B.C. universities are subsidiaries of the provincial cabinet—and that's why unvaccinated students will be in classrooms

At 5:18 this morning, I was reading the University Act, of all things.

Why would I be reading legislation governing B.C.'s research universities?

It's due to a single tweet by UBC mathematician Nassif Ghoussoub, who writes one of the most informative blogs on academia in Canada.

"It is amazing that no journalist has noted/questioned neither the unusual precedent of having a PHO [provincial health officer] forbid B.C. universities & colleges from instituting a COVID-19 vaccine mandate for students, nor the absence of university leadership in defying such a ban," Ghoussoub declared.

https://twitter.com/NGhoussoub/status/1430946391375892488

That caught my attention and I felt that he deserved a response, given the gravity of the COVID-19 pandemic.

But first, I'll share some quotes from the provincial health officer, Dr. Bonnie Henry, which suggests that such a ban has been imposed.

"I will say that we know that the in-classroom setting is not the risky setting," Henry declared to reporters on August 24. "And it's incredibly important that we don't put barriers in place to people receiving education—and that includes postsecondary education."

In this week's Georgia Straight cover story, some took exception to Henry's assertion that in-classroom settings are not risky.

Here's another of Henry's quotes from the same news conference: "We don't believe there's a need for a vaccine mandate for students to receive in-class education in postsecondary institutions, with the exception, as I mentioned, of the importance of health sciences students who will be doing practicums and providing care in health-care settings."

Coincidentally, Henry is a clinical associate professor in UBC's School of Population and Public Health, which educates health-sciences professionals. If she ever enters a lecture hall or classroom in her school, her statement suggests that these students will have to be vaccinated. (But that's not really the case, according to Prof.  Steve Morgan, who teaches five classes in UBC's School of Population and Public Health. He tweeted the following message after this article was posted.)

https://twitter.com/SteveUBC/status/1431272304965677059

A nonscientific survey of visitors to this website shows that 82 percent believe as of this writing that everyone—and not just health sciences students—should be vaccinated to attend classes in B.C.'s universities, colleges, and institutes.

This is what led me to read the University Act. I was curious to know how much autonomy universities have in making decisions for the well-being of their faculty, staff, and students.

I stumbled across section 19.1 of the act, which states the following: "The members of the board of a university must act in the best interests of the university."

The preceding section, 19 (1) lays out the composition of university boards other than the one at UBC.

It notes that of the 15 members, eight are appointed by the provincial cabinet.

UBC's board has 21 members under the University Act, of which 11 are appointed by the provincial cabinet.

In other words, the majority of governors at all these universities are there at the behest of the provincial cabinet and can be summarily dismissed by the provincial cabinet.

It places B.C. universities in the grip of the provincial cabinet.

If any corporation were to place a majority of directors on the board of another company, that company would rightly be seen as a subsidiary of the corporation. Especially if the parent corporation also controlled the purse strings by providing a huge annual operating grant.

The way the University Act reads, one can therefore surmise that B.C.'s universities are subsidiaries of the provincial government.

Realpolitik takes hold

It's often stated that while universities receive funding from the government, they are not a part of the government.

But in fact, through their governance structure, B.C. universities are indeed completely answerable to the provincial cabinet.

This explains how the provincial health officer can forbid B.C. universities from instituting a COVID-19 vaccine mandate for students without any objection from senior university administrators.

Senior university administrators answer to boards that answer directly to the provincial cabinet. Ergo, the cabinet can exercise control over these administrators through their surrogate directors, who have legal authority to fire university presidents.

It's realpolitik writ large.

However, the University Act also allows for the creation of senates at each institution.

These bodies are comprised of the chancellor, president, academic vice president or equivalent, deans, chief librarian, director of continuing education, and a number of faculty members twice the number of those listed above.

Plus, senates include student representatives and members elected by the governing body of each affiliated college of the university.

The composition of UBC's senates at the Vancouver and Okanagan campus are created along similar lines.

University senates are chambers of legitimate debate because there isn't an iron-clad majority of provincial appointees. It means nobody can institute the provincial government's will in the senates regardless of how this might be viewed on campus.

In law, senates have power over the academic governance of the university, including making rules for the management and conduct of the library.

In addition, the legislation states that university senates can "make recommendations to the board considered advisable for promoting the interests of the university or for carrying out the objects and provisions of this Act".

Under section 38 (2) of the University Act, a resolution of the senate—including a recommendation dealing with the library or "promoting the interests of the university"—has no effect unless approved by the board.

But there's nothing in the legislation preventing a university senate from passing a resolution stating that anyone entering the library must provide proof of vaccination.

Nor is there anything in the legislation preventing a university senate from passing a resolution recommending that the board require all students, faculty, and staff be vaccinated before entering classrooms.

If university senates did this, it would call the province's bluff.

