On March 13, 2019 the Federal Public Sector Labour and Employment Board (the “Board”) released its long-awaited decision in this matter. The decision deals with a grievance filed by CMCFA member, Dr. Steven Lukits, a UT in the English department at the Royal Military College of Canada (“RMC”). Dr. Lukits filed the grievance after he was ordered by the RMC Principal, Dr. Harry Kowal, to hand over his course notes in compliance with an ATI (Access to Information) request.

Background

Dr. Lukits joined RMC as a full-time UT in July 2002. On March 22, 2013 the ATI Coordinator forwarded a request to the Canadian Defence Academy (CDA) for “course materials, lecture slides, hand-outs, course packages and hand-written notes prepared for and/or by Dr. Steven J. Lukits …” for English ENE 453 (War Literature II).

Under subsections 2(1) and 4(1) of the Access to Information Act, (AIA), access is provided to “records under the control of a government institution”. There was no dispute that the RMC was a “government institution” for purposes of the AIA. The principal issue was whether Dr. Lukits’ course notes were within the control of the RMC.

Dr. Lukits and then-Principal Dr. Sokolsky met and, although other materials in the request were voluntarily provided, they agreed that the course notes were not under the control of the institution. However, a JAG opinion contradicted that view, and Dr. Lukits contacted his union, the Canadian Military Colleges Faculty Association (CMCFA) for advice and assistance. On April 5, 2013 the CMCFA, now representing Dr. Lukits, wrote to Principal Sokolsky asking the College to “cease efforts to compel the production of Professor Lukits’ course material.” Principal Sokolsky wrote to BGen Tremblay, then-Commandant of RMC, concurring with the position not to hand over the notes. In 2013 Dr. Kowal replaced Dr. Sokolsky as Principal. The grievor received a letter on November 5, 2013, dated October 29, 2013, ordering him to turn over his course notes. Principal Kowal’s response was that the grievor had to obey this order, under threat of discipline. Dr. Lukits provided his notes, and the union proceeded with a grievance. (Note that after considerable discussion and communication on February 15, 2017 Dr. Lukits received written confirmation that his notes would not be released until the outcome of the adjudication.)

The Case

Two hearings were conducted on this case, in 2015 and in 2017. The first hearing concerned the employer’s objection to the jurisdiction of the Board to hear the case, and this objection was dismissed in 2017 PSLREB 6.

In the second hearing, counsel for the CMCFA argued, on the basis of documentary and oral evidence, that the course notes belonged to the professor alone, and thus could not be subject to an access to information request. Four professors testified who were teaching or had taught at the College. They gave the same evidence, which the adjudicator summarized as follows:

• they all believed that notes they had made with respect to their lectures were their personal property;
• the College did not require them to prepare course notes for their courses or lectures;
• the notes were in some point-form format to be used as a type of aide-memoire;
• the College did not require them to produce their course notes to anyone;
• the College did not impose any standards on them with respect to making or storing course notes;
• they were not aware that the College used their course notes in any way or that the notes were in any way integrated into its record;
• they were not aware that the College placed any reliance on their course notes for any purpose;
• they stored their course notes on College premises; and
• some kept course notes at the end of an academic year, and some destroyed them (Lukits v. Treasury Board, 2019 FPSLREB 32, pp. 36-37).

Effectively, the notes were not under the control of the College and thus could thus not be subject to an access to information request.

The union argued further that an order to produce the notes violated Articles 5 and 8 of the collective agreement (Academic Freedom and Past Practice).

The employer argued that, because Dr. Lukits was a government employee and that his course notes were linked to “preparing material for the courses the grievor teaches” in the course of doing his job, they were subject to the Access to Information Act.

The Board’s Decision

The outcome effectively depended on the Board’s answer to this question: “Are the course notes subject to the AIA?” (Lukits v Treasury Board, 2019 FPSLREB 32, p. 31).

The adjudicator relied upon both the documentary and oral testimony, and the fact that “no evidence submitted suggested the opposite of the evidence put forward by the grievor and Drs. Delaney, Boulden, and Errington with respect to course notes” (Lukits v Treasury Board, 2019 FPSLREB 32, p. 37). The adjudicator stated: “…it is clear to me that the professors, and not the College (government institution), maintained control over course notes” (Lukits v Treasury Board, 2019 FPSLREB 32, p. 37).

The Board was also satisfied that the CMCFA demonstrated the violation of article 8 (past practice) with respect to course notes.

The Board also agreed with the CMCFA that the employer violated article 5 (academic freedom), “…as it would be an attempt by the employer to force the production of material created for and in the course of teaching and research that is otherwise protected by the principle of academic freedom” (Lukits v Treasury Board, 2019 FPSLREB 32, p. 41).

The Board’s Order is straightforward and can be found at paragraphs 153-156 of the decision:

[153] The grievance is allowed.
[154] The employer breached the collective agreement.
[155] The employer is ordered to return to the grievor all copies of the course notes.
[156] The course notes as entered into evidence are ordered sealed.

Take Away for CMCFA Members

The Board has now confirmed that CMCFA members own their notes and cannot be compelled to produce them to satisfy an ATI request, because they are not considered documents or records under the control of the Government of Canada. Any such request would violate not only our past practice but also our academic freedom.

The full text of the decision is available from the Board’s web site.