In early May, a similar court case involving document requests made to Simon Fraser University (SFU) wrapped up. This case had the potential to re-write privacy laws as they pertain to universities and other public bodies. The outcome of this case would have set a precedent through which UBC’s appeal would have been viewed. No precedent was set; the SFU case ended with no decision rendered.

As a result, the UBC case has once again been pushed to the forefront. As with the SFU case, this has the potential to re-write privacy laws for BC Universities. The question to be answered is: “Should private companies which are wholly-owned by BC universities be subject to the same FOI requirements as their parent universities?” Don’t expect to get a definitive answer soon, though. Getting to this point has taken years already.

David Noble, gadfly extraordinaire

In 2004, a York University professor named David Noble placed a request under the Freedom of Information and Protection of Privacy Act (FIPPA) for documents from SFU. The request was for information held by their University-Industry Liaison Office (UILO) regarding two of SFU’s spin-off companies: Credo Interactive and Virtual Learning Environments.

At first, SFU started producing some of the requested documents, while some others were held back. SFU took the position that they had possession of all the records and could provide them, but was required to first consult with Credo and Solstice Management Group, another shareholder in Credo, about whether to release them. Further discussions with Credo and Solstice occurred, and more documents were released.

Despite having indicated that all of the requested records were in its possession, as well as already having produced some of the requested records, SFU then did an abrupt about-face, saying that it did not have any of the remaining documents. Instead, a holding company named SF Univentures (SFUV) was supposedly the entity which possessed the records. Public bodies such as SFU are covered under FIPPA while private bodies, as SFUV was purported to be, are covered under a separate law, the Personal Information Protection Act (PIPA). SFU asserted that SFUV, as a private corporation, was not required to fulfill requests made under FIPPA. It was made clear that David Noble would not be receiving any more of the requested information.

Professor Noble was a well-known gadfly aimed towards Canadian universities. He fought against corporate influence at universities, which he felt was steadily eroding academic freedom, and increasing use of technology, which he felt was being used to control, rather than empower, workers. He also had a decidedly unpleasant history with SFU. In 2001, Noble was nominated for a prestigious faculty position at SFU, the J.S. Woodsworth chair in the department of humanities. Despite unanimous faculty support, his appointment was blocked by then-SFU-president Michael Stevenson, telling another senior administrator to “avoid this appointment like the plague.” Noble finished his career at York University. While it may have been partly vindictive of him to go after SFU in particular for documents, given their history, the records he sought were not unrelated to his areas of interest.

Once SFU stopped producing documents, Noble requested a review of their decision by the BC Office of the Information and Privacy Commissioner (OIPC) which has adjudicators who can rule on issues arising as a result of FIPPA. The OIPC adjudicator invited other groups to participate as intervenors, a status awarded to parties with a strong indirect interest in the outcome. UBC was one of those invitees and made a joint submission with UVic.

During the inquiry SFU asserted once again it did not have control of the documents, insisting that SFUV had never provided them to SFU. As a private company, SFUV is not subject requests for information under FIPPA. UBC and UVic’s submission argued that the records could not be under the control of both SFU and SFUV and since the records were under SFUV’s control, could not be under SFU’s control.

However, the situation was not as black and white as the universities had portrayed. SFUV exists only on paper. If it weren’t for SFU, SFUV would have no employees, location or any tangible existence at all. As summarized by the adjudicator,

SFU is the sole shareholder of SFUV. The President of SFUV is the Vice President of Research at SFU and the director of the UILO is an SFUV director. All of SFUV’s directors are SFU employees. All of SFUV’s activities and its day to day management are undertaken by staff of the UILO. SFUV’s office is located at SFU within office space that the UILO occupies.

The main question at issue in this case could be described as “When a private company such as SFUV is merely acting as a shell company for a public body, should that shell company be considered to be a part of the parent public body and therefore also be subject to FIPPA?” It was treading within a grey area of the law and no clear answer to this question existed.

Due to SFU’s all-encompassing control over SFUV, and the fact that SFU employees were the ones creating and handing all of SFUV’s documents, the adjudicator ultimately concluded that SFU did in fact have control of the documents and that SFUV’s status as a private entity could be ignored. SFU was ordered to fulfill Noble’s information request. Unsurprisingly, SFU appealed this decision to the BC Supreme Court.

Following in Noble’s footsteps

While the dispute between Noble and SFU was ongoing at the OIPC level, a strikingly similar situation was occurring at UBC. A freelance journalist by the name of Stanley Tromp was requesting documents from UBC’s subsidiary companies. UBC’s subsidiaries were set up in a similar manner to SFUV: technically private corporations but wholly-owned and wholly-controlled by UBC with many UBC employees on the payroll. Tromp is a former Ubyssey reporter and FOI wonk who famously forced the release of the 12-year exclusivity agreement between Coca-Cola, UBC and the AMS. He’s not the only one interested in documents from these UBC subsidiaries. The AMS, the Ubyssey and some of the CUPE unions on campus have also made FOI requests of these companies but no requests have ever been fulfilled. In particular, many groups on campus are interested in learning more about the operation of UBC Properties Trust (UBC PT). On campus, UBC PT has a near-monopoly over land development and is the landlord for most of the commercial space. Given the perpetual controversy over the way UBC develops its land, keeping their property development arm completely shielded from public scrutiny inevitably raises eyebrows.