Would the provincial cabinet decide to withhold funding from university boards that defied Henry's wishes to allow nonvaccinated students in classrooms?

Would the boards of universities—with their majorities of government appointees—capitulate to the provincial health officer and insist that nonvaccinated people must be allowed to enter classrooms in this academic year?

https://twitter.com/SteveUBC/status/1430583696843673601

Given the remarkable amount of research regarding aerosol transmission of COVID-19, what would the universities' lawyers think of the board capitulating to the provincial fiat?

Would these lawyers advise these boards and university administrators that they could one day face class-action lawsuits filed against postsecondary institutions because they failed to exercise a proper duty of care?

This duty is owed when it's “reasonably foreseeable” that acts or omissions could harm a person who later files a lawsuit. The duty of care arises when a relationship between two parties is recognized in law, which creates a legal obligation.

No doubt, there are cancer survivors, people with multiple sclerosis, and others with compromised immune systems attending B.C.'s universities and teaching in classrooms. Is forcing them to mix with the unvaccinated a "reasonably foreseeable" act of negiligence, given what we know about the diminished effectiveness of vaccines for those with compromised immunity?

https://twitter.com/michael_byers/status/1430238710432415745

It remains to be seen whether university boards, or even individual members, could be held legally accountable for a COVID-19 outbreak on campus that could be traced to unvaccinated students in classrooms.

But the provincial health officer's ban on imposing mandatory vaccination to enter classrooms certainly sets the table for this type of legal challenge.

Under the Public Health Act, the cabinet also appoints the provincial health officer. This means that Dr. Bonnie Henry, like a majority of university board members, answers directly to the cabinet.

Henry is also required to report to Health Minister Adrian Dix at least once a year on the health of the population of B.C. 

Dix is Henry's boss. And Premier John Horgan is Dix's boss. The lines of authority are clear.

University governance is the issue

In 2016, then Green leader Andrew Weaver attempted to weaken the control of the provincial cabinet over B.C.'s universities.

He introduced a private member's bill, the University Amendment Act, 2016.

It was intended to introduce a "standard of autonomy for the governance of universities to ensure that they are free from political interference in their internal operations".

The bill called for reducing the province's number of board appointees to a minority at B.C.'s research universities.

Had this bill passed, it would have put an end to research universities being de facto subsidiaries of the B.C. government.

Weaver's bill also called for university senates to elect their chancellor rather than having the board appoint the chancellor.

"To have a board-appointed chancellor when government controls the board ends up turning the chancellor's role perhaps into more of a government role," Weaver told the Straight at the time. "The chancellor is the public image of the academic institution—the representative of the values of the institution. They're the ones who convocate students."

The University Amendment Act, 2016 did not go beyond first reading and died on the order paper. Not a single B.C. Liberal or NDP MLA spoke up in favour of the bill. 

Through their silence, the B.C. Liberal and NDP caucuses indicated their support for provincial control over universities.

When the NDP formed a minority government in 2017, it retained its power over public postsecondary institutions by not amending the University Act to change the composition of their boards of governors.

Then when the NDP finally won a majority in 2020, it retained the status quo.

So let's go back to Ghoussoub's tweet.

"It is amazing that no journalist has noted/questioned neither the unusual precedent of having a PHO [provincial health officer] forbid B.C. universities & colleges from instituting a COVID-19 vaccine mandate for students, nor the absence of university leadership in defying such a ban." 

Here's my response: any senior university administrator who defies a ban faces the prospect of being fired by the provincial cabinet through its surrogates on the board.

It's worth noting that this couldn't happen at the University of Toronto. There, the Ontario cabinet appoints 16 members of the 49-member governing council.

Another 12 are elected by teaching staff, four are elected by full-time undergraduate students, two are elected by graduate students, two are elected by part-time undergraduate students, and eight are elected by the alumni. The chancellor and president are ex oficio members and the chair and vice chair are elected by cabinet appointees.

Ontario premier Doug Ford, through his surrogates, cannot fire the president of the University of Toronto.

The board of McGill University in Montreal also has autonomy from the provincial government, with 15 of its 25 governors appointed or elected by university associations or constituent groups.

Quebec premier François Legault cannot fire the president of McGill University through his surrogates on the board.

But here in the banana republic of B.C., our provincial government—regardless of its political stripe—feels a need to retain control over postsecondary institutions by maintaining a majority of surrogates on the board. 

Premier Horgan, like his predecessors in the B.C. Liberal party, may, through his surrogates, fire the presidents of UBC, SFU, UVic, and UNBC, thanks to provincial legislation. If the cabinet resists, Horgan can fire the cabinet members and install new ones in their place to do his bidding.

And that, Prof. Ghoussoub, is why I believe that unvaccinated students, staff, and faculty will be allowed to enter crowded lecture halls this September containing hundreds of students.