a collective agreement, so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear (Bradburn, supra, per Laskin C.J.C., at p. 162). What these statements mean, in my view, is that the court will defer even if the interpretation given by the tribunal to the collective agreement is not the "right" interpretation in the court's view nor even the "best" of two possible interpretations, so long as it is an interpretation reasonably attributable to the words of the agreement. Or, as stated by Dickson J. in C.U.P.E., at p. 425: “... was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?” See also P.S.A.C. No. 2 (reasons of Cory J.). [91] In Canada (Attorney-General) v. Public Service Alliance of Canada (1993), 101 D.L.R. (4th) 673 (S.C.C.), Cory, J. defined the meaning of patently unreasonable as follows at p. 690: It is said that it is difficult to know what "patently unreasonable" means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly". "Unreasonable" is defined as "not having the faculty of reason, irrational, not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test. [92] The arbitrator conducted a detailed review of the provisions of the collective agreement, the promotion and tenure guidelines for the Faculty of Medicine, and the material both for and against Dr. Mathieson’s application for tenure. His conclusion, as I have noted previously, was that Dr. Mathieson’s application met the standards which the University had established, and that it was unreasonable to conclude otherwise. In arriving at that conclusion, in my opinion, the arbitrator gave to the provisions of the collective agreement, and the promotion and tenure guidelines for the Faculty of Medicine, an interpretation which is “reasonably attributable” to the words of those two documents (per Sopinka, J. in Bradco (supra) at p. 418-419). [93] That being the case, as Justice Sopkina said in Bradco, this court must defer to the arbitrator’s interpretation of those documents even if the interpretation is not the right interpretation in the court’s view nor even the best of two possible interpretations, as long as it is an interpretation reasonably attributable to the words of the documents. [94] As Justice Cory noted in Canada (Attorney-General) v. Public Service Alliance of Canada (supra), the patently unreasonable test is a very strict test. [95] In my opinion it cannot be said that the arbitrator’s interpretation of the provisions of the collective agreement and the promotion and tenure guidelines for Faculty of Medicine as they relate to Dr. Mathieson’s application for tenure is patently unreasonable, and for that reason this court must not interfere with his conclusion. [96] There are two other matters which should be noted. [97] Firstly, I note for the record that there is no issue in this appeal that, having found that the President’s decision (denying tenure) was unreasonable, the arbitrator had the jurisdiction to grant tenure to Dr. Mathieson if he determined that Dr. Mathieson met the standards for tenure. [98] Secondly, counsel for the University makes the point, as did the Chambers judge, that the arbitrator, in his decision, did not refer to the oral evidence of the President of the University given at the arbitration hearing. It is not clear to me what conclusions counsel expects the court to draw from the fact that the arbitrator did not make any reference in his decision to the President’s oral testimony. There is no submission that the arbitrator ignored material evidence in coming to his conclusions. Indeed, this testimony does not form part of the record. This court, therefore, has no knowledge of what the President said, or did not say, in his evidence before the arbitrator. Counsel has cited no authority which would permit this court to intervene in the decision of a consensual arbitrator simply because the arbitrator did not make reference to the evidence of a witness. As well, I have been unable to locate any such authority. [99] In conclusion, I would allow this appeal. I would set aside the decision and order of the Chambers judge, and reinstate the findings and conclusions of the arbitrator. The Chambers judge awarded costs to the University of $800.00 on the application before him. Those costs will now be those of the Faculty Association. In addition I would order the university to pay to the Faculty Association its costs of this appeal which I would fix at $1,500.00 inclusive of disbursements. Flinn, J.A. Concurred in: Roscoe, J.A. Bateman, J.A.