Like Noble, Tromp went to the OIPC for a review of UBC’s decision to withhold documents. In April 2009, the OIPC ordered that, similar to the situation at SFU, because UBC held such complete control over the three subsidiary companies, UBC controlled the documents and must produce them. Like SFU before it, UBC appealed to the BC Supreme Court.

In August of 2009, the case between SFU and David Noble finally reached the BC Supreme Court. Once again, UBC obtained intervenor status in the case. In a rather dense ruling a judge sided with SFU, overturning the OIPC’s earlier decision.

First the judge had to decide whether to use a legal standard of “reasonableness” or of “correctness”. Under reasonableness, the judge would have deferred to the OIPC’s judgement as long as they had followed the proper procedure and their conclusion was, in his opinion, reasonable. Under the correctness standard, even if the OIPC’s previous ruling had been reasonable, the judge would still examine the facts in the case to determine whether or not their ruling was, in his interpretation, correct according to the law. The judge opted for the latter.

The judge’s ruling was based upon once again pondering the question “Is SFUV independent of SFU?” Based on precedent, for SFUV and SFU to be considered one and the same, SFUV must have “no independent functioning of its own”. However, the judge made no effort to actually perform the cited test on SFUV to determine its degree of independence. Instead, the simple fact that SFUV has been incorporated as a business was used assert its independence from SFU. The justification was merely tautological: SFUV is a private corporation because SFUV is a private corporation. The judge also sided with UBC in their argument that SFUV’s documents could not be subject to both FIPPA and PIPA simultaneously.

As a result of the ruling in favour of SFU, the OIPC offered to hold a second inquiry into Tromp’s request and UBC withdrew its BC Supreme Court appeal. The precedent set by the SFU decision meant that a second Tromp inquiry would have almost certainly gone in UBC’s favour. However, David Noble, along with the Canadian Association of University Teachers (CAUT), subsequently appealed the SFU case to the BC Court of Appeals, BC’s highest court. The OIPC put the second Tromp inquiry on hold pending the outcome of the SFU case.

Out like a lamb

Slowly but surely, the Noble case was moving towards the BC Court of Appeals. As with the previous cases, UBC obtained intervenor status. Finally, hearing dates were scheduled for January 19 & 20, 2011.

Unexpectedly on December 27, 2010, David Noble passed away from complications related to pneumonia.

Nevertheless, the January court date went ahead as planned. However, rather than debating the case, the lawyers had a morning-long discussion about how to proceed in the wake of Noble’s death. Counsel for SFU argued the case was moot since there was no resolution to be had – even if the documents were produced there was no one to receive them. Legal counsel for Noble and CAUT sought to have another individual inserted into the case in his place. They were given 3 months to come up with a suitable candidate. They found two. The first was Sarah Dopp, Noble’s widow. The second was Arthur Schafer, a philosophy professor at the University of Manitoba.

The 3-judge panel ruled that neither Dopp nor Schafer could be inserted into the case in Noble’s place. The written judgment was issued August 3, 2011. Since the only party in the case seeking records was deceased the case was declared moot. After 7 years, Noble’s request fizzled away quietly, without resolution. The case died with him.

The OIPC inquires again

On May 10, 2011, the OIPC reopened the second inquiry into Tromp’s document requests. The submission period runs until June 7, after which an OIPC adjudicator will consider all of the submissions and issue a ruling. With the leading precedent being the BC Supreme Court ruling in favour of SFU, it appears likely that the original ruling will be reversed and UBC will be allowed to keep the corporate veil intact. Holding a second inquiry expecting to reach the same conclusion as before would be nonsensical.

No matter who ends up winning this inquiry an appeal to the BC Supreme Court, like the Noble/SFU matter before, seems likely. After that it may go to the BC Court of Appeals. It could easily be a few years before any sort of definitive resolution is reached, assuming the Supreme Court of Canada doesn’t also feel the need to weigh in.

Should the courts rule that UBC’s subsidiaries are subject to the same FOI requirements as their parent universities, they’ll have to start fulfilling a backlog of FOI requests, many of which are already a number of years old. Most likely, a lot of new requests would be made.

It will be an important saga to watch. A decision in favour of UBC would seal the records of UBC’s corporate subsidiaries forever, or until a theoretical future revision of BC’s privacy laws. It would also prop open a significant loophole in universities’ disclosure requirements. Any records that the university doesn’t need to access directly could be shielded from the public if a university-controlled company happened to create and hold those records. While none of UBC’s current subsidiaries were created with the express purpose of shielding records, consider a scenario in which the university decides to convert an ancillary such as UBC Student Housing and Hospitality Services into a private company. All of its records would automatically become off-limits from the public. Even though privatization likely wouldn’t significantly alter the way SHHS is structured or how it operates, SHHS records that used to be available via FOI would no longer be available. A judge may find that to be correct, but is it really reasonable?

Alternatively you can work for BP with your BComm. We assume their public relations is hiring.

You also may have noticed Campus and Community Planning is all atwitter. The fingers behind the tweets is Tracy Bains, a new hire, and recent supervisor of electronic communications at Best Buy.

These are just two of what are rumoured to be many Best Buy alum in our ranks, thanks to Pierre’s shake up. Fortunately, though, and we assume this is exclusively because of the changes (we’d make poor conspiracy theorists otherwise,) a UBC BComm will now prepare you to even work at Best Buy, according to their 2011 recruitment package.

Update, August 26, 6:00pm PST:

We’ve found more. A lot more.

Dennis Silva, UBC’s Director of Supply Management, was the Senior Manager of Project Resources at Best Buy last year.

