The BC Labour Relations Board (LRB) has dismissed an application by Squamish's Quest University Faculty Union, which argued that Capilano University was effectively their new employer.
If the board had decided in the union's favour, agreeing there was a successorship by Capilano University when it bought the Quest University campus and lands last year, this would mean CapU would, as the new employer, effectively step “into the shoes of the old employer," according to the LRB website definition of successorship.
"For example, the new employer will be bound by the union's certification, the collective agreement, and any other proceedings under the [Labour Relations] Code."
Background
What does this LRB decision made on July 10, 2024 mean?
To understand the decision, let's back up for some history.
Quest University Canada, a private, not-for-profit university, opened in 2007 and operated in the Garibaldi Highlands in Squamish, offering a bachelor of arts and sciences degree until the spring of 2023.
In 2019, the union was certified to represent the bargaining unit of faculty employed by Quest University, though it never completed a first collective agreement, due to the school's financial issues, according to the LRB decision penned by the tribunal's vice-chair Rene-John Nicolas.
In December 2020, Primacorp Ventures bought the campus and land, bringing Quest University out of court protection from creditors.
The LRB decision notes that CapU objected to this deal and wanted to make an offer to Quest "in partnership with another party," but this was denied.
Quest University was able to continue operating by becoming a tenant on the lands and campus owned by Primacorp.
Due to continued financial troubles, Quest ceased operations in the spring of 2023.
The LRB decision notes that in March of 2023, Andrews Development Management Corporation entered into an agreement to purchase the land and campus from Primacorpo.
Andrews then approached CapU with the opportunity to buy the Squamish campus.
In May, the provincial government said it would pony up $48 million for a Capilano campus.
Andrews assigned its agreement over to Capilano University.
On the same day, Capilano and Primacorp entered into a purchase agreement, excluding the Quest University lease.
"The purchase agreement specifically provided for a condition whereby Primacorp had to terminate the Quest lease ... because Capilano did not want to inherit any ongoing obligations to or relationship with Quest," reads the decision document.
The Quest lease was terminated on June 23, 2023.
The decision notes that the purchase was between Capilano and Primacorp, and Quest was not involved in the sale.
Capilano University is set to open its Squamish campus on the property in the fall of this year.
The document notes that CapU has hired two former Quest faculty members and one former non-union administration employee.
Union argument
The union argued that there is "discernible continuity" between Quest's business and Capilano's.
It said there were three factors that support its case that there has been a successorship from Quest University to CapU: the transfer of assets, the performance of similar work and the continuation of services to former students.
"The union says the fact that the sale was not directly between Quest and Capilano does not diminish the significance of the assets transferred to Capilano," reads the decision.
The union pointed to the long-standing agreement between Quest and Capilano University for students to transfer to the North Vancouver-based school.
Reasons for the decision
The Labour Relations Board, however, dismissed the application in Capilano's favour.
In the listed assessment, Nicolas notes that the university and the land and buildings were and are separate.
There's nothing suggesting that Primacorp was acting on Quest's behalf when it sold the campus to Capilano, Nicolas wrote.
"Rather, that was a deal done directly between Capilano and Primacrop, independent of Quest."
"I find that Quest was essentially defunct as of April 2023, when it suspended its academic programming. Whatever was left continued on with Quest.”
Nicolas also notes that Capilano has renovated the Squamish campus "to meet its own purpose."
"That purpose is the running of its own business, not the business previously operated by Quest."
Nicolas also makes note of Capilano University's efforts to "distance itself" from Quest.
"It is not disputed that Capilano attempted to distance itself from Quest given the negative publicity associated with Quest's financial decision. As such, I am not persuaded that Capilano was attempting to seize hold of anything to do with Quest's reputation, indeed, quite the opposite seems to be the case," Nicolas wrote.
“I am therefore not persuaded that the fact of goodwill supports finding a successorship.”
CapU didn't take on any of the trademarks, logos or its name.
Nicolas also said that CapU has a long-standing mandate to serve the Sea to Sky, previously having a school in Squamish on Carson Place that closed in 2015.
Capilano also considered purchasing waterfront property in the Oceanfront Squamish development, but that agreement lapsed in April of 2023 when the opportunity to buy the Quest lands arose.
Thus, the opening of the Squamish CapU campus this fall is a re-establishment of its business in town, not a takeover of Quest’s business, Nicolas said.
Further, Capilano had long ago agreed to be the holder of transcripts for Quest students, should the school fold, as it is for many other institutions, the decision notes.
And only a handful of former Quest students have transferred to CapU, and the number was consistent with when Quest was operating, Nicolas said.
“Since Quest’s suspension of its academic programming in April 2023, Capilano has accepted the transfer of five students from Quest,” the decision states, adding this is about the same number as previous years when Quest was operational.
"I am not persuaded that the business of Quest, in whole or in part, as a ‘going concern,’ has been transferred to and continued by Capilano," concluded Nicolas.
"Quest's business had largely lost its 'dynamic quality' as a business by April 2023 when it suspended its academic programming. There was nothing in substance that could be transferred to Capilano by that time."