Michael Shakespeare, UBC’s Managing Assistant Treasurer, was the Senior Manager of Best Buy’s Personal Financial Services last year.

Doug Gregg is a Project Management Consultant at UBC, coming from Accenture, and formerly from Best Buy.

Claudio Pini is the Director, IT Transformation & Project Management Office, at UBC, coming from, you guessed it, Accenture, where she/he was a senior manager.

Bing Lim is the Systems and Client Services Team Lead, coming from Best Buy.

Miranda Chu comes from Best Buy and Accenture, and is UBC’s Network Team Lead, starting this year.

In total, that makes it two directors, one CIO, one managing assistant treasurer, two team leads and one “internal consultant”, among others we found. While it’s an obvious business practice to hire those you know will do a good job, when it comes to public institutions, equal opportunity hiring procedures must be held paramount.

More on this as more is discovered.

(a) revise UBC’s traffic and parking regime so that it interlocks with the new legislative framework;
(b) update and streamline the existing traffic and parking rules, which have been overtaken in many instances by changing technology, management practices and by the evolving character of the Point Grey campus;
(c) establish a uniform traffic and parking system for UBC and UBC Okanagan; and
(d) add flexibility in order to meet future changes

Someone who regularly drives to and parks a car on campus might now be interested to hear what changes are in store for them. In response, UBC would like you to stop paying attention, because this process is not a big deal and should be entirely uncontroversial because it’s simply formalizing current practice.

It is unlikely that the users of parking services at either UBC Okanagan or UBC Vancouver will even realize that the Proposed Rules have been adopted unless they take the time to read and compare them with the existing rules.

In fairness, that’s largely accurate: the new parking regulations are indeed mostly a restatement, in better legalese, of UBC Parking’s current parking regulations.

That’s the problem.

The basis for re-enacting the current policy appears to be a logical fallacy that goes something like: current practice is best practice, because it is current practice. [Or in broader terms, UBC knows best, because it is UBC.]

The class action lawsuit UBC faced over the legality of their parking practices might suggest otherwise, and the university would be well-advised to give a little more consideration to where they might be if the province had not stepped in with retroactive legislation designed to legitimize the parking rules.

Some things that could warrant further reflection include:

* If you pay the posted rate for parking, but the posted rate is incorrect, you are considered to be in the wrong for paying the incorrect amount. [Sec. 11]

* Questionable wording in which a Traffic Notice is issued for “an alleged contravention of the Rules,” but then goes on to state that in regards to the Traffic Notice “the endorsement by the Compliance Officer [... is] proof of the facts stated therein.” My non-lawyer interpretation is that the issuance of a Traffic Notice both alleges and simultaneously proves the infraction happened. [Sec. 20]

* Immobilizing and/or towing cars, even if they are legally parked at the time, for having 3 or more outstanding tickets [Sec 21. (b)]

* Withholding academic services to students as a result of outstanding parking fees. [Policy 67]

* When a parking ticket is appealed, the “Hearing Officer” who is tasked with resolving disputes is an employee of UBC Parking.

The last bullet is particularly unfortunate, as it undermines the legitimacy of the entire set of regulations. Despite best efforts to downplay this by including a clause stating the hearing officer “must faithfully, honestly and impartially perform his or her duties,” having such a person employed by, and reporting to, one of the sides in the dispute is an inarguable Conflict of Interest. By making the rules, enforcing the rules, and deciding on the rules, UBC gets to play judge, jury and tow truck driver.

This is a perfect example of why a lot of people are worried, legitimately, about the new governance regime coming about as a result of the Metro Van divorce. The checks and balances supposedly in UBC’s system are set up in such a way as to be bureaucratic, rather than objective. If the Board doesn’t send these rules back for more careful reflection on this front, it will represent a sort of self-fulfilling prophecy.

Hubert Lai, University Counsel (ie. UBC’s lawyer), gave an interview about Policy 116: Commercial Agreements Initiated by External Affairs and the Freedom of Information and Protection of Privacy Act, where he explained what the policy was and why it was repealed. Most of all, he repeatedly played down the importance of the repealing of this policy, saying it was obsolete and should have been taken off the books years ago.

The policy was enacted when freedom of information laws were first being applied to universities. It covered how the university dealt with third-party companies that were not subject to these freedom of information laws who, by doing business with UBC, might be compelled to release information they might otherwise consider confidential. Policy 116 laid out the fact that:

1) The third party was allowed to hand-pick which information UBC should black out from the document in the event of an FOI request; and

2) If the appropriateness of blacking out those sections was challenged at the level of the privacy commissioner or via judicial review, the third party would have to pay all the costs associated with those challenges.

According to Hubert Lai (who, as a side note, recommends the Nitobe Garden as a good place to kiss on campus), times have changed…

…the kind of language that we would put in a contract and the kind of expectations the parties could have, back in 1995, they were fully supported by the [privacy] commissioner’s office. Since that time, the commissioner’s office has had that decision judicially reviewed and it’s been overturned and so the approach is very different on that as well. So the information that was contained in Policy 116 was no longer correct once that decision had been made.

The agreements this policy was meant to address weren’t run of the mill contracts. This was at a time when UBC had an affinity for exclusivity contracts, of which there were three majors. One was for telecommunications with Telus. Another was for travel with Canadian Airlines (it didn’t last long). The third was the infamous deal with the AMS and Coca-Cola.

What information was contained in the Coca-Cola deal that was considered confidential? Well, everything. Only 3 of 179 pages were released as a result of the original FOI request by Ubyssey reporter Stanley Tromp, and the university supported the ongoing censorship until a years-long judicial review forced the release of the details. In a way, Policy 116 was UBC’s way of enacting an interpretation of FOI laws in a way that benefitted them, until it was overturned in the courts; a loose evaluation of the situation might even be to say that Policy 116 needed to be retired because it was outside the law.

As a general strategy, trying to establish an interpretation of FOI laws that swings in their favour is something UBC was still trying to do last year when they appealed the Privacy Commissioner’s ruling opening up Properties Trust. In that case, the Petition of Appeal UBC filed did not even bother arguing the merits of the case, trying instead to get it thrown out on procedural grounds. That case is currently back with the Privacy Commissioner, on hold indefinitely.

Getting back to the topic at hand, for a narrower view of the type of info Coca-Cola wanted kept confidential, Hubert Lai explains:

Coke at the time said to both the AMS and the university – because it was a three-way agreement you have to remember between UBC, the AMS and Coke. They said “look, we’re prepared to share pricing information with you. There’s two sets of pricing information we’re prepared to share with you. One is the information that we can share with you if we know it’s going to remain confidential because if it was disclosed it would put us at a competitive disadvantage. If you can’t do that, and we recognize you may have some problems, then we can give you a different set of pricing information which will be higher prices, but if that’s the cost of transparency then that’s a decision the AMS and the university can make.” Thus ensued quite a discussion and both the AMS and the university ultimately decided that it made sense to go with the lower pricing information.

No one reading this blog should idealistic or naive enough to believe UBC wouldn’t put a price on transparency (and if you are, re-read the quote above again). However, to hear that the value UBC and the AMS placed on transparency was lower than the value of getting a marginally better price on soft drinks? Even for jaded cynics that’s detestable.

Although UBC will say they’ve gotten out of the business of exclusivity contracts, their relationship with Coca-Cola never ended. A new “non-exclusive product supplier agreement” between Coca-Cola, UBC Athetics and UBC Food Services was ratified by BoG at their April 2010 meeting, worth $6.665M over 10 years. (How nice of Coca-Cola to also give UBC a meaningless sustainability award shortly before it was approved.)

Now, with proposed changes to BC’s liquor laws set to “permit financial relationships between liquor manufacturers and licensees” a similar agreement with the likes of Molson might not be far off. (Fun Fact: there’s a plaque just inside the SRC identifying Labatt as a major donor to the project.)

While the university may not technically consider these to be exclusivity deals, they’re close. At the very least UBC has not been shy about doing deals designed to limit competition on campus. The contracts it has with businesses in the aptly-named Strangway building on U-Blvd: Royal Bank, Shopper’s and Mahony’s have clauses preventing any other banks, pharmacies, or liquor-primary licenced bars, respectively, from operating anywhere in the U-Blvd neighbourhood. The last one has caused some headaches for the AMS in severely limiting what can be done with regard to The Pit and The Gallery in the NEW SUB. Although it’s clear UBC is being a total sellout to make a quick buck with these agreements, progression in privacy laws means that this time, at least we know about it.

During the meeting we were discussing the (then-upcoming) CUS fee referendum when BSul mentioned something about an athletics fee at UVic having been recently turned down. It was a throwaway line, really, but my ears perked up due to my fanatical interest in athletics fees. As I looked into the details surrounding the proposed UVic athletics fee I realized something: UBC already did what UVic had proposed and had gotten away with it, successfully avoiding ministry intervention. And not only that, UBC will probably get away with it again in the future too.

The story at UVic goes something like this: there are two main athletics facilities on campus. The first one, the McKinnon Building, is old. The second one, the Ian Stewart Building, is in good shape, but inconveniently located. UVic hatches a plan to renew the McKinnon Building through renovation and addition, and upon completion, would repurpose the Ian Stewart Building.

In order to upgrade McKinnon, they need money, and they’d like some of that to come from students. It is proposed that the mandatory Athletics fee (currently at ~$73 per term) be raised by an extra $55 per term to help pay for the new athletics facilities. In October 2009, UVic held a student “consultative ballot” to gauge the interest in such a fee and the result was that 53% of students voted in support of the fee, with a voter turnout of approximately 20%.

Despite the “consultative ballot” this fee was to be put in place directly by UVic’s board of governors. Unlike at UBC where the AMS represents all students, at UVic there are separate students societies for grad students and for undergrads. UVic’s Graduate Students’ Society (GSS) represents the former, while the University of Victoria Students’ Society (UVSS) represents the latter.

Even before the plebiscite took place, members of UVic’s GSS campaigned against the fee increase on the basis that it violated the province’s tuition policy limiting mandatory fee increases to inflation. They took an activist route, being vocal in the media, and going directly to the university administration (lame response from UVic here) and the Ministry of Advanced Education with their concerns. It was a campaign of slow escalation, keeping constant contact with the appropriate parties through response and reminder letters. It reached the point that one of the final steps involved threatening UVic with judicial review of the fee.

On the other hand, the UVSS appears to have taken a hands-off approach. On his blog “Eye on The UVSS”, writer David Foster outlines his disappointment with the UVSS for not taking any noticeable action in fighting the fee increase in spite of their CFS leanings on tuition. Even the little amount of postering they did came as a result of pestering by the GSS (who is not a member of the CFS).

Finally, on February 15 of this year, the Ministry of Advanced Education rejected the proposed fee saying it did not conform with the ministry’s guidelines on tuition increases, precisely the point the GSS had been arguing. The letter was addressed to the chair of UVic’s GSS, in response to a letter they had sent the ministry back in October 2009. A notable omission in the list of people cc’ed on the letter: the UVSS.

So what’s the point of talking about all this stuff going on across the straight?

When UBC-O joined the UBC family back in 2005, UBC’s Board of Governors laid out their plan to make the mandatory athletics fee at both campuses equal. At the time, UBC-O’s fee ($66.00) was much lower than UBC-V’s fee ($172.53). The plan was to increase UBC-O’s fee by ~$30 each year for four years, at which time parity would be achieved.

Of course, things don’t always go according to plan. Notwithstanding the fact that UBC-V’s already-too-high mandatory fee was a preposterous target to be aiming for, as soon as the UBC-O fee hit $125 in 07-08, the following year’s increase was limited to 2%. The reason given was that while parity of the fees was still the long term plan, the large increases were going to be postponed until UBC-O facilities were more comparable to those at UBC-V; they don’t have a pool at Okanagan, among other things. According to the December 2009 Board agenda they are still exploring options for these facility upgrades.

The point of all this: if the proposed athletics fee increase at UVic is not within AvEd’s guidelines, it’s clear that the increases seen at UBC-O were not either. UBC violated AvEd’s tuition policy and got away with it. Not only that, they plan to do it again at some point in the future. And when they do, I’ll bet the increases will once again go through without any problems.

So why didn’t the ministry also rule against the fee increases at UBC-O? My guess (and this is just a guess): because no one asked them to.

In UVic’s case, it took the ministry four months to respond to the initial letter sent by UVic’s GSS. That’s an excessive amount of time to issue a decision that should have been pretty much clear cut based on current policy. However, it’s a decision that probably wouldn’t have been rendered at all without the GSS’s advocacy on this issue. While the GSS did apply sustained pressure on this issue, it was something as obvious as sending the Ministry a letter which ensured the issue was on the ministry’s radar and forced AvEd to issue a response.

In a moment of candor after the ministry reached its decision, a UVic communications officer was quoted as saying: “We’ve known all along that the current policy doesn’t allow an increase to existing fees.” That knowledge did not stop them from trying.

One suspects that if the UVSS was the only student union at UVic, with no meaningful opposition to the plan, AvEd could have just stayed silent and UVic probably would have been able to move ahead with the fee. I suspect this is what happened at UBC-O. (I’m sure there’s a digression possible here about how, for all their rhetoric on fees, CFS-member student unions fail their constituents at actually getting anything accomplished on that front, but let’s not go into that.)

What probably happened was that no one at UBC-O stood up to oppose the fee increases, and so AvEd either didn’t notice or didn’t care. And whenever UBC decides to resume the greater-than-inflation Athletic Fee increases at UBC-O, it will probably happen the same way. It might be that no one notices. It might be that no one cares. It might be that no one wants to take action. Or it might be that no one has a clue about how to go about proper advocacy. As long as any one of those things happens at UBC-O when the day comes, the university shouldn’t have any problem pushing it through.

There’s probably no particular take home message from this except as an instructive example of how and how not to undertake proper advocacy on behalf of students and the real differences it can make. Painfully obvious but still true: complacency doesn’t get results.

If someone at UBC-O cares enough about the athletics fee issue to take it on, they would be strongly encouraged to do so. The experiences of UVic’s GSS has even generated a road map on how to prevent future increases. Not only that, reversing past increases and recovering the fees is a possibility. Anyone want to stand up?

1. The rhetoric behind accreditation grew stronger with time. At first it was not being mentioned, then there were short references, now there’s direct citations from documents no one’s seen.

2. Fun accounting tricks took place. The development was “phased” and then a lot of the project was shifted into Phase 1 slowly in what is most likely an attempt to maximize funds from the first CUS referendum. This includes things that didn’t need to be there, like A/V.

3. Phase 2, in a sense, has to happen. If only Phase 1 occurs, its costs go up because building code and seismic improvements are in Phase 2. When you’re tearing down walls to upgrade to code, you may as well save money and make those walls pretty. It would be really stupid to not do Phase 2.

The fact that ‘phasing’ is irrelevant if you have to do both is beside the point. What’s important to note from the history is that there is this financial model that was created by the administration, and they’re relying on the inflexibility they built in to get a desired outcome. It’s like arguing “we shouldn’t stop the train, because I deliberately broke the breaks.”

This piece goes into the nature of tuition and student fee accounting, what’s wrong with this question, and the bad precedents it is setting.

Student Fees Are Not Tuition; This Is

Tuition is a highly politicized issue in Canada. The reason for this is that optically, it’s a big lever on determining who can and cannot attend university. Canadians widely believe that the basis of admissions should be based on merit, and political parties differ on how to make it as such. To achieve a more meritocratic university, and simply because there’s so much public investment, government keeps a firm grasp on the lever.

The upcoming CUS fee is best accounted for as a tuition increase. Historically, the only financial onus on the student body is tuition, which goes towards recurring costs like salaries. Buildings are typically constructed from some combination of government grants (provincial and federal), UBC investment (endowment funding and donation-matching), and private investment (individuals and corporations). Students have never contributed. This is deliberate, as students contribute their share through tuition, and it’s the job of government and the University to come up with the finances for buildings. The government is clear with this.

Student societies, such as the AMS, exist to represent and service the student body in ways the University cannot. Needing some way to finance their operations, the law states they can levy fees off the student body via referendum. AMS fees fund services like the Advocacy Office, pay for renovations to the Student Union Building, and fund the salary of the AMS executive.

The original post should be read in its entirety, but if you’re too lazy the synopsis is that in July 2009, UBC Athletics put an application forward to amend the liquor licence at T-Bird Arena. (Apologies to Doug Mitchell; T-Bird Arena is much simpler to write than DMTWSC.) At the time, campus RCMP had serious objections to the proposal based on a series of major infractions at previous licenced (and non-licenced) events at the arena and things were not looking good for Athletics.

In the fall, the Liquor Control and Licencing Board (LCLB) issued their decision on Athletics’s application and it didn’t work out very well. In short: Yes, the Killers killed the liquor at Thunderbird Arena.

Ultimately, the licence modification was granted. However, it wasn’t without some fairly major strings attached.

It is very unusual for an establishment to have such serious and repeated issues with liquor at events over a very short time frame. It is also very rare for local government and enforcement authorities to have such concerns with liquor management. I take these issues seriously…

-Cheryl Caldwell, LCLB

As a result of the negative feedback received from public consultation about the licence application, UBC Athletics must develop a new set of event management practices to avoid any repeats of the incidents that happened last summer. More damaging, however, is the fact that they are not allowed to use the licence for concerts.

UBC Athletics downplays the importance of this restriction; they are not directly invested in holding licenced concerts. However, they are quite invested in earning revenue from renting out the arena as a concert venue, and having a valid liquor licence seems like it would be a pre-requisite for most concert promoters. Concerts, and the fulfilment of the contract with VANOC, seem to be the only reasons that would make pursuing these changes worthwhile. Apparently the Olympics has made other arrangements; presumably the province was quite happy to pull strings in that case. Given the restriction on concerts, the results of the licence modification have much lower utility.

In terms of the changes that did go through, hours were extended by two hours in the morning to start at 9 am Mon-Sat. A patio was added. Capacity was increased 22-fold (from 385 to 8,772). Previously it was licenced as a recreational centre and the licence was used for the Thunderbar, which was a permanent bar; the new licence has it classified as a stadium, with liquor service only permitted in the time-frame around events.

Yes, this means that the Thunderbar is not being ressurrected anytime soon. Sorry, rec hockey players. The fraternities across the street also missed out: another part of the licence application was to allow for off-sales from the arena but this was denied.

While still accepting the validity of the consultation process, the LCLB expressed some concern over incomplete information being provided in parts of the consultation. This was flagged particularly because the application was for the modification of an existing licence, rather than for an entirely new licence and the consultation for the latter is more involved than for the former. However, given the scope of the proposed changes (huge capacity increase, fundamental change in the licence classification) it’s noted that the the previous licence holds little relation to the one being proposed and is basically a new licence application.

The LCLB concludes that once the new event management plan is developed, Athletics can apply again for another modification to allow them to hold licenced concerts. They would have to do the consultation process all over again, and can’t apply again until May 2010. No word on whether or not this will be done at that time. All in all, given that the new licence can be used essentially only for sporting events, it doesn’t put Athletics in any better position than they were in before this process began.

Finally, it must be noted that the LCLB is not always a rational creature, such as last summer when it was discovered that their regulations made it illegal to sell a true pint of beer. It probably shouldn’t come as a surprise then to learn that the letter from the LCLB about T-Bird Arena does have some confusing elements.

It all revolves around the “no concerts” prohibition. T-Bird Arena is allowed to hold “live events” under their licence.

…it is important to note that liquor service at an event-driven licence is restricted to live events only. An event is a “live event” only if the primary presentation occurs through individuals who are physically presenting or performing the event, such as a sporting event or public rally led by a person on stage… Liquor Licensing Policy 7.7 provides more information about live events.

-Cheryl Caldwell, LCLB

When you look up “live events” for event-driven licence, it helpfully tells you this:

Common types of live events are presentations by an individual performer, a band… Live events which are more typically presented at a stadium include sporting events, various types of live band… (emphasis added)

-Liquor Licencing Policy 7.7

The definition of live events includes concerts. But it’s never made clear what a “concert” is, exactly. It’s never defined either in the liquor policy or in the letter. It could get tricky. What if a band is performing only for 15 min as part of a larger ceremony – is that a concert? This is still awaiting clarification.

If you like blogs that are continuous, you will also like VFM that is continuous. Vote for content.

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One problem: the Board never met in October..

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From BoG website.

The creation of Policy 92 has brought to light a virtually unknown practice of the Board of Governors: e-mail voting using implicit consent. This is the method by which Policy 92 was passed while the Board had no scheduled meetings.

“When a motion is passed by consent that means nobody opposed, including the students, to not pass that,” explained Bijan Ahmadian, student Board rep. “What happens is that Reny [Kahlon, Board Secretary] sends out the e-mail and says ‘This is a consent item, does anybody want to call a meeting on this?’” If there are no responses received by a set deadline, it is considered to be passed.

The practice raises a number of concerns.

There is a distinct lack of transparency with e-mail voting. Business conducted outside of meetings via e-mail does not get recorded in agendas or minutes of the board. The Board Secretary confirmed that at the same time as the Board was created Policy 92, it also repealed Policy 116: Commercial Agreements Initiated by External Affairs and the Freedom of Information and Protection of Privacy Act. Without a word, the policy simply disappeared from UBC’s list of policies (but thankfully not from the internet archive sites).

It’s only a lucky side effect that the creation of Policy 92 resulted in a document that is posted publicly, including its approval date. Otherwise, this may not have come to light as easily. Many decisions made by the Board, if made by e-mail, would be rendered effectively invisible. It raises questions about the existence of other decisions made outside of regularly scheduled meetings and for which there exists no public record. Although it was mentioned that e-mail voting occurs irregularly, only board members can say for certain how often it occurs, and what items get dealt with in this way.

Secondly, it appears unlikely the Board even has the authority to approve things in this manner. When the Board Secretary was contacted about the legitimacy of e-mail approval, the following information was cited:

University Act, section 26(1): The Chair has the same right to vote as the other members of the Board. In the case of a tie vote on a motion, the motion is defeated, and the Chair must so declare.

A resolution in writing, signed by all of the Governors who would be entitled to vote on that resolution at a meeting of the Board, is as valid as if it had been passed at a meeting of the Board.

It would be an interesting question to consider whether implicit approval to an e-mail is equivalent to “a resolution in writing, signed by all of the Governors.” However, it’s a moot point because the information quoted above is incorrect. The second paragraph is not actually contained in the University Act! Everything in the Act suggests that the board must actually meet to conduct business.

There may be one argument made under section 27(2)(a) of the Act, which says the board has the power “to make rules for the meetings of the board and its transactions”. The Board’s procedures page says that “Additional meetings may be scheduled for urgent matters only,” but makes no mention of the practice of e-mail voting.

One last issue is that the reason e-mail voting was used is because they were considered “consent items.” Consent items occur when the decision has been made by another body (e.g. Senate) and the Board’s role is to rubber-stamp it. University policies are not consent items. The Board is the only source of approval to create or repeal these policies.

The practice is secretive, and more than likely not legitimate. The Board should be made to explain why these policy decisions were not made openly, and why records are not generated for these decisions.

The implications of each policy decision also have questionable motives behind them. Check back later for more details.

Please give us your support in the continuous VFM competition. It helps keep us motivated to continue digging up stories and bringing you exclusive, original reporting.

Indeed, while J-50 received widespread support from Senate, there were some concerns with it. As an example, even if the curriculum of another Canadian province results in those students being over- or under-represented at UBC, Senate may not be able to actually address it. Sonia Purewal, who sat on the working group said “Until data is available on all provinces, there is still going to be differential treatment for a subset of students as some students will not get any grade adjustment whereas others will… Despite this, we can’t ignore information that warrants attention. We have to begin the process to create a fair admissions practice.”

Senator and debater extraordinaire Joshua Sealy-Harrington also raised the point that if there was an international jurisdiction where grades had to be adjusted downwards, it may work against the university’s diversity goals.

Downward adjustments in general are something that makes everyone nervous. The rational argument goes that to achieve fairness you have to be willing to do both upward and downward adjustments. The obvious problem that gets in the way is that the optics of lowering students’ grades is horrible. Regardless of how justified it may be, the politics will always get in the way.

To see an example of this, you don’t need to look far. The Senate working group that was working on J-50 was also examining a much hotter issue: adjusting grades of incoming BC students based on which high school they come from.

When the provincial government made standardized test in BC optional, it caused headaches for admissions personnel, as the putative “normalizing effect” of standardized testing on grades would be eliminated. Whether that occurs or not is still to be seen (the first cohort of students with optional provincial testing are the current first years), but the working group still decided to gather some benchmark data.

What they found was “even in the presence of provincial examinations, there is a significant and persistent difference between some schools with respect to the degree to which grades presented for admission predict performance at UBC.”

The report continued, revealing “large differences across a significant proportion of secondary schools relative to overall norms, with quite a few schools differing from each other by 10 percentage points or more. For example, a student from School A might be predicted to obtain a first‐year sessional average 10 percentage points higher than a student from School B with the same admission average and entering the same UBC program.”

At the December Senate meeting, Senate Admissions Committee chair Dr. David Fielding summarized the options available for the data and the committee’s thoughts on each:

1. Do Nothing – Indefensible given the work that went into it and the results that arose.

2. Use it to correct all the grades of incoming BC students – A huge amount of work
3. Share information with any faculty undertaking Broad-Based Admissions – Simple, and targets the students most affected by this, those near the cutoff.

These are the public reasons. There’s more to it, of course. A lot more.

One big question was around whether to release the data publicly. Wary of how the public would receive it, this was decided against. This is reasonable, given that the public and/or media interpretation would be as a de facto ranking of BC high schools. As a student choosing a high school, it could serve as a big incentive to choose one over another. Simply by attending a certain one gives you a leg up in admissions.

Despite the working group consulting with pretty much everyone under the sun that might have an interest, Provost David Farrar has asked for more consultations with other universities on this proposal. Interestingly, none of the institutions notable enough to be listed for consultation are in BC; none of them is currently dealing with the elimination of standardized testing. J-50 was never subject to this type of consultation with other universities even though what it addressed was far more universal.

Reading between the lines, the extra consultation is a way to quietly shut down this proposal due to its political nature. The working group seems to have made a lot of progress, and it appears that doing grade adjustments for all BC students (Option #2 above) would certainly be feasible if the political will were present. Whether it is appropriate to do so is probably best left up to individual opinion.

Having been de-fanged, the committee got behind option #3, sharing information with the Broad-Based Admissions (BBA) process. Even this is not a slam dunk. Lowering grades, even in internal situations, is still too touchy. Instead of sharing the whole data, what is being done is generating a list of “plus” schools. A “plus” school is one where students would receive a large upward adjustment to their high school marks, and the students are therefore underrepresented at UBC. BBA committees will be able to see the list of “plus” schools but will not receive any information about any of the other high schools.

If you have not yet read the Macleans article detailing pay-for-credit high schools in BC, please take some time to do so. This was referenced a few times during December’s Senate meeting, especially given that the whistle blower was at University Hill HS, (almost literally) in UBC’s backyard.

While the Macleans article is obviously meant to cause controversy, I don’t think there is anyone who would deny the existence of pay-for-credit scheme, nor say that UBC should not be concerned about it. The practice of listing “plus” schools sidesteps this issue, as well identifying schools that may be more reputable but happen to have inflated grading standards. The university could benefit to be a little bolder. Fairness isn’t always nice. If UBC truly wishes to work towards fairness and seek out the best and brightest, it necessarily means denying admissions to those to whom that doesn’t apply.

In practice, all this policy does in the near term is add 2% to the entrance average of anyone coming from Alberta. However, the policy is written broadly that it would allow the Senate Admissions Committee to introduce these types of adjustments for any jurisdiction outside of BC/Yukon at any point in the future. Which, in reality, is only formalizing certain admissions practices that have been happening out of necessity for a long time.

This policy was originally brought to Senate at its November meeting pertaining only to students from Alberta, but was withdrawn to be re-written in a more general way to include everywhere outside of BC, and to better conform with a new way of writing Senate policies. (At the previous meeting in October, Senate, under the guidance of Science Associate Dean Paul Harrison, passed a new way of writing its own policies.)

So what is so special about Albertan students (besides the fact that the Senate vice-chair is one) that make them worthy of an extra little bump in their entrance average? First and foremost, the way their curriculum is structured is different than BC’s. In a nutshell, the committee that developed the policy outlined the motivation:

Comparison of Alberta and BC secondary school grading scales shows that a letter grade of ‘A’ is achieved in Alberta secondary schools at 80%, whereas in BC, an ‘A’ is achieved at 86%. The working group’s analysis of grade distribution, obtained via the BC Ministry of Education and the Government of Alberta Education websites, shows that roughly the same proportion of graduates fall within the ‘A’ band in both educational jurisdictions. For example, in 2003, 27.6% of Alberta students who took Math 30 (senior year mathematics) achieved an ‘A’ in the course (final grade between 80% and 100%); in BC, 27.1% of students in Principles of Math 12 achieved an ‘A’ (final grade between 86% and 100%). While approximately the same percentage of students achieve a letter grade of ‘A’ in Math in Alberta as in BC, Alberta students will present lower percentage grades in the course. Such similarities are also observed among other senior year courses presented by Alberta and BC students for admission to UBC. The working group’s findings indicated that by failing to consider the details of the indigenous grading scale, the University may be losing a number of strong applicants from Alberta.

Full Document: Report on Review of Admission Policies

While it’s one thing to recognize that the curriculum differences exist and that it may be causing inequity in the admissions process, how best to institute a solution is another matter altogether. The committee gathered data from Alberta students and compared entrance averages to sessional averages after their first year at UBC. It was found that on average, Alberta students perform about as well in university as BC students whose entrance average is 1.5-2.0% higher than the Alberta students’. For better or worse, the analysis was done using high school average as a predictor of success at UBC.

Which brings us to the second special thing about Albertans: there are many of them at UBC. This type of analysis is only possible if there is a sample size large enough to make it meaningful. It’s likely that discrepancies also exist between other Canadian provincial high school curricula and that of BC, but it may not be possible to determine what kind of correction is necessary to bring more fairness to the admissions process if there are not enough students to examine. “The new policy is designed such that when we have such information and sufficient data for a given jurisdiction, this policy can be applied,” said Sonia Purewal, at-large student senator who sat on this particular working group. Senate tends to be a fairly cautious body, and likes to be fairly certain about what they are doing. Senator and math professor Richard Anstee, who chaired the working group, spoke at length about the extent and validity of the statistical analysis Senate undertook while formulating this policy. He remarked that not only did it remain fairly consistent over a number of years, it did not change much as the students progressed to their second, third and fourth years at UBC.

One of the things student senators hammered on during the meeting was wording around “educational jurisdiction.” Their chief concern was how this related to the potential consideration of individual schools as educational jurisdictions. The wording remained unchanged in the end, partly for bureaucratic reasons, and partly because nobody had any better way of wording things (protip: if you want to take issue with the way something is worded, make sure you have some sort of alternative to propose in its place). However, it did lead to some interesting discussion, especially around the issue of international admissions.

While the only substantive change in passing J-50 is its effect on Alberta students, the policy is already a big part of the foundation of international admissions and always has been out of necessity. Although no one can cite any previous Senate policy allowing adjustments to admissions averages for international students, simply the number of grading systems out there makes it a necessity. If you have an international student coming in with a transcript reading full of As and Bs, another student coming with percentages out of 100, and another boasting GPA figures, how can you most fairly evaluate these applicants? It’s less an adjustment issue in this case as it is one of translation. The policy allows for this, saying that in the absence of enough data to do a rigourous statistical analysis, grades can be adjusted (ie. translated) on a case-by-case basis by Undergraduate Admissions Office.

Policies like this one will only affect prospective students near the cutoff average; students with outstanding transcripts, regardless of where they come from, should not feel the effects of these various adjustments. Adjustments like those in J-50, along with the increasing use of broad-based admissions (using more criteria than simply grades to assess applicants), while developed with the noble goal of fair admissions in mind, are also making the process more time-consuming and opaque–two features which grade 12 students will not find desirable.